Easements

Easements fit into the old category of incorporeal hereditaments; which

places greater emphasis on the right itself than the property in question
--- in the words of Blackstone their existence is merely an idea and
abstracted contemplation.

An Easement is a right enjoyed by one landowner over

the land of another, both plots are usually in close
proximity (Law Com CP 186).
In order for an easement to be established, essential criteria, which were
listed in Re Ellenborough Park [1956], must be met:
(i)
(ii)
(iii)
(iv)

Dominant and Servient tenement

The right must accommodate the dominant tenement
Dominant and Servient owners are different persons
Right must be capable of forming the subject matter of a
grant.

(i) Dominant and Servient tenement

Nature of all incorporeal hereditaments is that there must be a land

affected by the right: the Servient land and more importantly,
there must be land that is benefited by the right: the Dominant
land.
There is a real risk that easements can operate for the benefit of
only one of two plots owned by the dominant tenement: Nickerson v
Barraclough [1981]. The right of way was implied into a conveyance
of land, as the purchaser already owned land adjacent to the
purchased, which the right of way would have benefited. It was held
that the right of way operated only to serve as a benefit for the land
that was purchased and could not be used for access to adjacent
land. This serves to demonstrate the courts implementing a
strict/narrow judicial policy when regarding the purpose of an
easement.

(ii) The right must accommodate the dominant tenement

The easement must benefit/affect the land directly and NOT the
person who owns the land. ACCOMODATE = CONFER SOME FORM
OF DIRECT BENEFICIAL IMPACT
In terms for business use:
Moody v Steggles [1879] dominant owner had a right to advertise
his public house on the Servient land, bearing in mind that the

Servient land was situated in front of the public house; thus the
courts held that the sign was merely an indication of its existence.
-----------the business was very closely connected to the land, and
any owner of the land would likely run a pub from the premises.
Therefore, right connected to the land. The right benefitted the land
Re Ellenborough Park [1956] a controversial case
concerning the rights surrounding a garden. CA had to
determine whether the park sufficiently accommodated the
park. The right was recognised, as it passed the test. A
crucial question that must be considered, is that in present
environment, the park was seen almost as a substitute for
a garden, therefore would the same reasoning apply for the
use of a swimming pool, although most British homes would
not have a swimming pool. It could be argued that a
swimming pool, is a more of a personal right belonging to
the owner, than a right accommodating the land, but can the
same principle not be applied to a garden. Is a garden not
perceived to be a personal right?

(iii) Dominant and Servient owners are different persons

Cannot have an easement over your own land: Roe v Siddons [1888]
Law Com 186 would allow the owners to be the same if the plots
have different registered titles, this would be in order to aid land
development.

(iv) The right must be capable of being the subject

matter of a grant

Easements are not a closed category; therefore as long as the

easement complies with the above categories, there will be no bar
to its recognition: Att-Gen of Southern Nigeria v John Holt Ltd [1915]
(recognised the right to storage).
Must be capable of a grantor (person giving the easement) and
grantee (person receiving the benefit of the easement).
Right must be sufficiently defined, therefore according to Re
Ellenborough Park, must be too wide or vague. This explains why a
right to an unspoilt view (Williams Aldred Case [1610] ----not
enough to lie in grant), television reception (Hunter v Canary
Wharf [1997]) have not been recognised. Although it was

argued in these cases that the right to an unspoilt

view and a television reception was not a necessity,
but just a matter of delight. It can be suggested,
that in this modern era, television reception is a
means of necessity, and had the home occupiers at
the time knew of this potential process of urban

development then this may have impacted their

decision when purchasing their homes. Likewise, in
terms of the unspoilt view, this would then affect
the market price/value would be a disadvantage to
the owners.

Rights that amount to exclusive possession of the Servient

land. In vast majority of cases, the dominant owner has a right to
do something on the Servient land or something that affects the
land. Grigsby v Mellville [1972] Right to store items in a wine
cellar was held to not be an easement, as this amounted to
exclusive possession thus depriving the Servient tenement
of use. Brightman J followed Copeland v Greenhalf and
rejected this claim, on the basis that it involved the whole
beneficial use of cellar.
This was in contrast to Wright v Macadam [1949] --- CA viewed the
right to use the coal shed as an easement. In this case, the
Servient owner seemed to be excluded, and thus it hasnt
been cited in Copeland.
Judge Baker QC in London Blenheim Estates v Ladbrokes
considered these cases to be consistent with each other, as
he implemented that this matter must be one of
degree...small coal shed in a large property......exclusive use
of the Servient tenement is another.
In Moncrieff v Jamieson [2007], Lord Scott was dismissive of this
analysis. It was held, the right to park can be an easement.
Only significant problem that the CA did not address in this
case was the extent to the rights to park.
The question as to whether an individual can claim a right to
park in a specific place, was addressed in Batchelor, where 6
cars parked on the verge of a road excluded others from
parking too. CA held that this rendered the servient
tenement with no reasonable use based on the timings, and
thus no easement was granted. It can be suggested that the
courts approach/reasoning in order to come to this
conclusion, was rather unusual, as they looked at the case in
terms of the number of useful hours the servient could use
the road, rather than the quality of the user, which is what
all other precedent focuses on.
However, in Moncrieff v Jamieson [2007], Lord Scott asserted that
the statement of principle was correct in Copeland,
Batchelor was rejected and the no reasonable test was also
dismissed. Lord Neuberger expressed, that three factors
persuaded him to not express a firm conclusion. These were:
that it was necessary to assess the degree of ouster of the
servient owner, Lord Scotts point was orbiter and thus nor
fully argued and lastly, he feared Lord Scotts analysis might
lead to occupational licences becoming proprietary.

Although, this section of the criteria is quite ambiguous, as

Batchelor has not yet been overruled (and therefore binding on
lower courts), it can be suggested that the courts should take a
more relaxed approach to this area and place more emphasis on the
nature of the right than the impact on the servient owner. (Law Com
CP 186).

Acquisition of Easements
1. Can acquire an easement by Statute
Express Grant/Reservation The document expressly grants or
reserves an easement and its status (legal or equitable) is
determined by the statute/nature of the document.
If it is done by Deed, then it must comply with Law of Property
Act 1925, s.52 (1)
s.62 of Law of Property Act 1925
Ensures that any existing easements that benefit land are conveyed to
the new owner of the land without having to expressly include them in
the conveyance itself.
A conveyance of land shall include and operate to convey. all
liberties, privileges, easements, rights and advantages, whatsoever,
appertaining to reputed to appertain to the land.
Scope of provision is quite wide requires land to appurtenant
there has to be a dominant and servient tenement
2. Can acquire an easement through Implied Grant/Reservation
Easement by necessity
= an easement without which the dominant land cannot be used.

It has long been suggested that there should be access to a plot of

land that is left landlocked. Although this is not necessary for all
landlocked plots, however there must a transaction into which a
right of way may be implied.
Basis of necessity was considered in Nickerson v Barraclough
[1981], and the questions that arose was that, does a finding that
there is no intention to create an easement (here based on
the express intention not to create an easement) prevent a
successful claim to an easement of necessity? Or are
easements of necessity based on public policy (or is public
policy an aid to construction so as to make it easier to find
that there is an easement of necessity)?

CA held that easements of necessity are based on intention.

A clearly expressed intention not to grant an easement
prevents an easement of necessity from arising.
Easement of Common Intention
= an easement will be implied whenever required to give effect to the
intention of the parties as to the use of the land. (Must also exist at the
date of the transfer).

If a particular use is both intended and requires some right over

the servient land, then courts are willing to imply such a right.
Wong v Beaumont Property [1965] It was apparent that to
continue the lawful use of the restaurant, a ventilation system
had to be installed. CA held this was necessary in order for the
restaurant to continue.

Overlap between necessity and common intention

Stafford v Lee [1992] addressed the issue of a right of access to a

woodland through a private road. Courts held there was a common
intention when the land was going to be used. Can also be argued
that the owners of the woodland originally envisaged building a
house, therefore it was restricted for only necessity.

Rule in Wheeldon v Burrows (1878)

Conditions for the rule in Wheeldon v Burrows (1878) to operate are:
Rights must not be mere personal convenience
Use must be continuous and apparent a right will be
continuous and apparent if either it is of a continuous and
obvious nature (like the right to light), and if there is some
feature on the servient land which indicates that there is a
right (right of way over a road).
Must be reasonably necessary for the enjoyment of the land Right must have existed at the date of the transfer This
requirement does not have to be taken literally, if a right
has been exercised in the past, it may be taken to continue
after the grant.
Differences:

s.62 requires a conveyance by deed to create or transfer a legal

estate, giving rise to a legal easement. W v B may operate upon
the creation or transfer of an equitable interest.
s.62 generally requires diversity of occupation of the dominant and
servient tenements. W v B only operates if there is common
ownership and occupation of the dominant and servient

tenements, immediately before the sale or lease of the

dominant land.
s.62 allows for a wider range of rights to pass as easements
(easements and profits). W v B applies to easements only.

3. Can acquire an easement through Prescription

= acquiring an easement through long use
Law regarding Prescription is highly technical, artificial and out of date.
Argument in favour of Prescription, is that the law should give
protection to a situation that has been continued for a long time.

Prescription at Common Law

Theory of this is that the right has been exercised from time
immemorial (1189). Major problem is that it can be rebutted
by evidence that suggests that the right could not have
existed in 1189.
By lost Grant
In order to provide the above matter with a remedy, the
courts decided to presume a 20 years use grant that had
been made and then lost. This was quite fictional, however it
was also powerful, although it was subject to certain
limitation (such as it does not operate if the owner of the
servient land was legally incapable of granting an easement:
Oakley v Boston [1976].
Prescription Act 1832
Sets out to cure the problems with the common law
Prescription

s.2 s.4 = require uninterrupted use for the 20 years prior to the claim in
which the right is in issue.
Lindley LJ required in Hollins v Vernay [1884], use is enough to
carry in the mind of a reasonable person who is in possession of the
servient land, the fact that the continuous right to enjoyment is
being asserted, and ought to be resisted.
s.3 easement of light requires only 20 years of continuous use.

What amounts to an interruption?

s.4 provides that an interruption shall be disregarded unless it is
submitted for a period of a year.
Davies v Du Paver [1953] Held that the period relied upon must be
without interruption. A claim may be defeated if there has been an

interruption of easement and dominant owner has acquiesced in that

interruption for period of one year

Extinguishment of Easements
Common Ownership
If the same person becomes the owner and occupier of both dominant
and servient tenements, then easement will terminate.