X sold P some buildings which D then bought in a compulsory order. D claimed that it was able to have the rights and easements benefiting the property under either s.62 or Wheeldon, although these were not mentioned in the sale agreement. HL denied this, saying that Wheeldon was founded on the principle that a grantor could not derogate from his own grant and therefore only applied to voluntary grants, NOT compulsory purchase orders. S.62 couldn’t apply because it required that there had been diversity of occupation or ownership at some point.
Lord Wilberforce: S.62 doesn’t work here because “when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist.”
NB conventionally thought that the right claimed as an easement post conveyance under s.62 had to be one that was used by someone other than the transferor (i.e. essence of s.62 is that an easement is created where A transfers some of his land to B and, before that transfer, A allowed someone to use the land retained in a particular way). However in Platt v Crouch 2004 CA allowed a right to use the moorings on a strip of land retained by the seller to be claimed by the purchaser of the adjacent hotel that the seller had sold. This was on the basis that the seller used the moorings ‘continuously & apparently’ when it owned the hotel too. NB Mcfarlane says this case is only supported by 19th century authority and conflates s.62 w/Wheeler v Burrows, and thus isn’t good authority.