Summary
An earlier sale deed’s grant of passage rights prevailed over a later purchaser’s purported exclusive right to the same access strip. The wife’s separate title and access grant were not displaced by her husband’s adjoining road access, a partial gift to him or later common inheritance. The right arose by grant rather than necessity and did not expire when an alternative route became available. The passage was reserved for common use.
Issues
- Whether a later exclusive-passage clause could override rights granted by an earlier conveyance.
- Whether family relationship, gift or later inheritance extinguished the earlier access right.
Provisions considered
- Section 48, Transfer of Property Act, 1882Made the later-created exclusive-use claim subject to the earlier conveyance’s access right in the absence of a binding contrary contract or reservation. (¶ 14–15)
Held
- The earlier deed’s easement recital, supported by the layout and access strip, granted a passage right notwithstanding its standard wording. The vendor could not later confer an inconsistent exclusive right on the plaintiff. (¶ 12–15)
- The defendant’s relationship to her adjoining landowner husband did not negate her separate grant. Neither the partial gift nor later common inheritance took away this title-based access right; rights were assessed as they existed when suit was filed. (¶¶ 13, 17)
- The claim rested on an express conveyance grant, not an easement of necessity, so the rule extinguishing necessity-based rights did not apply. (¶ 17–18)
Result
Appeals allowed without costs; adverse High Court decree set aside. The 16-by-103-foot passage reserved for common use of the second defendant and plaintiff.