Easements

Question 1

Easement

Answer 1

A right enjoyed and exercised over the land of another. Can be positive or negative.

Question 2

Re Ellenborough Park

Answer 2

Ratio: Established the criteria for whether a right is capable of being an easement - 1. Must be a dominant and servant tenement. 2. Easement must accommodate dominant tenement (make it better/more convenient/increase its value and be sufficient proximity). 3. Must be diversity of ownership. 4. Right claimed must lie in grant (capable grantor and grantee/sufficiently definite/ judicially recognised or analogous to)

Question 3

London and Blenheim Estates v Ladbroke

Answer 3

Ratio: For an easement to be capable of existing there must be a dominant and servant tenement.

Question 4

Hawkins v Rutter

Answer 4

Ratio: An easement cannot exist in gross - cannot be exercisable by the holder of the interest independently of any land that he may own.

Question 5

Hill v Tupper

Answer 5

Ratio: A right which facilitates a commercial use of land can be an easement if the business is a necessary incident of the normal use of the land.

Facts: Hill ran a boat hire business. In his lease, he was granted ‘sole and exclusive right or liberty to put or use boats on the canal, and let the same for the purpose of pleasure only’. The right was not held to be an easement because it benefitted Hill himself, not the land.

Question 6

Moody v Steggles

Answer 6

Ratio: A right which facilitates a commercial use of land can be an easement if the business is a necessary incident of the normal use of the land.

Facts: Easement of signage was benefitting a long established business which had in effect become the normal usage of the land.

Question 7

Bailey v Stephens

Answer 7

Ratio: For the easement to accommodate the dominant tenement, there must be sufficient proximity.

Facts: ‘You cannot have a right of way over land in Kent appurtenant to an estate in Northumberland’.

Question 8

Roe v Siddons

Answer 8

Ratio: For an easement to exist, there must be diversity of ownership.

Question 9

William Aldred’s Case

Answer 9

Ratio: There is no easement to enjoy a scenic view.

Question 10

Harris v De Pinna

Answer 10

Ratio: There is no easement to a flow of light through undefined channels or to privacy.

Question 11

Borman v Griffirth

Answer 11

Ratio: 1. A right of way is a recognised easement. 2. The rule in Wheeldon v Burrows can operate on an agreement for the sale of freehold/grant of lease.

Facts: Landowner granted Borman a seven-year lease of a house within a large park. The only access was over a drive leading to a larger property. This was blocked by the landowner’s successor in title. Borman successful claimed that he had an easement to use the main drive under the rule in Wheeldon v Burrows. Even though there was alternative access, it was insufficient for the claimant’s needs.

Question 12

Colls v Home and Colonial Stores

Answer 12

Ratio: A right of light is a recognised easement.

Question 13

Race v Ward

Answer 13

Ratio: Right to water in a defined channel is a recognised easement.

Question 14

Wong v Beaumont

Answer 14

Ratio: Right to air in a defined channel is a recognised easement.

Question 15

Dalton v Angus and Co

Answer 15

Ratio: Right to support is a recognised easement.

Question 16

Atwood v Bovis Homes

Answer 16

Ratio: Right to drainage through a defined channel and other rights of pipeline are recognised easements.

Question 17

Scott-Whitehead v National Coal Board

Answer 17

Ratio: Right to pollute a river is a recognised easement.

Question 18

Sturges v Bridgman

Answer 18

Ratio: Right to cause a nuisance is a recognised easement.

Question 19

Regency Villas Title Ltd v Diamond Resorts

Answer 19

Ratio: Right to use facilities such as a golf course, swimming pool or tennis court is a recognised easement.

Question 20

Dyce v Lady James Hay

Answer 20

Ratio: The list of recognised easements can expand to accommodate social and technological changes.

Question 21

Phipps v Pears

Answer 21

Ratio: Courts are reluctant to recognise new negative easements.

Facts: A right to protection from weather was not granted.

Question 22

Hunter v Canary Wharf

Answer 22

Ratio: Courts are reluctant to recognise new negative easements.

Facts: A right to TV signal was not allowed.

Question 23

Regis Property Co Ltd v Redman

Answer 23

Ratio: Where the exercise of the right requires the servant tenement owner to expend money, it cannot be an easement.

Facts: Claim to supply of hot water was not an easement as it required expenditure.

Question 24

Rance v Elvin

Answer 24

Ratio: The dominant tenement owner can be held liable in quasi-contract for the servient tenement owner’s expenditure in some circumstances.

Facts: Passage of water through pipes on the servient land was claimed as an easement. At first instance, this was disallowed since the water meter was on the servient land and so the servient owner was solely responsible for payment of bills. On appeal, the easement was upheld. It was considered as a right to passage of water. The servient owner was under an obligation not to physically interfere with the flow of water through the pipes but could not be compelled to pay for the water. Given that he was unlikely to stop paying for the water, the dominant tenement owner was held liable in quasi-contract to reimburse him for the water he received.

Question 25

Jones v Pritchard

Answer 25

Ratio: A servient tenement owner is under no obligation to do any repairs or maintenance to enable the dominant tenement owner to enjoy the easement. However, he is obliged to allow the owner of the dominant tenement to enter the property to effect the necessary repairs at his own expense.

Question 26

Grigsby v Melville

Answer 26

Ratio: A right to storage is a recognised easement unless it amount to exclusive possession.

Question 27

Jackson v Mulvaney

Answer 27

Ratio: A right to use a garden can be an easement.

Facts: The dominant owner claimed that the servient owner had interfered with his right to use the garden by creating a gavel driveway over part of the garden which the dominant owner tended as a flowerbed. Court held that the easement to use the garden did not prevent the servient owner from also being able to use the land. Thus, although damages were awarded, there was no right to have the flowerbed restored.

Question 28

hair v Gilman

Answer 28

Ratio: Right to park can constitute an easement as long as the parking does not interfere with the servient tenement owner’s reasonable use of their land.

Facts: A right to park in any one of four spaces was upheld as an easement. The dominant owner did not use the same space every day. As the servient owner could still use three spaces on the servient land, there was no interference with their reasonable use of land.

Question 29

Batchelor v Marlow

Answer 29

Ratio: If a right to park amounts to virtually the whole beneficial use of the land it will not be an easement.

Facts: The right to park six vehicles from 8.30am to 6pm Monday to Friday failed as an easement because it amounted to virtually the whole beneficial use of land.

Question 30

Moncrieff v Jamieson

Answer 30

Ratio: 1. Exclusive possession should be considered in terms of possession and control. 2. An easement is deemed necessary for the reasonable enjoyment of land if it is necessary for the convenient and comfortable enjoyment of that land.

Note - this is a Scottish case and so only of persuasive value.

Question 31

Virdi v Chana

Answer 31

Ratio: Batchelor is still good law.

Question 32

Kettel and Ors v Bloomfold

Answer 32

Ratio: Applied Batchelor in a Moncrieff way.

Facts: Easement was to use designated parking spaces. HHJ David Cooke held that the freeholder had not been deprived of the reasonable use of the spaces since he could still do anything on them, except to the extent that it would be inconsistent with an express right to park a car. I.e. he could still walk over the space, lay pipes under it, build above it.

Question 33

Green v Ascho Horticultural

Answer 33

Ratio: If a dominant tenement owner has to seek express permission every time they exercise a right, it cannot be an easement.

Question 34

Manjang v Drammeh

Answer 34

Ratio: An easement of necessity will only be implied if the land is landlocked.

Question 35

Adealon International Proprietary Ltd v Merton Borough COuncil

Answer 35

Ratio: An easement of necessity will only be implied if the land is landlocked.

Facts: Easement was refused because the landlocked dominant tenement was partly surrounded by land owned by a third party who might, in theory, have provided an alternative means of access.

Question 36

Pryce v McGuiness

Answer 36

Ratio: An easement of necessity will only be implied if the land is landlocked. It will not be implied because it would be highly advantageous - e.g. sewerage, drainage and electricity.

Question 37

Pwllbach Colliery v Woodman

Answer 37

Ratio: General intention as to how the property should be used is not enough for an easement to be implied by common intention.

Question 38

Peckham v Ellison

Answer 38

Ratio: A common intention to reserve an easement will only be found if the facts are not reasonably consistent with any explanation other than that of an implied reservation.

Question 39

Re Webb’s Lease

Answer 39

Ratio: Where a person wishes to rely on an easement having been impliedly reserved by common intention, there will be a heavy burden of proof resting upon them. It is not enough to show that the right had been openly exercised prior to the transaction.

Question 40

Yeung v Potel

Answer 40

Ratio: A common intention to reserve an easement will only be found if the facts are not reasonably consistent with any explanation other than that of an implied reservation.

Facts: Court of Appeal refused to extend a reservation relating to the renewal of existing gas pipes to include the laying of new pipes on the basis that the grantor had two chances to expressly include such a reservation and did not.

Question 41

Wheeldon v Burrows

Answer 41

Ratio: On grant by an owner of a tenement or part of a tenement, quasi-easements will pass to the grantee.

Question 42

Kent v Kavanaghs

Answer 42

Ratio: 1. The rule in Wheeldon v Burrows only operates on sale or lease of part when, immediately prior to sale/lease, there was a common owner and occupier of the whole. 2. For the rule in Wheeldon v Burrows to operate, the quasi-easement must have been exercised in the recent past and was expected to be exercised again in the near future, by the common owner.

Question 43

Swansborough v Coventry

Answer 43

Ratio: The rule in Wheeldon v Burrows also applies when the owner of a large plot of land decides to split the land in two and sell both plots contemporaneously.

Question 44

Pyer v Carter

Answer 44

Ratio: For a right to be apparent, it must have been discoverable or detectable from the careful inspection of the land by a person ordinarily conversant with the subject.

Note: If pipes are ordinarily discoverable by an appropriate individual they will be apparent.

Question 45

Sovmots Investments Ltd v SoS Environment

Answer 45

Ratio: 1. When considering if a right is continuous and apparent, common sense should be used.

Question 46

Wheeler v JJ Saunders

Answer 46

Ratio: The requirement of necessity under Wheeldon v Burrows is less strict than for necessity or common intention but is still strict.

Facts: One of two means of access to the claimant’s land was across the defendant’s farmland. The access had been used when the property was in common ownership but was now blocked. Court held the claimants were not entitled to an easement under Wheeldon v Burrows because there was an alternative route of access.

Question 47

Platt Ltd v Crouch

Answer 47

Ratio: No prior diversity of ownership is required for s.62 to operate if the right is continuous and apparent.

Facts: Crouch family owned riverside properties comprising a hotel and a house within the hotel grounds. They also owned in island in the river with a bungalow on it. Hotel guests enjoyed exclusive use of the river moorings and the hotel trade generated from this was significant. Platt Ltd bought the hotel in 2001 and took an option to buy the house and the bungalow. They did not exercise the option. Claimant claimed that the rights to enjoy the river moorings passed for the benefit of the hotel by virtue of s.62 and the rule in Wheeldon v Burrows. Court held that the rights passed as easements under s.62 even through there was no prior diversity of ownership as they were continuous and apparent.

Question 48

Wood v Waddington

Answer 48

Ratio: Approved Platt v Crouch - no prior diversity of ownership necessary for s.62.

Facts: A parcel of land had been sold in parts. The land was crossed by various farm tracks and two public bridleways. The Woods claimed the rights of way as easements based on LPA 1925 s62 when land was sold to them by their predecessors, the Sharmans.

Question 49

Barney v BP Truckstops Ltd

Answer 49

Ratio: For prescription to apply, the exercise of the right must be by right - without stealth, force or permission.

Facts: Defendant’s claim to an easement of drainage failed because the use was unknown and unsuspected by the plaintiff.

Question 50

Wiliams v Sandy Lane

Answer 50

Ratio: 1. Prescription will apply if the owner of the freehold knew of the user and could have stopped them, but failed to do so. 2. A release is implied where the dominant owner abandons his rights.

Facts: 30 years’ non-use of a right of way plus developments which made it difficult to use the route (growth of vegetation etc) did not make the way impassable and also did not evidence intention to abandon the way.

Question 51

Orme v Lyons

Answer 51

Ratio: Confirmed the doctrine of lost modern grant - if continuous use for 20 years can be shown, there is a presumption that at one stage there was a valid deed of a grant of an easement which has since been lost.

Question 52

Wood v Saunders

Answer 52

Ratio: If use of an easement changes or becomes excessive, the dominant user can be restricted to the extent that the easement was used at the time of the grant.

Facts: A house had the benefit of a right of drainage. When the house was extended and changed into an institution housing 150 people it was held that the user was excessive and the dominant owner had to restrict the user to the extent the easement was used at the time of the grant.

Question 53

Jelbert v Davis

Answer 53

Ratio: If use of an easement changes or becomes excessive, the dominant user can be restricted to the extent that the easement was used at the time of the grant.

Facts: The dominant tenement had a right of access at all times and for all purposes over the servient land. When the dominant owner wanted to change the use of their land to a caravan park for 200 caravans, an injunction was granted as the proposed use was must more extensive that the original grant.

Question 54

Swan v Sinclair

Answer 54

Ratio: A release is implied where the dominant owner abandons his rights.

Facts: A right of way that had not been used for over 50 years and had been blocked by fences and uneven ground was held to be abandoned.

Question 55

Benn v Hardinge

Answer 55

Ratio: A release is implied where the dominant owner abandons his rights.

Facts: A right of way not used for over 100 years because there were alternative access routes was not abandoned.

Question 56

Moore v Rawson

Answer 56

Ratio: A release is implied where the dominant owner abandons his rights.

Facts: A plaintiff pulled down a cottage with windows and erected a windowless stable. Nineteen years later he wished to open up a window but it was held that the existing easement had been abandoned. This will not be the case if there as an intention to replace the house with another building with windows in similar positions.

Question 57

Copeland v Greenhalf

Answer 57

Ratio: 1. An easement to storage can exist but it must not amount to exclusive possession.

Facts: Greenhalf ran a business as a wheelwright. He claimed he had a right to store vehicles awaiting repair and collection on Copeland’s land and that this right existed as an easement by long use. Copeland was granted an injunction ordering Greenhalf to remove the vehicles since the use was too extensive to constitute an easement.

Question 58

Cordell v Second Clanfield Properties Ltd

Answer 58

Ratio: When an easement is purportedly expressly reserved, it will be strictly construed against the person reserving the right as he is an a position to reserve exactly what he needs at the time of sale or lease.

Facts: When Cordell sold land to property developers he reserved a right of way over any estate roads constructed on the land. When the company started to build a bungalow on the part of the land adjacent to Cordell’s reserved land, Cordell sought a declaration that he was entitled to a right of way 28 feet wide at all times and for all purposes. This was refused on the basis that he should have reserved this when he had the opportunity.

Question 59

Wong v Beaumont

Answer 59

Ratio: An easement will only be implied by common intention where both parties intend that the subject of the grant should be used in a particular and definite manner.

Facts: The lease contained covenants that the tenant would eliminate all cooking smells. To do this required use of ventilation system on landlord’s adjoining land. Thus, the right to use the system was implied by common intention.

Question 60

Wright v MacAdam

Answer 60

Ratio: s.62 operates upon renewal of lease to elevate quasi-easements to easements.

Facts: Macadam let a flat to Mrs Wright. From 1941 onwards, with Macadam’s permission, she stored her coal in a shed in his garden. She was granted a one-year tenancy in 1943 but the lease did not refer to the shed. The court held that the right had passed to Mrs Wright under s.62 on grant of the lease.

Question 61

Sovmots Investments Ltd v SoS Environment

Answer 61

Ratio: For s.62 to operate, there must be prior diversity of ownership.

Facts: Sovmots was granted a 150-year lease of Centre Point, which was an office complex with masionettes above. The masionettes were never occupied or sublet separately. They were compulsorily purchased by the Council in 1972. This order did not include ancillary rights such as easements for gas, electricity and water for the benefit of the masionettes. Held that s.62 did not operate as there was no diversity of ownership prior to the conveyance into which the easements were to be implied.