‘An easement is the right to use or enjoy, or the right to indirectly restrict the use or enjoyment of land belonging to
another’
Easements can be legal interests (as per s. 1(2) LPA 1925);
Easements can be positive or negative:
o Positive easements gives the holder of the easement use of the land in question, i.e. a right of
way.
o Negative easements give the holder of the easement the right to restrict the way the land in
question is used, i.e. a right to light.
1. Introduction – identify easements claimed. Identify any subsidiary issues.
2. Establish if right in question is capable of being an easement:
→ Take each rule in Re: Ellenborough Park one by one; apply to all easements.
→ Re Ellenborough Park: all aspects must be satisfied
1. There must be identifiable dominant and servient tenements: London & Blenheim
Estates v Ladbroke.
→ The easement holder cannot exercise their right independently of their
dominant land; it is not a personal right and will be lost upon the transfer of the
dominant tenement (Hawkins v Rutter).
2. The easement must accommodate the dominant tenement:
→ The right must confer a tangible benefit to increase the value of the dominant
tenement by improving it or making it more convenient: Re Ellenborough Park.
This is fundamentally a question of fact. The right in question must be
connected to the enjoyment and use of the dominant land.
a. Hill v Tupper: lease of property on canal bank. Lease incorporated
exclusive right for tenant to hire boats on canal. Court held that could
not be easement as the exercise of right was not sufficiently connected
to the use of the land; it was primarily connected to the claimant’s
business.
b. Moody v Steggles: right to hang advertising sign on someone else’s
property amounted to an easements; a right in the land, as servient
tenement obscured dominant land. Dominant land had been
purposely built as a pub and the sign was inextricably linked to the use
of the premises.
→ Pugh v Savage: dominant and servient tenement separated by field but despite
this sufficiently proximate.
→ Bailey v Stephens: there must be sufficient proximity between the dominant
and servient tenement. ‘There cannot be a right of way over land in Kent
appurtenant to an estate in Northumberland’.
3. There must be prior diversity of ownership and occupation (of dominant and servient
tenements):
→ Persons cannot have easements over their own land – this would amount to a
quasi-easement (as above). Quasi-easements can become easements ‘proper’
on the division of ownership: Roe v Simmons.
→ N.b: tenants can have easements over a landlord’s neighboring land, and vice-
versa, i.e. diversity of ownership is established through the lease.
, 4. The right must be capable of lying in grant (that is to say, capable of forming the subject
matter of a deed:
→ The ‘grantor’ and ‘grantee’ of the right must have legal or equitable estates in
the servient and dominant tenements and be sui-juris legal personalities.
→ The right in question must be capable of forming the subject of a reasonably
exact description, i.e. they cannot be too ambiguous:
a. i.e. right to privacy too vague (Browne v Flower);
b. Right to a scenic view (William Aldred’s case)
→ Judicially recognized easements: list is not closed
a. Right of way: Borman v Griffiths;
b. Right of storage: Wright v Macadam (coal in shed);
c. Right to park: London & Blenheim;
d. Right to a defined window receiving light: Cols v Home & Colonial
Stores;
e. Right to water in a defined channel: Race v Ward;
f. Right to air in a defined channel: Wong v Beaumont Channel;
g. Right to support: Dalton v Angus;
h. Right to cause a nuisance: Sturges v Bridgeman;
→ Courts will be reluctant to add new negative easements: Phipps v Pear.
a. Hunter v Canary Wharf: no rights to TV reception.
Additional Criteria:
5. Right must not require compulsory expenditure on the part of the servient tenement
owner: Jones v Pritchard.
→ Regis Property v Redman: supply of hot water would not be an easement
therefore. Note, however, that in Rance v Elvin the right to water was allowed
despite the fact that the owner of the servient land paid water bill as there was
a quasi-contract to the extent that the dominant tenement owner was required
to reimburse the owner of the servient tenement.
→ The servient tenement owner has no obligation to do any repairs or
maintenance, yet they are obliged to allow the dominant tenement owner to
make the repairs at their own expense: Jones v Pritchard.
6. Right must not amount to exclusive possession:
→ Where the right in question effectively amounts to giving the dominant
tenement owner exclusive possession it will not amount to an easement.
a. Grimsby v Melville: The right to store parts in cellar of servient
tenement owner amounted to exclusive possession;
→ Exclusive right to park cases:
a. Bachelor v Marlow:
Ouster principle: question of whether: the servient land owner is lef
with any reasonable use of their land. Right to park six vehicles in one
relatively small area amounted to essentially the whole beneficial use
of the land; failed as easement, therefore;
b. Moncrieff v Jamieson: Scottish case. But persuasive weight of Privy
Council.
LJ Scott - does the servient owner retain possession and control of
their land? Cars had a right of way over land of servient tenement
owner but occasionally parked there. Court held that parking was an
ancillary right to access; thus, still within the scope of the easement –
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