Steede Jr. v Lewis and Lewis
| Jurisdiction | Bermuda |
| Judgment Date | 01 August 2017 |
| Neutral Citation | [2017] SC Bda 60 Civ |
| Date | 01 August 2017 |
| Docket Number | CIVIL JURISDICTION 2016: No. 11 |
| Court | Supreme Court (Bermuda) |
[2017] SC (Bda) 60 Civ
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2016: No. 11
Ms Sara-Ann Tucker, Trott & Duncan, for the Plaintiff
Ms Simone Smith Bean, Smith Bean & Co, for the Defendants
Whether right of way — express grant — easement of necessity — lost modern grant
(In Court)
The Plaintiff, Mr Steede Jr, owns the property known as 5 Boundary Lane in St George's Parish. It is bounded on the west by a 16 foot wide roadway running north/south known as Talavera Lane and on the north, south and east by parcels of land. The parcel to the east is known as 3 Boundary Lane and is owned by the Defendants, Mr and Mrs Lewis. The Plaintiff and Mrs Lewis are cousins. Access to 3 Boundary Lane is by an eight foot wide roadway which runs from its eastern boundary in an easterly direction to form a “T” junction with a 16 foot wide roadway running north/south known as Boundary Lane.
The Plaintiff claims a 10 foot wide right of way (“the disputed right of way”) over 3 Boundary Lane. This would in effect extend the 8 foot wide roadway so that it runs to the eastern boundary of 5 Boundary Lane. The Defendants dispute the existence of the said or any right of way over their property. The Plaintiff has produced a plan which was exhibited to his first affidavit. It is annexed as a schedule to this judgment and shows the disputed right of way very clearly.
The Plaintiff claims that his grandfather, the late Joseph Henry Weller (“Mr Weller”), made an express grant of the right of way. Mr Weller was also the great grandfather of Mrs Lewis. Alternatively, the Plaintiff relies upon the principle of lost modern grant to claim a right of way through long usage. In addition, I have invited submissions from the parties as to whether, if the grant is somehow defective, there is a right of way as an easement of necessity.
What are now 5 Boundary Lane and 3 Boundary Lane were once wholly owned by Mr Weller. By clause 4 of his last will and testament executed on 2 nd October 1965, he devised his real estate as follows:
“ I DEVISE all my real estate to my wife the said Agnes Louise Weller during her life without impeachment of waste and from and after her decease I DEVISE the same in manner following (that is to say);
(a) I DEVISE my lot of land situate at North Wellington in St. George's parish aforesaid [ie what is now 5 Boundary Lane] together with my dwelling-house thereon (where I now reside) and all rights of way (including a right of way over the lot of land next hereinafter described [ie what is now 3 Boundary Lane] and over a strip of land belonging to the heirs or devisees of Salisbury Stanley Spurling or his or their assigns [ie the 8 foot wide roadway]) and appurtenances whatsoever to my daughter Janet Beatrice Steede her heirs and assigns forever
(b) I DEVISE my lot of land also situate at North Wellington aforesaid [ie what is now 3 Boundary Lane] … together with the building thereon used as a shop … unto my son Joseph Horace Weller during his life without impeachment of waste and from and after his decease I devise the same to such of his children as shall be living at the time of my death and if more than one in equal shares as tenants in common.”
Mr Weller died on 15 th October 1966. His wife, Agnes Louise Weller (“Mrs Weller”), died on 21 st March 1994. She was predeceased by Mr Weller's daughter, Janet Beatrice Steede (“Mrs Steede”), who died on 22 nd February 1988. Letters of administration were granted to Mrs Steede's husband, Leslie Leon Steede (“Mr Steede”), on 21 st April 1989.
Upon Mrs Weller's death, and as Mrs Steede had already died, 5 Boundary Lane was inherited by Mrs Steede's heirs and assigns, namely Mr Steede and Mr and Mrs Steede's two children, the Plaintiff and Ann Barbara Atiba (“Ms Atiba”). By a vesting deed dated 25 th August 2009, Mr Steede, as administrator of his late wife's estate, conveyed 5 Boundary Lane to the said heirs and assigns. He conveyed one half share to himself absolutely and the other half share jointly to the two children in equal shares as tenants in common. The property was stated as being conveyed:
“ ESPECIALLY TOGETHER WITH full free and unrestricted right and liberty of way and passage for the owners for the time being of the said lot of land hereinbefore particularly described [ie 5 Boundary Lane] and their tenants servants and agents and all other persons lawfully going to or from with or without animals and vehicles of all descriptions OVER AND ALONG the said Right of Way Three decimal point nought five metres(3.05m) [ie 10 feet] wide delineated and coloured Yellow on the said plan leading to Boundary Lane …”
The plan annexed to the vesting deed, which exists in two slightly different versions, was dated May 2009 and showed the disputed right of way. It was the first plan to do so.
By a conveyance dated 22 nd September 2009, Ms Atiba conveyed her interest in 5 Boundary Lane to the Plaintiff. The Plaintiff gave unchallenged evidence, although the conveyance appears to have been lost, that at around the same time he bought out his father's interest in the property. Mr Steede died on 1 st October 2013. It is not disputed that the Plaintiff now holds sole legal title to 5 Boundary Lane.
Turning to 3 Boundary Lane, upon Mrs Weller's death Joseph Horace Weller inherited a life interest in the property, with the remainder interest going to his children Carlton Weller, Joseph Horace Weller Jr, Deborah-Lee Page, Donna-Rea Palanyandi, and Nelody Janice Lee (“Ms Lee”).
3 Boundary Lane became the subject of a partition action. On 12 th December 2008, Bell J (as he then was) ordered that the property be sold with vacant possession to Ms Lee, with the net proceeds of sale to be divided between her father and the other four children. 3 Boundary Lane was duly conveyed to Ms Lee by a conveyance dated 1 st July 2009. This stated that the property was:
“ ALSO SUBJECT NEVERTHELESS to a right of way in favour of the lot of land shown as No. 5 on the said plan expressed (although not specifically described) in Clause 4(a) of the will of Joseph Henry Weller so far as the same is existing and capable of being enforced”.
There is a plan annexed to the conveyance but it does not show the disputed right of way.
Ms Lee was Mrs Lewis' mother. Mrs Lewis gave evidence that Ms Lee purchased the property for her and her fiancée, Mr Lewis. The property was purchased in Ms Lee's name on legal advice. But Mrs Lewis explained that it was purchased with monies borrowed by way of mortgage in the joint names of her and her mother and that she, ie Mrs Lewis, had made the mortgage payments.
The Plaintiff gave evidence that he lived at 5 Boundary Lane from 1962 – 1974, from the ages of 16 – 28. He lived there with his grandmother, Mrs Weller, and his parents. He lived at other properties in the area for maybe another 16 years until 1990. While living in the area he used to attend 5 Boundary Lane every day, and once he left the area he used to visit the property two or three times a week to visit his father and grandmother, ie Mr Steede and Mrs Weller. His father lived there until early 2013, when he went to live with the Plaintiff at St David's Road in St George's Parish due to ill health. Thereafter, the Plaintiff used to visit the property once every two weeks or so to check on it. Mr Steede died in October 2013 aged 92. So far as the Plaintiff was aware his father always used the disputed right of way to access the property. The property remains unoccupied.
The Plaintiff used to use the disputed right of way to access 5 Boundary Lane until 15 th December 2015 when the Defendants put up a fence along the boundary between number 3 and number 5 Boundary Lane. The fence is made of green mesh copper wire and has an opening which is wide enough to allow a pedestrian or a motor cycle to pass through but not a car or van. The Plaintiff stated that so far as he was aware it was not until a few days before the fence was put up that the right of way was ever disputed.
The Plaintiff complains that, by obstructing access from 3 Boundary Lane, the fence has hindered certain renovation works which he is undertaking at 5 Boundary Lane. To undertake the works he has had to gain vehicular access to the property via Talavera Lane. This is most likely a private roadway and none of the conveyancing documents which I have seen grant an easement over it in favour of 5 Boundary Lane. Thus it is not at all clear that he has any right to use the roadway. In order to access 5 Boundary Lane from Talavera Lane, the Plaintiff had to clear and level the land on 5 Boundary Lane around the house there. He stated that Talavera Lane did not become a roadway until after he moved to St David's Road in 1990.
The cleared area around the house is large enough to form a driveway. But underneath the cleared area is a cesspit. The Plaintiff is concerned that the ground over the cesspit would be at risk of collapsing under the weight of a motor vehicle. Although I have not heard expert evidence on the issue, he did produce a one page opinion dated 2 nd May 2017 from SAL Trading Limited, Comprehensive Building Supplies, which explains the basis for his concerns.
I also heard evidence from the Plaintiff's wife, Rhonda Steede, and grown-up daughter, Meka Steede. They both confirmed that prior to December 2015 they always used to access 5 Boundary Lane via the disputed right of way. Rhonda Steede corroborated her husband's evidence that the fence put up by the Defendants had caused significant delay and expense to the renovation of the property.
Mrs Lewis gave evidence that when she purchased 3 Boundary Lane it...
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