Easements Notes

• The right to enjoy or use (positive); or the right (indirectly) to restrict the use or enjoyment of land belonging to someone else (negative)

• Legal capacity: s1(2) LPA 1925

Rights analogous to easements

1. Quasi-easements: exercised by landowner over his own land: could become easements in certain circumstances

2. Natural rights: e.g. right to support of land in its natural state (but cannot have natural right of support to a building erected on the land)

3. Public rights: can be exercised by general members of the public – e.g. public right of way

   • Customary rights: e.g. right to hold a fare – created individually by statute

4. Licenses: cannot exist as an interest in land: confers a mere personal right. Some licenses may be accompanied by estoppel binding on a 3^rd party by notice, which may look very similar to an equitable easement (Ives Investment Ltd v High)

5. Restrictive Covenants: similar to negative easements

6. Profits a prendre: similar to an easement but involving the right to enter someone’s land and take something from the soil

Rights capable of becoming an easement: The Re Ellenborough Park Criteria

• There must be a dominant and servient tenement

• The right must accommodate the dominant tenement

• There must be diversity of ownership between the dominant and servient tenement

• The right must lie in grant

A dominant and servient tenement must exist:

• There must be two identifiable pieces of land: one which has the benefit and one which carries the burden London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd

• An easement cannot exist in gross: cannot be exercised by the holder independently of land that he may own: Hawkins v Rutter: this may amount to a license (a mere personal right which need not be attached to a dominant piece of land)

Accommodating the dominant tenement: Would the right be of benefit to any owner of the dominant land, irrespective of who they are

• Direct beneficial impact on the dominant tenement: makes the dominant tenement a better property

• Right which provides a mere personal benefit cannot be an easement: e.g Alfred Becket v Lyons: right to collect coal by the seaside: purely personal

• Accommodation: whether the right adds value to the dominant tenement (although adding value is not itself conclusive, but a factor to be considered)

  • Re Ellenborough Park: ‘not sufficient to show that the right increased the value of the property conveyed, unless it is also shown that it was connected with the normal enjoyment of that property’: question of fact

    • Right to use a garden:

      • Argument vs. accommodation: counsel likened the park to use of a Zoological Garden free of charge: increased the value of the property but insufficient nexus between enjoyment and use of the house: independent of use of the house

      • But: Evershed MR test of connexion IS satisfied: park was a communal garden for the benefit and enjoyment of those whose houses adjoined it – ‘it is the collective garden of the neighbouring houses, to whose use it was dedicated by the owners of the estate’

• A right which facilitates a commercial use of the land is not precluded from being an easement: question is whether the business is a necessary incident of the normal use of the land rather than a completely unconnected business

  • Hill v Tupper: Mr H was granted the right to put Pleasure Boats on the Basingstoke Canal. When Mr T tried to compete Mr H went to court claimant he had an exclusive easement. It was held that his right was purely personal: he did NOT have a proprietary right

    • Pollock CB: ‘it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee’

  • Moody v Steggles: M claimed that he had an easement of sineage: sign advertising his pub had been there for 40 years. Held that it would benefit future owners of the pub and so DID benefit the land

• Distinction between Hill and Moody: Hill’s claim was for the business itself, whereas in Moody the sign was ancillary to the business – no easement for an exclusive right to operate a business

• Sufficiently proximate: without proximity it may be difficult to show there is some benefit conferred

  • Bailey v Stephens: Byles J, ‘you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland’

Diversity of Ownership

• Rights that an owner has over one part of his own land for the benefit of another part of the land is a quasi-easement, as in Roe v Siddons

• It IS possible however, for easements to exist where the fee simple of both the dominant and servient tenements are owned by one person: diversity by the fee simple owner granting a lease over part of his land

‘Lie in Grant’

• Must be able to form the subject of a deed:

  • Capable grantor and grantee:

    • separate legal personalities

    • grantor must have sufficient ownership of the servient land to be able to grant an easement

  • Capable of reasonably exact description:

    • Cannot be too vague: policy reasons – if it went to court an injunction would been to be very specific

      • No easement of prospect: ie right to enjoy a scenic view: William ALdred’s Case; Bland v Mosely

      • No easement to privacy

      • No easement to a flow of light through undefined channels: Harris v De Pinna

      • Copeland v Greenhalf: ‘right to use a strip of land to repair vehicles’: too imprecise, didn’t specify how many cars or for how long etc.

  • Right should be within the general nature of rights traditionally recognised as easements:

1. Rights of way: Borman v Griffith

2. Rights of light: Colls v Home & Colonial Stores Ltd

3. Rights to water in a defined channel: Race v Ward

4. Rights to air in a defined channel: Wong v Beaumont Property Trust Ltd

5. Rights to support: Dalton & Angus & Co

6. Rights of drainage through a defined channel and other rights of ‘pipeline’, for example gas, electricity etc: Atwood v Bovis Homes Ltd

7. Rights to pollute a river: Scott-Whitehead v National Coal Board; or to cause a nuisance: Sturges v...

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