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1

Re Ellenborough Park

1) There must be a dominant and a servient tenement. The dominant land is essentially the land that benefits from the easement. The servient land is the land that has the burden of the easement.


2) The right must accommodate (benefit) the dominant tenement. So it has got to benefit the land, and not just the owner of that land personally.

3) The dominant and servient tenement must not be owned and occupied by the same person. They have got to be owned and occupied separately.

4) The right must “lie in grant” – it means that it has got to be capable of being expressly granted in a deed. The sort of right that the courts are prepared to say are capable of existing as an easement and therefore are capable of being expressly granted in a deed.


Re Ellenborough Park involved the sale of plots of land, and then those plots of land were being sold to people. Houses were built on them, and the people were living in those houses. Each of those plots was given the right to use a communal garden, and the question was whether the owners of these houses, the people who bought these plots, with the benefit of the right to use the communal gardens,…was the right to use the communal garden a right that benefited or accommodated the dominant tenement?

Here the dominant tenement were the plots. The servient tenement was the public communal garden. And the court had to decide whether the right to use the public garden for recreational purposes accommodated the dominant tenement.

Now, clearly the right to take your children to the park… You know, leave your house, and go use this lovely communal park area will enhance the value of the land and makes it more salable.

And the court also decided that it was connected with the normal enjoyment of the property. If you own a house, it is quite normal that you would want to… It is quite normal to do with the normal enjoyment of the house that you would benefit from having the right to go and use a communal park for your children to play in, maybe to have a picnic… Just to enjoy the weather in the summer, and that kind of thing.

So in that particular example, the easement did accommodate the dominant tenement.
So it passed the test.

If we look at what Lord Evershed said in Re Ellenborough Park he said that it has got to benefit the land in some way. He also went on to say that it is not enough to show that the right increases the value of the land – it's relevant, but it is not the only thing you have to consider.

You also have to show that in some way this right that is being claimed – this easement that is being claimed – is connected with the normal enjoyment of the property.

2

Hill v Tupper

In this case what happened is there was a canal company, and the canal company owns land beside the canal and it owns the canal itself. The canal company leased land beside the canal to Mr. Hill, and they granted him the exclusive right to put boats on the canal.

So here, clearly, Mr. Hill is going to want to claim this as an easement. Mr. Hill has a dominant piece of land – he has leased this land from the canal company. The servient land would be the canal.

Mr. Tupper owned the pub next to the canal as well, and he rented out boats on the canal. So the problem was that these were competing. Obviously Mr. Hill felt that he was losing some of his customers to Mr. Tupper who was renting out these boats on the canal.

Mr. Hill claimed that his exclusive right to put boats on the canal was an easement – a legal easement – and if it is a legal easement that would mean that he could stop anybody else from putting boats on the canal because he has the exclusive right to do something on the servient land – he has the exclusive right to put boats on.

Now the court held here that it was not an easement because the right failed to accommodate the dominant tenement. Although the grant of the exclusive right to put boats on the canal would benefit the land in the sense that it might increase the value of the land, it really was about conferring a commercial advantage on Mr. Hill rather than a right that benefited his land.

Can I just say that it is okay if there is duality – it is okay if the right benefits the land and also benefits the owner of the dominant land, but it is not satisfactory and the right won’t pass the test if you can only show that all that is being obtained here is a personal commercial advantage, which is what the court thought was happening in Hill v Tupper.

3

Dalton v Angus

says that there is a very well established principle that there is no right to a view because it will impose a burden on a very large and indefinite area.

Justice Fry considered this method for creating easements. What he said was when A does an act on B’s land (in our example it was A crossing B’s land); so he is doing something on the land…remember we said easements take a variety of forms — rights of way, right to use the lou, rights to store coal… various easements can exist (in our example it is just a right of way). So what he said was when A does an act on B’s land (in our example crossing the land), and A has no right to do this… He has not been granted a right to do this, he has just started doing it, and B knows that A is doing this. B Does nothing to stop him even though he can prevent him from doing this, but doesn’t.

And, having B watch A cross his land many times for long enough without preventing him, it becomes reasonable for the court to say that B can no longer prevent A from doing this. There is a similar principle that works in Adverse Possession — the idea is that B has a right, which is to say he has a right to stop A from crossing his land, and he sits on that right and doesn’t enforce it for long enough, he will lose it.

If he doesn't care enough, then he will lose the right to force A from crossing the land.

4

Hunter v Canary Wharf Ltd

you can see Canary wharf there in the middle dwarfing the smaller buildings in the front there. When Canary wharf was first built, obviously it was very tall, and it interfered with TV signals – the TV signal was passed to aerials on the tops of the buildings of residential properties, and people are finding that their TV signals were interfered with. So they claimed that their land was the dominant land, and the Canary wharf site was the servient land, and that the dominant land – these houses receiving the TV signal – had an easement – a right – to receive the TV signal.

The court refused to grant the easement – firstly, because it would hinder the development of the land; it was a version of the floodgates argument: if you allow this for Canary wharf, everybody who builds a tall building is going to be worried about whether they are infringing somebody's easement. Secondly, they said there was sufficient safeguards in the system already; when you want to build a tall building you have to apply for planning permission, and the court said that the planning system administered by the local authorities and government provided sufficient safeguards.

5

Copeland v Greenhalf

the owner of the dominant land was given the right to leave vehicles on the servient land whilst they were waiting for repair. All sorts of vehicles, such as carts, etc. The court held here that there was no easement to leave these vehicles because the right was uncertain and it had the effect of excluding the servient owner from using the land. The reason for this is that the vehicles could be left on the land for any length of time, and repairs to all kinds of vehicles were being carried out. So you have got all of these vehicles parked on this land, and for an indefinite period of time, and because of this it essentially excluded the servient owner from occupation. And the court said it looked a little bit more like exclusive possession – i.e., a lease rather than an easement, so the easement failed.

Now, if you think about it, if you leave a vehicle, essentially you are parking it so, following Copeland v Greenhalf there was a little bit of a doubt about whether it was possible to have an easement to park.

6

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]

that the right to park can exist as an easement. However, remember, the principal still applies that the right to park can't be so extensive that it excludes the servient owner from the reasonable use of his or her land.

Now if you leave here and you go and buy a flat, often when you buy a flat, along with the lease of the flat, you will usually try to get a parking space. Nowadays most flats will give you the right to park. Now there are two ways in which you can get the right to park if you buy a flat with a parking space. Firstly, you could be given the right to park in one parking space – you could have exclusive space of a parking space that is allocated to your flat. In that situation, because effectively you will have exclusive possession of your parking space, usually your lease will be a lease of the flat and a lease of the car parking space.

If however when you take your lease of the flat and instead of being given a right to parking and allocated space that is just for you, you are just given a right to park in a residence carpark with no allocated space, then in that situation often you will find that you get a lease of the flat, and a easement to park following London & Blenheim Estates v Ladbroke Retail Parks Ltd.

7

Section 52 LPA 1925

What the parties are going to be creating here is a legal easement and if they want to create a legal easement they will have to execute a deed.

8

Corporation of London v Riggs

(Necessity) So what happened in this case was L conveyed part of his land to the Corporation of London and he kept back to acres of land. When he sold off his land he didn't sell all of it, he kept back two acres known as Barn Hoppet, and Barn Hoppet was completely surrounded by the land that was sold to the corporation. Now in this case, the seller should have reserved rights in favor of Barn Hoppet to get across the piece of land the Corporation of London so that L could get access to his property, but he didn't do that. He did not expressly reserve any rights – rights away or drainage – at all.

At the time of the sale Barn Hoppet was being used for agricultural purposes.

L granted a lease of Barn Hoppet to a tenant, and the tenant decided he wanted to build tea rooms, so a tea shop in Barn Hoppet. Obviously, in order to build tea rooms you need to get members of the public coming along to Barn Hoppet, and going into the room, and buying teas and cakes.

This is a diagram illustrating what has happened here. We have got the seller here who owns all of the land – this big square piece of land. He has kept back the smaller square in the middle – Barn Hoppet – and Barn Hoppet is completely surrounded by the land that has been sold off to the buyer. So the seller’s retained land is the piece of land in the middle, and the piece of land being bought by the buyer is the land around the outside.

What the court had to decide was… The conveyance of Barn Hoppet did not expressly reserve in favor of Barn Hoppet a right-of-way to get to the main road. So the difficulty for Mr. Riggs was how were his customers going to get from the road to Barn Hoppet without a helicopter or polevault?

The only way in which they could get an easement is if one had been implied by necessity. Now, this is summarized on the next slide, but essentially the court said here “yes, there was an easement of necessity”, but Mr. Riggs did not quite get what he expected because the court said “well, the easement of necessity came into existence at the date of the sale of part.” So the easement of necessity came into existence when Mr. L sold the land around the outside to the London Corporation and kept back Barn Hoppet. That sale of part was the transaction that triggers the implied grant. There was no express grant or reservation of easements, so the sale was the trigger for the implied grant and reservation rules to come in to play.

The court said at that time Barn Hoppet, the dominant land, can acquire a right of way by necessity over the servient land. But the right-of-way that is reserved in favor of Barn Hoppet, the dominant land over the servient land by necessity is a right of necessity to use Barn Hoppet in the way it was being used at the date of the sale of part. At the date of the sale of part Barn Hoppet was being used for agricultural purposes, not as a tea shop.

So the easement of necessity was obtained, but it was not to allow members of the public to use the tea shop, it was to allow Barn Hoppet to be used for agricultural purposes.

So not what Mr. Riggs really needed here.


Lord Justice Jessel said: an easement of necessity can be impliedly granted or reserved. However, here Mr. Riggs only got the easement of necessity at the time of grant – so agricultural use – and not what was convenient now – i.e., a tea shop.

So he got half of what he wanted, but it didn't completely deal with his needs.

9

Pwllbach Colliery v Woodman [1915]

(Mutual/Common Intention)
an easement will be implied if it is necessary to give effect to the common intention of the parties.
It can be a grant or a reservation
and you need to show that the land was meant to be used in a particular way, and that the parties must have intended there to be a right so that it can be so used.

10

Cory v Davis

In Cory v Davis what you have is a large piece of land split into three properties – 1,2,3 – and a developer builds three properties on their – house 1 which is being let to Hugh, house 2 which is let to Jason, and house 3 which is let to Danny.

Now you will notice that the houses are next to the main Road – there just north of the main road. And then between the houses there is a drive, so a car would come off the drive, through the gates, for example in front of Hugh’s property, access the drive that is in front of Hugh’s land, go across the drive in front of Jason’s property, across the bit of the drive that’s in front of Danny’s property, and then out of the gates and back onto the high way.

So there is a shared driveway there for the three properties. And there is a gate so they can lock it. So the idea is that it is meant to be shared – Jason can come in and out and Park on the drive in front of his property, but he can go across the bed in front of Hugh’s property and in front of Danny's. Danny can come in and park in front of his property, but he can go across a bit of the drive via Jason's bit, and by Hugh’s, etc.

Unfortunately, when these properties were let… When the leases were granted to Hugh Jason and Danny, the leases did not expressly deal with how the drive was going to be used. There was no express grant an easement for Danny to cross Jason's bit of drive, or Hugh’s bit of drive, and no express easement being granted for Jason to use Hugh and Danny's bit of drive; no easement reserved for Jason to allow Hugh and Danny to use his.

So this is what happened. This is just summarizing the facts here. We have the lease being granted – each lease includes the portion of the drive immediately in front of the house, and at each end of the drive there is a house.

No express of grant or reservation of easements.

What happened was Hugh locked the gate to stop others from using the drive. So he sort of stopped the arrangement from working as it should – the shared drive.

It was held in this case that it was clear that in the way the development was carried out it was expected that the tenants of each house would be able to obtain access from either end of the drive. So there was the implied grant and reservation of easement to give effect to the common intention of the parties. That is a good example of an easement to give effect to the common attention of the parties.

11

WHEELDON V BURROWS

Thesiger LJ (at 49) laid down two propositions, the first of which has come to be known as the rule in Wheeldon v Burrows. First, when a landowner sells off part of his land and retains part, the conveyance will impliedly grant all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold. Second, there will be no retained reservation of easements over the land sold for the benefit of the retained land (save in exceptional cases such as easements of necessity). Both propositions, he said, rested on the maxim of non-derogation from grant.

And the last thing that they did under Wheeldon v Burrows after they said the first two conditions were satisfied – there was a quasi easement, and the exercise of the right to light was continuous and apparent.

The third condition was whether the grant of the easement on the sale of part… Would the grant of the easement -- in favor of the workshop, burdening the plot – be necessary to the enjoyment of the piece of land being sold?

So would the grant of the easement to be reasonably necessary to the enjoyment of the workshop?

The court said yes it would.

The right-to-light will be a sort of right to stop any obstruction of light. The light will only be given to allow the owner of the dominant land to carry on using the way the dominant way in the sort of way it’s always been used.

Let's just summarize that again…


Lord Justice Thesiger:

Remember, this is only where a landowner sells part of his land. In the absence of an express grant the buyer gets an implied grant, not reservation, of all continuous and apparent easements, or easements which are necessary to the reasonable enjoyment of the property, and which the seller was using immediately before prior to the sale.

He then did talk about impliedly reserving easements of necessity, but we have covered that.
In the absence of an express grant, the buyer gets implied grant of all continuous and apparent easements or easements that are necessary to the reasonable enjoyment of the property and which the seller was using immediately prior to the sale.
An absence of express reservation of rights, the seller may impliedly reserve an easement of necessity.


The Wheeldon v Burrows judgment, when you go to read about this, there are some contradictions in it, and some different interpretations. We are just going to look at one of them by looking at the next case.

12

Ford v Metropolitan and Metropolitan District Railway (1886)

What happened in this case was that there was a quasi easement being used at the time of the sale of part – so the seller owned and occupied both bits of land. The use of the quasi-easement was continuous and apparent, and the court then said the grant of the easement was necessary for the reasonable enjoyment of the land sold.

So it is continuous and apparent.

13

Ward v Kirkland

they said “apparent” means you have got to have some feature on the servient tenement which would be apparent on inspection. So there has got to be something there which indicates that you are going to be getting that right

14

Wright v Macadam

That is paraphrasing what it says. The basic idea is if there is common ownership of the dominant and servient tenement at the time that the right is created by diversity of occupation, section 62 can convert licenses into easements.

I'm going to show you how this works now.

So, there are two effects:

1) If you have got a landowner who sells all of his land to a buyer, and that piece of land being sold to the buyer has the benefit of an existing easement… So you know, the easement was created years ago…the dominant land is now being sold on to a buyer. Section 62 in the situation says that when that piece of land is sold to the buyer, the buyer who buys that dominant land will automatically get the benefit of the existing easement. It is a word saving vision.

2) On a sale part it has this sort of “magic effect” because it creates new easements. It converts licenses into brand-new easements.

15

Sovmots v Secretary of State for the Environment [1979]

Confirmed that Section 62 LPA 1925 works where there is diversity of occupation.

So, if you think about Wright v Macadam we have got unity of ownership – Macadam owns the freehold of both pieces of land, but diversity of occupation – the two pieces of land are separately occupied. Macadam is occupying one piece and Wright is occupying the other one under the lease. That’s one of the preconditions for Section 62 to work.

So we have got sale of part, and then we have got to have the two pieces of land – the dominant and servient land – separately occupied.

16

Long v Gowlett [1923]

Confirmed that Section 62 LPA 1925 works where there is diversity of occupation.

So, if you think about Wright v Macadam we have got unity of ownership – Macadam owns the freehold of both pieces of land, but diversity of occupation – the two pieces of land are separately occupied. Macadam is occupying one piece and Wright is occupying the other one under the lease. That’s one of the preconditions for Section 62 to work.

So we have got sale of part, and then we have got to have the two pieces of land – the dominant and servient land – separately occupied.

17

Duke of Norfolk v Arbuthnot

a case about a window in a medieval chapel. Basically, the Duke was claiming that his chapel on his estates had acquired a right to light. He was saying there was my chapel, there is a window, and that window, because remember, with the right to light… Rights to light can only exist in relation to defined windows or apertures, so it is not the chapel that gets the right to light, it is the windows and doors of the chapel to get the right to light because the right has to be sufficiently definite. In this case, the Duke was saying that his chapel had been here for at least 20 years enjoying the light coming across the servient land. So he said he had an easement at common law. As of right, fee simple owner against fee simple owner, and there is at least 20 years use as of right. Unfortunately in this case, the presumption of the use since time immemorial was rebutted because the chapel, and therefore the windows, had only been there since 1318. So what you could do is say "well okay, you've got 20 years use as of right for the window, but that raises the presumption of use since time immemorial 1189, however you can rebut the presumption here by showing that the chapel was not built until 1380. So in reality, the chapel was only there since 1380, so no easement by long use.
So it is very easy to rebut the presumption at common-law. So therefore what happened was the courts came to the rescue. They wanted to find another way. So the next method of creating easements is Lost Modern Grants.

18

Mills v Silver

Silver was the owner of a hill farm. Vehicle access to the farm was along a farm track, which ran through an adjoining property owned by Mills.
In 1987 Mills sought an injunction to prevent silver from using the track.
Silver argued that the right to use the vehicles over the track was a legal easement created by prescription. From 1950 to 1981, Joe Phillips, who was the owner of the hill farm at that time, used the farm track to gain access to the farm.

19

Moore v Rawson

This was a case involving an easement of light. Basically what you had is the Windows in the wall on the claimant's land were enjoying an easement of light over the defendant's land; so the claimants got a wall, and in that wall are Windows, and remember it's the Windows, defined windows or apertures, that get the light. It is the windows and the wall that are enjoying the light flooding across the defendant's land. What then happened was the wall was demolished and it was rebuilt without windows. And then 14 years later, after we have had 14 years with no windows, the defendant built a wall facing the blank wall, and three years later the claimant put a window in the blank wall and claimed that the defendant's wall was infringing his easement. So the question is if you've got a window in a wall that has a right to light, and then you demolish your wall with windows in it and then rebuild it with no windows, and then leave it there for 14 years, can you then say you have an easement? The court said the demolition of the first wall and the replacement with a blank one caused the easement to be extinguished. The way the claimant had behaved here made it clear that he intended to abandon his right. So that is abandonment.

20

Allen v Greenwood

The last condition is that the right must lie in grant. So with rights to light you deal with the fact that the right to light has to exist in relation to defined windows or apertures (CASE: Allen v Greenwood). it looks like the right to light is capable of existing as an easement.