#16151 - Easements - Land Law

Easements 3

A. CHARACTERISTICS 3

Re Ellenborough Park [1956] Ch 131 3

Crow v Wood [1971] 1 QB 77 4

Egerton v Harding [1975] QB 62 5

Liverpool CC v Irwin [1977] AC 239 5

1. Need for dominant and servient tenement 6

London & Blenheim Estates v Ladbroke Retail Parks [1992] 1 WLR 1278 6

2. “Accommodation” 7

Hill v Tupper (1863) 2 H & C 121 7

Moody v Steggles (1879) 12 Ch D 261 7

Polo Woods Foundation v Shelton-Agar [2010] 1 All ER 539 at [32]-[60], [90]-[91] 8

3. Owned/occupied by different persons 9

4. “Capable of grant” 9

Phipps v Pears [1965] 1 QB 76 9

Batchelor v Marlow [2003] 1 WLR 764 at [15], [18] 9

H Smith, Rights of Parking and the Ouster Principle after Batchelor v Marlow [2007] Conv 223 10

Moncrieff v Jamieson [2007] 1 WLR 2620 at [54]-[61], [102], [134]-[144] 12

Polo Woods Foundation v Shelton-Agar [2010] 1 All ER 539 at [121] 13

Miller v Emcer Products [1956] Ch 304 13

Rance v Elvin (1985) 50 P & CR 9 13

Luther, “Easements and exclusive possession”, 16 LS 51 (comment on Copeland v Greenhalf) 14

B. CREATION 16

1. Express grant/reservation 16

Law of Property Act 1925 ss 52, 65 16

St Edmundsbury Diocesan Board of Finance v Clark [1975] 1 All ER 772 (NOL) 16

2. Prescription (not to be studied in detail) 17

3. Other modes of acquisition 17

(i) Necessity/common intention 17

Nickerson v Barraclough [1981] Ch 426 17

Bodkin, Easements of Necessity and Public Policy, (1973) 89 LQR 87 (NOL) 18

Pwllbach Colliery Ltd v Woodman [1915] AC 634 18

Wong v Beaumont Property Trust Ltd [1965] 1 QB 173 18

Donovan v Rana [2014] EWCA Civ 99 19

(ii) Wheeldon v Burrows/Section 62 20

Wheeldon v Burrows (1879) 12 Ch D 31 20

Wheeler v JJ Saunders [1995] 2 All ER 697 20

Tee, Metamorphoses and section 62 of the LPA 1925 [1998] Conv 115 21

Wright v Macadam [1949] 2 KB 744 23

Long v Gowlett [1923] 2 Ch. 177 (NOFL) 23

Borman v Griffith [1930] 1 Ch 493 24

Goldberg v Edwards [1950] Ch 247 24

Green v Ashco [1966] 2 All E.R. 232 (NOFL) 25

Platt v Crouch [2003] EWCA Civ 1110 at [41]-[42], [59] 25

Kent v Kavanagh [2007] Ch 1 at [21]–[28], [36]–[47] and [73]-[75] (NOFL) 26

Wood v Waddington [2015] EWCA Civ 538 26

Gardner, The grant of an easement under the LPA 1925 s62, (2016) 132 LQR 192 (comment on Wood v Waddington) 27

Douglas, Reforming Implied Easements (2015) 131 LQR 251 28

Clarke v Barnes [1929] 2 Ch. 368 29

(iii) Estoppel/benefit and burden 30

ER Ives v High [1967] 2 QB 379 30

C. THIRD PARTIES 30

Law of Property 1925 Act s 1 30

Land Registration Act 2002 s 27(2)(d), Sch 3 para 3 30

Plots of land were sold, the seller covenanting with each purchaser to enjoy in common with the other persons a pleasure ground, subject to the payment of a fair proportion of the costs and charges of keeping it in order. Trial judge held that the right granted was an easement, so that purchasers of plots and their successors also had the right to use the pleasure ground.

Held: it was a legal easement because

1. The pleasure ground was the collective garden of the neighbouring houses to the use of which it had been dedicated by the original vendors, the right to full enjoyment did not fail to qualify as a legal easement for want of the necessary connection between its enjoyment and the premises to which the enjoyment was expressed to belong

2. The rights were not a right of joint occupation with the freehold owners; it is not repugnant to proprietorship or possession to dedicate a piece of land to use as a pleasure ground and to allow other persons to come enjoy it as such.

3. The right was beneficial to the houses to which the right was annexed, and did not fail as being a right merely of recreation and amusement.

4. The right to use a private pleasure ground is an easement known to the law

Evershed MR: Question is whether the owners of the adjacent houses have any right to use the garden, that is now enforceable by them against the owners of the park; if so, then this right must be understood in law to be an easement.

The characteristics of easements (Cheshire’s Modern Real Property):

1. Dominant an servient tenements

2. Easement accommodates the dominant (there exists the requisite “connexion” between the enjoyment of the dominant tenement and the servient tenement)

3. Dominant and servient owners are different

4. Must be capable of forming the subject-matter of a grant:

   1. Whether the rights are expressed in terms of too wide and vague character

   2. Whether the rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession

   3. Whether such rights constitute mere rights of recreation, possessing no quality of utility or benefit

First and third characteristics can be disregarded.

Second characteristic: submitted that the right of full enjoyment of the park wasn’t sufficiently connected with the enjoyment of the property conveyed, and therefore couldn’t exist in law as an easement, because it could in fact benefit others besides those who possess the right. However, that the property cannot in fact be enjoyed by anyone other than the grantees is not an essential characteristic of an easement (we shouldn’t interpret Willes J’s judgment in Ackroyd v Smith to mean this, unlike what the appellant submitted, or even if it should be interpreted this way, there is no other authority to support this principle).

It’s true (as per Erle J in Ackroyd v Smith) that a claim appurtenant to land to go upon another’s estate to take produce, without reference to the needs of the claimant’s own land, is not an easement; the claim by an estate owner to go upon adjoining land and take some profits to be used at the claimant’s tenement can be.

So the right is intended to be annexed to the property, but does that mean it accommodated and served that property? It’s clear that it enhanced the value of the property, but this is not decisive though not irrelevant: it must be shown that the right is connected with the normal enjoyment of the property. This is a question of fact, and depends on the:

1. Nature of the alleged dominant tenement: at the time of conveyance, it was intended for residential and not commercial use.

2. Nature of the right granted: appellant contended that the right was akin to the right of the purchaser of a house to use the Zoological Gardens free of charge, which would undoubtedly increase the value of the property but isn’t sufficiently connected to the use of the house. But the analogy cannot be supported; a closer analogy would be someone selling the freehold of part of his house and granting to the purchaser, his heirs and assigns, the right appurtenant to that part to use the garden in common with the vendor and his assigns.

The connexion in this case would be amply satisfied and such is the case at present. The result is not affected by the fact that some of the houses that enjoy the right are not immediately fronting on the park, as the test is whether the park should constitute in a real and intelligible sense the garden of the houses to which its enjoyment is annexed, and this is satisfied in this case.

Appellant referred to Hill v Tupper but in that case the easement failed because it was in reality the creation of a monopoly unconnected to the ordinary use of the land, but which was merely an independent business enterprise; the land was merely a “convenient incident” to the exercise of the right.

Fourth characteristic:

1. Is the right too wide and vague? No – it’s well defined and commonly understood.

2. Is the right inconsistent with the proprietorship or possession of the servient owners? No – it doesn’t exclude ownership or possession than a right of way. The owners of the garden can cut down timber and retain its proceeds, and the shrubs and flowers are also their property. There’s nothing repugnant to ownership or possession that the owner should decide to dedicate their land to use as a garden and to allow a limited number of persons to enjoy it.

Appellants cited Copeland v Greenhalf (right of the dominant owner to leave as many lorries as he likes on an undefined strip of servient land for as long as he likes, to entre by himself and his servants to do repair work, is not an easement but a claim to a joint user of the land – in that case the lorries were parked for repair and the dominant owner had a repair business, so the judge concluded that the claimant was really seeking a right to occupy for the purpose of his business) doesn’t apply here.

3. Is the right a mere right of recreation without utility or benefit? No – a garden does confer pleasure, but it is not a right having no quality of utility or benefit because it constitutes a beneficial attribute of residence in a house as ordinarily understood. It’s used for domestic purposes (ex. taking out small children in perambulators).

A sheep moor with adjoining farms was in common ownership, with farms leased to farmers with the right to moor sheep and agreement from the farmers to keep their walls up. A few farms were sold to C with the right to moor sheep and agreement, who didn’t exercise the right to moor and who didn’t keep their fences in repair so that other people’s sheep often got into their farms. They then brought actions for damages for cattle trespass. D claimed that C was under a duty by implied grant a common law and s62 LPA 1925 to keep up their fences and walls.

Held:

1. The right to have one’s neighbor keep up fences is a right that lay in grant and is of such a nature that it can pass under s62 LPA 1925 (Lord...