Long v Michie

Long and Michie appeared before the court in a dispute over an easement, specifically a right of way, appurtenant to a church property that was granted in 1856. The dispute arose when the access to the right of way was obstructed by the closure of access, the creation of gardens, the construction of a garage door, and the parking of vehicles. The central legal issues the court needed to resolve were whether the right of way had been abandoned at general law or should be extinguished under section 89(1)(b) of the Conveyancing Act, and whether the right of way should be deemed obsolete under section 89(1)(a) of the Act. Additionally, the court needed to determine whether the continued existence of the right of way impeded the reasonable use of the servient tenements without securing a practical benefit to the owner of the dominant tenement, which could also justify extinguishment under section 89(1)(a).

The court examined the evidence presented to determine if the right of way had been abandoned at general law or should be extinguished under the Conveyancing Act. The court found that the evidence did not support the argument that the right of way had been abandoned at general law. Regarding the extinguishment under section 89(1)(b) of the Act, the court held that the right of way had not been extinguished because the obstructions were not permanent and the right of way could still be used. The court also considered whether the right of way should be deemed obsolete under section 89(1)(a) of the Act. The court concluded that the right of way was not obsolete because it was still being used and was necessary for the access to the church property. Furthermore, the court determined that the continued existence of the right of way did not impede the reasonable use of the servient tenements without securing a practical benefit to the owner of the dominant tenement.

The court ultimately decided that the right of way should not be extinguished. The court found that the evidence did not support the extinguishment of the right of way under either general law or the Conveyancing Act. The court's decision was based on the fact that the right of way was still being used, it was not obsolete, and it did not impede the reasonable use of the servient tenements. The court's final orders were that the right of way should remain in place and that the obstructions should be removed to ensure the continued access to the church property.