Easements Flashcards
What are the 4 substantive requirements for an easement?
in Re Ellenborough:
1. dominant and servient land
2. diversity of owners
3. ‘Accomodate’ the dominant land
4. must be capable of formimg the subject matter of the grant
Re Elllenborough Park (1956):
4 substantive criteria - accomodate
In Ellenborough Park itself, Evershed MR concentrated on the requirements that an easement must accommodate the dominant tenement and that it must be capable of forming the subject matter of a grant. He explained that the second of these requirements had several different dimensions. It meant that an easement could not be created ‘in terms of too wide and vague a character’, that it could not amount to a right ‘of joint occupation or … substantially deprive the park owners of proprietorship or legal possession’, and that it could not be a mere right ‘of recreation, possessing no quality of utility or benefit’.
On the first issue, the Court held that the right to use the park as a pleasure ground did accommodate and serve the dominant land. It was relevant, although not decisive, that the right enhanced the market value of the houses to which it was attached. More importantly, the right to use the park was analogous to the right to use a garden; it enhanced, and was connected with, ‘the normal enjoyment’ of the houses to which it belonged. Counsel had suggested that the right to the use of the park was analogous to the right to access London Zoo or the Lord’s Cricket Ground, which might be of value to a landowner, but had nothing to do with the landowner’s enjoyment of the land. The Court accepted that such rights would not qualify as easements, because they would be ‘extraneous to, and independent of, the use of a house as a house, namely, as a place in which the householder and his family live and make their hom
The appeal was dismissed. The Court of Appeal held that the right to use the pleasure ground was capable of being a valid easement in English law. In giving the judgment of the Court, Evershed MR set out the criteria that must be satisfied for a right to take effect as a valid easement in English law and held that these were satisfied by the easement claimed by the Crescent Road landowners in this case.
Counsel for both sides had adopted a definition of the criteria for a valid easement set out in Cheshire’s Modern Law of Real Property (7th edn, London: Butterworth, 1954) and Evershed MR accepted these:
(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.
In 1855, a piece of land in Weston-super-Mare, known as the Whitecross Estate, was being redeveloped for building purposes. The land included a piece of open parkland, known as Ellenborough Park, enclosed by a road known as Crescent Road. Over the course of the 1850s, 1860s, and 1870s, the owners of the Whitecross Estate sold plots of land on Crescent Road to various purchasers. They granted each purchaser ‘the full enjoyment … of the pleasure ground set out and made in front of the said plot of land … in the centre of the square called Ellenborough Park’. The park itself was purchased by one William Henry Davies in 1879 and he left his title to it on trust for the beneficiaries under his will.
During World War II, the park was occupied by the authorities for military purposes. The War Office paid some money to the Ellenborough Park trustees as compensation for taking over the use of the park. In 1954, the trustees brought an action in the Chancery Division seeking guidance on how to distribute the compensation money. They asked, among other things, for a declaration whether the owners of the Crescent Road houses had any enforceable rights to use the park that might entitle them to a share of the compensation.
Danckwerts J declared that they did, holding that the right to use the pleasure ground was a valid legal easement.
One of the beneficiaries under the trust appealed to the Court of Appeal.
Hill v Tupper (1863)
easements - accomodate
To the extent that Hill v Tupper concerns the requirement that a valid easement must accommodate and serve the dominant land itself, and not merely benefit its owner, it raises questions about the meaning of that test. What if, like Tupper, Hill had also used his land as an inn and wanted the right to sail pleasure boats over the canal to facilitate that business use of the land? Would that have created a sufficient connection with the dominant land? The case raises difficult questions about the use of easements for economic gain and the extent to which easements can be used to facilitate commercial uses of land.
The appeal was allowed. The court rejected counsel’s arguments that the agreement between Hill and the canal company created a property right that could be enforced against third parties. The right claimed by Hill was ‘unconnected with the use and enjoyment of land’, and Pollock CB cited Ackroyd v Smith (1850) 138 ER 68 as authority that it was not possible to create such rights and ‘annex them to [land] so as to constitute a property in the grantee’.
Finally, Martin B noted that Hill had a perfectly good contractual right against the canal company to demand exclusive control over the canal. The only consequence of the decision was therefore that ‘if he has been disturbed in the enjoyment of it, he must obtain the permission of the canal company to sue in their name’.
Hill v Tupper is frequently cited as authority that it is not possible to create easements that do not benefit the dominant land, but benefit only its owner personally. It was explained on this basis in Re Ellenborough Park [1956] Ch 131, in which it was distinguished on the basis that Hill, unlike the claimants in that case, had been trying ‘to set up, under the guise of an easement, a monopoly which had no normal connexion with the ordinary use of his land’.
The claimant, Hill, was the tenant of premises in Aldershot, on the banks of the Basingstoke Canal. The canal and the adjoining land belonged to a company. Under the terms of Hill’s lease, the company had given him ‘the sole and exclusive right or liberty to put or use boats on the said canal, and let the same for hire for the purpose of pleasure only’.
The defendant, Tupper, was the landlord of an inn adjoining the canal. He sometimes sailed boats on the canal, with his family, and also sometimes permitted his customers to use these boats for the purposes of fishing and bathing.
Hill brought an action against Tupper, seeking a declaration that he had wrongfully interfered with Hill’s exercise of his exclusive right to put boats on the canal. He asked for damages, arguing that he had suffered a great loss of the profits ‘which he ought and otherwise would have acquired from the sole and exclusive possession, use and enjoyment of his … right or liberty’.
At first instance, the jury found in favour of Hill, but awarded him damages of only a farthing.
Tupper appealed to the Exchequer Chamber, seeking a declaration that Hill had no cause of action against him
Moody v Steggles(1879) 12 Ch D 261
easements - accomodate
valid easement.
A right which confers a commercial benefit may not be precluded from being an easement where the commercial activity and the land upon which it is carried out have become interlinked, so that any benefit to the business also benefits the land.
Cs, the owners of a pub, claimed the right to affix a sign on the wall of D’s house
The signboard had been so affixed for upwards of forty years
The two houses had formerly belonged to the same owner, the D’s house granted away first
Hunter v Canary Wharf
easement - capable of forming the SM
Held: uninterrupted TV signal is not an easement
690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and complained that the erection of the Canary Wharf Tower interfered with their television reception. In addition, a second action against London Docklands Development Corporation involved 513 claims for damages in respect of excessive amounts of dust created during the construction of the tower. Some of the claimants were owners or tenants of properties, but many of the claimants had no proprietary interest in lane at all. Some were children living with parents, some were relations or lodgers with use of a room and some were spouses of the tenant or owner of the property. The two issues the House of Lords were required to consider were:
- Whether interference with television reception was capable of giving rise to an actionable nuisance
- Whether an interest in property was required to bring an action in
Phipps v Pears
easement - capable of forming the SM
Denning LJ
> ‘Suppose you have a fine view from your house. You have enjoyed the view for many years. It adds greatly to the value of your house. But if your neighbour chooses to despoil it, by building up and blocking it, you have no redress. There is no such right known to the law as a right to a prospect or view […] The only way in which you can keep the view from your house is to get your neighbour to make a covenant with you that he will not build so as to block your view.’
Held: His claim was dismissed and this decision was upheld on appeal by Lord Denning, who said held that an easement of protection from the weather was unknown to the law and that everyone is entitled to pull down his house and that if it exposes another house to the weather, that is the problem of the owner of the other house. There was no such easement, nor was there a right known to the law which passed on the conveyance to P under s.62 of the Law of Property Act, 1925
Lord Denning’s reasoning:
* a right to protection from the weather is entirely negative … must be looked at with caution = caution against both the negative and the new aspect.
* It would unduly restrict the neighbour in their enjoyment of the land
* Inhibitor to development generally – don’t want to hinder desirable development
Facts: Two houses adjoined in that their flank walls were up against one another but not bonded together. The defendant demolished his house, exposing the flank wall of the plaintiff’s house to the elements. That flank wall had never been rendered, and rain penetrated the wall, froze, and caused cracking. The plaintiff claimed damages from the defendant.
London & Blenheim estates v Ladbrooke retail parks
capable of forming the SM - ouster principle
C did not have a valid easement.
Reasoning:
The right to park cars can exist as an easement provided that in relation to the area over which it is granted, it is not such that it would leave the servient owner without any reasonable use of his land
In the present case, that is not the case, but on the facts no easement arose as the dominant tenement was not adequately identified in the grant
L & B (C) was granted land by L with easements over the retained land including a right to parking on the retained land which had to be invoked by notice within 5 years from date of transfer
The retained land was sold to Ladbroke (D) before purchase was completed
C sought to enforce the right to park on the retained land against D by giving notice
Moncrieff v Jamieson
capable of forming the SM - ouster principle - scottish case
The right to vehicular access has the ancillary right to park where it was necessary for the comfortable use and enjoyment of the servitude; in the present case there was
An easement to park cars was claimed, there was an existing express right of access by car
Wright v Macadam
capable of forming the SM - ouster principle
The Law Commission recommends that the effect of s 62 LPA 1925 in converting precarious permissions into easements, as demonstrated in Wright v Macadam [1949], should be abolished
A tenant’s revocable licence to store coal in a coal shed converted, upon the granting of a new lease, into a legal easement to store
Goldberg v Edwards
formalities - Wheeldon v Burrows - implied easements
A right to access an annexe to a house via an indoor passageway was not acquired under the rule in Wheeldon v Burrows (1879), since the annexe could be accessed by an outdoor passage
Wood v Waddington
formalities - Wheeldon v Burrows - implied easements
⇒ effect of this case: The Court of Appeal has now made it clear that s. 62 can apply in a case in which there is no diversity of occupation prior to a conveyance, and has clarified that the test in such a case is whether the landowner’s enjoyment of rights over the retained land was ‘continuous and apparent’.
The case also provides a helpful illustration of the requirements of the ‘continuous and apparent’ test. It confirms that the test is exactly the same in the context of s. 62 as it is in the context ofWheeldon v Burrows. Thus it does not require literally continuous use, but will be satisfied by a regular pattern of use and visible signs of use on the ground.
Finally, its practical effect is to limit the relevance ofWheeldon v Burrows
⇒ Wider comments and discussion: this case expands the scope of s. 62 of the Law of Property Act 1925, reducing the relevance ofWheeldon v Burrows. Its practical effect is that a purchaser who wants to claim an easement on the basis of the vendor’s past use of retained land no longer needs, in the vast majority of cases, to show that the easement is necessary for the reasonable enjoyment of the land transferred.
This raises a problem of justification. Why should servient owners be subject to rights of this kind, given that there is no requirement that the grant of the easement be intended by the parties to the conveyance nor any requirement that the easement be particularly useful—let alone necessary—to the dominant owner? This problem is rendered particularly acute by the fact that easements of this kind take effect at law and are capable of being overriding interests, binding purchasers of land without appearing on the register
Held: Appeal Allowed. Although the words of the 1998 conveyance did not, on their true construction, include these particular easements, they must be deemed to be included in that conveyance by s. 62 of the Law of Property Act 1925. The decision on s. 62 made it unnecessary to consider whetherWheeldon v Burrowsapplied, but the Court expressed the view that the Woods would have had difficulty succeeding in their claim underWheeldon.
Like Morgan J, the Court of Appeal rejected the argument that s. 62 did not apply because the land had been owned and occupied by only one person before the conveyance. Section 62 applied to any advantage over retained land that was ‘enjoyed with’ the land conveyed. This test would be met where there was separate occupation of the two plots of land and the advantage was enjoyed by an occupier of the land conveyed over the land retained, but it would also be met in some cases in which there was no diversity of occupation.
At first instance, Morgan J had said an advantage would be ‘enjoyed with’ land, for the purposes of s. 62, if it were enjoyed with the conveyed land alone rather than ‘as part of the common ownership of both the land to be conveyed and the land to be retained’. He doubted that the language of a continuous and apparent exercise of rights, as inWheeldon v Burrows, was a helpful substitute for the statutory language. On this basis, he had held that Mr Crook’s use of the tracks and the bellmouth, before the 1998 conveyance, had not been enjoyed with the conveyed land in this sense; rather, he had used them as part of his common ownership of the whole plot. The Court of Appeal rejected this reasoning. Lewison LJ said that:
> [I]n cases where there has been no diversity of occupation, all that is necessary to establish is that the exercise of the relevant rights has been continuous and apparent in the sense developed for the purposes of the rule inWheeldon v Burrows.
There was no further requirement.
On the facts, the Court held that Mr Crook’s exercise of rights over the land, before 1998, had been continuous and apparent. There were ‘visible signs of a track or road’ that reflected the route claimed by the Woods and Mr Crook’s evidence was that he had used this track about once a month: ‘[T]hat is both apparent use and a regular pattern of use.’ Similarly, the route over the bellmouth was frequently used by Mr Crook’s farm vehicles and Mr Crook himself on foot, as well as by his wife when riding, and had left ‘sufficient visible signs on the ground’ to make it ‘continuous and apparent’.
This conclusion made it unnecessary to consider the argument based onWheeldon v Burrows. Lewison LJ noted that it was common ground thatWheeldon v Burrowswas a harder test to satisfy than s. 62, since the use of the land would also need to be necessary for the reasonable enjoyment of the land. While not deciding the point, he said that it would have been ‘an uphill struggle’ for counsel for show that the claimed rights were ‘necessaryfor the reasonable enjoyment of the land transferred
The two parcels of land owned by the parties had previously been held by the same owner. In 1998, the owner divided up his land between a number of purchasers – including the predecessors to the parties in this case.
The transfers of the land contained detailed provisions dealing with the grant and reservation of rights and these followed much the same format. In addition to specific rights granted within the transfers, each document also contained a more general clause which confirmed that the sale included the “benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property”.
The Woods claimed rights of way over tracks on Mr Waddington’s land on the basis that the rights were expressly granted in the transfer to their predecessors-in-title (as a result of the clause referred to above), or included in that transfer as a result of section 62 of the Law of Property Act 1925 (as rights enjoyed by their land at the time of the transfer), or else should be implied.
Wheeldon v Burrows (1879)
implied easements
C succeeded in his claim; D did not have an easement for access to light
A seller sold a piece of land to C, a month later he sold the workshop adjacent to the land to D
C erected boardings on his land to block light to the windows of the workshop, D knocked the boardings down
C brought action for trespass against D
D pleaded that that he had an easement for access to light over C’s land that had been impliedly reserved by the seller he sold the piece of land to C
Manjang v Drammeh
implied easements (necessity)
Lord Oliver set out the three essential requirements for an easement of necessity to be implied: (1) there should have been a common owner of the two plots of land at the time of the assignment; (2) it had to be established that the only way to get to the public highway from the River Strip was across 63 Wellington Street; and (3) there must not have been a specific grant of the right claimed (196 – 7).
The first condition was not satisfied: R had not been the owner of the River Strip at the time of the assignment (R was granted the lease of the River Strip four years later).
It was also arguably the case that the second condition was not satisfied either: it was possible to access the River Strip by boat.
R, having already occupied 63 Wellington Street in The Gambia for some time, was granted a lease of it for 21 years from 2 February 1977.
R also occupied an adjoining strip of land that lay between 63 Wellington Street and the River Gambia (‘the River Strip’). The only means of access to the River Strip on foot was through 63 Wellington Street. Again after a period of occupation on an uncertain legal basis, R was granted a lease of the River Strip in 1986.
In 1982, R assigned the lease of 63 Wellington Street to A. The assignment did not reserve an express right of way over 63 Wellington Street to access the River Strip.
R argued that a reservation of the right of way should be implied into the assignment. This argument failed.
Wong v Beaumont Property Trust Ltd[1965] 1 QB 173)
implied easements (common intention)
There is an easement that allows C to place an air duct on the back of the wall based on common intention
C is the tenant of a Chinese restaurant situated underground and is so badly ventilated that it needs an air duct fixed on the back wall of the building that belongs to the landlords D
The health inspector deemed the use of the air duct necessary
Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57
accomodate the dominant land
Reasoning:
* The question whether a particular easement accommodated dominant land depended on the use that was being made of that land. Timeshare apartments, which by definition were to be used for the purposes of leisure, were certainly accommodated by the grant of an easement to make use of recreational facilities.
* Lord Briggs rejected both arguments, holding that the question whether an easement violated the ouster principle should be considered in the light of the normal expectations of the parties as to who would maintain the servient land—here, the servient owner—and not by reference to what the dominant owner might exceptionally be called upon to do if the land was no longer maintained in a manner that enabled exercise of the easement. At the same time, although the parties reasonably expected the servient owner to maintain the facilities, there was no legal obligation to do so: the dominant owners could still make some ‘meaningful use’ of the right granted even if the servient owner ceased to maintain the facilities, by stepping in to perform the necessary maintenance themselves
It provides important guidance on the key criteria—including the requirement to accommodate and serve dominant land and the bar on easements imposing positive burdens on servient owners—as well as direct authority that there is no principle barring purely recreational easements, contrasting with the somewhat more tentative dicta inRe Ellenborough Park*.
Wider Questions
One important issue raised byRegency Villashad to do with how the cost of maintaining and repairing a shared facility can be managed within the context of a freehold development. As the disagreement between the majority and Lord Carnwarth in the minority makes clear, there are some conceptual difficulties involved in attaching such a sophisticated set of facilities to freehold land via the law of easements; maintenance obligations cannot normally be imposed on the servient owner, and the dominant owner’s right to access the land to perform maintenance may be somewhat unrealistic in situations where the facilities to be maintained are as complex as a swimming pool, a golf course, or a tennis court. To what extent could the problem inRegency Villashave been avoided, or simplified, if the burden of positive covenants could be made to run with freehold land? Compare the authorities on the anomalous ‘easement’ of fencing, discussed in the recent case ofHaddock v Churston Golf Club Ltd[2019] EWCA Civ 54
Held: The appeal was dismissed. Lord Briggs, in the majority, held that the 1981 grant had conferred a valid legal easement of access to the sporting and recreational facilities in Mansion House as they existed from time to time. He rejected the view that such an easement could not exist, holding that it complied with theRe Ellenborough Parkrequirements for the validity of an easement and that these requirements did not include a stipulation that an easement could never be for a purely recreational purpose.
Lord Carnwarth’s dissent:
He considered that the rights claimed by the dominant owners were essentially rights to services provided by the servient owner, involving the organization and management of a leisure complex; in his view, a right to enjoy such facilities could not realistically be understood except as a right to receive the benefit of the services of maintenance and management performed by the servient owner.
Facts: The dispute in this case concerned access to certain sporting and recreational facilities at a property known as Broome Park, near Canterbury. Broome Park had previously included two houses in common ownership, Mansion House and Elham House (later renamed ‘Regency Villas’).
In 1979, Mansion House and its surrounding land were acquired by Gulf Investments Ltd, which converted two floors of the house into a set of timeshare apartments. At the same time, a number of recreational facilities were created; these included a golf course, a swimming pool, tennis and squash courts, and a formal garden. The timeshare owners within Mansion House were granted rights to access these facilities under a 35-year lease, granted in 1980, which also imposed positive duties of maintenance on Gulf as the landlord.
In 1980, Gulf also acquired Elham House for the purpose of creating a similar timeshare ownership scheme. A total of 24 timeshare apartments were created, and the whole development was renamed Regency Villas. In 1981, Gulf transferred its freehold title to Regency Villas to a trustee company, which was to hold the title for the benefit of the timeshare owners. This transfer included a grant of ‘the right … to use the swimming pool, golf course, squash courts, tennis courts … gardens and any other sporting or recreational facilities’ on Mansion House. Gulf also personally covenanted to maintain these facilities.
The lease in favour of the Mansion House timeshare owners expired in 2015. At this date, the freehold title to Mansion House was held by the defendant, Diamond Resorts (Europe) Ltd, which was running the property as a hotel and allowed hotel guests and paying members of the public to access the recreational facilities. The freehold title to Regency Villas had passed to the claimant, Regency Villas Title Ltd, as a trustee for the timeshare owners. A dispute arose as to whether the Regency Villas apartment owners were entitled to access the recreational facilities in Mansion House free of charge. The claimant argued that they were entitled to free access on the grounds that they had been granted easements of access to the facilities by the 1981 transfer. The defendant argued that the rights granted by the 1981 transfer were incapable at law of being easements.
What are the defendant’s arguments:
- positive obligations imposed on the servient land
- you deprive them of personal autonomy
- the wording of the grant was not precise and said nothing on the future facilities (Lord Carnwarth dissent)
- fancies and mere amusement - not capable of forming the the SM of a grant
⇒in a case Dyce v Lady, the mere recreational facilities were not considered capable
CORE: Darwall v Dartmoor National Park Authority [2023] EWCA Civ 927
right to roam
Comments:
Following the appeal, the position regarding wild camping in the UK is ultimately unchanged. There are areas of the UK, including the Dartmoor Commons, where wild camping is allowed without obtaining the landowner’s permission. The DNPA website sets out useful information that you should consider if you plan to wild camp on the Dartmoor Commons.
Regarding wild camping in other parts of the UK, this article is a brief discussion of the recent case law around wild camping on Dartmoor and is not intended to be an extensive consideration of wild camping in the UK. There are many nuances to wild camping that have not been covered. Therefore, should you wish to wild camp, it is advised that you conduct your own research to ensure that you can do so legally.
Held:
The DNPA challenged the High Court judgment. The appeal was heard by three Court of Appeal judges on 18 July this year.
The Court of Appeal was not persuaded by the Chancellor’s interpretation of the statute and therefore allowed the DNPA’s appeal.
The judgment, published on 31 July 2023, states that the wording of Section 10(1) “does allow members of the public to rest and sleep, whether by day or by night, whether on the ground or in a tent”. Reference to the right of access being on foot and on horseback does not limit the type of recreation to those undertaken on foot or horseback. Rather, “the right of access granted is… for the purpose of open-air recreation”, which properly interpreted includes wild camping.
Facts: Alexander and Diana Darwall own Blachford Manor, an estate which covers a remote section of the Dartmoor Commons.The Darwalls became concerned about the public’s impact on their estate and livestock. They raisedthis concern with the Dartmoor National Park Authority(DNPA),which disagreed with the Darwallsaboutthe extent of the public’s rightsover the Commons.This prompted the Darwalls to bringan action claiming that the public had no right to‘wild-camp’[2](i.e., camping not at a campsite) on the Commons.TheDNPA defended the claim. Pivotal to the casewass.10(1) of the Dartmoor Commons Act 1985:
> ‘Subject to the provisions of this Act and compliance with all rules, regulations or byelaws relating to the commons and for the time being in force, the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation …’[3]
Sir Julian Flaux, Chancellor of the High Court, agreed with the Darwalls. Considering the statutory background and the words of s.10(1), he concluded that it conferred a ‘right to roam’,[4]not to camp–the latter not being ancillary to the right of access granted.TheChancellordefinedarightas‘ancillary’if thestatute’sexpress words necessarily implied itwhen ‘construed in their context and having regard to their purpose’.[5]Failing to meet the threshold of ‘necessary implication’,camping was not‘ancillary’to(i.e., necessarily implied by)the ‘right to roam’,[6]whereaspicnickingor dog-walkingwere.The Chancellor reasoned that thiswas because a walker could always seek the landowner’s permissionto campor‘take their chances’on pitching a tent without the landowner knowing, whilst being prepared to move on if asked to do so.
Batchelor v Marlow [2003]
ouster principle -capable of forming the SM
strict view of the ouster principle criticised in Moncrieff
Appeal allowed; the right claimed by Ds was not capable of being an easement
‘If one asks the simple question: “Would the appellant have any reasonable use of the land for parking?” the answer, I think, must be “No”. He has no use at all during the whole of the time that parking space is likely to be needed. But if one asks the question whether the appellant has any reasonable use of the land for any other purpose, the answer is even clearer. His 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.’
The landowner, C, sought declaration that Ds, car mechanics, were not entitled to park on a strip of land C owned
Ds claimed that they had an easement acquired by prescription, and that the easement allowed for parking of up to six cars on the land Mondays to Fridays from 8.30 am to 6pm
The judge held in favour of Ds; C appealed on the ground that the claimed easement would render his ownership of the land merely illusory
ouster principle
The question is one of degree and the nature of the right being claimed, and the extent of the physical space being used, may be influential. See, for example, Miller v Emcer Products [1956] (where a valid easement arose to use a neighbour’s toilet) and contrast with Grigsby v Melville [1973] (where the exclusive right to store in a cellar was rejected).
Dyce v Lady James Hay
easements
‘The category of easements must alter and expand with the changes that take place in circumstances of mankind.’
Held: no easement
Specifically, the claim that the public had a universal right to use the strip of land for recreation and repose was deemed too broad and inconsistent with property rights. The court emphasized that while certain servitudes and easements could be recognized, they must be reasonable and not interfere excessively with the property owner’s rights. Consequently, without a valid legal title or specific dedication to public use, the claimed recreational rights could not be sustained by prescription.
Robert Dyce, a magistrate from Old Aberdeen, initiated legal action against Lady James Hay, asserting that he and other local inhabitants had historically utilized a footpath and an adjacent strip of ground along the River Don for recreational purposes. The central issue revolved around whether such long-standing public use could establish a prescriptive right, effectively granting a servitude or easement that would limit the property’s owner from restricting ordinary property use.
