Seah

- vs -

Chua

Judgment

Grimnerg JC

1. Some time prior to 1957, John Gibb and John Stott Kirkham, carrying on business in partnership under the name and style of Ideal Homes (a firm which was subsequently succeeded by Ideal Homes Ltd), developed two residential estates in Singapore then known as Dunearn Park & Whitely Park (“the estate”, I shall refer to Ideal Homes and its successor as “the developers”).

2. The estate included of semi-detached houses abutting Trevose Crescent. Access to most of the lots on which the semi-detached houses were constructed was not gained directly from Trevose Crescent. Instead, the developers constructed a driveway from Trevose crescent between pairs of certain of the lots, for the length of the two lots, until the driveway reached a dead end.

3. The semi-detached houses when constructed on those lots, were situated on either side of the driveway, and had their gates more or less opposite each other, on each side of the driveway, some distance before it reached its dead end.

4. A feature of the scheme was that the driveway was constructed over land owned by each of the adjacent land owners. The boundary between their respective lots runs along the driveway from the point where it began at Trevose Crescent, past the gates of the residences on either side, until the end of the driveway. The boundary was not demarcated, either by way of a fence, or posts or by any other obviously visible means, other than a boundary stone at either end.

5. The defendant, now a widow, by a deed of conveyance from the developers dated June 20, 1956 became the owner of Lot 24-287, upon which there was subsequently completed a house which became known as No 69, Trevose Crescent (“No 69”).

6. By a deed of conveyance from the developers dated April 1, 1957, a Dr Ong became the owner of Lot 24-286. The house built on this lot became known as No 67, Trevose Cresent (“No 67”). The defendant’s gate, and that of Dr Ong’s property were situated opposite each other, on either side of the driveway which ran the length of their respective properties, and was constructed over land which belong to both of them. From the time the defendant and Dr Ong purchased their respective properties, all persons who had reason to enter the houses known as No 67 and 69 did so, if they were in motor vehicles by the only available means, that is by entering the driveway from Trevose Crescent, driving along it, and then turning left or right into No 67 or No 69, as the case might have been. There was then, and is now no other form of ingress to or egress from the two houses.

7. Dr Ong died in 1966. By a deed dated April 9, 1970, the plaintiff took a conveyance of No 67 from his wife, the executrix of his estate.

8. Before the plaintiff and her family entered into occupation of No 67, they decided to construct a new fence and gate. The evidence of the plaintiff’s husband Mr. Ong Chin Thiam, was that prior to this work being undertaken, the advice of a survey was not sought. In the event, the new fence was constructed along a line which ran diagonally across the upper reaches of the driveway, towards the boundary stone situated at the end of it. There is no doubt, and I find as a fact, that the line of the new fence differed from that of the old fence. To what extent is not certain, nor is the extent of the deviation important. However as a result of the deviation, the contours of the upper end of the driveway between Nos. 67 and 69 were altered. I accept that the short broken lines on the plan (AB 201) prepared by Foong Wai Ling establish approximately the contours of the driveway as it existed when No 67 was completed in or about 1956; and that the long broken lines on that plan indicated the present line of the plaintiff’s gate and fence.

9. It follows that in 1970, the plaintiff caused the gate and fence of her property to be constructed over a portion of the upper reaches of the driveway. The result was that after the work was completed, there was encompassed into the plaintiff’s garden a part what had previously been the driveway constructed over the plaintiff’s land outside her old fence. It is evident, therefore that as far back in 1970 the plaintiff considered that she was entitled to treat the driveway up to the line of the common boundary between Nos. 67 and 69 as her own property, to do with as she wished.

10. The next event of any significance occurred on the evidence called by the plaintiff, in 1975, but according to the defendant, in 1973. In my judgment, it does not matter when it occurred, or why. What happened was that the defendant caused the fence and gate to be realigned. It was a much more radical realignment than that had been carried by the plaintiff to her gate and fence. In 1970 The defendant’s realignment involved the construction of a chain link fence along the common boundary, from the boundary stone at the upper end of the driveway towards Trevose Crescent. The fence was than angled backed its original line and the defendant’s gate was re-sited along the angled sector, so that the new gate no longer faced the plaintiff’s gate, but faced down the driveway, towards Trevose Crescent. In the result, the defendant’s fence and gate in 1973 (1975) took on the line shown in AB 200.

11. Mr. Ong Chin Thiam told me that he protested the re-alignment on behalf of the plaintiff, both verbally and in writing, because (as was the undoubted fact and as can clearly be appreciated from AB 200), the new line of the defendant’s gate and fence adversely affected access to and egress from No 67 by motor vehicle. No longer was it possible, as it had been previously, to reverse a vehicle with facility, out of the gate of No 67, into the upper reaches of that part of the driveway constructed over the defendant’s property and then out into Trevose Crescent.

12. The defendant, for her part, denied that she was the recipient of any protests either written or verbal. She disputed the authenticity of a letter dated November 25, 1975 which Mr. Ong Chin Thiam claims he wrote to her, although it is undisputed that Mr. Ong Chin Thiam wrote to the Assistant Director of the Building control Division on December 17, 1975, protesting the works carried out by the defendant.

13. Following a reminder dated January 19, 1976, by which Mr. Ong Chin Thiam sought to ascertain whether the re-sitting of the defendant’s gate and fence “is legal or contititute (sic) an offence”, the Assistant Director of the Building Control Division responded, on January 29, 1976, in these terms:

    With reference to your letter dated January 19, 1976, please be informed that inspection showed that aforesaid gate and fencing are sited on private lot No 24-287 belonging to House No. 69 Trevose Crescent and as such, no further action is contemplated by this Division.

14. In the result, the plaintiff took no further action. She says her inaction was the result of a desire to be neighbourly; the defendant rejoins that the plaintiff did nothing because she accepted that the defendant had a perfect right to do what she liked on her side of the boundary (just as the plaintiff had done in 1970).

15. It is evident that from about 1971 or 1972 relations between the plaintiff’s family and the defendant deteriorated. There was a row between one of the plaintiff’s sons and a Dutch tenant of the defendant, to whom No 69 was then let: The defendant said that she did not go into occupation of No 69 herself until 1978; the plaintiff’s witness say that she was in occupation earlier, and on this issue I accept the defendant’s evidence as I do her account of petty harassment and abuse on the part of members of the plaintiff’s family. When matters arose which reasonable neighbours would have tended to resolve by discussion, the plaintiff and her son chose to make complaints to the police, to the Ministry of the Environment and the dog control unit. Evidently, they regarded the defendant to be naughty and unapproachable - I was able to observe her closely when she gave evidence and I would not quarrel with that assessment.

16. In any event, by mid-June 1985, a reservoir of ill-will and spitefulness had built up on both sides of the boundary of Nos. 67 and 69. On or about June 25, 1985, the defendant embarked upon a further alteration to her fence and gate, which gave rise to these proceedings. She caused the fence at the upper reaches of the driveway (as shown in AB 200) to be extended further towards Trevose Crescent, and her gate to be re-aligned again. The result is illustrated in AB 201. There is not the slightest doubt - I inspected the houses with counsel for the parties - that the re-re-sited gate and re-re-extended fence made ingress into, and even more so egress from, No. 67 a great deal more inconvenient than it had been since 1973 or 1975 (the latter if the plaintiff’s recollection is correct). The position is well illustrated by the photographs D2(9), (10), (11), (15) and (16).

17. Furthermore, it became apparent to the plaintiff, by reason of holes which were being dug along the common driveway towards Trevose Crescent, that the defendant intended to extend the fence along the entire driveway down to Trevose Crescent. If that intention was carried out, it would result in vehicles which had entered No. 67 having to be reversed all the way down to Trevose Crescent in order to leave the property, since there is no room to turn within the gates of No. 67.

18. The plaintiff, now taking the view that the driveway on both sides of the boundary constituted a common driveway, and that she was entitled to an easement of right of way over so much of it as was constructed over the defendant’s property, commenced this action by writ issued on June 27, 1985. She obtained an ex parte interim injunction on the same day, restraining the defendant from further re-siting her fence and gate, and requiring her to set both back to the line they occupied in 1957, the year following the purchase by the defendant of No. 69 and on the plaintiff’s own case, some 13 years before the plaintiff purchased No. 67.

19. The plaintiff put her case in three alternative ways. Firstly, she says that there is, and was at all material times, an easement or quasi-easement of right of way over much of the defendant’s property as forming a part of the driveway. The plaintiff contends that the easement or quasi-easement was expressly reserved by the developers and that it was re-granted by the defendant to the developer in the deed of conveyance of June 20, 1956, by the following words.

    .... Reserving nevertheless to the original purchasers (developers) and to all others to whom the original purchasers may grant or have already granted the same similar rights of way along over and upon the said roads ....

    that is to say, the road built, or to be built, by the developers upon the estates.

20. The easement or quasi-easement, says the plaintiff, was subsequently granted by the developers to Dr Ong, the plaintiff’s predecessor in title, by the deed of conveyance dated April 1, 1957, in the following words:

    ....hereby convey .....All the land and premises described in the first schedule hereto together with full and free right and liberty for the sub-purchaser, his executors, administrators and assigns the owners and occupiers for the time being of the said lands and premises hereby conveyed and his or their tenants, servant and all other persons for the time being authorizes by them in common with the original purchasers and all persons having the like right, and liberty with or without horses, cattle and other animals, carts, carriages, motor cars and other vehicle or every description at all times and for all purposes whatsoever connected with the use and enjoyment of the said land and premises hereby conveyed to pass and re-pass along over and upon the road built or to be built by the originals in or upon the said estates and providing access to the said land and premises hereby conveyed ....

21. The easement or quasi-easement develop upon the plaintiff, Dr Ong ‘s successor in title, by virtue of the deed of conveyance of No 69 to the plaintiff, dated April 9, 1970 and by operation of section 6(1) of the Conveyancing and Law of Property Act (Cap 268., 1970 Ed) (“the Act”) which is in the following terms:

    … A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey with the land all buildings, erection, fixtures, hedges, ditches, fences, ways, waters, watercourses, easement, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with or reputed or known as part or parcel or appurtenant to the land or any part thereof .....

22. Alternatively, the plaintiff asserts that if there was no express reservation of the easement or quasi-easement, the conveyance by the developers to the defendant operated by implication of law. To confer upon the developers a right to have and enjoy so much of the defendant’s land over which the driveway was constructed, as if that right had been expressly granted to the developers by the conveyance. That same right, it was said developed upon Dr Ong and then the plaintiff, a successor in title of the developers by virtue of the deed of conveyance to her dated April 9, 1970, and by operation of section 6(1) of the Act.

23. In the final alternative, the plaintiff contends that she is entitled to a way of necessity over so much of the defendant’s land as forms part of the common driveway.

24. For her part, the defendant denies the existence of a single common driveway. She claims that the access road, to which I referred as “the driveway”, in fact comprises two adjacent driveways, one constructed on the plaintiff’s property and the other on the defendant’s. The defendant says that the expression “common access road” referred to in the conveyances means such roads as Trevose Crescent and that the expression does not include driveways constructed within the properties abutting upon Trevose Crescent. The defendants denies the existence of an easement or quasi-easement of right of way over her property, and asserts that no such easement or quasi-easement was reserved by the developers for the benefit of themselves or their successors in title.

25. The defendant further denies that the conveyance to her conferred by implication upon the developers a right to have and enjoyed the used of any part of her land as if that right has been expressly granted, and she therefore denies that any such right develop upon the plaintiff as successor in title to Dr Ong. Finally, the defendant disputes the plaintiff’s claim to a way of necessity over any part of her property.

    1. WAS THERE AN EXPRESS RESERVATION OF EASEMENT OF RIGHT OF WAY?

26. By the conveyance in favour of the defendant there was expressly granted an easement of right of way “over and upon the roads built or to be built by” (the developers) “in or upon the said estates” (Dunearn Park and Whitely Park) “providing access to” (No 69 Trevose Crescent).

27. It is common ground that Trevose Crescent was built by the developers, and that Trevose Crescent provides access to No 69, as it does to all the other residences abutting it. Clearly, therefor, there was an express reservation of an easement or right of way in favour of the developers over Trevose Crescent.

28. However, Mr. Low for the plaintiff, argued that the express reservation extended to all driveways built by the developers. He arrived at this conclusion by the following route. The developers purchased “a larger piece of land” (of which N069 formed part) for the purposes of developing “the said estate”. Since the driveway was constructed over No 69, since No 69, by definition, formed part of “the said estate”, any road built over No 69 was a road “built in or upon the said estates”, within the meaning of the express reservation in conveyance.

29. I am obliged to reject Mr. Low’s argument both as a matter of mixed construction and fact, and as a matter of law, I reject the argument because it takes no account of the fact that the right that the right of way is reserved in order to provide “access road” to No 69. It is Trevose Crescent that provides that access and not the driveway that runs from the junction with Trevose Crescent over the property itself. There was no need for a right of way to be granted to the defendant over her own property, even if that were possible in law

30. I rejected the argument in law because it “is an essential characteristic of an easement that the owner of the dominant tenement and the owner of the servient tenement must be different persons. A man cannot have an easement over his own land because all acts which he does upon his own land are acts done in respect of his rights as owner of the land, and the law does not allow the co-existence of an easement over land with the possession of the land itself. - Halsbury’s Law of England (4th Ed) Vol 14, para 16

31. Accordingly, I find that there was no express reservation of an easement or quasi-easement of right of way over No 69 in favour of the developers in the conveyance to the defendant. It follows that the developers were in no position to grant a right of way to Dr Ong, or through Dr Ong to the plaintiff, his successor in title. The express grant which Dr Ong took under his conveyance was a right of way over the roads in Dunearn and Whitely Estates, Trevose Crescent among them. In the result, section 6 of the Conveyancing and Law of Property Act is of no assistance to the plaintiff, because that section simply provides that a grantee acquires the rights enjoyed by the grantor at the time of the conveyance. A right of way over the driveway of No 69 was not a right to which the developers or Dr Ong were ever entitled.

    2. IS THE PLAINTIFF ENTITLED TO A WAY OF NECESSITY OVER SO MUCH OF THE DEFENDANT'S LAND AS FORMS PART OF HER DRIVEWAY?

32. The leading case of Wheeldon v Burrows the issue was whether the defendant was entitled as of right to light which entered certain windows of his property, and to prevent the plaintiff from obstructing those windows by building on her land, which abutted upon the defendant’s land. In the course of his judgment, in the Court of Appeal, Thesiger LJ said:

    we have had a considerable number of cases cited to us and out of them, I think that two proposition may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements) or, in other words all enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirely for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of this rules is subject to certain exceptions. One of those exceptions is the well-known exception which attached to cases of what are called ways of necessity, and I do not dispute for a moment that there may be, probably are, certain other exceptions to which I shall refer before I close my observation upon this case.

33. Mr. Low argued that if there was no express reservation within the meaning of “the second rule” referred to by Thesiger L J, his client’s case falls within an exception to that rule, in that she is entitled to a way of necessity over so much of the defendant’s land as formed part of the defendant’s driveway.

34. In my judgment, this argument does not get off the ground, and in fairness to Mr. Low, he was less than strenuous in his assertion of it. However, since the argument was advanced, I will deal with shortly.

35. In Union Lighterage Co v London Graving Dock Co at p 241, Stirling LJ stated:

    in my opinion an easement of necessity, such as is referred to, means as easement without which the property retain the reasonable enjoyment of that property. In Wheeldon v Burrows the lights which were the subject of decision were certainly reasonable necessary which was to the enjoyment of the property retained, which was a workshop, yet there was held to be no reservation of it. So here, it may be that the tie-road which pass through the plaintiff’s property are reasonable necessary to the enjoyment of the defendants’ dock in its present condition but the dock is capable of use without them, and I think that there cannot be implied any reservation in respect of them.

36. Mr. Low was unable to put his case any higher than to say that denial to his clients of right of way was over the defendant’s driveway cause his clients, her family and invitees to her property manifest inconvenience in terms of access into and out of her gate. There was no suggestion into that denial of the right of way resulted in property becoming altogether inaccessible. That being so the law will not imply a way of necessity. The matter is put succinctly in Halsbury’s Law of England (4th Ed) Vol 14, para 153.

    a way of necessity is a right of way which the law implies in favour of a grantee of land over the land of the grantor where there is no other way by which the grantee can get to the land so granted to him or over the land of the grantee where the land retained by the grantor is land-locked. Such a way cannot exist over the land of a stranger. It is an easement without which it is impossible to make any use of the dominant tenement.

    And again:

    A right of way of necessity can only exist where the implied grantee of the easement has no other means of reaching his land. If there is any other means of access to the land so granted, no matter how inconvenient, no way of necessity can arise, for the mere inconvenience of an alternative way will not itself give rise to a way of necessity.

37. In the result, I find that the plaintiff is not entitled to a way of necessity over so much of the defendant’s property as comprises the defendant’s driveway.

    3. DO THE FACTS BRING THE PLAINTIFF'S CASE WITHIN ANY OTHER EXCEPTION TO "THE SECOND RULE" IN WHEELDON V BURROWS?

38. Mr. Low answers “yes”, very firmly to this question, and relies to a great extent on the Canadian case of Barton v Raine. That was a decision of the Court of Appeal of Ontario, and the facts are adequately set out in the headnotes, which reads

    A purchased parcel No 1, on which a house was constructed in 1919 and he and his wife occupied it until both died in 1968. In 1941, A bought a parcel No 2, which adjoined parcel No 1, upon with a house was built in 1924. After A purchased parcel No 2, he left his son and daughter-in-law occupy it until 19 52, when he sold it to them. They subsequently sold it in 1971 to the defendants. Since the late 1920s, a mutual driveway between the two houses had been used by the owners of both parcels to get to and from their garages, except a few months before A’s death. Four feet of the driveway was on parcel No 1 and eight feet on parcel No 2. A did not reserve the easement in 1952 deed. The plaintiff, another son of A, became owner of parcel No 1 after his parents’ death. Some months after the defendants purchased parcel No 2 ; a disagreement arose between the plaintiff and the defendants and the defendants then built a fence on the lot line, thereby effectively preventing the plaintiff from reaching hid garage by car.

39. The plaintiff brought an action requiring the defendant to remove the fence, and for a declaration that he, the plaintiff had a right to use the driveway, the trial judge held that the plaintiff was not entitled to an easement of necessity since parcel No 1 had not become land locked, but that he was entitled to use the driveway under the principle of an implied reservation of an easement. The defendant appealed, and on appeal, it was held inter alia, dismissing the appeal, again quoting the headnote, that;

    (1)

    where two parcels of adjoining land are in common ownership and share a mutual driveway, which is used by the common owner and where the owner thereafter sells one of the parcels, he may continue to use the driveway even though he does not reserve that right, if the parties have a common intention that it shall continue to be used by vendor as in the past. The law implies a reservation of the easement by the grantor in such a case. On the facts of the case, the only inference that could be drawn was that the parties to the 1952 deed intended that the right of way should continue to be used as before. It was obvious to all that it was there and that it was being used by the grantor. In order to prove the existence of an implied reservation of easement on the basis of a common intention, it is not necessary to adduce affirmative evidence admitting of no alternative possibility. Such evidence is often not available many years after the fact. The court may, from a reconstruction of the surrounding circumstances, infer that a reservation of the easement was intended by both parties.

40. The judgment of the Court of appeal was delivered by Thorson JA, and it turned largely on the extent of the “other exception” referred to by Thesiger LJ, in Wheeldon v Burrows. Thorson JA, having reviewed the English cases, concluded;

    In my opinion, the learned trial judge was correct in the conclusion which he drew from the authorities referred to above, namely that the development of the case law since Wheeldon v Burrows has softened the rigour of the general rule set out in that case or has enlarged the scope of the exceptions to the rule. On the facts of the case at bar, I am satisfied that, although that 1952 conveyance made no mentioned of a right of way over the driveway between the two properties, the re was, by necessary inference from the circumstances in which the conveyance was made a common intention on the part of both the father on the hand and the son and daughter-in-law on other hand, after conveyance, that each of them would continue to use the driveway in the same manner as; in fact, it had been used without interruption since the late 1920s. I am prepared to accept with respect, the test of common intention and I therefore ask myself whether upon the evidence before me, I am satisfied, if need be by necessary inference, that there was a common intention on the part of the developers and the defendant that there should be reserved to the developers an easement of way over the driveway of No 69, to the extent that that easement was capable of devolving upon Dr Ong, the purchaser of No 67, and thereafter upon the plaintiff by virtue of he conveyance dated April 9, 1970, and by virtue of section 6 of the Conveyancing Law of Property Act. I begin by observing that the facts in the case before me were at some remove from those in Barton v Raine. In the first place, there was no evidence to establish that the developers used the defendant’s driveway for the purpose of gaining access to the rear of what become No 67, whereas in Barton ’s case it was “clear that from the late 1920s, the driveway between he two properties .... was used by both owners to get to and from the garages on their respective properties.

41. In the second place, there was no evidence as to user of the defendant’s driveway after she took her conveyance and before the plaintiff purchased No 67, whereas in Barton’s case after the father sold the property next door to his son and daughter-in-law, he continued to use the driveway.

42. Thirdly, there did not exist a family relationship between the defendants and the developers. It was the existence of the relationship between the father, on the one hand and the son and daughter-in-law, on the other, in Barton’s case, which assisted the court in drawing the necessary inference that following the purchase of the property next door by the son and daughter-in-law, the father would no be obliged to obtain their permission in order to get to and from his own garage.

43. It is well established that there must be the clearest evidence in order for common intention to be established. Thus in Aldridge v Wright in which it was sought to established that the facts fell within an exception to the second rule in Wheeldon v Burrows. Scrutton LJ, said, at p 127:

    I think the grantee of No 30, when his grantor claims to have impliedly reserved such right from his grant, though it is not mentioned in his grant, is entitled to require the clearest evidence of an “intention of the parties” that there should be reserved for the benefit of No 28 an easement or quasi-easement to be used and enjoyed as of right. In my opinion the defendant has failed to show such common intention or implied reservation in this case; the doctrine of Wheeldon v Burrows applies; the decision of the Divisional Court must be affirmed, and the appeal dismissed.

44. In Re Webb, Sandom v Webb which recognized that the two exceptions referred to in Wheeldon v Burrows do not exhaust the list nevertheless re-affirmed that the “implication of a reservation would have to be conclusively indicated and it would not suffice if the matter remained in the sphere of conjecture or ambiguity” - see Morris LJ, at p 147.

45. In that present case, not only, in my judgment, is there no evidence to establish common intention; there is positive evidence which tends to rebut its existence at the material time.

46. The defendant told me that, some months following the purchase by her of No 69, she became concerned as to whether the boundary between her property and no 67 had been correctly drawn because the culvert on her driveway seemed to be further away from her property than it should have been. This led the defendant to believe that the boundary was not correctly sited. She telephoned the developers about it, because s he intended to have a fence erected along the boundary between the two properties. She received a letter from the developers dated March 6, 1957, which was the day on which she telephone them. After assuring her that “the approach road” for the two properties was in the correct position, the letter (which was signed by Mr. Kirkham, then a director of the developers and originally one to the two partners of Ideal Homes) went to state:

    we understand that you are contemplating fencing along the line which you believe to be your boundary, and we should like to warn you that if you interfere or trespass on your neighbour property, you may lay yourself open to a substantial claim.

47. The letter was headed “Boundary between Lot 94-A and 95-B (Nos. 67 and 69)". The letter, in my view establishes two things. 

    • First the clear inference arises that the defendant had said something to the developers that morning which gave rise to the apprehension on their part that she might, in the course of erecting her fence on what she conceived to be the boundary, encroach on her neighbour’s property.

    • Secondly, the letter establishes beyond any doubt that since the boundary along which the defendant intended to erect the fence ran roughly up the centre of the area between the two properties, if it had been the developers’ intention that the space was to form a common driveway, they would have warned the defendant against erecting a fence at all, and not merely enjoined her to take care that it was erected along the boundary shown on the plans.

48. Evidence of the developers’ intention is also capable of being derived from the approved building p. In them, the driveways of the semi-detached residences are described as “dual” driveways, that conveys to me that the developers intended the driveways to be separate, but adjacent.

49. The evidence also establishes to my satisfaction that the defendant, for her part, at no time considered that anyone apart from her had any rights over any part of her land Although it is a fact that she did not proceed with the fencing that she had in mind in 1957, there were reasons for that. She was not living in No 69 at that time. She was expecting her first child, and she was in no hurry to have the fence erected. Following the birth of her child, a daughter, she was taken ill and she was pre-occupied with looking after her daughter. In October 1958 the defendant went to live in England with her husband, and returned to Singapore in 1961.

50. Following her return, she did not live in No 69. It was let to tenants and she did nothing about erecting the fence until 1973 (or 1975), after the trouble occurred between her tenant and the plaintiff’s family. It was then that her fence and gate was first re-sited. The defendant caused work to be carried out from time to time, both before and after she went to live in No 69 (which she did for the first time in 1978) over and on her driveway which established, to my mind, that she never at any time contemplated the land upon which her drive way was constructed as land over which anybody but she had right.

51. In the result, the plaintiff has failed to persuade me of the existence of that “common intention” which is necessary to give rise to an implication of an easement of right of way over any part of the defendant’s property in favour of the plaintiff.

52. It follows that the plaintiff’s claim must fail, and it is dismissed with costs. There will be an inquiry by the Registrar as to whether the defendant has sustained any, and if so what, damages by reason of the injunction granted by the order dates June 25, 1985 which the plaintiff ought to pay.

53. The result of my determination of these proceedings will be unfortunate. If the defendant proceeds with the extension of her fence along the boundary and down as far as the junction with Trevose Crescent, and all indications are that she will, those leaving in No 67 and 69 will be obliged to reverse their vehicle some distance into Trevose Crescent (an operation) which is not without danger since Trevose Crescent is a narrow and winding road). Instead of being able to execute three point turns outside the gate of Nos. 67 and 69 and driving out, front first, safely and comfortably. Alternatively, they will be obliged to reverse into the driveways from Trevose Crescent an equally inconvenient manoeuvre.

54. So be it. The parties have only themselves to blame for not attempting to resolve their differences in a civilized and neighbourly manner.

Cases

Wheeldon v Burrows (1879) 12 Ch D 31; Union Lighterage Co v London Graving Dock Co (1900-3) Reprint All ER 234; Barton v Raine [1980] 29D L R (2d) 685; Aldridge v Wright [1929] 2 K B 117; Re Webb; Sandom v Webb [1951] 2 All E R 131

Authors and other references

Halsbury’s Law of England (4th Ed) Vol 14

Representations

Low Tiang Hock for the plaintiff

Ruth Kao for the defendant

Notes:-

This decision is also reported in [1988] 2 MLJ 1. The plaintiff appealed against the dismissal. The Court of Appeal (PH Yong CJ, LP Thean J & SK Chan J) on 5 September 1991 dismissed the appeal. See Seah v Chua @www.ipsofactoj.com/archive/index.htm [1991] Part 6 Case 12 [CA,S'pore]