Easements
Types of Right
Dowty Bolton Paul v Wolverhampton
Right in connection with movement of aircraft
Corp
Moncrieff v Jamieson
London and Blenheim Estates v
Ladbroke Rertail
Bratt’s v Habboush
Definition of an Easement
Re Ellenborough Park
London and Blenheim v Ladbroke
Retail
Batchelor v Marlowe
Wright v Macadam
Moncrieff v Jamieson
Coventry v Lawrence
Regency Villas v Diamond Resorts
Rangley v Midland Railway
Bailey v Stephens
Right to park car on land
Right to cross land with shopping trolleys
Light to enjoyment of lighting and exist signs
Right to use pleasure garden for benefit of bordering houses
the 4 criteria for being capable of being easment:
(1) dominant/servient tenenement
(2) accommodation
(3) separate owneership
(4) can be subject matter of a grant
L sold to P, with condition that at a later time, P could park on L’s
retained land, L sold it to D
1. separate ownership
2. The creation of easments for the benefit of land not yet
identified is not possible
3. Rationale: policy against encumbering lan dwith
burderns of uncertain interest
No right to park several cars on ST; analogy with Copeland;
impact too great
Tenants can have easment over land retained by the landlord
and vice bersa, because land is not both owned and occupied
by the same person
Lord Scott notes in passing that unlikely that right to use
swimming pool could qualify as easment because it would
impose unacceptable burden of maintenance on SO
swimming pool and tennis courts
No easements in gross – there must be a DT and an ST
must be sufficiently proximate, but doesn’t need to be
neighbouring
Accomodation

Moody v Steggles
Hill v Tupper
Platt v Crouch
In Re Ellenborough
Regency Villas v Diamond Resorts
*** Harris v Flower
Peacock v Custins
Das v Linden Mews
Massey v Boulden
Macepark v Sargeant
Giles v Tarry
Parshall v Bryans
Capable of Being Subject Matter of Grant
Dyce v Hay
Miller v Emcer Products
claim to hang pub sign on servient land for long-established pub
[business use] sufficient connection with mode in which occupant
used the land, because only used for this purpose for a long
time
[business use] no proprietary right to put pleasure boats on canal
has right irrespective of ownership of DT, too unconnected
with the use of the land = personal advantage
(monopoly with no normal connexion with ordinary use of land)
mooring boats on river for benefit of hotel
(1) Clear connection between the substance of the right
and the DT – the right was for the land
(2) No need for prior diversity
[recreational use] inherently joined to the enjoyment of the
land – clear, defined, not merely benefits the user
agreement that ppl using villas use recreational facilities on the
other land
(1) Long lease can have easement- not too unconnected
(2) Use very conntected, clearly defined facilities
pub extended to land A1, then factory
cannot use easement to benefit additional land owned after
farmer uses track twice a year to get to additional land
rule in Harris v Flower is strict and use is not ancillary
driving to newly bought park = not ancillary use
additional rooms attached to cottage = ancillary use
hotel guests drive directly to Silverstone circuit
ancillary doctrine:
(1) For the benefit of DT
(2) Not in substanced used for non-DT
(3) Not in substance =
(a) No benefit to non-DT; or
(b) Extent of benefit insubstantial
(c) Benefit = access in such a way that profit may be
made out
take sheep onto highway and then back on DT to use additional
land – artificial, flouted rule
underlying thrust of the question: what in substance and
intention is the DT owner’s use
Different Ownership
Dominant and servient owners must be different persons
category of easements is not closed, must alter and expand
with time
[positive easements] right to use toilet in neighbouring flat
 Coventry v Lawrence
Hunter v Canary Wharf
Phipps v Pears
Regis Property v Redman
Regency Villas v Diamond Resorts
[positive easements] easement to make noise
left open possibility of easement of TV signals, but said
negative easements should be kept tight
[negative easements] no waterproofing
(1) Law doesn’t usually restrict ST’s enjoyment of his own
land by imposing negative easements
you have to heat the water in my pipes
can’t impose positive duty
no duty of upkeep of easment facilities

Jone v Price anomaly = upkeep of fence

obligation to provide electricity from private supply because
Cardwell v Walker
would make DT unusable for very purpose it was sold for
easement can’t impose positive obligation but can prevent ST
William Old International v Arya
owner from interfering with permitted use
Re Aldred [sufficient definition] easement for ‘good view’ is too indefinite
school blocks wind for windmill
Webb v Bird easement for wind generally = too valgue, need to be from
specific channel
Capable – Leave ST with Reasonable Use of Land
parking is full possession of land = not enough reasonable use
Copeland v Greenhalf
left, so can’t be easement
Wright v Macadam right to store coal can be an easement, even if full possession
No right to use flat roof of neighbouring land; equivalent to
Hanina v Morland
ownership
parking for supermarket use, move trolleys too
London & Blenheim Estates v
a test of degree: if the right granted over exercisable area
Ladbroke Retail
leaves ST without any reasonable use of it
4 cars, only parked 1
Hair v Gillman (2000)
has an easement because did not oust owner’s use
6 cars on 6 spaces Monday to Friday
*** Batchelor v Marlow reasonable use test: in substance, does owner have any
reasonable use?
right to drive up cliff and park there
Moncrieff v Jamieson
* possession and control test: whether ST retains possession and
(Scott, Neuberger)
control of the land
Batchelor applied more generously: had pracitcal difficulties
Virdi v Chana
using the land anyway, easement didn’t take away much of it
Creation – General
Bruton tenants has no estate to carve easement from, so any
Bruton v London & Quadrant
rights can only be licences
Walsh v Lonsdale specifically enforcible contract = equitable easement

Ives v High
Chaudhary v Yavuz
Celsteel v Alton
Creation – Grants, Implication by Necessity, Common Intention
Jones v Pritchard
Change Investment v Rosendale-
Steinhusten
Moncrieff v Jamieson
Walby v Walby
Union Lighterage v London Graving
Dock
Manjang v Drammeh
Nickerson v Barraclough
Wong v Beaumont
Stafford v Lee
Donovan v Rana
Linvale Investments v Walker
Re MRS Engineering
Re Dodd
Sweet v Sommer
Pekham v Ellison
Rule in Wheeldon v Burrows
Wheeldon v Burrows
[Lord Denning] estoppel easements bind all (except purchasers
without notice) bcs can’t be Class D(iii) charges
equitable easement arising from estoppel: promise + detriment
Equtable easements openly exercised and enjoyed qualify as
overriding interests under 1925 LRA. Because of Schedule 12,
Para 10 – they continue to override under LRA 2002
ancillary rights (like fixing right of way) implied into grant
when necessary to exercise its enjoyment
implied ancillary right to enter property and repair way
because of unique geography, right to park is ancillary to right
to drive
prima facie rule against implication of reservations into grant –
grantor can’t derogate from grant unless he can’t use the
property at all
easement of necessity = without which property can’t be used
at all
sandwiched between river and land
not necessary because he can take boat
if expressly stated that easements of necessity cannot arise,
they won’t
restaurant without ventillation = criminal offence
common intention was to enable him to run restaurant
intention to build house, had to move materials
build house, need pipes
even if there are other ways to give effect to common intention,
no use if they are unrealistic
business unit sold, fire exit, subdivisions of same company
there was a common intention to make “profitable business” –
a little vague
[necessity reservation] very strict, not if there is access by some
other less convenient way
[necessity reservation] strict, not if access by other way
[necessity reservation] can be allowed where there is a
physical barrier that both agree should not be destroyed
very rare reservation by common intention; contract to Chaffe v
Kingsley (refused)
in a grant, there are implied those rights as easements:
(1) Enjoyed for the benefit of that part of the land
(2) Prior and up to the transfer
(3) Were continuous and apparent
(4) No contrary express intention

Millman v Ellis
** Bornman v Griffith
Wheeler v JJ Saunders
Kent v Kavanagh
Hillman v Rogers
Wood v Waddington
Sovomots v SS for Environment
Long v Gawlett
Platt v Crouch
Hair v Gillman
Goldberg v Edwards
Wood v Waddington
Prescription – Long Use
Loose v Lynn Shellfish
Moody v Streggles
R v Redcar and Cleveland
Coventry v Lawrence
by-way covered in tarmac = probably used
(1) Need quasi-easement before
(2) Both apparent&continuous and necessary for
reasonable use
(3) Express grant of another easement not enough to show
contrary intention
part leased to A, the other to B
if land leased/sold simultaneously, as plan to deal with all of
the land, the easment will exist just as if D had kept one part
right of way not necessary because other methods
suggests you need both (1) necessary for reasonable use and
(2) continuous and apparent
prior to the grant, owner must be enjoying himself the quasi-
easment (or occupant)
easement over road not precluded by one to cross road
(1) Need either C&A or necessary for reasonable use
(2) Not the same necessity as in implied by necessity
(3) Prior use = can be by others, not necessarily owner
S. 62 Implication
(1) generic case for it: advantages enjoyed with the land
prior, although also a reasonable period before the
conveyance
(2) need either prior diversity of occupation or continuous
and apparent use
need prior diversity of occupation
need prior diversity of occupation
also moor boats for hotel, no express contrary intention
no need for prior diversity, only continuous and apparent
enjoyed prior to conveyance – was using car park as licensee
prior – moved in and went through S’s house before lease
executed = license becomes easement
enjoyed prior to conveyrance general rule
time period depends on mode of acquisition:
(a) common law – 20 years (time immemorial)
(b) lost modern grant – 20 years whenever (presumed
grant)
(c) Prescription Act 1832 – 20/40 years, no gap
exercised for a long time
(1) exercised “as of right” = nec vi, nec clam, nec precario
(2) violence can take the form of protest, interruption
cannot acquire right when he has a “right” as in a licence
 Winterburn v Bennett violence = officials told them not to park there repeatedly

Sturges v Bridgman without secrecy = if S has any knowledge

(1) without secrecy = must be possible to owner or servants
to object
Llewellyn v Lorey
(2) can’t be by tenant against another tenant with same
landlord
London Tara Hotel v Kensington
licensee cannot acquire “as of rigt” because he has permission
Close Hotel
Transfer
left open whether equitable easement may be protected under
Chaudhary v Yavuz
Sched 3, Para 2 if in Actual Occupation
Covenants
bound in equity if 4 requirements:
(1) benfits DT
Tulk v Moxhay (2) intended to run with ST
(3) created in proper manner
(4) fulfills priority rules
London CC v Allen benefits DT = need to own nearby plot

s. 79 LPA presumption that it is intended to run with the land

s. 53 LPA
Rhone v Stephens
P & A Swift Investments v Combined
English Stores
Crest Nicholson v McAllister
Federated Homes v Mil Lodge
Properties
Wrotham Park v Parkside Estates
proper creation of restrictive covenant = deed, writing is
enough under s. 53(1)(a)
Lord Templeman – positive covenants can’t be enforced
touching the land:
(1) benefits only DT
(2) affects nature, quality, mode of enjoyment
(3) not expressed be personal
(4) payment of sum doesn’t affect this
benefit must be made indefinite to be annexed to the land
benefit must be annexed expressly, or impliedly by s. 78 LPA
damages in lieu of injunction to enforce covenants