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Example Easements

There are many rights that have been held to be easements:

-          Use of a toilet (Miller v Emcer Products [1956])

-          Use of a private garden (Re Ellenborough Park [1956])

-          Use a neighbouring airfield (Dowty Boulton v Wolverhampton Corp [1973])

However not everything will be held as being an easement, protection from the weather by one house for another was not allowed as an easement (Phipps v Pears [1964]). 

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Dominant and Servient Tenements

There Must be a DT and an ST

An easement can only exist if it is attached to the DT. If it is not appurtenant to a piece of land then it will probably be a license (London & Blenheim v Ladbroke Retail [1994] – “policy against encumbering land with burdens of uncertain extent.” Gibson LJ).

One issue with this as highlighted by Sturley (1980) would then be that the person with the right to cross the land, could assign this further to the public and essentially create a public highway!

The Easement Must Accommodate the DT

The right must have some direct beneficial impact on the dominant land itself. It must not be merely for the grantee’s personal benefit. (E.g someone lives 100 miles away, a right of way across another’s land is not for the benefit of the house 100 miles away obviously).

The DT and ST should be sufficiently near enough to each other for the easement to be of direct benefit as seen in Re Ellenborough and Pugh v Savage [1970] where a field was in between the DT and ST.

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Easement Grant Capability Subsidiary Rules

An Easement Must be Capable of Forming the Subject Matter of a Grant

An easement is a property right and is capable of existing as a legal interest (S1(2) LPA 1925). There are a number of subsidiary rules required to fulfil this:

i.                     There must be a capable grantor and capable grantee – the grantor must have a legal estate in land (nemo dat quod non habet)

ii.                   An easement must be capable of reasonably exact definition – Harris v De Pinna [1886] – there could be no easement for a general flow of air to a shed as it was too vague and indefinite. Also cannot be an easement for a beautiful view or wandering at will over land (Re Ellenborough)            

iii.                 The easement ought to be within the general categories of established easements – negative easements are looked upon very carefully by the law (Phipps was an NE) 

iv.                 An easement must not involve any expenditure by the servient owner – Rance v Elvin [1985] Lord Browne-Wilkinson said that the owner of the ST cannot have a positive obligation in relation to an easement.

v.                   An easement must not be so extensive as to deprive the servient owner of possession – Reilly v Booth [1892] Lopes LJ “no easement known to law which gives exclusive and unrestricted use to a piece of land”. Parking cases generally come under this area (Copeland [1952]).

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Implied Grants of Easements, Necessity

Such an easement would arise on the sale of landlocked land, otherwise the land would be inaccessible. It is based on an implied common intention of accessibility (Nickerson v Barraclough [1980]).

Lord Oliver in Manjang v Drammeh [1990] – 1. Common owner of a legal estate in two plots of land 2. Access between one of those plots and the public highway can be obtained only over the other plot 3. There has to be a disposition of one of the plots without any specific grant or reservation of right of access.

If an alternative access route exists, no matter how inconvenient, this can be fatal for necessity (Manjang access was possible across a very wide river).

For landlocked plots, the access route must be reasonably convenient (Pearson v Spencer [1861]) and once selected cannot be varied (Deacon v South Eastern Railway [1889]).

Riggs [1880] adopted a narrow interpretation of necessity (“by the necessity at the time of the grant”).

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Implied Grants of Easements, Wheeldon v Burrows

A quasi-easement arises where the two plots are in common ownership. The common owner exercises over one plot for the benefit of the other plot. The rule in W v B requires that before the land was sold, by the person who originally owner both pieces of land, a quasi-easement was already existing in favour of what becomes the DT. This rule only applies on a grant in favour of the grantee.

All Three conditions must be satisfied here:

1.       Prior to the transfer, the quasi easement was used for the benefit of what becomes the DT.

2.       The quasi-easement was continuous and apparent  (regularly used and physical evidence of the usage).

3.       The QE must be necessary for the reasonable enjoyment of the land.

The fact all three must be satisfied was reinforced in Wheeler v Saunders [1996] (where the alternative route was just as convenient as the already used one). If the alternative route is dangerous, this rule can apply, even when the alternative was in the deed (Millman v Ellis [1996]). 

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Implied Grants of Easements, S62 LPA 1925

A conveyance of land shall be deemed to include all liberties, privileges, easements, rights and advantages whatsoever appertaining or reputed to appertain to the land.

Wright v Macadam [1949] – a woman rented a flat. She used the coal shed for storage as per the agreement in the lease. She renewed her lease in the flat, but the document no longer contained the coal shed clause. She carried on using it. She then refused to pay extra for that privilege, the court held that there was an existence of the privilege at the time the lease was renewed and thus she had a full easement.

There are four important limitations:

1.       The right claimed must satisfy the characteristics of an easement (International Tea Stores)

2.       S62 only occurs where there is a conveyance.

3.       There must be a competent grantor.

4.       S62 only applies to convert privileges into easements (and so doesn’t apply to QE’s).

It appears S62 can imply a profit into a conveyance (White v Williams [1922]). 

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Implied Reservations of Easements

It is only possible to impliedly reserve an easement through necessity and intention.

In Union Lighterage v London Graving [1902] there is a very strict interpretation of an easement of only being implied if the property would otherwise be unusable. The easement of necessity must exist at the date of reservation and alternatives will defeat the claim. 

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