CONTENT REQUIREMENTS: Re Ellenborough Park
1. there must be dominant and servient tenements (land)
2. the owners/ occupiers of that land must be different
3. the right must 'accommodate' the land
4. the right must be capable of forming the subject matter of such a grant
The right must 'accommodate' the land
This means the right must provide the land with a utility or benefit, it must not be a merely personal right, as was the contract to operate canal boats in Tupper v Hill. A right will accommodate land where it applies the same to future successors in title.
Examples: the right to use gardens (Re Ellenborough Park); the right to graze horses (Polo Woods v Shelton-Agar); the right to hang a sign on a pub (Moody v Steggles).
Additionally: the right must be connected to the normal enjoyment of the land - two interpretations of this have arisen.
(a) connected with the normal use of land (preferred by the Courts and Simon Gardner)
(b) right which is one for which it is normal for the dominant land to benefit from.
The right must be capable of forming the subject matter of such a grant - this contains numerous sub-rules.
(1) it must provide a benefit/ utility (as discussed above)
(2) it must not be expressed in terms too wide or vague (e.g. the use of the garden was clearly addressed in Re Ellenborough Park)
(3) it must not be 'too extensive' - this has also received different interpretations
--> whether it deprives the owner of the 'reasonable use' of his land (London & Blenheim Estates); thus in Batchelor v Marlowe the use of six parking spaces for nine-hours a day (where there was only room for six) was 'too extensive' because it did not allow the owner reasonable use of his land
--> whether it prevents the owner exercises 'possession and control' of his land (Moncrieff v Jamieson)
(4) it must require the dominant owner/ occupier to actively do something, unless it falls within one of the exceptions within Phipps v Pears - flow of light, air, water, support by servient buildings
(5) it must not require the servient owner to actively do something on his part, except maintain a boundary fence: Jones v Price
- in Rance v Elvin the courts held this would include the flow of water through artificial channels, but not its supply
ACQUISITION OF EASEMENTS
Express acquisition: this occurs when an agreement is reached between parties and they formally enact an easement.
Implied acquisition: this is when the law implies an easement - this…