Easement Cases

Re Ellenborough Park [1956]

Facts
Ellenborough Park is located across the street from a row of houses. The person who owned
the land the park was on gave the builders of the houses "the full enjoyment at all times
hereafter in common pleasure of the ground" when he sold them the land to build the
houses. The people who now live in the houses are applying to have their right to use the
park recognized as an easement. The trial judge found that this did constitute an easement,
which the owners of the land appealed.
Issue
What do you need to have in order for an easement to exist?
Decision
Appeal dismissed, easement granted.
Reasons
Evershed, writing for a unanimous court, states that there are four things that must be
present in order for an easement to exist:
there must be a dominant and servient tenement;
an easement must "accommodate" the dominant tenant (the use of the land in question
must be "connected" to the use of the dominant land - merely adding to the property value
is not enough to satisfy this);
the dominant and servient owners must be different people; and
the right must be capable of being the subject matter of a grant.
this is because easements cannot be passed by possession, because they do not physically
exist they can only pass through grants
the right must be a "right of utility and benefit", and not merely for recreation or
amusement.
In this case Eversham agrees with the trial judge that all four of these conditions are met.
The house represents the dominant tenement while the park represents the servient
tenement. The use of the park is necessarily connected to the houses; it was expected to be
enjoyed upon purchase and always has been enjoyed. Different parties own the houses and
the park. Finally, Eversham states that this right is more than merely recreational or for
amusement, as using the park is a benefit. He says that a jus spatiandi, or a "privilege of
wandering at will over all and every part of another's field or park" amounts to a right of
utility and benefit.
Ratio
In order for an easement to exist there must be four things:
a dominant and servient tenement;
the easement must accommodate the dominant tenant - the use must be connected to
the use of the dominant land (more than simply adds value);
the dominant and servient owners must be different people; and
the right, which must be "of utility and benefit", must be capable of being the subject
matter of a grant

Wheeldon v Burrows (1879)
Right must be continuous and apparent, i.e. visible on inspection and neither
transitory not intermittent (doesn't have to be 24/7) ..worn tracks e.t.c.
Must be necessary to the reasonable enjoyment of the land, i.e. contributes to the
enjoyment of the property for which it was transferred, in the case of Wheeldon
an extra right of was deemed not necessary to the reasonable enjoyment of the
land, may be different if the right of way sought was much more convenient.
Must be used at the time of the grant by the previous owner for the benefit of the
part granted

Wheeldon v Burrows (1879) LR 12 Ch D 31 is an English property law case on the implying of grant
easements. The case established one of the three current methods by which an easement can be
acquired by implied grant, and has effectively been put into statutory force by Section 62 of the Law of
Property Act 1925 of England
Mr Allen owned a piece of land and a workshop in Derby, which had windows overlooking and
receiving light from the first piece of land. He sold the workshop to Mr Wheeldon, and the piece of
land to Mr Burrows. Mr Burrows built on the property, and it obstructed light into the workshop, which
had only skylights
The rule in Wheeldon v Burrows (1879) 12 Ch 31 applies on a disposition of part, either where
one part is disposed of or where each part is simultaneously disposed of (Russell v Watts (1884)
25 Ch D 559). For the rule in Wheeldon v Burrows to operate there is no need for the dominant
and servient lands to have been in different occupations before the disposition. Easements implied
under the rule are usually by way of grant.
The rule operates to imply, in favour of a buyer, all quasi-easements over the retained land that
satisfy each of the following:

Are necessary for the reasonable enjoyment of the part that has been disposed of
(the dominant land).
Have been used, and is used at the time of the disposition, by the seller for the
benefit of the dominant land.
Are continuous and apparent.
Continuous: A continuous easement is one which is enjoyed passively and which is of a
constant nature. The most obvious example is a right to light. A right of way used
intermittently is therefore not a continuous easement.
Apparent: Where an easement is apparent it seems that the need for it to be continuous is
relaxed. A quasi-easement is apparent if there is a permanent feature on the servient land
that signals the existence of an easement (Ward v Kirkland [1967] Ch 194). This might include
a roadway denoting a right of way, windows denoting rights of light, or a channel denoting the
right to take water.

Hill v Tupper (1863)
An incorporated canal Company by deed granted to the plaintiff the sole and exclusive
right or liberty of putting or using pleasure boats for hire on their canal. Held, that the
grant did not create such an estate or interest in the plaintiff as to enable him
to maintain an action in his own name against a person who disturbed his right
by putting and using pleasure boats for hire on the canal.
Right to launch pleasure boats from canal. Purely personal right it was his business not
benefitting the land.

Moody v Steggles (1879)
Claimed easement of signage on the land of Steggles, upheld as sign had been there for 40
years, pub had been there for 50 years, if owner decided to sell it the new owner would tend
to keep it as a pub and therefore sign would benefit the land.

Copeland v Greenhalf (1952)
Right to store on land far too imprecise. How many cars, when, to what extent was not
specified.
A claim to leave an unlimited number of vehicles for an indefinite time on a strip of land
belonging to a neighbour and to enter on that strip to do repair work thereon is not a
claim which can be the proper subject-matter of an easement. The defendant claimed an
easement to store vehicles on a strip of land 20-35 feet wide and 150 feet long and to
repair them on that strip, provided an adequate means of access to the plaintiff's
orchard was left, such adequate means being a width of something like 10 feet. The
defendant established that he and his predecessors had for the last 50 years used that
strip of land for such purposes in connection with their business as wheelwrights. Held,
the right claimed went wholly outside any normal idea of an easement; it really
amounted to a claim to a joint user of the land by the defendant; this was not a
claim which could be established as an easement.

Wright v Macadam (1949)
Acquisition of easements. s62 LPA 1925 - tenant's licence to store coal in a shed
was converted into a legal easement upon grant of a new lease
The following observations apply to s.62(1) of the Law of Property Act, 1925, which
provides that "a conveyance of land shall be deemed to include and shall by virtue of this
Act operate to convey, with the land, all . . . liberties, privileges, easements, rights, and
advantages whatsoever appertaining or reputed to appertain to the land, or any part
thereof, or, at the time of conveyance demised, occupied, or enjoyed with, or reputed or
known as part or parcel of or appurtenant to the land or any part thereof": 1. The
section is not confined to rights which, as a matter of law, were so annexed or
appurtenant to the property conveyed at the time of the conveyance as to make them
actual legally enforceable rights. Thus, on severance of a piece of land in common
ownership, the quasi easements de facto enjoyed in respect of it by one part of the land
over another will pass although, of course, as a matter of law, no man can have a right
appendant or appurtenant to one part of his property exercisable by him over the other
part of his property. 2. The right, in order to pass, need not be one to which the owner
or occupier for the time being of the land has had what may be described as a
permanent title. A right enjoyed merely by permission is enough. 3. For the purposes of
s.62 it is only necessary that the right should be one capable of being granted at law, or,
in other words, a right known to the law. If it is a right of that description, it matters not
that it has been, in fact, enjoyed by permission only. 4. The provisions of s.62 cannot
apply where in the circumstances of the case there can have been no expectation by the
parties that the enjoyment of the right could be other than temporary. In 1941, Mrs. W.
was a statutory tenant of two rooms on the top floor of the defendant's house, and, by
permission separately granted, was using a shed in the garden for the storage of her
coal. In 1943, the defendant granted to Mrs. W. and her daughter, the plaintiffs in the
action, a new tenancy of the upper flat, including an additional room. The tenancy
agreement contained no reference to the coal shed, nor any indication of intention one
way or the other whether the plaintiffs were to continue to enjoy the use of the coal
shed. A dispute arose between the parties about the plaintiffs' right to use the coal shed.
Held, the fact that Mrs. W. used the coal shed by permission of the defendant could not
prevent s.62 from applying. The right to use the coal shed for the purpose of storing
such coal as might be required for domestic purposes was a right or easement which the
law would recognise. It could not be said that it was in the contemplation of the parties
that the enjoyment of the right should be purely temporary. Consequently, the right
to use the coal shed was, at the date of the letting in 1943, a right enjoyed with
the top floor flat within the meaning of s.62 of the Law of Property Act, 1925,
with the result that (as no contrary intention was expressed in the document)
the right in question had to be regarded as having passed by virtue of that
letting

Nickerson v Barraclough (1980)
An easement can arise out of necessity [defendant knocked down bridge rendering claimant's land
inaccessible
In 1973 P bought a piece of land which was landlocked except for access to a
highway over a bridge onto a lane belonging to D, who denied any right of way. P
claimed title to a right of way from two conveyances to predecessors in title, one in 1906
giving no right of way until proposed new roads had been built, if ever. In 1922, an
adjoining piece of land on the north side was conveyed. P claimed that the 1922
conveyance gave a right of way over the bridge to D's land for access to the highway.
She also claimed that the 1922 conveyance and the Law of Property Act 1925
s.62 granted the right of way. She further claimed that there was an implied way of
necessity in the 1906 conveyance over the sites of new roads, as planned. P succeeded,
the Vice Chancellor holding that she had a limited right of way "as now and heretofore
used." He further held that the 1906 conveyance would be construed in the interests of
public policy so as to imply the grant of a way of necessity. D appealed.

Held, allowing the appeal, the doctrine of the way of necessity was based on implication
from circumstances, not public policy, which could play no part in the construction of a
document. In construing the 1906 document, its express terms were that unless roads
were made, there would be no right of way given. Before the 1922 conveyance, the
bridge and lane were used for agricultural purposes and amateur sports.s.62 was not
concerned with the future, but only with an advantage that could properly be regarded
as appertaining to the land granted. Accordingly, P was entitled to the user
appertaining at the time of the 1922 conveyance, namely for agricultural and
amateur sports purposes

Manjang v Drammah (1990)
Couldn't get from the road to his land so claimed an easement of necessity to get to the land.
Privy council said this did not apply as there was a river and he could have got to the land by
boat. Only completely land locked land will imply an easement where the parties intention is
not contrary to that fact.

Pwllbach Colliery Co Ltd v Woodman (1915)
Pwllbach Colliery sublet land in Glamorganshire from a tinplate company, whose memorandum
authorised mining to be carried on. A neighbouring butcher, Mr Woodman, had a later lease from the
tinplate company too, but subject to all rights and easements belonging to any adjoining and
neighbouring property. He built a slaughter house and a sausage factory. Then the colliery erected a
screening apparatus which threw up coal duty. Mr Woodman brought an action for nuisance.
The jury found there was a nuisance but the screening was reasonable and usual for the district,
without negligence
House of Lords held the memorandum allowing carrying on the trade of mining did not authorise the
nuisance, unless it could be proven that the trade could not otherwise be continued. There was no
easement for making coal dust.
Earl Loreburn said it was unnecessary to answer whether creating coal duty could be an
easement because the company was never authorised to do a nuisance.
Lord Parker said that the coal dust emission could be classified as an easement, but there was
no common intention on which such an easement could be based. The first class consisted of
easements of necessity.

Wong v Beaumont Properties Ltd [1965]

Mr Wong sub tenanted land covenanting to use it as a restaurant, control smells and
comply with health and safety, to do so he needed to build an extractor fan on top of
the rest of the building which the owner of the freehold reversion refused permission
to do. As there was a common intention at the creation of the grant that
the land be used in these specific ways an easement was implied to give
effect to that intention.

Sovmots Investments v Secretary of State for the Environment [1979]
A local authority cannot acquire compulsorily easements which have not
previously existed over parts of a building and where there has been no prior
diversity of ownership. The GLC owned land on which there was a large office
complex, "Centre Point," which was leased to A. The complex also included six floors of
maisonettes built on a podium at second floor level, sublet to B. The building remained
unoccupied. The Camden Council made a compulsory purchase order under the Housing
Act 1957 s.5 over the maisonettes, the access corridors, entrance hall, lifts and
staircases. They further specified a list of ancillary rights which were not then in
existence and which they claimed were essential for use as housing accommodation. The
Secretary of State confirmed the order. On applications by A and B to quash the order,
the judge at first instance held that although the authority had power to acquire the
premises, ie part of a building, it had no authority to acquire interests in the nature of
easements that did not exist at the time of the order. The Court of Appeal allowed an
appeal, holding that ancillary rights necessary for the reasonable enjoyment of the
premises could be acquired. On appeal to the House of Lords, held, allowing the
appeal, that such rights could not be acquired under the rule
in Wheeldon which related to voluntary conveyances and contracts for the sale
of land, nor under the Law of Property Act 1925 s.62 , which could not operate
without prior diversity of ownership. Such rights did not pass by necessary
implication; they were not covered by "house" or "appurtenances belonging
thereto or usually enjoyed therewith" in s.189(1) of the Housing Act 1957, and
"land" in s.189(1) was confined to existing rights over land

P S Platt v Crouch (2003)
No prior diversity required to convert a licence into an easement following the
sale of the freehold of assignment of a lease where the right is continuous and
apparent.
C, the former owner of a hotel, appealed against a declaration ([2002] EWHC 2195,
[2002] 45 E.G.C.S. 153) that certain rights over C's retained property, an island in the
nearby river, had passed to P on the transfer of the hotel by virtue of the Law of
Property Act 1925 s.62 . C contended that (1) the entire negotiations leading to the sale
were relevant to deciding whether s.62 operated to convey those rights, and the
material circumstances at the time of the sale demonstrated that it was the parties'
common intention that no such rights were to pass, and (2) the right to use the river
moorings was incapable of being an easement in that it would effectively deprive C of
any reasonable user of the land.

Held, dismissing the appeal, that (1) evidence of the negotiations was equivocal and
moreover irrelevant to determining the material circumstances known to the parties at
the time of the contract. The only relevant pre contract documents provided no evidence
of an understanding that the mooring and ancillary rights were to cease on the sale so as
to be excluded from the operation of s.62 even though the contract and transfer were
silent as to such exclusion. Rather, they showed that the rights appertained to and were
enjoyed with the hotel, being part of the hotel business and advertised as such and
enjoyed by the hotel guests. The rights were continuous and apparent and were
converted into full easements by the operation of s.62, Prenn v Simmonds [1971] 1
W.L.R. 1381 , Wright v Macadam [1949] 2 K.B. 744 and Birmingham Dudley & District
Banking Co v Ross (1888) 38 Ch. D. 295 applied, and (2) the right to use the river
moorings was capable of being an easement, despite its adverse effect on the servient
tenement. The mooring of boats and the occasional passage of hotel guests could not be
said to be a sufficiently substantial interference as to deprive C of any reasonable user,
nor did the reduction in value of the land render its ownership "illusory", Batchelor v
Marlow [2001] EWCA Civ 1051, [2003] 1 W.L.R. 764 distinguished.