Frett v Frett

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand J.
• Judgment Date: 17 September 1986
• Neutral Citation: VG 1986 HC 5
• Docket Number: No. 77 of 1984
• Date: 17 September 1986

High Court

Bertrand, J.

No. 77 of 1984

Frett

and

Frett

Appearances:

Mr. Hewlett for the plaintiff.

Mr. Todman, Q.C. with Mr. Webster for the defendant.

Real property - Easement — Easement by implication and necessity — Plaintiff and defendant became separate registered proprietors of land which both had held previously in common — Defendant instructed a goods truck to use a track on plaintiff's land — Truck damaged plaintiff's fence — Issues were whether a 6 foot right of way recorded by the surveyor over the plaintiff's land actually existed and whether there was an implied grant to the defendant to use the right of way after 1977 –

Held: (1) right of way could not have been granted before 1977 since only the owner of the property can grant an easement, (ii) implied easement did not arise since the plaintiff continuously protested against the use of the track by the defendant, (iii) easement of necessity was not inapplicable since there was no necessity for the defendant to use the track, (iv) injunction granted restraining defendant from using track.

Bertrand J.

1 Christopher Frett died in 1935 possessed of a portion of land situate at East End, Tortola. There is no evidence as to who was entitled to the land at the date of his death, but it would appear that both the defendant and the plaintiff occupied the land from the 1950's. Christopher Frett himself did not live on the land during his lifetime. He had five children who survived him among whom are the plaintiff and the defendant. In 1972, they applied for the registration of the land in the name of the heirs of Christopher Frett, deceased, and it then became known as Parcel 87 and was registered in the Registration Section East End Block 3539B and contained approximately 0.35 acres — Exhibit C.9. In 1977, by Instrument No. 298 of 1977 dated the 31st August 1977, Joseph Watkins Frett and William Almond Frett became the registered proprietors of the said land held in common with an undivided half share each Exhibit C.9. It is noted that the registration is made as “proprietors in common with 2 shares each.” It should have read … undivided 2 share each. See Section 102 of the Registered Land Ordinance No. 8 of 1970. On the 2nd September of that same year, both the plaintiff and the defendant applied to partition the said land — Exhibit C.2, and on the 14th December 1977, they were each registered as owners of their respective shares and the said land became known as parcels 149 and 150 registered in the names of William Almond Frett and Joseph Watkin Frett respectively. Parcel 149 contains 0.15 acres — Exhibit C.7, and parcel 150 contains 0.31 acres — Exhibit C.6. There has been no explanation for the additional 0.11 acres.

2 The issue raised in this matter is whether a 6 ft. right of way marked thus on Plan No.CA-3539B-35-T dated 22nd June, 1977 — Exhibit C.1 is a right of way, a portion of which falls on parcel 149. The plaintiff claimed that up to the date of the application for partition, there never existed a right of way over parcel 87, and although the surveyor when preparing the said plan was instructed by him in the presence of the defendant that he should not reflect a right of way over his portion, the surveyor went on to do that. The defendant denied any such instructions. There is a road shown on Exhibit C.8, the Cadastral Survey plan, but no access to the shop as shown on Exhibit C.1. The latter exhibit is the plan dated 22nd June 1977, the Cadastral Survey plan is dated 12th December 1972. The plaintiff claimed that he has forbidden the defendant from using that portion of the road which fell on his land as shown on plan Exhibit C.1, but the defendant persists in doing so, and on one occasion during such use, the defendant damaged the plaintiff's fence on his land. He therefore claimed the defendant committed an act of trespass and that he the plaintiff suffered loss and damage. He is also claiming the cost of erecting a new fence and is seeking-

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A declaration that he is the owner with absolute and unencumbered title of Parcel 149 in Block 3539B in the East End Registration Section, Tortola in the British Virgin Islands; 2. The rectification of the Registry Map Sheet No. 3539BD of the East End Section to show that the said land is not subject to any easement; 3. An injunction restraining the defendant by himself or his servants, agents or otherwise from using the said road way and from passing to and from thereon whether by foot, vehicular traffic or otherwise and from damaging a fence which the plaintiff has on the said land; 4. Damages for trespass and such further and other relief and costs of the action.

3 The defendant claimed that there existed since the year 1935, a plainly visible road or right of way over Parcel No. 149 which said road or right of way is necessary for the reasonable enjoyment of the Parcel 150, and the said road or right of way has been used and enjoyed with Parcel Ho. 150. That he used the said road with peaceable open and uninterrupted enjoyment for a period of twenty years immediately before this action. He invoked the provisions of section 138 of the Registered Land Ordinance, 1970 — acquisition of easement by prescription as an alternative relief. He counterclaims for –

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A declaration that he is entitled to use the said road or right of way which runs across Parcel No. 149 of Block No. 3539B of the East End Registration Section as shown on Plan No. CA-3539B-35-T as a legal right under Sections 23, 28 and 138 of the Registered Land Ordinance 1970, appurtenant to Parcel No. 150; 2. An order that the Registrar of lands do note the said road or right of way on the register of the said Parcel No. 150 as the dominant tenement in respect thereof and on the register of the said Parcel No. 149 as the servant tenement in respect thereof; 3. An injunction to restrain the plaintiff by himself or his servants, agents or workmen or otherwise howsoever from obstructing free passage by foot or by vehicle over and along the said road or right of way so as to interfere with the reasonable enjoyment of the said Parcel No. 150 in manner in which the same was used and enjoyed prior to the date on which action was brought, that is to say, the 12th day of July, 1984. He is also asking for further and other relief and costs.

4 The plaintiff=s contention is that the right of way shown on plan — Exhibit C.1 was never a right of way, but a road which he the plaintiff made to carry his stuff from the main road to his home. A look at Exhibit C.1 shows that this road falls wholly on parcel 149, the plaintiff's portion up to the mark where it branches out to his home. At the time of the survey, he said it was a track, but not a right way for the benefit of the defendant. He contended he improved the track which the defendant is claiming. Before the improvement, the track was being used, at least since the 1950's, by everyone who wanted to go to the land or who were entitled to go unto the land. The defendant said since the survey, the surveyor made the track a right of way and he is therefore entitled to use it as his road. He concluded that the portion of land on which the road stands, that is, Parcel 149, belongs to him and the p1aintiff whereas Parcel 150 belongs to him alone. He further tries to strengthen his evidence by saying — “both my brother and I got land where track is”. The plaintiff denies emphatically that he agreed to the surveyor putting the road in dispute as a right of way on the plan.

5 It is not at all clear from the evidence that both the plaintiff and the defendant agreed that the road in dispute was to be a right of way or that the plaintiff gave the defendant the right to use that portion of the land or road in dispute.

6 There must be the clearest evidence of an intention of the parties that there should be reserved for the benefit of the defendant an easement or quasi-easement to be used enjoyed as of right. Aldridge v Wright (1929) C.A. 2; K.B. 117.

7 The defendant said in evidence he told the surveyor at the time of the partition what was a road and whatever he told the surveyor to do, he did. He said he told the surveyor the road was a right of way over the land and that is why the surveyor put the right of way on the plan. But the defendant also stated that he knew it was a right of way, because the plaintiff and himself told the surveyor to put the road in dispute as a right of way. The plaintiff's evidence, however, is a complete denial of this.

8 I do not believe the evidence of the defendant that the plaintiff approved of the surveyor putting the road/track as a right of way on the plan. The evidence of the defendant on that point is so confusing that it is not capable of truth.

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