Bulle v Gallagher et Al

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 20 May 1987
• Neutral Citation: VG 1987 HC 5
• Docket Number: Suit No. 38 of 1984
• Date: 20 May 1987

High Court

Judge (s): Bertrand, J.

Suit No. 38 of 1984

Bulle

and

Gallagher et al

Appearances:

Mr. McW Todman Q.C. with Mr. Webster for Plaintiff

Mr. Archibald Q.C. with Mrs. Creque for Defendants

Real property - Easement — Defendant engaged persons to build a bridge over the 10 ft. right of way — Appellant protested the action — The defendants were entitled to pass by foot only and could not cause a ramp or bridge to be built — Steps could only be built on the breach easement with the consent of the owner –Injunction granted preventing the construction of a ramp.

Bertrand, J.

1 The plaintiff's claim in his statement of claim is for:

1

A declaration that the first defendant is entitled to Pass and repass on foot only and not otherwise over and along the 10 foot right of way forming part of parcel No. 81 of Block No. 5345B of the Virgin Gorda Central Registration Section. That neither the first nor the second defendant is entitled to build or cause to be built any ramp, bridge or other erection over or along the said right of way. 2. An injunction retraining the defendants by themselves or their servants and agents or otherwise be restrained from building or causing to be built any ramp, bridge or other erection whatsoever over or along the said right of way. 3. Costs. 4. Further or other relief.

2 The plaintiff is joint owner with his wife of a parcel of land with a house thereon known as parcel No. 81 situate in Block No. 5345B of the Virgin Gorda Central Registration Section. The Plaintiff purchased the land only from one Leon Stackler by deed of Transfer No. 59/82 — Exhibit “C2”. The land measuring approximately 0.70 acres was transferred to the plaintiff “together with easements and rights set out in the First Schedule but except and reserving the matters easements and rights excepted or reserved by the Second Schedule hereto and subject to the covenants restrictions and stipulations set out in the Third and fourth Schedule.”

3 We are here concerned with the First and Second Schedule, and I set them below as follows:

• “the First Schedule herein before referred to (rights and easements granted to the transferees by this transfer).

• (a) The right in common with the transferor, other proprietors, and all other persons having a like right to pass and repass on foot or otherwise over and along the estate roads.

• (b) The right in common with the transferor and other proprietors to the use and enjoyment of the designated common facilities now or hereafter forming part of the said estate.”

• “The Second Schedule herein before referred to (rights and easements and other matters expected and reserved out of the transfer).

• (a) The right for any proprietor otherwise entitled to the use and enjoyment of the dinghy haul-out area to pass and repass on foot only over and along a roadway 10ft wide which runs from the estate road over the said parcel 53 to the said haul-out area.

• (b) /……………………….”

4 In Exhibit “C4” Deed No. 345/84 the Schedule of description of some of the rights or easements granted expected or reserved and covenants restrictions and stipulations to be observed and performed are:

“The transferees shall have the right in common with the transferor, other proprietors, and al other persons having a like right to pass and repass on foot or otherwise over along the estate roads……………..”

5 and to use and enjoy the beach easement by all proprietors and the transferor, a 10 foot right of way was granted over parcel 81.

6 The beach easement is a common facility, and the 10 foot right of way to it is the subject of the claim. The only mention of the use of rights of way in both Exhibit “C2” and “C4” are to be found in Clause (b) of the Second Schedule of Exhibit “C2” and in Clause (d) of the Schedule of Exhibit “C4” and they are expressly reserved for the creation, construction and maintenance of utilities such as gas, water, telephone etc. “But from Exhibit “C9” can be seen a clearly defined right of way 10 feet wide leading to the beach easement. And it has been agreed by both sides that this is so. In Exhibit “C2” the right was given to any proprietor entitled to the use and enjoyment of the dinghy haul-out area to pass and repass on foot only over a road way 10ft wide which runs form the estate road over Parcel 53 to the dinghy haul-out area.

7 The estate roads are to pass and repass on foot or otherwise. The dinghy haul-out and the beach easement are designated common facilities and both are served by roads 10 feet wide. The right of way therefore to the beach easement is a question of the construction of the grant and will of course depend on the circumstances surrounding, so to speak of the execution of the instrument, and one of these...