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Land 5- Easements Introduction An easement is a right to do something on servient land or prevent something being done on servient land. Examples: right of way, right to light, right to support etc but no finite list. Correct approach is to ask firstly, whether an easement is capable of arising, and secondly whether it has arisen.
The requirements for an easement to be capable of arising are (i) dominant & servient tenements; (ii) easement accommodates the dominant tenement; (iii) dominant & servient owners must be different persons; and (iv) the right must be capable of forming the subject matter of a grant i.e. is sufficiently certain, is not positive, is an established negative easement, the grantor is legally capable, and the easement doesn't amount to an exclusion of the servient landowner (Re Ellenborough Park).
Ways in which an easement can in fact arise: easement can be impliedly created (implied by grant, reservation, s.62 LPA 1925); created through prescription (long use- no need to study this); expressly created (express grant by deed or written contract, or express reservation upon sale); or created through the working of proprietary estoppel
Characteristics of an easement Re Ellenborough Park  Ch 131: The land around Ellenborough Park was sold for building. Each property owner was granted a right to use the park, subject to covenanting to pay a contribution towards its upkeep. In due course the park was sold, and the new owners wanted to build on it. The Court of Appeal held that the right to use the park was an easement, and was binding on the new owners. The formula for an easement is the formulation of an easement is: (1) there must be a dominant and a servient tenement; (2) an easement must accommodate the dominant tenement; (3) the dominant and servient owners must be different persons; (4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant. (Evershed MR). Crow v Wood  1 QB 77: Question was whether the right to have one's neighbour maintain their fence to keep in livestock was a valid easement. CA said it could. Lord Denning MR: It has long been the courts' practice to recognise a right to require the owner of adjoining land to keep the boundary fence in repair, even though it requires the spending of money by one party. 'ACCOMMODATE' Hill v Tupper (1863) 2 H & C 121: P owned an allotment of land on the side of a river ran his boat on the river which he was allowed to do by the council for his business. Court
held that this was a licence and could not be an easement because the river was not used for "accommodating" the claimant's land in the sense of helping to "facilitate a working of the very soil of the land". Gardner: This demonstrates that the test is too narrow. Moody v Steggles (1879) 12 Ch D 261: P had put a sign for his pub on D's wall for 4050 years. Fry J ruled that this was an easement. Fry J: Although no evidence could be adduced to show that the sign was first erected with legal permission, he said that since it was "evidently convenient, and in one sense necessary, for the enjoyment of the Plaintiffs' premises, I think I am bound… to presume a legal origin and continuance to that fact." The fact that P's predecessors first affixed the signs suggests an easement. On the objection that the easement related not to the tenement, but to the business of the occupant of the tenement, that argument is unrealistic: "the occupant only uses the house for the business, and therefore in some manner (direct or indirect) an easement is more or less connected with the mode in which the occupant of the house uses it." 'CAPABLE OF GRANT' Phipps v Pears  1 QB 76; 80 LQR 318: Two houses, although rebuilt several times, had stood next to each other for many years in their present incarnations. Then one of them (D's house) was pulled down, and left down. The result was that the wall of the one remaining (P's house), which had been built abutting the other, and so not pointed on its outer face, was now exposed to the elements, making cracks in the wall. CA held that there was no easement to be protected from the weather. See 4 exceptions to negative covenant ban in Gardner (above) Lord Denning MR: A right to support could be seen as a positive easement since the one house is leaning into its neighbour's land. However this case is distinct and the right claimed is to shelter from the weather, not support. Such a right would be entirely negative and the law is wary about creating new negative easements. If the courts were to create an easement requiring sheltering one's neighbour from the weather, it would hamper improvement to the servient land and one's freedom to undertake legitimate projects. Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part. Likewise, every man is entitled to cut down his trees if he likes, even if it leaves you without shelter from the wind or shade from the sun. Copeland v Greenhalf  Ch 488: For fifty years D had left vehicles on P's land and P sought to restrain him from doing so. D claimed prescriptive easement. The court denied an easement since the right exercised and claimed was too extensive to constitute an easement in law, as it amounted practically to a claim to the whole beneficial use of the land over which it had been exercised. Upjohn J: Because of the extent of the supposed right (right to leave possessions there for an indeterminate period anywhere on the land), it cannot come within easement. In
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