Easements Notes

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TABLE OF CONTENTS
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
LAND LAW: EASEMENTS

Page 1 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

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Page 2 EASEMENTS

A. CHARACTERISTICS

RE ELLENBOROUGH PARK [1956] CH 131
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:
a. Whether the rights are expressed in terms of too wide and vague character b. Whether the rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession c. Whether such rights constitute mere rights of recreation, possessing no quality of utility or benefit
First and third characteristics can be disregarded.

LAND LAW: EASEMENTS

Page 3 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
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Page 4 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).

CROW V WOOD [1971] 1 QB 77
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 Denning: the right is in the nature of an easement; Davies LJ: the duty arose from proof that the land is accustomed to be fenced)
2) Thus the right passed on the conveyance to the purchasers and so to D; since C
was in breach of their duty to fence they couldn't complain of cattle trespass.
Lord Denning: there was an established custom of farming, but this isn't sufficient to put an obligation on C to fence her land; the right to have fences kept up doesn't arise by custom but by prescription. But the custom is important because s62 LPA 1925 provides that a conveyance of land conveys by virtue of this Act "all buildings,
erections, fixtures ... easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land".
From Wright v Macadam and Phipps v Pears we know that when one piece of land in joint ownership is severed and sold off, then by virtue of the section all rights and advantages enjoyed with that piece of land pass to the purchaser, provided they are rights capable of being granted by law to run with the land and to be binding on
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Page 5 successors (ex. right to use a coal-shed is, but a contractual right to have a road kept in repair is not as it's a positive covenants that doesn't run with the land).
Thus, question is whether a right to have a fence kept in repair is capable of being granted by law. IJO yes, because it is in the nature of an easement - it's not an
"easement strictly so called" in that the servient owner must spend money; it's a
"spurious kind of easement", but it has been treated in practice by the courts as an easement. It can therefore pass under s62 LPA 1925.
Did it pass in this case (i.e. was it enjoyed with the farm when it was bought from the common owner?)? Yes - all previous tenants enjoyed the right, it was enjoyed with the land and reputed to appertain to it.
C suggested that, even if the right had been acquired against the common owner, it could not be enforced against C because the common owner had not reserved any such right against them. No need to rule on this point, but would "deplore such a result" -
IJO it is implied in every conveyance that each farmer who has a right to put sheep on the moor and have his neighbor repair fences, is under an ancillary obligation to keep their own fences up.
Edmund Davies LJ: It's clear that a duty to fence against trespassers can be created by express or implied grant, but whether it's an easement or not doesn't need to be decided now because s62(1) LPA 1925 is so broad that an "advantage" is enough, and the obligation on others to maintain their walls is an advantage.
Here, C voluntarily [emphasis in original] fenced her walls for 10 years because she believed that she was under a duty to do so; whatever the legal basis of a duty to fence,
it arises from the fact that the land is accustomed to be fenced, it being immaterial the purpose of fencing (ex. for one's own protection).
In this case (applying Wright v Macadam), it seems that the right to compel another to maintain fences is in the nature of an easement capable of arising from grant or implied grant and can pass under s62. The present circumstances furthermore give rise to a right or advantage appurtenant to each farmer to call on others to maintain their fences, which passes on conveyance.
EGERTON V HARDING [1975] QB 62
C's cottage and D's farm adjoin common land over which they both enjoy grazing rights; C didn't exercise these rights but D did since 1968. Three years later the cattle strayed into C's garden causing damage, and C sued for cattle trespass. Judge held that by custom a duty existed in owners of land adjoining the common land to fence against cattle lawfully on the common.
Held (CoA): dismissed appeal, that a duty to fence against common land can arise by custom, and once it's established that there was an immemorial usage (arisen from custom or other lawful origin) of fencing against the common as a matter of obligation,

LAND LAW: EASEMENTS

Page 6 the duty to fence is proved provided that such a duty can arise from a lawful origin.
This is present in this case; C cannot complain of cattle trespass.
Scarman LJ: Is there a grant? Trial judge found no evidence of a grant. But it is clear that it can arise by way of a grant (as a spurious easement) despite its positive nature -
worth emphasizing that "the easement - be it 'spurious' or genuine - owes nothing to custom, from which it is totally distinct. Custom, being local law, displaces within its locality the common law; an easement is a matter of private right and obligation recognised and enforceable by the general law."
For there to be an easement, it has to be proved that the property has been fenced for a period of time, and that this was done not voluntarily, but "as a matter of obligation towards the adjoining owner" (Jones v Price). Rejects Edmund Davies LJ's dictum in
Crow v Wood that the obligation arose from land being accustomed to be fenced as inconsistent with Jones v Price and with principle, in that it is to be doubted whether from what is done consistently with voluntary choice as with obligation, it is possible to infer obligation.
Thus, no easement.
Custom requiring the occupier of the cottage to fence against the common?
Judge said yes and identified correctly the elements: immemorial origin, reasonable,
continued without interruption and certain. Rejects Lord Denning's obiter in Crow v
Wood that a custom isn't sufficient by itself to put an obligation on C to fence her land because a right to have fences kept does not arise by custom [emphasis mine]: an easement cannot arise by custom, but that doesn't mean that there can't be a custom to fence against the common.
IJO "once there be established an immemorial usage of fencing against the common as a matter of obligation, the duty to fence is proved, provided always it can be shown that such a duty could have arisen from a lawful origin." We don't need to decide which lawful origin it is (in this case it could have been enclosure, grant, custom...) as long as we know it could have derived from one of several lawful origins.
LIVERPOOL CC V IRWIN [1977] AC 239
Liverpool city council owned a block of flats in which the defendant was a tenant. The common parts of the flats had fallen into disrepair. A rent strike was implemented by many of the tenants including the defendant. The council sought to evict the defendant for non payment of rent and she counter claimed for breach of an obligation to repair.
However, the tenancy agreement did not mention any obligation to repair nor mention any obligation of the landlord, only the tenant's. The defendant asked the court to imply a term that the council had an obligation to repair the common parts of the block of flats.
Held (HL): since the contractual terms are of a unilateral character, there has to be implied an easement for the tenants to use the common parts as they are an essential means of access to units in the building. Unless the obligation of repair were place in a
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