Swan v Sinclair

Viscount Cave L.C. My Lords, this is
an appeal by the plaintiff in the action from an order of
the Court of Appeal confirming a judgment of Lawrence J.
in favour of the defendant, and raises questions relating to
an alleged right of way.

In the year 1870 two persons named Dyson and Parker
were the owners of a block of land on the east side of Essex
Road, Islington, and having a return frontage to Church
Road; and on this block of land there stood twelve houses
known as Nos. 316 to 338 (even numbers, inclusive) Essex
Road. Each of these houses faced towards Essex Road and
had a garden running back to a wall which formed the
eastern boundary of the property and divided by cross walls
from the gardens on each side.

On October 27, 1870, the owners put the property up for
sale by auction in eleven lots; lot 1 (which was the southern-
most lot and included the return frontage on Church Road)
consisting of Nos. 316 and 318 Essex Road, lot 2 consisting
of No. 320, lot 3 of No. 322, and so on up to lot 11, which
consisted of the northernmost house known as No. 338 Essex
Road. No copy of the conditions of sale is available, but from
the recital contained in the conveyances of lots 1, 2 and 3 (to
be hereafter referred to) it appears that one of the conditions

(1) L. R. 6 Eq. 177, 179. (3) (1888) 14 App. Cas. 12.
(2) [1908] 2 Ch. 374, 384. (4) [1896] 2 Ch. 294, 297.

1924

ee
Swan
v.
SINCLAIR.

232 HOUSE OF LORDS [1925]

H. L. (E.) provided for setting aside along the eastern boundary of the
1924 ~+land a strip 15 feet wide running north and south, which was
Swan to give the occupier of each lot a back way for carriages

ueen am, ifom and into Church Road ; and it is with reference to the

Viscount Cave Light of the owner of lots 2 and 3 to use this back way over
und the rear of lot 1 that the present dispute arises.

Lot 2 at the sale (No. 320 Essex Road) was sold to one
James Frederick Corben, and the conveyance to him, dated
February 2, 1871, contained the following recital, which it
is desirable to set out in full: '' And whereas the said
William Dyson and James Parker in exercise of the said
power of sale contained in the hereinbefore recited will and
with the assent of the said Daniel Thomas Sharp and Peter
Borgnis caused the messuage being Number 320 Essex Road
hereinafter described and intended to be hereby conveyed
with other messuages and premises known as Numbers 316,
318, 322, 324, 326, 328, 330, 332, 334, 336 and 338 in Essex
Road aforesaid comprised in and assured by the said recited
indenture of the 7th day of July 1854 to be put up to sale by
public auction by Messrs. Newbon & Harding at the Auction
Mart Tokenhouse Yard in the City of London on the 27th day
of October 1870 in 11 lots, and it was amongst others a con-
dition of the said sale that the part coloured brown on the
plan drawn in the margin of these presents was intended to
form a right of way from the back gardens of each house into
the Church Road and that the lots would be sold subject to
and with the benefit of such right of way and that the piece
of ground marked brown on the said plan of the width of
15 feet at the rear or bottom of the back gardens of each
lot 1 to 10 inclusive would be included in the purchase of each
of those lots but subject to a right of carriage way to the
owners of lot 11 and each of the other lots through and over
the same into the Church Road but such right of way would
only belong to the respective purchasers on the determination
of the existing tenancies and for that purpose each purchaser
(except the purchaser of lot 3 which was vacant) would have
to determine at the earliest possible period the tenancy of the
lot purchased by him and that the respective purchasers were

A. C. AND PRIVY COUNCIL.

233

on the completion of their respective purchases to forthwith H. L. (E.)

at the earliest possible period consistent with the determination
of the existing tenancies remove the 15 feet of end garden wall

2?

and form the before mentioned right of way..... The

1924

came
Swan
Vv
SENCLAIR.

cee then contained a conveyance of No. 320 Essex Road. viscount cave
L.C.

"together with such right of carriage way into and over the
pieces of ground marked brown at the rear of the premises
lot 1 on the said plan into Church Road as in the said con-
ditions mentioned" to James Frederick Corben in fee simple
"subject nevertheless as to the part thereof coloured brown
on the said plan-to a right of way for the owners of the
messuages and premises Numbers 322, 324, 326, 328, 330, 332,
334, 336 and 338 Essex Road aforesaid as in the said conditions
of sale mentioned."

Lot 3 at the sale (No. 322 Essex Road) was sold to John
Edwin Corben and was conveyed to him by an indenture also
dated February 2, 1871. This deed was in like form as to
recitals and otherwise with the above-mentioned conveyance
of No. 320.

Lot 1 at the sale (Nos. 316 and 318 Essex Road) was sold
to James Jay, and was conveyed to him by an indenture
dated February 3, 1871. This deed contained a recital of the
condition identical with that contained in the conveyances of
lots 2 and 3 and conveyed the property to the purchaser in
fee simple '"' subject as hereinbefore mentioned or referred
to"; but as this lot abutted on Church Road and was
intended to become a servient tenement only and not a
dominant tenement in respect of the strip of land 15 feet
wide, there was, of course, no grant to this purchaser of any
right of way.

The conveyances of the other lots (4 to 11) are not in
evidence, but it may be presumed that they were in like form
with the conveyances of lots 2 and 3.

All the tenancies of the several lots expired within a year
and a half after the sale.

The subsequent history, so far as the paper title is con-
cerned, of lots 2 and 3 was as follows. On April 12, 1871,
lot 2 was conveyed by James Frederick Corben to John

234 HOUSE OF LORDS [1925]

H. L. (E.) Edwin Corben in fee simple with and subject to the right of
1924 way mentioned in the above conveyance of February 2, 1871.
SWAN On May 19, 1909, John Edwin Corben leased lot 3, except the

i strip of land 15 feet wide at the rear thereof, but together

Viscount Cave With a right of way over that strip, to Davis and Greenland
oe for three years, the lessees covenanting on being required to

do so by the lessor to wall off the strip of land from the garden
and make and form a roadway upon it. On August 11, 1911,
John Edwin Corben having died, his executrix conveyed
lots 2 and 3 to the appellant, George Swan, in fee simple with
and subject to the right of way.

The history so far as title is concerned of lot 1 was as
follows. On October 21, 1873, James Jay leased that lot,
subject to the right of way to the owners and occupiers of
lots 2 to 11, to William George Swan (the father of the
appellant) for fifty years from June 24, 1872, the lessee
covenanting to keep the site of the roadway on the demised
land in good repair and, if required, to pay a fair proportion
with the owners and tenants of the other lots using the road-
way towards keeping it in good repair and towards erecting
and maintaining gates at the entrance from Church Road,
and also covenanting that the roadway should be used as a
private roadway only for the owners and occupiers of Nos. 320
to 338 Essex Road. On July 25, 1904, William George Swan
having died, his executors assigned this lease to the appellant.
James Jay died in July, 1895, having devised the freehold of
lot 1 to the respondent.

Notwithstanding the elaborate provisions contained in the
deeds of 1871 for the formation and use of the proposed
roadway at the rear of Nos. 316 to 338 Essex Road, no such
roadway was in fact (until the appellant's proceedings in the
year 1922 to be hereafter mentioned) either formed or used,
nor is there any evidence that any person interested in any
of the several lots ever desired or requested that it should be
formed or made any attempt to use it as a means of access to
his premises. The walls dividing the several lots, including
those parts of them which ran across the 15 feet strip to the
eastern boundary of the land, remained intact, and in places

A. C. AND PRIVY COUNCIL.

where they fell down were rebuilt or replaced by fences. The
wall dividing the southern end of the proposed roadway from
Church Road was not breached; and although the level of
the 15 feet strip which it had been proposed to form into a
roadway was 6 feet below the level of Church Road, no
attempt was made to form a gradient by which carriages
could have passed into or from Church Road. As to the
reason why all the purchasers of the eleven lots so refrained
from action there is no evidence. It may be conjectured that
having regard to the small size of the houses and the existence
of sufficient access from Essex Road they were unwilling to
incur trouble and expense in bringing all the purchasers into
line, getting the road formed, made up and graded, and
erecting new walls or fences for the protection of their gardens,
and accordingly preferred to keep the strips of land which
would have been required for the road in their own undisturbed
possession and enjoyment. But however that may be, the
fact is, that from the year 1871 until the year 1922, that is to
say, for a period exceeding fifty years, the road remained
unformed and unused.

There is one other circumstance to be mentioned. In the
year 1883 the appellant's father, W. G. Swan, the lessee of
lot 1, erected some stabling upon a part of that lot adjoining
the site of the proposed roadway; and in the course of so
doing he deposited a quantity of soil taken from the excavation
made for the stables on the site of the roadway where it
crossed the premises demised to him, and so raised the surface
of that strip of land to the level of Church Road. No attempt
was then made to level or grade the strip or to open a gate
from it into Church Road; and the effect of this proceeding
was to fill up the space between the northern and southern
walls of lot 1 where they ran across the 15 feet strip, so that
there was a drop of 6 feet from that strip into lot 2 and the
wall between lots 1 and 2 at the rear became a retaining wall
instead of a dividing wall. At some later date, probably
about 1918 or 1919, the appellant, the owner of lot 2, put a
row of stakes into the ground on his side of this retaining
wall, close together, and to a height above the top of that

235

H. L. (E.)
1924

Swan
uv.
SINCLAIR.
Viscount Cave
L.C.

236

H. L. (E.)
1924

Swan
v.
SINCLAIR.

Viscount Cave
L.C.

HOUSE OF LORDS [1925]

wall about 18 inches, as a means of preventing accidents,
having regard to the drop. It may be mentioned, though
little (if anything) turns upon it, that at or about the same
date the appellant deposited a quantity of sand, which had
been used in protecting the premises from damage by enemy
aircraft, on the strip of land at the back of lot 2.

It remains to state the circumstances giving rise to this
action. In the year 1919 the appellant proposed to build a
new garage on the rear parts of lots 2 and 3 and deposited
plans for that purpose. These plans showed the proposed
garage as to be built right across the strip of land 15 feet
wide at the back of the appellant's premises in such a manner
as to block any possibility of the strip being used as a roadway
by the occupiers of the premises to the north of it. For some
reason the appellant did not proceed with the building at
that time ; but he appears to have adhered to his intention of
building a garage, for on June 14, 1922, ten days before the
expiration of his lease of lot 1, he made a breach in the wall
separating that lot from Church Road and erected gates there,
and caused a car to be driven through those gates and over
the strip of land on lot 1 into lot 2. This was obviously done,
not with any desire to conform with the covenant contained
in his lease, but with a view to asserting a right of way from
Church Road into lot 2, of which he was the owner. On the
termination of the lease of lot 1 the respondent, having
entered as the reversioner on that lot, blocked up the gates
opened by the appellant into that lot and erected a wall
across the strip of land on the boundary of lots 1 and 2, so
preventing any attempt to exercise any right of way over the
strip of land. Thereupon the appellant pours ae this
action to establish his right of way.

The action was heard by Lawrence J., who held that, having
regard to the fact that the roadway over which the right of
way was claimed had never been formed or used and the
fences had remained as in 1871, and having regard also to the
filling up of the strip on lot 1 by the tenant of that lot, he must
infer an abandonment of the right of way long before 1922,
and he accordingly dismissed the action. The plaintiff having

A. C. AND PRIVY COUNCIL.

appealed to the Court of Appeal, that Court by a majority
(Warrington and Sargant L.JJ.; the Master of the Rolls
dissenting) affirmed the judgment of Lawrence J., and there-
upon the present appeal was brought.

My Lords, I do not doubt that Lawrence J. and the Court
of Appeal came to the right conclusion. Even if the right of
way claimed had been effectively granted to the appellant's
predecessors in title in the year 1871, the non-user of the way
for upwards of fifty years, coupled with the fact that through-
out that time the appellant and his predecessors acquiesced in
the continuance of the walls running right across the proposed
roadway and (since 1883) in the additional obstruction caused
by the filling up of the strip of land on lot 1, would, according
to the decisions in Moore v. Rawson (1); Bower v. Hill (2) ;
and Reg. v. Chorley (3), have been good ground for inferring a
release or abandonment of the easement. But the present
case is not of that simple character. The conveyances of lots 2
and 3 do not contain a clean grant of the right of way claimed,
but only a grant of such right of way as was mentioned in the
conditions of sale; and in the same way, lot 1 was granted
subject, not to a right of way, but to the provisions of the
conditions of sale. There was no covenant by the several
purchasers with the vendors to pull down the walls and form
a roadway, nor was there any deed of mutual covenants
entered into between the several purchasers. The effect of
the transactions was at the most to create a contractual
relation between the several purchasers and the vendors,
under which the purchasers might perhaps have been called
upon within a reasonable time after the execution of the
conveyances and the determination of the existing tenancies,
to clear the land and form the road; but until that had been
done there could be no effectual creation of the easement of
passage. In these circumstances it appears to me that the
lapse of time is fatal to the appellant's claim. For the period
of fifty years or thereabouts no person sought to enforce the
contract, if contract there was, Or to enter upon the enjoyment

(1) 3B. &C. 332. (2) 1 Bing. N. C. 549,
(3) 12 Q. B. 515.

237

H. L. (E.)
1924

eres
Swan
Vv.
SINCLAIR.

Viscount Cave
Lc.

238 HOUSE OF LORDS [1925]

H. L. (E.) of the easement ; and this being so, it appears to me that it
1924 must inevitably be inferred that the arrangement made in
Swan 1871 has by common consent been released or abandoned and

cannot now be revived. The fact that in the lease of lot 3 in

1909 and the conveyance of lots 2 and 3 in 1911, the right of

way is referred to as still existing does not appear to me to

militate against the above conclusion. In each of those cases,
as Sargant L.J. pointed out, the transaction was solely
between persons interested in the particular tenement in
question, and according to the ordinary practice of convey-
ancing, a reference would be made to any right of way which
might be found upon the paper title. Further, these deeds
were executed upwards of thirty years after the agreement to
grant the right of way, and therefore at a period when the
right must be deemed to have been already abandoned.

For these reasons I am of opinion that the decision of

Lawrence J. and the Court of Appeal was right, and accord-

ingly that this appeal fails and should be dismissed with

v.
SINCLAIR,
Viscount Cave
L.C,

costs.

Viscount Fintay. My Lords, the action in this case was
brought to obtain a declaration of an alleged right of way in
favour of the plaintiff (the appellant) as owner of two plots
of land over a plot belonging to the defendant (respondent).
The plaintiff's plots are lots 2 and 3 on the plan No. 1 annexed
to the appendix, and the defendant's plot is lot No. 1 (Nos. 316
and 318) on the same plan. The right of way is claimed over
land coloured brown on the plan at the back of the defendant's
plots, and would give access to Church Road. Church Road
runs into Essex Road, Islington, nearly at right angles, and
all these lots are situate in the angle between this road and
Essex Road, on which latter they front.

The case came before Lawrence J. in the first instance. He
decided in favour of the defendant on the ground that there
had been an abandonment by the plaintiff of the right of
way alleged. His decision was affirmed by the majority of
the Court of Appeal (Warrington L.J. and Sargant L.J.; the
Master of the Rolls dissenting).

A. C. AND PRIVY COUNCIL.

Both the plaintiffs and the defendant's tenements form
part of a piece of property which was sold by auction
in 1871 in eleven lots, all of which are shown on the plan
to which I have already referred. There were separate
conveyances of the different lots. One of the conditions
at this sale by auction was that the part coloured brown
on the plan was intended to form a right of way from
the back gardens of the houses into Church Road and
that the lots were to be sold subject to a right of carriage
way in the owners of each of the lots to Church Road
over the intervening lots. It was further provided in
the conditions that the respective purchasers should with
all possible despatch form the right of way and remove
all the existing fences dividing up the strip coloured brown
on the plan.. Each of the conveyances contained a grant
of the right of way into Church Road as in the conditions
mentioned. The conveyances were executed in 1871, but
nothing was done to make the roadway on the land coloured
brown, and the exercise of the right of way was totally
impracticable, as none of the fences between the different lots
were removed, and the wall separating lot 1 from Church
Road made access to that road impossible. This state of
things continued to exist from 1871 down to 1918. In 1918
the plaintiff was lessee of the defendant's premises under a
fifty years' lease expiring in 1922, which had been assigned
to the plaintiff on July 25, 1904, and between these dates,
from 1904 to 1922, the plaintiff was in possession of the
premises, lot 1, now the defendant's, as well as of his own
lots 2 and 3. At the end of 1918 or the beginning of 1919
the plaintiff raised the level of the 15 feet strip at the back
of the premises, of which he was lessee, so as to correspond
with the level of the strip at the back of lots 2 and 3 on
the plan.

In 1919 the plaintiff appears to have conceived the idea of
erecting a garage upon lot No. 2 and of forming a carriage road
which would give communication between the garage and
Church Road. He proposed to do this by an exercise of the
right of way supposed to have been granted by the conveyance

239

H. LL. (Hh)
1924

od
Swan
Vv.
SINCLAIR.

Viscount Finlay.

240 HOUSE OF LORDS (1925)

H. L. (E.) in 1871, and which he conceived would be available for him

1924 when his lease of lot No.1 should determine in June, 1922. He

swan demolished the wall between lot No. 1 and Church Road and
Sncjam, Put up a gate opening on Church Road. The defendant in her

turn erected a wall across the strip over which the right of
way was claimed, and this action was brought on October 20,
1921, to have a declaration in favour of the plaintiff of the
right of way.

In both the Courts below the case was dealt with on the
footing that a right of way had been created as an incorporeal
hereditament by the various conveyances in conformity with
the scheme under the condition at the auction. Both Courts
held (the Master of the Rolls dissenting) that this right of
way had been abandoned and thereby extinguished. I do not
desire to throw any doubt upon the correctness of this view,
but it is not necessary to consider it, inasmuch as early in the
argument in your Lordships' House it became apparent that
no right of way had, in fact, ever come into existence. The
scheme contemplated that it should come into existence when
the road at the back of the premises had been made and the
other provisions of the conditions had been complied with.
As this never took place, the right of way remained a mere
possibility of the future. After so great a lapse of time it
would be impossible for the owners of any of these lots to
assert as against the owners of other lots a right to have the
scheme carried out by making the road and keeping it open —
for traffic, as had been intended. A period of fifty years had
run before the attempt in 1922 to assert the right by the
owner of lots 2 and 3 as against lot 1. I assume for this pur-
pose, without deciding the point, that if sufficiently prompt
action had been taken the purchaser of any one lot might
have asserted in some form of proceeding as against the
owners of the other lots a right to have the scheme, including
the road, carried out. But more than twenty years had
elapsed before unity of possession was established in 1904, and
all ght of action was gone, even if any such proceedings
could be regarded as proceedings to enforce a contract under
seal. Right of way there was none. There was at the outside

Viscount Finlay.

A. C. AND PRIVY COUNCIL. 241

merely a contract that certain things should be done and that H. L. (E.)
then there should be a right of way. 1924
In the present case the right is claimed merely by the owner Swan
of lots 2 and 3. Questions might arise whether if the scheme ginoar.
for the road and right of way were to be carried out, it would yiscountrintay.
not be necessary that it should be carried out as a whole, but
this it is unnecessary to consider.
This claim seems to me to be now quite incapable of enforce-
ment, and the only rational conclusion is that it has been
abandoned by common consent for many years.
In my opinion the appeal should be dismissed. with costs.

Lorp SHaw or DuNFERMLINE. My Lords, I concur; and
I can express my views in a few words.

There is at the back of each of a row of houses in Essex
Road, Islington, certain vacant ground, and in the year 1871
these houses with the background to each were exposed, for
sale under certain conditions. These clearly show that the
intention was that a strip of ground was to be formed by
dedicating 15 feet in breadth of each back plot so as to form
a continuous way in the nature of a blind alley, giving access
from Church Road to the back land of each house. This
intention was expressed in the conditions of sale, and these
conditions of sale were imported by reference and narrative
into, it may be assumed, the conveyances of all the plots.

So far as the title deeds are concerned, important questions
might have arisen between the respective owners. Speaking
generally (except with regard to the end plot) each tenement
purported to become servient to the others further away
from Church Road and to become dominant to the others
nearer to Church Road in the easement of a right of way over
the 15 feet strips as described. A question that might
naturally have arisen was whether such purported rights and
obligations conferred and imposed by the common author
did among the grantees inter se involve such mutuality of right
and obligation as could be enforced by law. For it is to be
observed that the right purported to be created was not in an
existing right of way over solum which was accessible, but

A. ©. 1925. 3 R

242

H. L. (E.)

v,
SINCLAIR.
Lord Shaw of
Dunfermline,

HOUSE OF LORDS [1925]

only in a right of way which could be used if existing
obstructions were removed and the solum to the breadth
designed had been lifted about six feet or thereby in height,
so as to enable access to be given on, or approximately on, the
level of Church Road, which would be the exit of the alley.
But in view of these facts coupled with the non-user afterwards
mentioned, it is unnecessary to enter upon such questions as
might have arisen on the title as such. Agreeing with your
Lordships who have preceded me, I am clearly of opinion that
it is now too late to attempt to maintain such a right.

The deed of conveyance of 1871, Sharp to J. E. Corben,
may be presumed to afford an example of the conveyances of
all the lots ; it refers to the conditions of sale, to the intention
to form a right of way from the back garden of each house into
Church Road, and that the lot would be sold subject to and
with the benefit of such right of way as I have indicated.
The important clause is thus narrated. " The respective pur-
chasers were on the completion of their respective purchases
to forthwith or at the earliest possible period consistent with
the determination of the existing tenancy remove the 15 feet
of end garden wall and form the before mentioned right of
way," and the grant is made of the parcel of ground with the
messuage or tenement thereon, " together with such right of
carriage way into and over the piece of ground marked brown
at the rear of the premises lot 1 on the said plan into Church
Road as in the said conditions mentioned."

I am of opinion that these conveyances did not purport to
create de plano the incorporeal hereditament of an easement.
The conveyances in my view contain a grant sub conditione.
That condition was suspensive and of a twofold character. In
the first place, the various division walls and fences which
would have been obstructive to the right of way would have
to be removed ; in the second place, the level of the roadway
would have to be filled up as described. Until these things
were done, no usable road could come into existence.

But, further, it is most important to observe that each
owner became bound in the year 1871 at the expiry of the
existing leases of the ground—and they all expired in a year

A. ¢. AND PRIVY COUNCIL.

or two thereafter—to purify (1) the twofold condition that I
have described, and they were under obligation to remove the
fences and raise the land. The grant having thus been made
both sub conditione and sub obligatione, that condition was,
to speak of the period of over fifty years—namely, from 1871
to 1922—never purified; and that obligation was never
fulfilled. The right to compel its fulfilment after such a long
lapse of time in order to create the physical basis and conditions
of what after such creation would then, and not till then,
become an incorporeal hereditament, seems to me to have
been long lost, and whether founded on contract or on
covenant, to be incapable after such a lapse of time of
enforcement.

The case is not one, I repeat, of the exercise of a right, the
physical conditions of which are in existence so as to enable
the right to be exercised. All the arguments as to non-use of
a subject which is res mere facultatis can find no place in the
present case. For there was no res, no right, and the physical
basis of the right, including the very construction of the road
over which the right of way was to run, has never yet been in
existence.

On that simple ground, I think that the judgment of
Lawrence J. and the majority of the learned judges of the
Court of Appeal should be affirmed.

Lorp WRENBURY (read by Lorp Carson). My Lords, if
in 1871, when the conveyances were executed, the grant to
each purchaser had been a grant of a right of carriage way to
be enjoyed in presenti over a strip of land over which it was
physically possible for a carriage to pass, a question would
have arisen which is not the question in this case. In that
supposed case the question might have been whether non-
user for fifty years was evidence of abandonment of an
incorporeal hereditament created by deed. The material
inquiry would have been whether the grantee of the right had
in that state of facts the intention to renounce the right. The
facts here are that the grant to each purchaser was a grant of

(1) [A civilian term, see Oxford Eng. Dict. s.v.—F. P.]
3 R2

243

H. L. (E.)
1924

-—
Swan
Vv.
SINCLAIR.

Lord Shaw of
Dunfermline,

244

H. L. (E.)
1924

eer,
Swan
Vv.
SINCLAIR.

Lord Wrenbury.

HOUSE OF LORDS [1925]

a right of carriage way to be enjoyed in futuro over a strip of
land upon which work had to be done before a carriage could
pass over ity There were existing tenancies of the several
plots over which the servitude was to be created, and until
their expiration the vendor could not give the right of way in
question. 'There were dividing walls across the brown strip
between each two lots—there was a wall at the exit into
Church Road—and the level of the brown strip was six feet
below the level of Church Road. Until the tenancies expired,
until the obstructions above mentioned were removed, and
until the gradient up to Church Road had been provided, there
could be no carriage way such as was the subject of the grant.
In other words, it was a condition precedent to the existence
of the way that something should first be done affirmatively.
There is, for the present purpose, an important difference
between an obligation to do something affirmatively and an
obligation to suffer something passively. The latter is a mere
servitude. The former is not. The question here is whether
acquiescence for fifty years in something not being done
which there was, as I will assume, a contractual obligation
to do, is an abandonment of the right to require that it be
done. This question is more easy than the supposed case
above stated.

The frame of the deed upon which the question arises is
peculiar. It does not by any express words create an obligation
in the purchasers to do the works necessary to be done before
the defined carriage way can exist. The deed in favour of the
plaintiff's predecessor in title recites, and the deeds in favour
of the purchasers of the other lots in like manner recited,
conditions of sale, which included a condition that the part
coloured brown on the plan was intended to form a right
of way from the back garden of each house into the Church
Road and that the lots would be sold subject to and with the
benefit of such right of way, and that the brown land would
be included in the purchase of each lot, but subject to a right
of carriage way to the owner of each lot through and over the
same into Church Road. And the purchasers were forthwith
at the earliest possible moment consistent with the existing

A. C. AND PRIVY COUNCIL.

tenancies to remove 15 feet of each garden wall and form the
before mentioned right of way. So far this was recital only.
Each purchaser's deed then granted a right of carriage way over
the brown land into Church Road 'as in the said conditions
mentioned," and the habendum is to have and to hold (subject
as to the brown land to a right of way for the owners of the
other lots as ''in the said conditions of sale mentioned'') to
the purchaser. It is unnecessary to consider whether and how
one purchaser could as against another purchaser have
compelled the performance of the works necessary to create
the right of way. I will assume that upon the principle of
Spicer v. Martin (1) the purchaser of one lot could successfully
have asserted that this was a scheme whose provisions he
could enforce. Assuming this, the case is one not of
non-user of a right, but a case of acquiescence in the non-
performance of acts (which I am assuming are obliga-
tory) necessary to be done before the right can possibly be
exercisable. In that state of things the doctrine of non-user to
be found in such cases as Ward v. Ward (2); Crossley & Sons v.
Inghtowler (3), and the other like cases which have been cited
is not applicable. The facts here are that neither the plaintiff's
predecessor in title nor the plaintiff nor any owner of any of
the plots ever during fifty years sought to do or called on his
neighbours to join with him in doing what was necessary
(namely, the removal of the walls and the making a gradient
to reach the higher level of Church Road) to make possible
the carriage way which had been granted to him.

This was, I think, an abandonment of the whole scheme.
There never existed a state of things in which the right of
carriage way could exist or be exercised. There was
acquiescence for fifty years in abstention from doing or
enforcing the acts necessary to allow of the existence or
exercise of the right of way. This, I think, was evidence of
intention to renounce all that which the deed of 1871 had
directly or by implication provided for the creation of the
way over which the right of way was to extend. For these

(1) 14 App. Cas. 12. (2) 7 Ex. 838.
(3) L. R. 2 Ch. 478, 482.

245
H.L., (E.)

Vv.
SINCLAIR.

Lord Wrenbury;

246 HOUSE OF LORDS [1925]

H. L. (E.) reasons I think that the action was rightly dismissed and
1924 ~+that this appeal should be dismissed with costs.

Suis
, al Lorp Carson. My Lords, for myself I agree with the
oe judgments which have already been given, and I have
nothing to add.
Order of the Court of Appeal affirmed and appeal
dismissed with costs.
Lords' Journals, Nov. 21, 1924.