Easements Flashcards
Ellenborough Park
Statute:
Four characteristics of 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. a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant
Held: Homeowners win: easement granted. The right fulfills all the characteristics of an easement.
Reasons: 1 and 3 are accepted no issue
2. Is there accommodation? Not enough for park to increase land value, there must be substantial connection to enjoyment of homeowner’s property
o In lieu of having their own private backyards, they have the park
o Park becomes a communal garden for those houses in close proximity
o Works even for those few houses not facing park, the nexus is sufficient
- Analysis for subject matter of grant: whether the rights purported to be given are expressed in terms of too wide and vague a character; whether, if and so far as effective, such rights would amount to rights of joint occupation or would substantially deprive the owners of the park of proprietorship or legal possession; whether, if and so far as effective, such rights constitute mere rights of recreation, possessing no quality of utility or benefit; and on such grounds cannot qualify as easements
o “Full enjoyment of the pleasure ground” is not too wide as to trample/pluck flowers/interfere with upkeep of the park
o Park owner can still do what they wish with their park, homeowners can still enjoy it
o Not just recreation, the park constitutes a beneficial attribute of residence in a house as ordinarily understood
Phipps v Pears
Facts: P claims his house had a right of protection from the weather from D’s house, and D was trying to demolish his house.
Held: D wins. There is no easement known to the law as an easement to be protected from weather
Reasons:
- Sort of falls into both a positive easement (giving owner right to do something on neighbour’s land), and negative easement (right to stop neighbour from doing something on their own land)
- The law is weary of creating new negative easements
o Hampers development
Wong v Beaumont
Facts: P restaurant owner getting complaints from upstairs neighbor from smells, P needs ventilation for his restaurant, asked D landlord, D refused. Health inspector said needs a duct either inside or just outside building, D refused both. P seeks to install without D’s consent by an easement of necessity.
Held: P wins. A man who has a right to an easement can use it in any proper way, so long as he does not substantially increase the burden on the servient tenement. Can’t carry on his business without such a duct.
Barton v Raine
Facts: P’s father inherited H1 in 1919, purchased next door property H2 in 1941. Father then sold H2 to his son and DoL in 1952. When father dies in 1968, son P became owner of H1. In 1971, H2 sold to D. Driveway used regularly by both houses up to this point. Then argument, and D put up fence among property line, allowing D to use driveway but not P.
Held: P wins: there was an implied reservation of an easement by common intention between father and son/daughter in law.
o ONCA finds by inference a common intention by father and son/DiL that after conveyance, each of them would continue to use the driveway in the same manner as had been used without interruption since the 1920s
o Were it not for fact that father owned both properties, almost certain father would have acquired a right of way by prescription over driveway well before 1952, as his use had been uninterrupted and unchallenged
o Evident that son who was living there before knew about shared intention of driveway, and clear after 1952 when he lived in H2 that his father wasn’t asking him permission to use driveway
o May have been less compelling if third party bought H2 in 1952, as hard to show common intention to use driveway as they had before
Laurie v Winch
Facts: P wanted to stop D from entering upon lot 33. There was a conveyance in 1925 by past owners that new owner Smith (and heirs) had perpetual right of way over lot 33 to access lakeshore road. In 1941, Smith farm conveyed to the predecessor landowner to D along with perpetual ROW.
Held: Right of way exists, but only over the traditional farm lane
Reasons:
- Found dominant tenement intended in 1925 was the farm and not lot 17
o Although Smiths owned both farm and lot 17, lot 17 was sterile at the time
- Found that the right of way was the existing farm lane
o Supported by fact the whole eastern boundary of lot 33 is fenced off, and just one gate which leads into farm lane
- Easily in contemplation that the lot/farm would be subdivided into residential plots, that shouldn’t restrict the grant
Linden Mews
Facts/History: D purchased carriageway and required payment for homeowners to park there. Owners resisted, claiming easements of way along the mews and easements to park adjacent to their properties. All agreed to enter lease agreements except N 1, TJ held they had a prescriptive right to park there. D counterclaimed against P Nos 4/5, claiming they had no right to pass over carriageway by foot/vehicle. TJ agreed and granted injunction. P appeals. P wants to drive car up carriageway, park on garden ground, then enter his house.
Held: D wins. Ps don’t have right to pass over carriageway by foot/vehicle for the purposes of gaining access to the garden ground. However, D’s injunctions that P can’t use carriageway for access to garden ground should be removed.
Reasons:
- The great benefit of access to the garden ground is not simply to be able to access number 4, because that can already be done by using the easement according to the grant. What the garden ground adds is somewhere where the car can be left: a parking space
o That’s a separate use from mere access. It’s a use taking place other than on dominant tenement, thus P is trying to extend the dominant tenement
Harris v Flower (cited in Linden Mews)
A right of way granted for the benefit of land A cannot be used in order to get to land B (whether via land A or otherwise).
