Nickerson v Barraclough [1981] Ch 426

Facts

• Mrs. Nickerson owned land that lacked a direct road connection and was only accessible via a right of way over Mr. Barraclough’s adjoining property.
• Access to Mrs. Nickerson’s property was blocked by the defendant, Mr. Barraclough.
• Mrs. Nickerson claimed a right of way by necessity, arguing that without it her land could not be used.
• She alternatively claimed a right of way based on implied grant, contending such a right should have arisen when the land was divided.

Issues

1. Whether a right of way by necessity could be established on the basis that Mrs. Nickerson’s land was otherwise inaccessible.
2. Whether Mrs. Nickerson was entitled to a right of way through an implied grant due to the circumstances of the land's division.

Decision

• The Court of Appeal dismissed Mrs. Nickerson’s claim for a right of way by necessity.
• The court held that necessity must be absolute, meaning there must be no other means of access, even if alternative routes are inconvenient.
• The convenience or personal benefit of the route over Mr. Barraclough’s land did not justify a necessity claim.
• The court found that practical, albeit less direct, alternatives existed for accessing the property.
• Mrs. Nickerson’s claim for a right of way by implied grant was also rejected due to lack of prior shared ownership and pre-existing access at the time of division, as required by precedent.

Legal Principles

• The doctrine of necessity in property law provides a narrowly confined exception that permits interference with another’s land only in cases of proven, absolute necessity.
• Necessity requires immediate danger or truly unavoidable need, not mere convenience.
• The doctrine operates independently from implied grants, which are based on presumed intentions at the time of land division and require evidence of shared prior ownership and existing rights of access.
• Relevant contrasts are found in cases such as Wong v Beaumont Property Trust Ltd [1965] 1 QB 173, where necessity was established, and in Wheeldon v Burrows (1879) 12 Ch D 31, which informs implied grant requirements.
• Subsequent cases, including Manjang v Drammeh (1990) 61 P & CR 194, have continued to apply the strict approach from Nickerson v Barraclough.

Conclusion

Nickerson v Barraclough established and reinforced a strict approach to the doctrine of necessity in property law, emphasizing that rights of way by necessity are limited to circumstances of absolute and unavoidable need, and cannot arise solely from convenience or implied intention during land division.