L4 : Easements (cases) Flashcards
Re Ellenborough Park (1956) (CA) (main point)
Four characteristics for the recognition of a right as an easement:
(1) there must be a dominant and a servient tenement
(2) an easement must “accommodate” the dominant tenement
(3) dominant and servient owners must be different persons, and
(4) [the right must be] capable of forming the subject-matter of a grant.
Re Ellenborough Park (1956) (CA) (summary)
Os of Ellenborough Park estate sold land for houses to be built on, each conveyance granted purchaser ‘the full enjoyment’ of Ellenborough Park grounds, ‘in common with the other persons to whom such easements may be granted’, subject to contribution to expenses in maintaining the grounds – issue = whether right to use garden was an easement
=> CA held that the right was an easement : the 4 characteristics (above) were met
*Regency Villas Ltd v Diamond Resorts Ltd (2019) (SC)
Main point : possible for recreational rights to ‘accommodate’ DT where DT is land used for recreational purposes (and so be recognised as easements)
Summary : D owned country club estate, sold (holiday) appartements to Cs + granted them right to use leisure complex on the estate, leisure complex fell into disrepair so C couldn’t use it => sued D, claiming to have an easement – D ag that no easement bcs right didn’t accommodate dominant tenement, exercise of it = ouster of D as O and enjoyment of right depended on substantial expenditure by D s
Decision : SC held C did have an easement
- ‘accommodation’ of DT = Q of fact (enjoyment of the right didn’t have to be subordinate to enjoyment of DT, could be primary reason ppl were interested in DT)
- grant of the right didn’t ‘oust’ D = impinge on D’s right of mg or control
- no obligation on D to maintain the facilities => no expenditure pb
/!\ if meaningful use of right dependant on continuous maintenance which only SO can provide (eg ski slope w/ artificial snow), cannot be an easement – but fine if exercise of step in rights by DO sufficient to maintain the structure (as here)
Hill v Upper (1863) (Exchequer)
Main point: to be a valid easement, right must be connected to the enjoyment of land rather than the business carried upon it
Summary: Canal Co leased pt of canal bank to H + granted him exclusive right to put pleasure boats on the canal – T = O of local tavern on the other bank, also had pleasure boats on the canal => H sued T for interfering w/ exclusive right
Decision : court held that T not bound by H’s right: not a recognised easement, bcs connected to the business carried upon the land rather than the enjoyment of the land itself + not within any other category of recognised proprietary right + court refused to recognise new kind (numerus clausus)
Moody v Streggles (1879)
Main point: right to hang a sign pointing to a pub on neighbouring land can be a valid easement
≠ Hill : right benefiting business carried on DT can be an easement
Summary: sign pointing to C’s pub had been hung on wall of D’s house for abt 40y, in dispute abt it C claimed to have right = easement to have it there
HC held that the right was a valid easement, acquired by prescription
* right was “evidently convenient” and “in one sense necessary” for C’s enjoyment / use of premises
* “an easement is more or less connected with the mode in which the occupant of the [land] uses it”
* “Where there has been a long enjoyment of property in a particular manner it is the habit, and, in my view, the duty, of the Court, so far as it lawfully can, to clothe the fact with right”
Polo Woods Foundation v Shelton Agar (2010) (HC) (main point)
meaning of ‘accommodate’ = idea of there being a connection btw enjoyment of land and use of the right
=> “distinguish that which is of benefit or utility to the land or the owner of land as such from that which is a benefit or utility to an individual personally albeit he is an owner of land”
Phipps v Pears (1965) (CA)
Main point: court should not create new negative easements
Summary: court being asked to recognise new right to be protected from the weather by neighbour’s house = easement of protection
=> CA refused to recognise the right as a valid easement bcs ‘negative’ ≠ easement of support, which is ‘positive’ in the sense that wall / whatever is providing support is doing smth = exerting trust sideways onto adjoining building or downwards onto adjoining land
=> courts should be wary of creation of new negative easements bcs more restrictive on freedom of SO (prevent him from doing something, vs positive easement only requires SO to allow DO to do smth)
Batchelor v Marlow (2003) (CA) (main point)
Refusal to recognise exclusive right to park 6 cars for 9h every day of working week as easement bcs left P without any reasonable use for his land
[18] “[P’s] right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory”
Moncrieff v Jamieson (2007) (HL) (Scotland) (main point)
Main point : allowing easement of parking + changing test to ‘whether SO retains possession and control of ST’ in Scottish law
Moncrieff v Jamieson (2007) (HL) (Scotland) (summary)
P owned house by the seashore, stairway to boundary fence = only landwards access to the property (not accessible to vehicles) – one of D (O of adjacent land)’s predecessors had granted P right of way (pedestrian and vehicular), strip of land composing right of way wide enough to park vehicles, which P did without objection by Ds until dispute arose
HL: held in favour of P, there was a right of way and a right to park
=> would cause P ‘great inconvenience’ is unable to park on ST + didn’t unduly burden ST / deprive SO of possession
[59] test = whether SO retains possession and control of ST, rather than whether SO left without any reasonable use
[55] sole use for limited purpose ≠ exclusive possession (the former is ok for easement, latter is not)
Polo Woods Foundation v Shelton Agar (2010) (HC) at [121]
Moncrieff v Jamieson “casts considerable doubt on the correctness of the decision in Batchelor v Marlow” but still considered binding by judge here (bcs Moncrieff was a Scots case)
Rance v Elvin (1985) (CA)
Main point: right to passage (≠ supply) of water is a valid easement
/!\ oblºon ST not to supply water, only not to hinder its passage
Summary : C claiming right to uninterrupted passage of fresh water through pipes on D’s land, judge found ag C bcs D had positive oblº to pay for the water
CA : held that the right was a valid easement : right to supply of water ≠ right to uninterrupted passage
=> D not obliged to supply water + entitled to refuse to pay for it, BUT if he is paying for it and the water is passing through, no right to prevent C from getting water passing through
St Edmundsbury Diocesan Board of Finance v Clark (1975) (CA)
Main point : presumption that document should be interpreted ageist the draftsman only applies where court is unable to reach ccl as to proper construction of doc based on wording and facts (/!\ consider circumstances at date of creation)
Summary : land of C church wholly surrounded by land belonging to D (former rectory), narrow pbc highway leading up to D’s property, conveyance to D involved reservation of right of way over D’s land btw end of pbc highway and church – dispute abt whether right of way reserved included vehicles – at date of conveyance, relevant strip of land in poor state = vehicles could only use it w/ difficulty
CA held in favour of D : right of way was not vehicular
=> approach to reservation of right of way = construe conveyance in light of circumstances of its creation
=> presumption that document should be interpreted against the draftsman only applies where court is unable to reach ccl as to proper construction of doc based on wording and facts
Wheeldon v Burrows (1879) (CA) (main point)
Wheeldon rule = quasi-easement can be implied into conveyance as an easement if it was
(i) continuous and apparent,
(ii) necessary for the enjoyment of the property conveyed and
(iii) enjoyed by vendor when he owned both DT and ST
Wheeldon v Burrows (1879) (CA) (summary)
S sold piece of land to C, and a month later sold adjacent land & workshop to D. Boardings erected by C on his land blocked light to workshop’s widows, D knocked them down => C sued for trespass, D ag that had an easement of light
=> CA held in favour of C : there was no easement of light
=> quasi-easements necessary for reasonable enjoyment of land can be implied into conveyance if they have in fact been enjoyed during unity of O for benefit of part of land granted
=> Reservation of new easements has to be made expressly by grant (except if necessity)
=> here, no quasi easement of light (Q = when will there be?)
