7 - easements Flashcards
Characteristics of an easement case - Evershed MR
Re Ellenborough Park
- dominant and servient tenement
- must accommodate dominant tenement
- D and ST must be diff owners
- a right cannot be an easement unless it is capable of forming the subject matter of the grant
What are characteristics of easements
- dominant and servient tenement
- must accommodate dominant tenement
- D and ST must be diff owners
- a right cannot be an easement unless it is capable of forming the subject matter of the grant
not personal - must be proximate
pub sign to adjoining property. The easement did accommodate dominant land, despite also benefitting the business situated on the dominant land: it would continue to benefit successors in title to the dominant land
Moody v Steggles
not personal - pleasure boats on canal - more commercial advantage
Hill v Tupper
Dominant and servient tenements in separate ownership or occupation - store coal
Wright v Macadam
list subject matters not closed
Dyce v Lady James Hay
right to view - too indefinite
William Alfred’s Case
right to use the park was too wide and uncertain – no; but rejected on appeal and the right to use the park as a garden upheld
Re Ellenborough Park
Must not impose any positive burden on the servient tenement (e.g. expense) unless express or implied agreement
provide another’s property with water
Rance v Elvin [1983
Must not impose any positive burden on the servient tenement (e.g. expense) unless express or implied agreement
maintenance of boundary fence – OK
Crow v Wood [1971]
Use by dominant tenement must not totally exclude the servient tenement or amount to joint occupation
storing cars on narrow strip - not an easement
Copeland v Greenhalf [1952]
to park? - law remains unclear). An easement (right of way) was granted over servient land to access other (dominant land), which was difficult to access. The easement permitted vehicles to use the right of way. Did the easement permit parking vehicles on the right of way too? Yes.
Moncrieff v Jamieson
easement - express 3 ways
statute
by grant - grants to neighbour
by reservation - sells to builder but keeps right of way for self
easements - implied - 4 ways
- necessity - need for a transaction and degree of necessity
- common intention - of parties
- by operation of LPA 1925 s62
- rule in Wheeldon v Burrows
necessity case
Union Lighterage Co v London Graving dock - (landlocked) Stirling LJ said: ‘in my opinion an easement of necessity means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property.
operation of s62 case
International Tea Stores Co v Hobbs [1903] – Landlord allowed his tenant to use a short-cut across his land, existed as a licence. Landlord then sold the leased premises to the tenant. Held: the tenant had the right to use the short-cut as it had now taken effect as a legal easement, enforceable against a 3rd party purchaser
prior diversity of occupation
s62 requirement
it is essential that the plots owned by the vendor were in separate occupation before the sale or the lease – CONTRAST to Wheeldon test
s.62 - Could the claimants continue to use the bridleways across the defendant’s land? No. A right of way is not a continuously enjoyed liberty, privilege or advantage.
Woods v Waddington
Rule in Wheeldon v Burrows
The rule provides that where a person transfers part of his land to another, that transfer impliedly includes the grant of all rights in the nature of easements (quasi-easements) which the vendor enjoyed and used prior to the transfer for the benefit of the part transferred. Must follow the rules below
- quasi easement must be continuous and apparent
- must be necessary to reasonable enjoyment
- must have been used at time of the grant for the benefit of the land transfers
- no evidence of contrary intention
