Ebanks v Reynolds

• Jurisdiction: Cayman Islands
• Judge: (Murphy, J.)
• Judgment Date: 06 November 1996
• Court: Grand Court (Cayman Islands)
• Date: 06 November 1996

Grand Court

(Murphy, J.)

B.O. EBANKS and O.G. EBANKS

and

REYNOLDS and FOUR OTHERS

G. Giglioli for the applicants;

Ms. S.J. Collins for the respondents.

Cases cited:

(1) -Ghey, In re, [1957] 2 Q.B. 650; [1957] 3 All E.R. 164, dicta of Lord Evershed, M.R. applied.

(2) -Gilbert v. Spoor, [1983] Ch. 27; [1982] 2 All E.R. 576.

(3) -Murmarson Ltd. v. Eldermire, 1988–89 CILR 61, dicta of Collett, C.J. applied.

(4) -Proprietors, Strata Plan No. 41 v. Universal Secs. Ltd., Grand Ct., Case No. 445/90, unreported, dicta of Harre J. applied.

Legislation construed:

Registered Land Law (1995 Revision), s.96: The relevant terms of this section are set out at page 396, line 28-45.

Land Law-easements-rights of way-modification-applicant proposing modification to prove one of conditions in Registered Land Law (1995 Revision), s.96 satisfied-court not required to weigh benefit to applicant against disadvantage to respondent

Land Law-easements-rights of way-modification-mere difficulty in selling land with existing right of way not impediment to ‘reasonable user’ for purposes of Registered Land Law (1995 Revision), s.96(b)

Land Law-easements-right of way-modification-owner of right of way ‘injured’ by proposed modification for purposes of Registered Land Law (1995 Revision), s.96(c) if disadvantaged in any real rather than theoretical sense-increased distance and expenses of maintaining route relevant factors

The applicants applied for the modification of a right of way.

The applicants wished to sell for development land over which the respondents had a right of way. The intended sale was conditional upon the removal of the right of way, which was for pedestrian use only but which provided the only legal access to the respondents” land.

The applicants applied under the Registered Land Law (1995 Revision), s.96 for the right of way to be re-routed around the perimeter of the land, a route which was at least 2½ times the length of the existing route and which ran through swampy land. They proposed to contribute to the costs of draining and clearing the land in the first instance, but gave no undertaking as to future costs.

All but one of the respondents were residents of Florida who used the right of way only during visits to Grand Cayman.

The applicants submitted that (a) under the Registered Land Law (1995 Revision), s.96, the court must be satisfied either that the present position of the right of way impeded their reasonable user of the land without securing any practical benefit to others, or that the proposed modification to the right of way would not injure the respondents, since paras. (b) and (c) of that section, containing the relevant provisions, were to be construed disjunctively; (b) ‘reasonable user’ within the meaning of s,96(b) included the right to dispose of the land, and since their proposed sale was conditional upon the variation of the right of way, its continuation in its present form substantially impeded that user; (c) since the

respondents were mostly non-resident and made only limited use of the right of way during visits, they did not derive any clear benefit from its present position; and (d) nor, for the same reason, would they suffer any substantial injury within the meaning of para. (c) by its proposed re-routing, and any inconvenience occasioned thereby had to be weighed by the court against the potential loss to the applicants in failing to complete their sale.

The respondents submitted in reply that (a) the applicants bore the burden of proving that the provisions of s.96 were satisfied; (b) any difficulty the applicants might experience in selling the land was not an impediment to their user of it within the meaning of para. (b), since they had not produced evidence of any specific user past or present and since the sale of the land was not in itself a use; (c) the present position of the right of way was of clear practical benefit to the respondents even though most of them used it only when visiting the Island, since they then used it frequently and it provided the only available legal access to their properties; (d) under para. (c), the applicants were required to show that the respondents would not be injured at all by the proposed modification, a burden which they could not discharge due to the obvious inconvenience and potential expense involved in and the planning permission required for re-routing the right of way; and (e) the court was not entitled to weigh the inconvenience they would suffer against the benefit to the applicants of being able to sell the land.

Held, dismissing the application:

(1) It was clear from the wording of s.96 of the Registered Land Law (1995 Revision) that paras. (a), (b) and (c) were to be construed disjunctively and the applicants were therefore required in this case only to satisfy the court that either the provisions of para. (b) or those of para. (c) were complied with. The statute did not contemplate the weighing of any impediment to the applicants” user against injury to the respondents for this purpose (page 397, line 3-5; lines 14-16; page 399, line 9-13).

(2) In the absence of any evidence of existing or proposed use of the land, the applicants had not proved, merely by highlighting the difficulties they would face in selling it with the right of way in its present form, that their reasonable user was impeded, as required by s.96(b). Nor had they shown that its present position afforded no practical benefit to others, since the respondents made frequent use of it when they visited Grand Cayman in order to attend to their properties (page 397, line 23-28; page 397, line 21-27).

(3) On the proper construction of s.96(c), the applicants were required to show that the respondents would not be injured in any real way by reason of the proposed modification. Therefore, since the respondents would clearly be disadvantaged significantly by the circuitous nature of

the alternative route and could be put to considerable expense in maintaining it, the applicants could not succeed on that ground either and their application would be dismissed (page 399, line 41 - page 400, line 8; page 400, line 38 – page 401, line 13; page 401, line 31-41).

MURPHY, J.: This is an originating summons filed by the plaintiffs
seeking an order varying the pedestrian right of way currently enjoyed
over their property (West Bay, Parcel 84 REM 1, Block 5C) by the
defendants.
25	The servient tenement, Parcel 84, is surrounded by a number of parcels
which include the dominant tenements, Parcels 80, 82 and 83. The
plaintiffs are the registered owners of Parcel 84, the first, second and third
defendants are the joint proprietors of Parcel 83, the fourth defendant
owns Parcel 80 and the fifth defendant, Parcel 82. All of these parcels
30	benefit from the pedestrian right of way in question.
The existing easement runs close to the north boundary of Parcel 84.
The variation in the route of the easement proposed by the plaintiffs and
sought in the application essentially follows the south perimeter of Parcel
84 instead of cutting across it. Both the original easement and the
35	proposed variation commence at a point on the westerly boundary of
Parcel 84 where an existing roadway ends.
The existing easement forms part of the land adjudication record for
Parcel 84. It was registered on February 19th, 1974 and the

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