Wan Yuk Wing v. Wong Kwok Hing Patrick and Another

HCA1713/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1713 OF 2007

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BETWEEN

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Before : Mr Recorder A. Chan, SC in Court

Dates of Hearing : 3–6 and 10 August 2009

Date of Judgment : 21 August 2009

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J U D G M E N T

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Introduction

1.There is a San Tong Village in Tai Po, New Territories and it has been the home of a group of clansmen surnamed Wan for a long time. The plaintiff is one of the clansmen and in 1992 he inherited a piece of land from his family which is known as Subsection 1 of Section A of Lot No.1323 in Demarcation District No.8, Tai Po, New Territories (“Land A”). Land A is about 3,000 sq. ft. in size. In 1997, the plaintiff had a house built on Land A, known as No.89 San Tong Village, Lam Tsuen, Tai Po, New Territories (“the House”). After the House was built, the plaintiff and his family, including his mother, started to live there.

2.To the north of Land A and abutting it is the defendants’ land known as Subsection 3 of Section A of Lot No.1322 in Demarcation District No.8, Tai Po, New Territories (“Land B”). Land B is roughly half the size of Land A, i.e., about 1,500 sq. ft. The defendants, who are brothers, became owners of Land B in 2007 (more about the history of the ownership below). This action concerns a dispute over a right of way which the plaintiff says he and the users of Land A enjoy over Land B (“the Disputed Way”).

3.It appears from the sketches produced in this trial that the main road that connects San Tong Village is Lam Kam Road (“the Road”), which lies to the North of San Tong Village. Land A is land-locked in the sense that it is surrounded by other pieces of land and in order to reach the Road, it is inevitable that the users of Land A will have to walk over the neighbouring land. In 1998, the plaintiff had the Disputed Way concreted to enhance the access to the House. He did not obtain any permission from his neighbour before doing so. The Disputed Way runs across more or less the middle of Land B and is connected with a footpath which leads to the Road. The location of the Disputed Way inhibits the defendants from building a house on Land B.

4.The plaintiff says that he and his predecessors in title had acquired the right of way under the principle of prescription by lost modern grant. In simple language, this means that the plaintiff and his predecessors in title had used the Disputed Way for a very long time such that the right to use it had become recognised by law. Alternatively, the plaintiff claims that he has a right of way by necessity over the Disputed Way.

Evidence

5.The foregoing matters (except paragraph 4) are not controversial. In order to resolve this dispute, one needs to look into the history of the area in question — the land lying between San Tong Village (“STV”) and another village called Lam Tsuen Sun Tsuen (“LTST”). Where the evidence is disputed, I shall indicate so below and resolve it where appropriate. To enable this Judgment to be properly understood, there is attached hereto a copy of a sketch which has been exhibited as “D3”.

6.In the old days, the land situated between STV and LTST (“the Area”)was used for farming. Land A and Land B were part of that farming area. There are many aerial photographs of the Area and for obvious reasons they are the most reliable evidence on what was happening in the Area. The earliest photograph is dated 1945 and it shows that the Area was used for farming.

7.One can see from the photographs that there were many pieces of cultivated land separated by field bunds, which were small dykes made of earth. The position of those bunds corresponded with the boundary of the various lots of land in Demarcation District No.8. In other words, the bunds served, inter alia, as the boundary of the lots of land.

8.I have already said that STV is occupied by the Wan clan (some of the villagers are surnamed Lau). If one walks from STV towards the Northeast over the cultivated fields for about 7 to 8 minutes, one will arrive at LTST. It is occupied by a few clans. The clansmen are surnamed Chung, Chan or Cheung. The defendants’ mother belongs to the Chung clan. The defendants themselves belong to another village not far away called Tai Mong Che Village.

9.According to one of the witnesses called by the defendants, Ms Chung Wai Tai (“DW2”), who is 59 years old and has been living at LTST all her life with the exception of a few years, the villagers of STV and LTST belonging to her father’s generation were good friends. They enjoyed good communication and socialised with one another. For her generation, there is less socialising and people are more preoccupied with their own business. As a result, communication has suffered and the relationship is not what it used to be. Further, DW2 said that building of Ding houses during the last few decades had caused disputes amongst the villagers due to objections to some of the building proposals.

10.As mentioned above, Land A was owned by the plaintiff’s family before it was transferred to him in 1992. Land B was originally part of a larger piece of land known as Section A of Lot No.1322 in D.D. 8 (“1322A”). 1322A was acquired by the defendants’ maternal grandmother in 1951 from one Mr Wan who belonged to yet another village. It was transferred to the defendants’ mother (“DW4”) in 1981. In 1996, 1322A was subdivided by DW4 into five subsections of which Land B was one. Land B was assigned to one of the defendants (Mr Wong Paul Kwok Jone (“DW3”)) at the time of subdivision and he held that land until 1999 when it was transferred to one Mr Chan Hing. However, Land B was transferred by Mr Chan back to the defendants in 2007. The reason for the transfer of Land B to Mr Chan had something to do with DW3’s application to build a Ding house which was unsuccessful.

11.As mentioned above, the Disputed Way was concreted in 1998 by the plaintiff. There is no issue that the Disputed Way existed in the old days as a field bund (“B Bund”). Although B Bund is not shown in the1945 aerial photograph (which is of comparatively poor quality), I accept the evidence of the plaintiff’s surveyor (“PW3”), which was not challenged, that with the benefit of later photographs in which B Bund could be clearly seen he could make use of the position and size of that bund as guides to assist him in identifying the same object in the 1945 photograph. The earliest photograph in which B Bund can be seen clearly is onedated 1956. I accept PW3’s evidence that a trace of a track in the same position of B Bund can be seen in the 1945 photograph and I infer that B Bund existed in 1945. This is consistent with the evidence of DW4 that somebody in the old days had built that bund. It is the evidence of both the plaintiff and his brother (“PW2”) that prior to the concreting, the Disputed Way was just a muddy pathway.

12.It is common ground that the villagers would make use of the bunds as passageways. That is consistent with the old photographs from which one can see that there were no passageways as such but field bunds in the Area. Plainly, the bunds were used as passageways to move from one place to another. However, with the passage of time, one can see from the photographs that more houses were built in the Area. Correspondingly, the cultivated area became smaller and some of the bunds were concreted, no doubt to improve their quality as passageways.

13.There is dispute as to the width of B Bund. The point is raised by the defence to suggest that it was unlikely to be used by other villagers. DW4 said that it was only about 10 inches wide, whereas the plaintiff said that it was about 1 meter wide (the same width as the Disputed Way in its concreted form). Based on his analysis of the aerial photographs, PW3 said that it was about 2/3 of the width of the concreted Disputed Way. On the other hand, the defendants’ surveyor (“DW1”) said that it was about 1 ft. wide. I prefer the evidence of the experts and believe that the width of B Bund was likely to be between 1 to 2 ft. However, I do not see this as a critical issue. DW4 accepted that she was able to walk on the bund and I see no reason why the other villagers had difficulty doing so.

14.It is the defendants’ case that B Bund was not used by the plaintiff or his predecessors in title. The reason given is that they were using another route (walking over other bunds) to the south of Land A to access it from their home.

15.I am unimpressed by this part of the defendants’ case. First of all, it was said by PW2 and DW2 that there was no restriction over the use of the bunds as passageways by the villagers. Even DW4, who was at pains to maintain that the plaintiff and his predecessors in title never used B Bund, had to admit eventually that she, like everyone else, could use all the field bunds as she pleased. In the context of a small rural community where the villagers had a harmonious relationship, I would be very surprised if it was otherwise.

16.There is a strong reason to reject this part of the defendants’ case. It is undisputed that the plaintiff’s family also owned a piece of land close to Land A — Lot No.1320 S.B. It can be seen from the photographs that there were bunds running along the boundary of Lot No.1320 S.B into Lot No.1318 and then connected with B Bund before reaching Land A (This route is referred to as the G-C-H route on C101 of the Trial Bundles.). I have no difficulty in accepting the plaintiff’s case that this route was used by him and his predecessors in title when they moved from Lot No.1320 S.B to Land A.

17.It is contended by the defence that the plaintiff and his predecessors in title did not go from Land A to the Road (if they did so it was almost inevitable that they would have walked over the Disputed Way). Detailed evidence has been given as to the type of crops farmed on the fields owned by the plaintiff’s family to seek to demonstrate to this court that the harvest would have to be taken home by the plaintiff’s family for washing before it could be taken to the Tai Po market for sale, and the route from their home to Tai Po market did not involve the Disputed Way. With respect, I do not find this evidence, which is contested, helpful. Even if the defendants’ case is right, I find it unrealistic to suggest that the plaintiff and his predecessors in title never accessed the Road from Land A (via the Disputed Way), or vice versa, over all these years. Even if they did not do so during harvest time, given that the Road was the main access in and out of the Area, there must have been many reasons for the plaintiff and his predecessors in title to go to and from the Road and Land A.

18.For completeness, I have taken into account the evidence of PW3 that the bunds to the south of Land A were likely to have been used more heavily than, say B Bund. The reason being that the former are shown in the photographs to be more prominent. However, I do not believe that it changes the picture that B Bund was used freely by the plaintiff and his predecessors in title.

19.As will be seen below, one of issues in this case concerns the continuous use of the Disputed Way and for that I need to consider the history of the use of the land in question.

20.According to DW4, she started to help her family to farm 1322A when she was 10 years old in about 1948 until 1967 when she got married and emigrated to the United Kingdom. She did not come back to Hong Kong on any regular basis since her emigration. Her mother continued to farm 1322A until about 1984 or 1985 when she was 76 years old. Since 1986, the farming stopped and the land became idle. Although she was unable to say if anyone was attending the land for maintenance, her mother lived only 10 minutes from 1322A. Her mother passed away in 2005. It was in 2007 that she became aware of the Disputed Way having been concreted.

21.At the risk of side-tracking, it is also the evidence of DW3 that he only knew about the existence of a concreted footpath on his land in 2007. DW3 was born and raised in the United Kingdom. Although he came back to Hong Kong in 2004 to live here permanently, he did not visit Land B until 2007 and was indeed told by DW4 about the concreted footpath. The plaintiff contends that the defendants and DW4 must have known about the concreting of the Disputed Way before 2007. I do not believe that there is any satisfactory evidence to support such contention and I have no reason to doubt DW3 and DW4 on this point.

22.As I understand from the evidence of the surveyors and the aerial photographs, those which were taken in 1945, 1954, 1956, 1976, 1984, and 1988 all show that both Land A and Land B were cultivated. The next photograph is dated 1996. It shows that Land A and Land B, as well as 1320 S.B, were covered with overgrown vegetation and that the farming had been abandoned. B Bund can no longer be seen and indeed the bunds around Land A and Land B cannot be seen anymore.

23.The 1997 photographs (dated 15 May 1997) show that 1320 S.B and Land B remained uncultivated, but that farming had resumed on Land A. No bunds can be seen running through 1320 S.B or Land B. However, PW3 said that he could see bunds or tracks leading to a place close to Land A from the south. I believe that the weight of the evidence is such that it is more likely than not that during the time as depicted in the 1997 photographs the users of Land A were accessing it from the south given that the bunds to the north, including the Disputed Way, were covered with vegetation.

24.There are two 1998 photographs, one dated 7 May 1998 (“E7-1”) and the other dated 31 October 1998 (“D52”). E7-1 is the first photograph showing that the House had been built. In fact, two newly erected structures can be seen in this photograph — there was another newly built house next to the House and to the west of it. PW3 agreed that it appears from E7-1 that most of Land B was concreted. Indeed, one can see from E7-1 that there was a route connecting the Road and Land A and it is quite apparent that Land B was used for part of that route. PW3 said that it appeared that most of that route was concreted. One can see that there were vehicles on that route. The overwhelming inference is that the route was there to facilitate the building of the House and possibly the one next to it. I must note here that when the plaintiff was cross-examined about this route and whether he had the defendants’ permission[1] to use Land B for his own purpose, he was highly evasive, tried to deny the obvious that Land B was being used and had to eventually admit that he did not have the defendants’ permission. I shall say a little more about the plaintiff’s credibility below.

25.The second of the 1998 photographs (D52) shows that a boundary wall had been erected around the House and the G-C-H route (see paragraph 16 above) had been restored and concreted.

26.The subsequent photographs, dated 1999, 2000, 2001, 2004, and 2006, do not show any material changes save that the area in question became more and more developed and more concreted footpaths appeared. On D62 (the 2006 photograph) no less than 6 footpaths, including the Disputed Way, have been identified. They are all connected as a network of footpaths.

27.The evidence of the plaintiff is that Land A was used mainly for farming prior to the building of the House. He said that bricks were made on Land A as building material and that there was a “high voltage lamp post” on Land A. I do not believe the making of bricks, in respect of which the evidence is sketchy, and the existence of the “lamp post” change the picture that Land A was a piece of agricultural land. That fact is well supported by the aerial photographs.

28.For completeness, the plaintiff said that the House only occupies one third of Land A and that plants are grown over the reminder of the land. I can see from the available photographs (E84 and E91) that part of Land A was covered with vegetation but they are consistent with the fact that Land A has been used for residential purpose after the House was built.

29.One of the issues in this case is whether there is any alternative access between Land A and the Road (apart from the Disputed Way). As will be seen below, there is a legal problem with this part of the plaintiff’s case and therefore the existence or otherwise of any alternative access is strictly irrelevant. In the premises, I shall deal with this part of the evidence a little more succinctly.

30.The defendants say that there is such a way to the south of Land A and that route has been identified on A28 (“Alternative Route”). There are two parts to that route, coloured respectively orange and yellow. There is no dispute over the orange part (“Orange Route”). It corresponds to Footpath ‘A’ identified on D62 and Exhibit “D1”. It is concreted and appears to be the main footpath leading to the Road and with which a number of other footpaths are connected. The yellow part (“Yellow Route”) is disputed. By comparing A28 with “D1”, one can see that only part of the yellow route is concreted —the part running along 1321 S.B ss.2 and 1321 S.B R.P. Another feature of the Yellow Route is that from the boundary wall to the south of the House, the route spreads out into two branches going south along the east and west side of 1323 S.A ss.2 before merging at 1321 S.B R.P.

31.PW3’s evidence, based on two site photographs, is that there is no access to the south of Land A from which one can reach the Road. He had of course made site visits and taken those photographs. The plaintiff denies that there is any “road” leading from the House to the Yellow Route. I should say a few words about the quality of the plaintiff’s evidence.

32.I have a poor impression of the plaintiff as a witness. The plaintiff is 57 years old and a sophisticated person. He obtained his university degree in Canada and is studying for a doctorate degree in business administration at the City University of Hong Kong. It is quite clear from his evidence that he came to this trial well-prepared in terms of knowing the evidence and the arguments. In the course of cross-examination, he made use of every opportunity to advance arguments for his case and had to be repeatedly reminded of his duty to answer questions. When difficult questions were put to him, he was evasive.

33.I believe that the plaintiff has embellished his evidence and is not a reliable witness. As an example, on a subject of considerable importance, the state of the Disputed Way before it was concreted in 1998, the plaintiff was extensively cross-examined and he accepted that the Disputed Way was a muddy path which could not be distinguished from a field bund. In re-examination, he changed his evidence and said that it was a purposely built pathway.

34.Going back to the Yellow Path, I prefer the evidence of DW1 and DW3. According to DW1, he had walked on part of the Yellow Route during a site visit. In particular, from the paved path at 1321 S.B R.P., he took the branch at the eastern side of 1323 S.A ss.2 to reach the boundary wall of the House. He said that the unpaved path looked like a field bund and was elevated at about 1 to 2 ft. from the ground. However, the route between 1321 S.B R.P. and the boundary wall was covered with overgrown vegetation and DW1 (a young looking man) had difficulty walking on it. He said that the covered bund could be used by anyone after site clearance.

35.There is, however, a complication in that DW1 did not take the Yellow Route to the south of 1321 S.B ss.2, i.e., the part which runs along 1321 S.B ss.1 and 1321 S.E before merging with the Orange Route (the Southern Tip). This part of the Yellow Route is also unpaved and there is no dispute that it is a field bund. Instead of walking on this part of the Yellow Route, DW1 said that he walked along Footpath “A” and then Footpath “E” as shown on “D1”.

36.DW3 had also walked on part of the Yellow Route. He took the western branch of the route at 1323 S.A ss.2 and walked all the way towards Land A until he saw the back gate to the House. He said that the grass was a bit long (up to his calf) but he managed to “get through it”. He is of course a fit looking young man. In respect of the Southern Tip, DW3 was unsure whether the path he walked along was or was not paved. I believe that it is more likely than not that he took the same route as DW1.

37.I take into account the fact that PW3 was not cross-examined on the Alternative Route. However, I left the door open to the plaintiff to apply to recall PW3 at the costs of the defendants but no application was made in that regard. I therefore see no reason not to give full weight to the aforesaid evidence of DW1 and DW3.

38.I am satisfied on the evidence that the Alternative Route exists, can be safely used after the clearance of overgrown vegetation and with which the users of Land A can access the Road.

39.Further, I accept that evidence of DW1 that in addition to the Alternative Route, the users of Land A can make use of Track “C” as shown on “D1” to access the Road. I prefer the evidence of DW1 over that of PW3 because DW1 was quite specific about how that route can be used.

Law and the Arguments

40.The law on prescription by lost modern grant is discussed in The Law of Real Property by Megarry and Wade, 7^th ed., pp.1267-8 :

“The weakness of common law prescription was the inevitable failure of a claim if it was shown that user had begun after 1189. The doctrine of lost modern grant avoided this by presuming from long user that an easement or profit had been actually granted after 1189 but prior to the user supporting the claim, and that the deed of grant had been lost. The doctrine was an entirely judge-made fiction. It is therefore really a variety of prescription at common law, but was a fairly late and distinct development and is always classified separately. It has been described as ‘in the nature of an estoppel by conduct’”.

41.The learned authors then referred to Bryant v Foot (1867) L.R. 2 Q.B. 161 at 181, per Cockburn C.J.:

“Juries were first told that from user, during living memory, or even during 20 years, they might presume a lost grant or deed; next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury, nor anyone else, had the shadow of belief that any such instrument had ever really existed.”

42.The lost modern grant doctrine is applicable in Hong Kong, see Chan Tin Yau v Tsang Kwok Kay [2008] 5 HKLRD 26.

43.In simple terms, in order to rely upon this doctrine the plaintiff must show that he or his predecessors in title had had uninterrupted use and enjoyment of the right of way in question for at least 20 years.

44.Mr Leung, who appears for the defendants, challenges the plaintiff’s case on two grounds. Firstly, it is said that the evidence given by the plaintiff and PW2 only covers the period from 1960 to 1975 during which they assisted their family in the farming activities. There is no first hand evidence of the use of the Disputed Way during any other period. Consequently, the plaintiff has not established the use of the Disputed Way for a continuous period of 20 years.

45.I am not attracted by this argument. The evidence that Land A was cultivated goes back to at least 1945. I have already referred to the evidence concerning the Area, the farming community which occupied the Area and the use of the field bunds as passageways by the farmers. There is a compelling inference to be drawn on the evidence that the plaintiff’s predecessors in title had been using the Disputed Way for at least 20 years since 1945 and therefore the right of way under the doctrine of lost modern grant has been established.

46.Secondly, it is submitted by Mr Leung that the defendants or their predecessors in title had no knowledge of the use of the Disputed Way by the plaintiff or his predecessors in title. Mr Leung relies on Sturges v Bridgman (1879) 11 Ch.D 852 at 863:

“Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant…for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses.”

47.I accept the principles relied upon by Mr Leung. However, I believe that the requisite knowledge has been proved by inference. The predecessors in title of the two sides were neighbours of adjacent farmland. I have already dealt with the evidence concerning the use of the Disputed Way by the plaintiff or his predecessors in title. It is quite inconceivable that such use of the Disputed Way was unknown to the people at Land B. I do not accept DW4’s evidence in this regard. She is an interested party and I find this part of her evidence inherently implausible.

48.However, even where an easement by lost modern grant has been established, Mr Leung has another, and a more forceful, challenge. It is submitted that the easement is restricted to agricultural purpose and does not extend to residential purpose.

49.I have been referred to a number of authorities on this point. It is sufficient for me to quote one of them —Williams v James (1867) L.R. 2 C.P. 577 at pp.580 and 582 :

“When a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant. Such a right cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen.”

“… where a way has to be proved by user, you cannot extend the purposes for which the way may be used, or for which it might be reasonably inferred that parties would have intended it to be used. The land in this case was a field in the country, and apparently only used for rustic purposes. To be a legitimate user of the right of way, it must be used for the enjoyment of the Nine acre field, and not colourably for other closes. I quite agree also with the argument that the right of way can only be used for the field in its ordinary used as a field. The right could not be used for a manufactory built upon the field. The use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place.”

50.Ms Yung, who appears for the plaintiff, does not quarrel with those principles. The contest is in the application of the principles. Ms Yung referred me to Gale on Easements, 18^th ed., pp. 382-384 :

“The extent of an easement acquired by user was considered in detail by the Court of Appeal in the important case of McAdams Homes Limited v Robinson [2004] EWCA Civ 214. This case concerned a right acquired by an implied grant rather than by prescription but it was said that, at least in the great majority of cases, there should be little difference in the principles applicable to the two types of case.

…

The first judgment in McAdams Homes was given by Neuberger L.J. He held that the cases established the following propositions :

(1) where the dominant land is used for a particular purpose at the time an easement is created, an increase, even if substantial, in the intensity of that use, resulting in a concomitant increase in the use of the easement, cannot of itself be objected to by the servient owner;

…

(5) the issue as to extent of an easement acquired by implied grant or by prescription should be determined by answering two questions;

(6) the first question was: whether the development of the dominant land represented a ‘radical change in the character’ or a ‘change in the identity’ of the dominant land as opposed to a mere change or intensification in the use of the dominant land;

(7) thesecond question was:whether the use of the dominant land as redeveloped would result in a substantial increase or alteration in the burden on the servient land;

(8) it is only if the redevelopment of the dominant land resulted in a radical change in its character and would lead to a substantial increase in the burden that the dominant owner’s right to enjoy the easement would be suspended or lost;

(9) where both requirement are satisfied, the dominant owner’s right to enjoy the easement will be ended, or at least suspended, so long as the radical change of character and substantial increase in burden are maintained;

(10) although not all the cases were entirely consistent and clear, the above approach was principled, consistent and coherent;

…”

51.With respect, in the absence of any contrary argument from Mr Leung, I am content to apply the two-fold test adumbrated by Neuberger LJ. In respect of the first question, Ms Yung has very fairly, and rightly, conceded that the change of use for Land A from agricultural to residential did constitute a “radical change in the character” of that piece of land.

52.As regards the second question, Ms Yung accepts that it is a question of fact for this court. I have no hesitation in coming to the view that the change of use has resulted in a substantial increase in the burden on Land B. To some extent, the fact that the Disputed Way was concreted reflects the increase in burden. Since 1997, Land A is no longer a place of work for farmers. Instead, it has been the home for a family of six (increased to seven recently with the arrival of a domestic helper). Naturally, the Disputed Way has been used more frequently and, on average at least, by more people (including visitors to the House). The plaintiff has mentioned bicycle traffic on the Disputed Way (there are several bicycles used by his family). If there was any bicycle traffic on the Disputed Way before it was concreted, such occasions must have been rare. From time to time there would be movement of, e.g., furniture and electrical appliances on the Disputed Way. According to the plaintiff, when Land A was used for farming, it would only be visited every one or two days during the quiet season. Indeed, the nature and width of B Bund would dictate the traffic that could be accommodated. Finally, Mr Leung has made the point that the access over B Bund was subject to the interruption by weather — poor weather making the muddy path inaccessible.

53.In the premises, I am driven to the conclusion that the easement over the Disputed Way has, at least, been suspended since 1997.

54.I do not believe that I have all the relevant authorities before me for the purpose of determining whether the easement has been extinguished or simply suspended. However, I see no real prospect, certainly not in the foreseeable future, that the use of Land A will revert back to agricultural and therefore there is no real need to answer that question.

55.For completeness, Mr Leung has argued that in assessing the increase in burden on Land B, I should take into account the potential increase of use of Land A as a piece of residential land. He submitted that the House (a three storey building) may be let to three families and that another house may be built on the land. Although I see some logic in the point, Mr Leung has not provided me with any relevant authority and I respectfully decline to go into that area without any guidance given that it is unnecessary to do so in light of the above conclusion.

56.Before I deal with easement by necessity, I should mention that I disagree with Ms Yung that the plaintiff was entitled to have the Disputed Way concreted. Ms Yung has referred me to Gale on Easements, pp. 412 and 53 :

“The dominant owner is entitled to enter the servient land to effect repairs or to alter the surface of the servient land to accommodate the right granted.”

“Repair for this purpose can include making alterations to and improving the subject of the easement, alteration to meet altered conditions; also replacement. A person can alter the surface of the servient land to accommodate the right granted, as by building a made road or spreading gravel on it, so long as there is not undue interference with the rights of the owner of the servient land…The extent of the ancillary right has to be determined in the light of the particular circumstances of the grant; it is not limited to the minimum standard to make the grant effective. Nor is it limited to the width of the track existing at the date of grant.”

57.Relying on these passages, Ms Yung argues that the concreting of the Disputed Way was the exercise of an ancillary right which the plaintiff enjoyed. With respect, I disagree. As I understand the law, any ancillary right has to be consistent with the grant. I am unable to see how it can be legitimate for the plaintiff to have the Disputed Way concreted to enhance the use of his land for a purpose which the defendants and their predecessors in title had never agreed to (see also Mills v Silver [1991] Ch. 271 where it was held that the laying of a stone road constituted an improvement which had increased the burden on the servient land and such action constituted a trespass).

58.On easement of necessity, I have been referred to Gale on Easements, p.171 :

“A way of necessity, strictly so called, may arise where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible may be entitled, as of necessity, to a way over the other part. The principle no doubt applies where both parts are disposed of simultaneously, either by grant inter vivos, or by will.”

59.There is a fundamental problem with this part of the plaintiff’s case. In this case, the implied grant based on this doctrine of necessity must be traced to the Crown lease for Land A. I have before me the land search record for Lot No. 1323 in D.D. 8. This piece of land was subsequently subdivided and from which Land A came. It is shown on that record that the land was held under a Government lease for 75 years renewable for 24 years with a commencement date of 1 July 1898.

60.Ms Yung has fairly and rightly conceded that she is in no position to say that in1898 there was no access from Land A to any main road except via the Disputed Way. In other words, the premise for invoking the doctrine of necessity does not exist.

61.There is no evidence as to any other lease or grant concerning Land A from which one may argue an easement of necessity.

62.In Tang Tim Fat v Chan Fok Kei [1992] 2 HKC 623 (one of the plaintiff’s authorities), which concerned a disputed easement over a piece of land in the New Territories, the court alluded to the possibility that an easement of necessity might be implied from the automatic statutory renewal of Government leases in 1973 under the New Territories (Renewable Crown Leases) Ordinance, Cap. 152. However, when I raised that point with Ms Yung, she rightly accepted that it is of no assistance to her case, because in 1973 Land A was accessible via the field bunds in many directions.

63.In the premises, I also reject this part of the plaintiff’s case.

Plaintiff’s Loss and Damage

64.For obvious reasons, I shall deal briefly with the plaintiff’s claims for loss and damage. First of all, items (4) and (5) as per the summary on F4-5 are not pursued.

65.In respect of item (1) (rental expenses), it arose because the Disputed Way was fenced off by the defendants in May 2007. I accept the defendants’ case that the fence was removed in early September 2007. I am of the view that the rental expenses after the end of September 2007 cannot be justified. There is a claim for loss of enjoyment of the House at HK$60,000 which does not appear in the summary. I would disallow this claim.

66.As regards item (6) (loss of business), I reject this claim in any event as being too remote. Also, given my finding on the Alternative Route, the plaintiff could have returned to the House despite the fencing of the Disputed Way. Having lived in the Area all his life (except the time when he was studying in Canada), the plaintiff would have found a way to the House had he wanted to. There is therefore no basis for the claim.

67.In respect of items (2), (3) and (7) (replacement of personal items for family members; replacement of books, household items and computers; and replacement costs for several electrical appliances), I am very surprised that Mr Leung has not tested the evidence in cross-examination save for the replacement of the refrigerator. In light of my finding on the Alternative Route, much of these claims are unsustainable. Doing the best I can in the circumstances, had I upheld the plaintiff’s action I would allow a sum of HK$20,000 under items (2) and (3)and reject any claim under item (7).

Conclusions

68.For the reasons given above, I dismiss the plaintiff’s action. It is conceded by Ms Yung that if the easement has been suspended, the use of the Disputed Way by the plaintiff without the defendants’ permission would constitute a trespass. The defendants’ Counterclaim based on trespass must succeed.

69.In respect of the appropriate relief under the Counterclaim. Mr Leung is not seeking any damages. I grant a declaration in favour of the defendants that the plaintiff, his licensees or servants are not entitled to use the Disputed Way for residential purposes.

70.Further, I grant an injunction restraining the plaintiff whether by himself, his licensees or servants or agents or otherwise howsoever from trespassing, entering or using Land B without the defendants’ permission. I believe that this injunction is required to put an end to the dispute between the neighbours.

71.Furthermore, it is not disputed that this court is entitled to grant a mandatory injunction against the plaintiff for the removal of the concrete surface over the Disputed Way and I do so accordingly. The removal should be completed within 21 days from the sealing of my order.

72.Finally, I make an order nisi that the costs of this action and the Counterclaim are to be borne by the plaintiff to be taxed if not agreed.

Ms Eunice H.Y. Yung, instructed by Messrs S.W. Wong & Associates, for the Plaintiff

Mr Andrew C.H.Y. Leung, instructed by Messrs Dickman L.T. Chan & Co., for the 1^st and 2^nd Defendants