Tang Tim Fat and Another v. Chan Fok Kei and Others

HCA007338/1989

1989, No.A7338

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HEADNOTE

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TRESPASS - ACCESSWAY OVER PLAINTIFF'S LAND CAME INTO EXISTENCE BEFORE 1963 - EASEMENT FOR PEDESTRIAN FOOTPATH CONCEDED - TRESPASS BY VEHICULAR TRAFFIC OVER ACCESSWAY CLAIMED - NO RIGHT OF WAY BY PRESCRIPTION CAPABLE OF ARISING IN HONG KONG - NO RIGHT OF WAY BY PRESUMPTION OF LOST MODERN GRANT OR PURSUANT TO PRESCRIPTION ACT 1832 CAPABLE OF ARISING BETWEEN LESSEES OF CROWN LEASES - EASEMENT BY NECESSITY NOT PROVED - PUBLIC RIGHT OF WAY BY DEDICATION TO PUBLIC MUST BE CLAIMED AGAINST THE FEE SIMPLE NOT THE LESSE

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Deputy Judge Chan in Court

Dates of hearing: 9, 12 - 16, 19 and 21 October 1992

Date of handing down of judgment: 24 November 1992

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J U D G M E N T

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1. The 2nd plaintiff is the owner, and the 1st plaintiff its former tenant, of a piece of land registered in the District Land Office, Yuen Long as Lot No.48B in Demarcation District No.128 ("the plaintiff's land"). The 2nd, 3rd, and 4th defendants are the joint owners, and the 1st defendant their tenant, of a piece of neighbouring land registered in the District Land Office, Yuen Long as Lot No.189B in Demarcation District No.128 ("the defendants' land"). The 1st plaintiff first became the tenant of the plaintiff's land in September 1987 pursuant to a tenancy agreement in Chinese writing dated the same date for a term of 5 years from 1st October 1987 at a monthly rental of $7,000. The 1st defendant has since 1963, and still is a tenant of the defendants' land under a tenancy renewable every 10 years.

2. By these proceedings the plaintiffs claim against the defendants for wrongful trespass of a strip of the plaintiff's land. It is common ground that there exists an accessway over the south-western corner of the plaintiff's land. It is not disputed that this accessway dates back to as early as the parties could remember, and in any event has already come into existence in February 1963 as shown in an aerial photograph of the area taken at that time. Though the plaintiffs originally claimed trespass by pedestrian as well as vehicular traffic over the accessway, they conceded at the commencement of trial that an easement for a footpath exists and confined their claim to one of wrongful trespass by vehicular traffic only. The defendants allege that they have acquired a right of way for vehicular traffic by prescription based on long uninterrupted user or by a presumption of a lost modern grant. They also allege that an easement by necessity arises from the circumstances. As a further alternative, they claim that a public right of way has come into being by dedication to public.

3. Evidence adduced by both parties shows, and this is not really in dispute, that the accessway came into existence probably before the parties' birth. It is not uncommon in the New Territories for public accessway to come into existence over private land. Often that takes the form of a footpath on the embankment between fields. As a result of small sub-divisions of agricultural plots on both sides of the few public roads passing over the vast area of the New Territories, such accessways came into being as a matter of necessity, being the only means of access to and from the inner plots. Thus, it has been fairly conceded by the plaintiffs that a right of way for a pedestrian footpath exists over the accessway.

4. The principal factual disputes between the parties, where most of the evidence is adduced, concentrated around the issues of : (i) width of the accessway, and (ii) time when vehicular traffic commenced. It is the plaintiffs' case that the width of the accessway has always been that of a normal footpath i.e. about 3 feet wide. Reliance was placed on the description of a "footpath" used in government survey plans since the 1960s. The 1st plaintiff alleges that it was a footpath overgrown with wild grass which had to be cut away in order to accommodate the dragon dance procession during the Tai Ping Ching Chiu Festivals which took place every 10 years. He also spoke of his personal experience there since the 1960s. His evidence is corroborated by another villager who used to pass by the plaintiff's land during the 1960s. Both of them denied vehicular traffic on the accessway between the 1960s and early 1970s. Mr Lau, a director of the 2nd plaintiff, said when he visited the area prior to purchasing the plaintiff's land in 1979, it was only a footpath. The 1st defendant says that ever since he rented the defendants' land for operating a chicken (then subsequently a pigeon) farm, vehicles passed over the accessway to delivery baby chicken and feeds to his farm and grown chicken to town for sale. He also owned a private car since 1970 and has since been driving his car over the accessway. He also saw trucks from the power company transporting cable posts via that accessway when electricity was first supplied to that area in 1964. The 3rd defendant used to farm the land nearby when he was a boy in the early 1930s. He confirmed that the accessway was used by villagers as a footpath in those days. He disputed the route of the dragon dance procession. Mr Chan (D.W.3) operated a chicken farm nearby between 1961 and 1977. He confirmed the vehicular traffic over the accessway in the 1960s for transport of materials and chicken to and from his farm, as well as use by private cars.

5. Apart from the oral testimonies of the witnesses, I also have the benefit of an aerial photograph of the area taken in February 1963 as well as government survey plans between the 1960s and 1970s. The surveyor, Mr Tarrant's evidence as to the possible width of the accessway by using the scale on the survey plans is not really helpful as the accessway may be widened on the plans to accommodate the words that appear on it. In any event, it is common sense that the width of an unpaved mud road or dirt track depends to a great extent on a variety of factors. The frequency of use at a particular point of time, the climatic condition and the nature of vegetation all play an important role in defining the boundaries of the path. The width of such a path can change from time to time according to the interplay between the various factors. I do not believe the exact width of the accessway at any particular point of time in history would be a determining factor in the nature and scope of the right of way. Whether the right of way is one limited to pedestrian traffic, or extends to vehicular traffic, depends not on its width unless it is contended that the width or other geographical features made it impossible for use by vehicles. The plaintiffs do suggest this alleged impossibility. However, I find the evidence adduced in support of such alleged impossibility flimsy and weak. I do not accept the 1st plaintiff's evidence as to the various levels of the accessway in relation to the gradient of the hillslope and the plaintiff's land. The further evidence he gave to explain the queries I raised during the site visit as regards his earlier evidence about raising the level of the plaintiff's land to that of the-accessway is not convincing at all. Even if there may be some truth in his evidence about the change of the gradient after he took possession of the site, I am not convinced from what I saw during the site isit that it that it was physically impossible for vehicular traffic to pass over the accessway in the 1960s and early 1970s. It would not take more than a width of 7 or 8 feet to allow a truck to pass through. Vehicular traffic is an unlevelled path across a gentle hillside. I personally witnessed during the site visit a huge container truck manoeuvring its way over a mud road no wider than the accessway with relative ease. The van we travelled on went through very rugged and sloping mud roads no better than a footpath between heavy vegetations.

6. It is not disputed that a rattan factory existed in that area in the 1960s. And that in 1979/1980 Apollo opened up its plastic factory in the area. It was during that time that the accessway was probably widened and covered with cement. Since then vehicular traffic has become common over the accessway. The paved accessway broken up and dredged by the 1st plaintiff after the present dispute had arisen.

7. After considering the evidence set out above as well as other evidence (which is plentiful and cannot be set out in full), I find the defence witnesses to be witnesses of truth. I find their evidence to be reliable and convincing. I find it more credible that vehicles would have become a common feature in the transport of chicken and farm materials to and from the farms over the accessway since the early 1960s. Private cars started to travel over the accessway around about the same time. I do not find it necessary to determine the exact width of the accessway at various points of time in history, suffice it to find that it was capable of accommodating trucks and private cars ever since the early 1960s.

Prescription by user since time immemorial

8. It is not disputed that the use of the accessway, whether it be pedestrian or vehicular, over the years has not been objected to or interfered with by the plaintiffs or their predecessor-in-title prior to 1988. There is clear evidence from the defence that such use has always been without permission, force or interruption; open and without secrecy; and as of right. I am satisfied that such user dates back to as early as 1961 when vehicular traffic over the accessway commenced, and as early as the early 1930s for pedestrian traffic.

"The basis of prescription is that if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin. Thus the court may presume, on proof of the fact of long enjoyment, that there once was an actual grant of the right, even though it is impossible to produce any direct evidence of such a grant" (see Megarry and Wade on "The Law of Real Property", 5th ed., p.869). At common law such a grant would only be presumed if the user as of right had continued from time immemorial i.e. "from time whereof the memory of men runneth not to the contrary" (see Littleton p.1031). The year 1189 has been fixed as the limit of legal memory (see Bryant v. Foot (1867) L.R. 2 QB 161 per Cockburn L.J. at pp.180-181). As it is clearly impossible in most cases to establish continuous user as of right since 1189, a period of 20 years' user has been accepted by the courts as sufficient to give rise to a presumption of such user since 1189 (see Darling v. Clue (1864) 4 F & F 329 at p.334). However, if it can be demonstrated that the user could not have existed in 1189, e.g. when a building was only erected after 1189, the easement cannot be claimed. In the premises, there is no question that prescription by user since time immemorial can ever apply to lands in Hong Kong in view of the history of the territory, and also the fact that British rule only commenced less than 100 years ago.

Prescription by presumption of a lost modern grant/ Prescription Act 1832

9. The difficulty to establish user since 1189 in common law prescription has been overcome by the development of the doctrine of lost modern grant. The courts presume from long user that the easement had been actually granted after 1189 but prior to the user supporting the claim, and that the deed of grant had been lost. The earliest case reported where the court had so presumed is said to be Lewis v. Price (1761) 85 ER 926. In 1832, the Prescription Act 1832 was enacted to provide for the periods for a claim of right of way or other easements to be 20 or 40 years as the case may be.

10. Thus, in Dalton v. Angus & do. (1881) 6 AC 740, it was held that a right to lateral support from adjourning land may be acquired by 20 years' uninterrupted enjoyment for a building proved to have been newly built, or altered so as to increase the lateral pressure, at the beginning of that time; and it is so acquired if the enjoyment is peaceful and without deception or concealment and so open that it must be known that some support is being enjoyed by the building. Lord Selborne L.C. said in respect of the 1832 Act:-

"Assuming the statute to apply, what would be its effect? The late Lord Chief Justice of England thought it would be nugatory. `It was passed' (his Lordship said) 'with the view of putting an end to the scandal on the administration of justice which arose from forcing the consciences of juries', to find that there had been a lost grant, when 'the presumption was known to be a mere fiction'. (3 QBD at 105). But he nevertheless concluded (at p.119) that, except in the case of light, 'as regards the effect of - twenty years' user or enjoyment in the matter of easement by presumed grant, the law stands exactly as it did before the passing of the Act, 'A conclusion extending as much to those rights of way, i.e., which are expressly mentioned in the 2nd section, as to other easements.' It is undoubtedly true that, under the 2nd section, there is an important difference between a forty years' and a twenty years' user. Forty years' user has the same effect which (under the 3rd section) twenty years' user has to light; it makes the right absolute and indefeasible, unless it is shown to have been enjoyed by consent or agreement in writing. But twenty years' user, under the 2nd section, may be defeated 'in any other way by which' it was previously (i.e. before the 1st of August, 1832) 'liable to be defeated', except that it can no longer be defeated or destroyed 'by showing only that it was first enjoyed at any time prior to such period of twenty years.' The effect of this, as I understand it, is to apply the law of prescription, properly so called, to an easement enjoyed as of right for twenty years, subject to all defences to which a claim by prescription would previously have been open, except that of showing a commencement within time of legal, memory. To allege that there was no evidence from which a grant could be presumed, or that there was evidence from which it ought to be inferred that there was, in fact, no grant, would not (as I understand the law) have been, before the 1st August, 1832, a competent mode of defeating or destroying any claim to an easement by prescription, and no jury would have been directed to find a grant in any such case, when there was no proof of a commencement within time of legal memory."

11. The Lord Chancellor's statement, though admittedly an obiter, is an authoritative analysis of the effect of the Act on the common law and has, to my knowledge, never been doubted as a correct statement of the law.

12. It has been submitted by the defendants that a right of way for vehicular traffic should be presumed by the long, open and uninterrupted user, whether it be by prescription since time immemorial, the doctrine of a lost modern grant or pursuant to the Prescription Act 1832 as applied by the Application of English Law Ordinance, Cap.88, sections 3 and 4 and the Schedule.

13. The Prescription Act 1832 which applies to Hong Kong (with modification which has no bearing for the purpose of the present case) does not change the common law characteristic, save as to the limited extent as described by the Lord Chancellor supra. It has been said that the grant to be presumed can only exist between owners of fee simple. Lindley L.J. pronounced in Wheaton v. Maples & Co. [1893] 48, at p.63 :-

"But I am not aware of any authority for presuming, as a matter of law, a lost grant by a lessee for years in the case of ordinary easements, or a lost covenant by such a person not to interrupt in the case of light, and I am certainly not prepared to introduce another fiction to support a claim to a novel prescriptive right. The whole theory of prescription at common law is against presuming any grant or covenant not to interrupt, by or with any one except an owner in fee. A right claimed by prescription must be claimed as appendant or appurtenant to land, and not as annexed to it for a term of years. Although, therefore, a grant by a lessee of the Crown commensurate with his lease, might be inferred as a fact, if there was evidence to justify the inference, there is no legal presumption, as distinguished from an inference in fact, in favour of such a grant. This view of the common law is in entire accordance with Bright v. Walker (1 CM & R 332 at p.340), where this doctrine of presumption is carefully examined."

14. On the effect of the 1832 Act on the common law he said at pp.64-65:-

"But if the section is so read, the consequence will necessarily be to create, by mere occupation and enjoyment, a class of easements which at common law could never have been acquired by prescription, but only by express agreement or grant. An easement for a term of years may, of course, be created by grant; but such an easement cannot be gained by prescription, and, not being capable of being so acquired, it does not fall within the scope of the statute (1832 Act). The expression 'absolute and indefeasible', as applied to easements of all kinds, coupled with the declared object of the Act, which is to shorten the time for prescription, shews that the easements dealt with were easements appendant or appurtenant to land, and which, when acquired, imposed a burden for ever on the servient tenement (my emphasis) ... That view, as I understand it, is that the Act has not created a class of easements which could not be gained by prescription at common law, or, in other words, has not created an easement for a limited time only, or available only against particular owners or occupiers of the servient tenement. Such a grantor agreement must, moreover, be proved as a fact and not be purely fictitious (my emphasis)."

15. The correctness of the principle in Wheaton v. Maples & Co. has never been doubted in England and has been applied as recently as in Simmons v. Dobson [1991] 1 WLR 720. Godfrey J. in Pang Kwan Lung & Anr. v. Ma Choi Hop & Others, H.C. No.A2091/89, left the position open in Hong Kong :-

"The Plaintiff's answer to the defendants' argument is that as between Crown lessees, the Prescription Act, 1832 must apply in Hong Kong (and, I would add, all the common law principles relating to prescription) between Crown Lessees as they would apply between the owners of estates in fee simple in England and Wales. This, as it seems to me, is a point both of difficulty and of importance and I am not prepared, on this interlocutory application, to decide that it is unarguable. I express no further or other view about it..."

16. The defendants submit that as there is only one estate in fee simple in Hong Kong (i.e. St. John's Cathedral), there can never be any application of the doctrine of prescription in Hong Kong if the restriction to estates in fee simple is to be strictly adhered to. But, they say, the Ordinance which applied the Prescription Act 1832 to Hong Kong must be given effect to. In the premises, they urge me to hold that to give effect and efficacy to the express intent of the legislature in applying the Act to Hong Kong, the Act should apply which such modification as to make it workable in Hong Kong. Thus, I ought to hold that prescription has application as between Crown lessees in the same manner as it applies to estates in fee simple. Reliance has been placed on the Irish case of Deeble v. Linehan (1860) 12 Ir.C.L.R.l. Deeble, who owns the estate of a free-farm grant contended that a right to a watercourse to his mill had been acquired by long user as against Linehan, the reversioner of the land over which the watercourse passed. Linehan did not reside upon his land which was occupied by his tenants. It was held in that case that there was no evidence to be left to the jury for the claim of acquiescence or presumption of a lost grant. I am unable to find any real assistance from that case on the issue of presciptive rights as between lessees.

17. However, it does appear from subsequent cases that it is now treated as settled law in Ireland that a lost grant may be presumed by or against a lessee for years. In Timmons v. Heuitt (1888) 12 Ir.C.L.R.627, the trial judge left open the issue of prescription to the jury in a case involving 2 tenants holding adjacent lands under a common landlord. (Again, the law is different in England where one tenant cannot prescribe for an easement against another tenant of his landlord : see Kilgour v. Gaddes [1904] 1 KB 457). In Hanna v. Pollock [1900] 2 I.R. 664, the Irish Court of Appeal by a majority, by obiter, endorsed this principle. Holmes L.J. said at p.704:-

"The inference ... is that the statute (1832 Act) is confined to amending the common law of prescription, and that this is done by giving a statutory mode of prescription in addition to the methods then existing for establishing rights by evidence of enjoyment. (My emphasis)"

18. This divergence from the English common law had been approved and adopted in cases like Macnaghten v. Baird [1903] 2 I.R. 734, Dawson v. McGroggan [1903] 1 I.R. 98, Flynn v. Harte [1913] 2 I.R. 322 and Tallon v. Envis (1937] I.R. 549. However, upon a careful examination of those Irish cases, I am not convinced of the reasons nor necessity for the divergence. The importance of restricting the operation of the presumption as between owners of fee simple only as expounded by Lindley L.J. in Wheaton v. Maples & Co., supra, must be upheld. The mere fact that as a matter of history only one piece of land in Hong Kong was granted by the Crown in fee simple is not sufficient to justify such a drastic departure from the common law under the disguise of modification permissible by s.3(l)(b) of the Application of English Law Ordinance, Cap.88. In any event, I do not see the necessity to rewrite the English common law to enable the Prescription Act to apply between leaseholders in Hong Kong. It is always open to leaseholders in Hong Kong to take advantage of the rule in Wheeldon v. Burrows (1879) 12 Ch. D.31. It laid down that upon the grant of part of a tenement, there would pass to the grantee as easements all quasi-easements over the land retained which (i) were continuous and apparent, or (ii) were necessary to the reasonable enjoyment of the land granted; and (in either case) (iii) had been, and were at the time of the grant, used by the grantor for the benefit of the part granted. This rule for an implied grant applies also to cases where the grantor, instead of retaining any land himself, makes simultaneous grants to two or more lessees. Each lessee obtains the same easement over the land of the other as he would have obtained if the grantor had retained it (see Swansborough v. Laventry (1832) 2 Mov & Sc 362 and Broomfield v. Williams [1897] 1 Ch. 602 at p.616). All leaseholders in Hong Kong hold their tenement from one common landlord, the Crown, under Crown leases. In the New Territories, all land is declared to be vested in the Crown as from 23rd July 1900 by virtue of s.8 of the New Territories Ordinance, Cap.97. The tenements granted to leaseholders in the New Territories are subject to express provisions as to user. As the New Territories modernize with passage of time, temporary permits or waivers are issued by the Crown, on payment of premiums, relaxing the restriction over the user. All such Crown leases, which expired on 30th June 1973, were automatically renewed at the same time by the New Territories (Renewable Crown Leases) Ordinance Cap.152. Thus on 1st-July 1973, there was a simultaneous grant of a new demise for all land in the New Territories by virtue of Cap.152. It is thus arguable that any easement or right of way granted expressly or impliedly to any dominant tenement by virtue of any temporary waiver/permit issued prior to that time would bind the servient tenement by operation of the doctrine of an implied grant. However, this doctrine cannot come to the assistance of the defendants in the present case as they have via their counsel expressly abandoned any reliance on any right stemming from the fact of a common landlord.

19. I am not convinced that it would be appropriate to modify the English common law to allow the.presumption of a lost modern grant to arise between lessees of a common landlord. Such an extended presumption violates the very foundation of the doctrine itself i.e. the fiction of a servient owner making a grant to a dominant owner. As between lessees of a common grantor, the rule in Wheeldon v. Burrows of an implied reservation/grant is capable of providing a ready solution to a situation where such a right of way is necessary for the enjoyment of the land. There is no logical need to add fiction to a fiction. In reality it is difficult to see how such a matter can ever become a real problem. All Crown leases in the New Territories are for agricultural use and can only be used profitably for other uses with the special permission from the Crown. Thus, it is difficult to see how a "servient lessee" would not be readily agreeable to consent to a modification of the right of way for agricultural use over his land to that of more profitable uses if he himself is seeking special waiver from the Crown for similar profitable uses of his own land. In any event, the Crown also has the ultimate weapon of a right to re-enter under the Crown Land Resumption ordinance, Cap.124. I am not satisfied that the circumstances justify a modification of the well-established English common law in manner urged upon me by the defendants. The justice of the situation does not warrant such a drastic departure from the well-founded basis for the presumption. I hold that the presumption of a lost modern grant can only be claimed by one owner of fee simple against another, and cannot be made available to a lessee of a term unless he claims it also on behalf of his grantor who holds the fee simple. And, as a result of historical fact, such presumption has no de facto application in Hong Kong.

Public Right of Way

20. The plaintiffs claim that as they were labouring under a mistake as to the boundary of the plaintiff's land until the survey in 1988, they could not be taken to have dedicated the accesway to the public. It is also submitted that there cannot be a dedication for a term by a lessee.

21. It has been held in Willaims-Ellis v. Cobb [1935] 1 KB 310 that there is no praesumptio juris to compel the courts to draw an inference of dedication to public even from unrebutted evidence of long and uninterrupted user. Blackburn J. said in Greenwich Board of Works v. Mandslay (1870) 5 L.R. Q.B. 397 at p.404 -

"It is necessary to show in order that there may be a right of way established, that it has been used openly as of right, and for so long a time that it must have come to the knowledge of the owners of the fee that the public were so using it as of right, and from this apparent acquiescene of the owners a jury might fairly draw the inference that they chose to consent, in which case there would be a dedication."

22. The observation of Fry J. made in the Court of Appeal in Dalton v. Ancaus, supra, at pp.773 was not disturbed by the House of Lords. He was of the view that "the whole law of prescription and the whole law which governs the presumption or inference of a grant or convenant rest upon acquiescence." And acquiescence can only operate when there is knowledge. However, the 2nd plaintiff which only acquired title to the land in 1987, is unable to adduce evidence of a similar mistaken belief on the part of its predecessor-in-title over the boundary of its land. Thus, the mistaken belief of the 2nd plaintiff since 1987 cannot be sufficient to vitiate the long and uninterrupted user by the public since the early 1960s, and probably as early as the 1930s. I find no substance in the plaintiffs' reliance on the 2nd plaintiff's mistaken belief since 1987 to defeat the defendants' claim for a dedication to the public.

23. However, as held by Blackburn J. in Greenwich Board of Wales v. Mandslay, supra, the inferred consent must come from the owner of the fee simple. In Corsellis v. London County Council [1907] 1 Ch. 704, it was also held that there had been no dedication to the public for under the circumstances of the case, the consent of the freeholder, as distinct from the leaseholder, could not be presumed. Neville J. said at p.713:-

"I have come to the conclusion that there is no such thing known to the law as a dedication of a way for a term. I do not think such an idea was ever heard of prior to the year 1879, the date of the decision in Attorney General v. Biphosphated Guano Co. (11 Ch. D.327). There seem to me to be very good reasons why the public cannot take a right of way for a term."

The obvious practical reason against having a right of way presumed by law for a term only against a lessee, be it by prescription, presumption of a lost modern grant or dedication to public, is that it would serve no useful purpose. All it will require to destroy such a right of way is for the grantor and the lessee to terminate the existing term thereby bringing an immediate end to the right of way, and to enter into a new term immediately thereafter free from such an encumbrance. To be effective, it must be perpetual and against the fee simple.

24. As the defendants did not (and probably could not) claim a dedication by the owner of the fee simple of the plaintiff's land, their claim for such a public right of way against the plaintiffs only is bad in law.

Easement of Necessity

25. Though it has been suggested by the plaintiffs that there are alternative routes leading from the defendants' land to public highway that need not pass over the accessway, I am satisfied and hold that at present the accessway is the only route for vehicular traffic. To access to public highway on foot, it is possible for pedestrians to pass over other private property and/or Crown land. To access to the other paved road for . vehicular traffic at the back of the defendants' land, the vehicles would have to pass over another piece of private property.

26. However, it has been held that the implied right to a way of necessity to and from a landlocked tenement does not create a right for all purposes for which the land may at any time be used, but only such a right as will enable the owner of the land to enjoy it as in the condition it happened to be at the time of the grant, see Corporation of London v. Riggs (1970-80) 13 Ch. D.798.

27. The land in Demarcation District 128, inclusive of the plaintiff's land and the defendants' land, was granted to the Crown lessees by a Block Crown Lease dated 24th January 1905 for agricultural use. At that time the accessway could only have been a footpath for pedestrian traffic. The only form of "vehicular" traffic would probably be a handcart or wheelburrow pushed by hand. It has been said that "an easement of necessity, such as is referred to, means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property" (per Stirling L.J. in Union Lighterage Co. v. London Graving Dock Co. [1902] 2 Ch.557 at p.573). I do not find it necessary, or indeed possible, to infer any right of way for vehicular traffic at the time of the grant in 1905. No reliance has been placed by the defendants on the automatic statutory renewal of the grant pursuant to s.4 of the New Territories (Renewable Crown Leases) Ordinance, Cap.152 in 1973, to be the appropriate time for considering any easement of necessity for vehicular traffic arising under the conditions as at that time i.e. 1973. At the time of such statutory grant of a new Crown lease, the accessway had already been subject to frequent vehicular traffic to and from the poultry farms in the area. However, that issue does not fall for me to decide in these proceedings.

28. In the premises, the defendants fail in all their claims for a right of way for vehicular traffic, on grounds of prescription in common law or under the Prescription Act, presumption of a lost modern grant, dedication of a public way or easement of necessity.

29. On the plaintiffs' own case, the 1st plaintiff dredged the accessway by digging up the cement surface after the dispute as to the right to use it arose. It is unclear who laid the cement on the accessway, the suggestion appears to be that it was laid when the Apollo factory was opened. There being no evidence or suggestion that any of the defendants laid the cement on the accessway, there can be no question of liability on their part for the costs of removal. Furthermore, the 1st plaintiff suffered no loss as the costs of dredging was reimbursed by the 2nd plaintiff. He was also refunded all rentals paid under the lease. He said he terminated the lease because of the mistake as to the actual area of the plaintiff's land arising from the mistaken boundary. In the premises, I fail to see any causal link between the 1st plaintiff's claim for damages and the defendants' assertion of a right of way. As regards trespass by vehicles, there is not the slightest evidence that the plaintiffs suffered any damages as a result of vehicular traffic in addition to pedestrian traffic. Further, the 1st plaintiff having surrendered the lease has no further locus standi to maintain the present proceedings against any of the defendants for an injunction. In the premises, the 1st plaintiff's claims for an injunction, declarations and damages are dismissed with costs.

30. No claim for damages has been specifically made by the 2nd plaintiff. It only claims for declarations that the defendants are not entitled to enter or cross the plaintiff's land and/or to exercise any right of way at all. In view of the concession for a right of way of a footpath, these claims must also be dismissed. It was the 2nd plaintiff who brought about the termination of the lease to put itself in a position to bargain with the proprietor of Apollo for compensation in exchange for a right of way. That being the case, any damage suffered by the 2nd plaintiff flowing from the termination of such lease would be too remote to be recoverable. There being no evidence of any damage brought about by the vehicular traffic, in addition to the conceded pedestrian traffic, the 2nd plaintiff has not established a case for any other damages to be accessed, and I make no order for such.

31. In view of the concession for a right of way for a footpath, it would not be appropriate to dismiss the counterclaim of the defendants in its entirety. I leave it to the parties to work out an appropriate order in the circumstances, failing which there is liberty to parties to apply.

32. The plaintiffs have conceded a right of way for a footpath at the commencement of the trial, and the rest of the trial was directed to the issue of a right of way for vehicular traffic. The defendants are unsuccessful in establishing such a right. In the premises, factually there has been trespass by vehicular traffic though no relief for such was granted to the plaintiff. In the premises, costs of the action prior to the first day of trial are to be awarded to the defendants against both plaintiffs. However, costs of the trial on and as from the first day of trial are to be awarded to the 2nd plaintiff against both defendants. As the 1st plaintiff has no locus standi at the trial, he is to bear the costs of the trial of the defendants, on and as from the first day of trial. The above orders as to costs are to be orders nisi and the parties are at liberty to apply in accordance with Order 42, rule 5B(6) of the Rules of the Supreme Court.

Representation:

Mr Thomas Lai instructed by M/s Leung Kin & Co for plaintiffs

Mr Chan Chi Hung instructed by M/s Edward Wong & Ng for defendants