Gleeson and Gleeson v Bell and King (Trustees of the Bayview Trust) 1994 Civil Appeal No. 4
| Jurisdiction | Bermuda |
| Judgment Date | 07 December 1993 |
| Docket Number | Civil Jurisdiction 1993 No. 461 |
| Date | 07 December 1993 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Wade, J
Civil Jurisdiction 1993 No. 461
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Mr. Narinder Hargun for the Plaintiffs
Mr. Mark Pettingill for the Defendants
Cow v CaiseyELR [1949] 1 KB 474
European Asian Bank AG v Punjab & Sind Bank (No.2)WLR [1983] 1 WLR 642
Hopgood v BrownUNK [1955] 1 All ER 550
Savage v ForsterENR (1972) 9 Mod Rep 35
Lathan v Darrell & Hill 1985 Civil Appeal No. 13
Electric & General ContractCorp v Thompson-Houston Electric Co. 10 TLR 103
Home Insurance v Mentor InsuranceUNK [1989] 3 All ER 74
Rules of the Supreme Court, Order 14
Trustees application for injunction restraining trespass on trust property — Order 14 application for final judgment — Defendants seeking unconditional leave to defend — Prescription and prescriptive rights — Easement of necessity — Estoppel
Wade, J.
This is an application by the Plaintiffs, the trustees of the Bayview Trust, for final judgment under Rules of the Supreme Court Order 14 for an injunction restraining the Defendants from committing any form of trespass upon the Plaintiffs' property, damages for trespass by the Defendants, and costs.
The Defendants resist the application for summary judgment and seek unconditional leave to defend the action.
In September, 1992 Mr. Pachai. the father of 2 young boys created a trust for the boys' ultimate benefit. Later in September, 1992 the Trustees agreed to purchase from one Mr. Durieux (the vendor) a piece of property situated in St. David's (the trust property).
Before the trust property was purchased, Mr. Pachai observed that the eastern boundary of the trust property was very close to the neighbour, Mrs. Gleeson's driveway, her garage and down on the waterside on her dock. Mr. Pachai also observed Mrs. Gleeson reversing her motorcar into her driveway by using a portion of the trust property near to the main road on the eastern boundary. Mr. Pachai stated that because of his experience as a litigation attorney, he was concerned to avoid any difficulty with the neighbours concerning the eastern boundary. He raised this concern with the vendor who assured him that there was no problem with the boundary, although Mrs. Gleeson had always sought to purchase from him (Mr. Durieux) a portion of his property on the eastern boundary, to which his reply was that as a non-Bermudian he was unable to sell a piece of the property.
As the vendor was due to leave Bermuda after the sale, and as Mr. Pachai had no personal knowledge of the history of the respective property as it related to the eastern boundary, he (Mr. Pachai) continued to be concerned that the trust would find itself in considerable difficulty in being able to respond to any claim which Mrs. Gleeson chose to make in the vendor's absence.
Therefore, before contracts were completed, Mr. Pachai caused Mr. Malley, in Appleby, Spurling & Kempe's property department, to write a letter dated 16th September, 1992 to Mrs. Gleeson. The letter in part reads:
‘… Upon instructions received from Mr. Durieux, we have discussed the question of his eastern boundary and the close proximity of your garage thereto. As we appreciate that at the time the garage was constructed there were no set rules and regulations with regards to setbacks from boundaries etc., the situation which exists at the present time and the close proximity of your garage to the boundary, could potentially cause problems in the future.
The purpose of this letter is to point out to you that our client, in acquiring the property, would be prepared to grant to you a licence to use the strip of land approximately 10' wide and 100' long from the st. David's Road to the rear of the wall of your garage. Would you please confirm to us that you would be prepered and willing to enter into such a licence agreement which we think you will agree would be for the benefit of all parties.
Mr. Pachai had indicated that once he is in occupation of the property, he will probably plant a hedge 10' within the eastern boundary of his property to coincide with the extent of the licenced strip which we imagine you would find acceptable. If, however, this is not the case or if you have some alternative proposal for consideration by us on our client's behalf, perhaps, you would let us know immdiately.’
On the 5th October, 1992, some 3 weeks later, before completion of the sale and purchase of the property, Mrs. Gleeson responded to Mr. Malley. Mrs. Gleeson's letter reads in part:
‘… I am a joint owner (with my son, Thomas Gleeson) of the property known as ‘Royono’ which shares that boundary and I have therefore awaited his return from abroad before replying to your proposal.
As you correctly identified, that boundary is indeed very close to my garage. I am, however, somewhat unclear as to what potential problems you or your client perceive could arise as a result of the proximity. Nonetheless, it is the case that, given the position of the boundary, the orientation of my driveway onto a very busy roadway and the relative usefulness of the strip of land along the boundary to your client, that a mutually beneficial solution should be sought by the neighbouring property owners.
I would propose that the definition of any strip of land to be used as a buffer should run the entire length of said eastern boundary. I would describe a practical strip as that triangular piece of land whose broadest portion would lie along the St. David's Road edge and which tapers down toward the waterside at Dolly's Bay.
You have noted that your client anticipates planting a hedge approximately 10 feet inside the eastern boundary to coincide with the extent of the proposed licensed strip; that is, to the end of my garage only. I would submit that given the positioning of only 10 feet west of my driveway and the angle of my entrance, that a hedge so placed would make exiting my driveway much more hazardous since it would obstruct a driver's view with respect to eastbound traffic. Furthermore, any privacy or separation that might be desired by your client would be diminished markedly by having the hedge end at the garage. I would therefore ask that the hedge and the adjustment run the full length of the boundary and be set wider at the southern end. This would represent a strip with a sharp, narrow apex arising somewhere near the northeastern corner of the ‘Sundex’ garage.
In light of the foregoing, I would propose, as an alternative, that I purchase at a fair market value to be agreed, such a strip to be further assessed and described. While I appreciate and welcome the offer of a license, I would ask that your client fully consider this proposal as a practical long term solution of this issue.’
Mr. Pachai said Mrs. Gleeson's letter of the 5th October, 1992 satisfied him that Mr. Durieux was the legal owner of all the land west of the eastern boundary, and on that basis the trust proceeded to purchase the adjoining property.
The property was purchased by the trust on 19th October, 1992 and Mr. Pachai took occupation a couple of weeks later. Initially, relations were cordial between Mr. Pachai and his neighbour the Gleesons.
About one year after Mr. Pachai moved into the trust property, unhappy...
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