CREATION OF EASEMENT

St Edmundsbury Diocesan Board of Finance v Clark (No 2)

Facts 

Property consisting of a former rectory and land which was surrounded by a church was conveyed to D. C, a church, was given an easement to the church through the land surrounding D’s land. C claimed they had a right of way on foot or via vehicle (the land was not suitable for vehicles); D said they only had right of way on foot and erected posts preventing vehicles. C sought an order for D to remove the posts. 

• Issue: Did the conveyance grant a vehicular, or solely pedestrian, right of way?:

Outcome 

The proper approach to the construction of a conveyance containing a right of way was to construe the document in conjunction with the surrounding circumstances 

• Sir John Pennycuick → 

1. What is the proper approach upon the construction of a conveyance containing the reservation of a right of way? = the proper approach is that upon which the court construes all documents according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances. 

2. When is the maxim “omnis praesumtur” appkicable against the vendor where there is a conveyance subject to the reservation of a new right of way 

Section 65 must be read in the light of 2 aspects of the preceding law 1) that previousl the law was sufficiently relaxed from its prima facie stringency to permit the language of mere reservation to have the effect of a regrant second that for this purpose the conveyance if an easement was to be created 

Pwllbach Colliery Ltd v Woodman

Facts 

P were subleases of land (coal miners) and a right was granted in the lease to carry on the trade of the miners. W butcher held the adjacent lease from the same landowner subject to easements belonging to the adjoining property. P erected on the land a machine near W’s buildings, resulting in coal dust depositing on those buildings. 

P argued that W took the lease subject to any rights and easements belonging to any adjoining or neighbouring property; that as he took his lease well knowing that P had erected and were working under the powers granted by the lessor. 

Outcome 

There was nuisance as P did not have an easement. 

• Lord Atkinson → what must be implied is not a grant of what is convenient or what is usual or what is common in the district or what is simply reasonable but what is necessary for the use and enjoyment, in the way contemplated by the parties, of the thing or right granted 

• Lord Parker → It is admitted that if the lease in question operated to create the right the right is now vested in the D and the P who acquired his lease from the same freeholder is bound to submit to its exercise; therefore the only question is whether the lease in question operated to create the right 

• In this case there is no express grant of the right and it is said to come by implication and the right claimed is in the nature of an easement → this can be claimed in 2 ways 

1. Where the implication arises because the right in question is necessary for the enjoyment of some other right expressly granted 

2. Where the circumstances of the grant was made mean that an easement or reservation is needed to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the granter it to be used → But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner: it is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use. 

In this case: There is no evidence of any circumstance pointing to any such intention. 

• Lord Sumner → The right it to indeterminate to be an easement proper. However there is no doubt that by the use of apt and sufficient words such a right may be created by grant. Hence it is not needed to asked whether such a right would pass under “general easements and appurtenances” which this lease does not contain - that was not the case here 

Wong v Beaumont Property Trust Ltd

Facts 

C was the tenant of a Chinese restaurant situated underground. The property was so badly ventilated that it needed an air duct fixed on the back wall of the building which belonged to the landlords. The landlord refused the Ps request for permission to attached the 

• A Health inspector deemed the use of the air duct necessary → the P entitled to put the duct without the landlords consent?

Outcome 

There was an implied easement. An easement necessary for the use of land can be impliedly granted. The implied grant is based on the common intention of the transferor and the transferee of the land. 

• Lord Denning MR → If he is to have a right at all it will be right by easement? 

• Affirmed the judgement of Lord Parker in Pwllbach Colliery; the law will readily imply the grant or serveration of such easements as may be necessary to give effect to the common intention 

• Applied to the case at hand: Here the grant of lease to the lessee for the very purpose of carrying out a restaurant business. There was a covenant not to cause any nuisance and to control and eliminate any smells. In the circumstances if the business is to be carried on at all the C must be able to put a ventilation duct against the wall 

• Distinction from other cases: here unlike other cases, there was one point which goes further: that it was not realised by the parties at the time of the lease that the duct would be needed. But in fct it was needed. This seems to be to be sufficient to bring the principle into play. In order to use this place as a restaurant there must be implied an easement by the necessary of the case, to carry a duct up the wall. 

• Pearson LJ → This case affords a good example of an easement of necessity. Contrasting the covenants and the facts the functions of the current flue were not large enough to perform the functions to be performed under clause 2 

• Salmon LJ → whether or not there is an easement of necessity is here to be implied seems to me to depend solely on the question of; at the date when the lease was granted could the business of a popular restaurant have been lawfully carried on without some system of ducting whereby the restaurant and the smells were taken from the building 

→ the answer in this case was no! 

Nickerson v Barraclough

Facts 

C bought a field which was landlocked save for a lane belonging to D.The field had formed part of an estate and with other estate land had been put up for sale in plots for building purposes. A plan had shown proposed new roads but not exactly on the C’s land and the action ended with the statement that “the vendors do not undertake to make any of the new roads shown on the plan”. There was also no express grant of a right of way. When the P’s predecessor in title bought the land it was subject to restrictions that there would be no proposed new roads nor was there given any rights of way. When P bought the land it was conveyed to him to include a right of way for all purposes over the land “so far as the vendor has power to convey it”. C rebuilt a bridge built by the previous owner which D had pulled down. D pulled down the bridge again. C claimed she had an easement by virtue of; 

1.  the conveyance under s62 OR, 

2. Implication by necessity  

Outcome 

There was no implied easement. 

On th

1. A way of necessity could only exist in association with a grant of land and on the implication that unless some way was implied the land would be inaccessible. The court had to ascertain the intention of the parties and public policy could not assist the court but could only assist the court to frustrate a contract where the intention was contrary to public policy. = as the P’s land was not locked when the earlier 1906 conveyance was made public policy had no application 

2. The effect of the 1906 transfer Shed 7 negatived any right to go over the proposed roads until they were made and that there was no implication granted 

3. S62 was only concerned with rights and advantages which were appertaining or were repeated to appertain at the time of conveyance and was not concerned with future rights 

• Brightman LJ → The D do not seek to challenge the existence of a right of way. They seek to limit it in 2 respects a) by confining the width of any bridge to 8ft and by restricting user to a means of access to the land “for ordinary agricultural purposes and … as sports grounds for the playing of amateur sports and games

• On the implied grant: What right or rights of way are to be read in order to give effect to the apparent purposes of the conveyance and the contemplated use to which the land might be put

• On Megarrys judgement: I have come to the conclusion that the doctrine of way of necessity is not founded upon public policy at all but on an implication from the circumstances. If way of necessity was based on public poly I see no reason why land acquired by esheat or prescription should be excluded. Furthermore I cannot accept that public policy can play any part at all in the construction of an instrument; in construing the document the court is endeavoring to ascertain the express intentions of the parties 

Commentary 

McFarlane on this case: this view has limited scope of easements of necessity a) easement of necessity will give way to contrary intention b) easements of necessity will not arise where land has been acquired by AP or compulsory purchase where there is no agreement to derive any intention c) the need for common ownership of the dominant and servient land and the static assessment of necessity at the date of severance of the land, also flow from the constraints of intention 

• Several commentators have argued that public policy would thus be a better foundation for easements by necessity! 

Donovan v Rana

Facts 

C sold a plot of land adjoining their property at auction as building plot with the benefit of outline planning permission for a single dwelling. The transfer included an express right of way that formed part of C’s retained property “for all purposes connected with the use and enjoyment of the property but not for any other purpose”. The transfer provided that, save for those expressly referred to, no rights of way or access for the benefit of property over the transferors retained land should be deemed expressly or impliedly granted or reserved and that the transferee or future successors in title should not be entitled to any right of access or other easements or rights which would restrict or interfere with the future use of the sellers retained land. 

The D’s were the successors in title and built a new house on the land. Without the express permission of C, D dug up part of C’s land to connect the normal utilities main to the main services → C sought an injunction and damages

• CoA = dismissed the claim for trespass and inferred that the intention was that the building plot should have connections to utilities and this granted a right 

On appeal submitted that 1) since the transfer excluded further rights an easement could not be implied 2) the judge was wrong to infer the intention that the house be connected to all normal utilities 3) the judge was wrong to find an implied grant of easements that far exceeded what was needed to give effect to the common intention of building a house. 

Outcome 

There was an implied common purpose easement. 

• Vos LJ →

1.  Do the express provisions of the transfer exclude the implied easement? One of the purposes “connected with the use and enjoyment of the property” would be laying the connections to utilities. In these circumstances the easement of necessity would already exist (as it was contained in the allowed easements?) = though D needed a right to access the land in order to instal and maintain utility connections, the express right of way was sufficient if exercised in a way that did not obstruct the reasonable enjoyment of the land. 

• The additional implication of rights = is not violated; the transfer is adequate for the purpose of the proposed easement - no additional right of way or access is required. 

• Easements that would restrict C’s future use of the land = is not violated 

2. On the common intention lease: It is not true that no implication could be inferred: the proof was in the factual matrix and the terms of the transfer 

3. Inference is mitigated by the express restriction: While there was outright evidence it seems to have been abundantly clear from the auction that the purpose was to enable to transferee to build a dwelling on the housing plot 

• Lord Atkins judgement must be read in its connect: an implied grant had to be based on more than mere reasonableness or usual practice but had to be necessary for the use and enjoyment of the right granted. 

Wheeldon v Burrows

Facts 

A seller sold a piece of land to C, a month later he sold the workshop adjacent to the land to D. C erected boardings on his land to block light to the windows of the workshop, D knocked the boardings down. C bought an action for trespass against D. D pleaded that he had an easement for access to light over C’s land that had been impliedly reserved by the seller when he sold the piece of land to C 

Outcome 

Held that as the vendor had not reserved a right of access of light to the windows, no such right passed to the purchaser of the workshop and that the purchaser of the piece of land could build so as to obstruct the windows of the workshop. 

• Theisger LJ → 2 propositions may be stated as general governing rules in cases of this kind; the first rule is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the guarantee all those continuous and apparent easements .. the second rule is that if the grantor intended to reserve any right over the tenement granted, it is his duty to reserve it expressly (however this may be altered by exceptions like necessity) 

• Both of these general rules are founded upon the maxim; that a grantor should not derogate from his grant 

By the grant of part of a tenement there will pass all those continuous and apparent easements over the other part of the tenement which are necessary to the enjoyment of the part granted and have been hitherto used therewith; but as a general rule there is no corresponding implication in favour of the grantor, through there are certain exceptions to this case in the necessity of ways. 

On the grant by the owner of a tenement or part of that tenement as it is then used and enjoyed, there will pass on to the grantee all those continuous and apparent easements (by which of course I mean quasi easements) or, in the words, all those easements which are necessary for the reasonable enjoyment of the property granted and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted 

→ the rule thus applies on the sale or lease of part of property when certain qualifying rights, enjoyed for the benefit of the part sold or leased over part the retained will mature into easements. Prior to the sale or leases, such rights could not exist as easements because of the common ownership of the dominant and servient land; they are thus referred to as ‘quasi easements’ 

On the first requirement 

Imposes a timing constraint on the application of the rule that flows from the principle of non-derogation from grant. The necessary disposition may be by way of sale, lease or mortgage. Where the disposition is legal because it is of a lesal estate dealt with by deed and registration, the implied easement will also be legal but where the disposal is only effective in equity (for example because of the doctrine of anticipation) the implied grant will be equitable! 

On the second requirement 

• “Continuous” = in this context does not mean that the right must be exercised continuously exercised but rather revokes the sense of permanence, so that the right might be exercised wherever necessary

• “Apparent” = more significant; for a right to be apparent it should be discoverable from a reasonably careful physical inspection of the land. There must thus be some feature on the servient land that signals the right to a purchaser 

These cases … support the properosotions that in the case of na grant you may imply a grant of such continuous and apparent easement as are necessary to the reasonable enjoyment of the property conveyance and have in fatc been enjoyed during the unity of ownership, but that, with the exception which I have referred to of easements of necessity, you cannot imply a similar reservation in favour of the grantor of land 

Wheeler v JJ Saunders Ltd

Facts 

When C bought a plot of land, there were 2 access routes that went though D’s land but no express grant of either. D barred the access route to the south entrance of C’s land. C claimed an implied grant of right of way over the barred access route.

• Claims were bought in both nuisance and for the obstruction of the right of way 

Outcome 

No easement was impliedly granted: a right must offer more than pure convenience to be implied under the rule in Wheeldon 

• Staughton LJ → On Wheeldon: how much wider is the rule as opposed to easements of necessity? Affirmed the statement of Lord wilberforce; the easements ‘must be necessary to the reasonable enjoyment which have been and are at the time of the grant used” → On the facts: I do not consider that the south entrance was necessary for the reasonable enjoyment 

• Peter Gibson LJ [dissenting] → On Wheeldon: The finding may have been surprising but the proposition has been accepted as correctly stating the law and cannot not be doubted. 

• “Continuous and apparent” – there has been some doubt as to whether the wording of continuous and apparent is an alternative to the requirement that the easement be necessary for the reasonable enjoyment → but it seems to be clear they were intended to be synonymous 

On the facts: I am not able to say that the judge erred in finding that the south entrance amounted to the ground entrance and was necessary for reasonable enjoyment 

Borman v Griffith 

Facts 

C agreed to lease a lodge in a park from the landlord D. There was access by a rear track to the lodge, but C sought a right of way over the main driveway which was the only viable access for the heavy vehicles involved with C’s poultry business. 

Outcome 

An easement was impliedly granted by D to C together with the lease under the rule in Wheeldon. 

• Maugham J → the authorities show that where an obvious and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have taken prima facie to have intended to grant a right to use it. The grant of easement can be excluded by terms of contract 

Wright v Macadam

Facts 

Wright was a weekly tenant of 2 rooms on the top floor of Macandams house when Macadam gave her permission to use the coal shed at the bottom of her garden to store coal. Subsequently, Wright took a new tenancy of the 2 rooms plus another room. The tenant agreement constrained no reference to the use the coal shed, which wright continued to use until M asked her to pay for the privilege. W refused and claimed an easement to use the coal by virtue of s62 

Outcome 

 W’s claim was successful. 

• Jenkins LJ → 

1. Th section is not confined to rights which as a matter of law, were so annexed or appurtenant to the property conveyed at the time of the conveyance s to make them actually legally enforceable rights. Thus on the severance of a piece of land in common ownership, the quasi easements de facto enjoyed in respect of it by one part of the law over another will pass

2. In order to pass, the right need not be one to which the owner or occupier for the time being of the land has had what may be described as a permanent title. A right enjoyed merely by permission is enough (Hobbs) 

There is therefore ample authority for the proposition that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant can be read into it under s62, even though down to the date of the conveyance the right was exercised by permission only and therefore was in that sense precarious 

• As per Burrows v Lang: precariousness under s62 = it is only necessary that the right should be capable of being granted at law … if it is a right of this matter it does not matter if the right has been granted by permission only 

• A further exception has been recognized in cases in which there could in circumstances of the case have been no expectation that the enjoyment of rights could have been anything other than temporary! 

Goldberg v Edwards

Facts 

Mrs Edwards owned a house and rented an annex to Goldberg, from which he ran a business. Prior to the formal entry into the lease, Mrs Edwards had let Goldberg into possession, and had allowed him and his customers to pass through the house to et to the annex, although access could be obtained via an outside passage. She also gave him permission to put up an advertising sing, bell and a letter box for business. 

Outcome 

The right for Goldberg to use the access though the house became an easement by the operation of s62 but the other rights were limited to the period of Mrs Edwards ownership of the house and thus did not pass. 

• Evershed MR → 

The non easements: was expressly limited to such time as the landlord should occupy the house herself; it was a privilege which she herself allowed so long as she was there, because it did not interfere with her own affairs and business. It was clear that she was not making that privilege any part of the bargain between herself and the tenants 

The easement: it was intended to be something which the plaintiffs should enjoy qua leesess during the term of the demise, though it should not be enjoyed by their servants, workmen or any other persons with their authority  

Wood v WadlingtoN

Facts 

Mr C owned Manor Farm, which was crossed by various tracks and bridleways. He sold MF in  parts in 1988. One part was acquired by the Woods predecessor in title, the Sharmans, who ran a horse livery yard which was carried on and expanded by the Woods. Another part of Manor Farm, over which some tracks and bridleway ran was sold to Mr Wadlington. A dispute arrose between the parties as to whether the Woods were entitled to use two tracks over land not owned by Mr Waddinton 

Outcome 

The W were entitled to use the tracks over Mr W’s land by virtue of the rights passing under s62 when Mr C sold the land to the S’s. Although there was a unity of occupation between the servient and dominant land by Mr C the right to use tracks and bridleway was continuous and apparent 

• Lewinson LJ → 

Why do we have it: helps us to distinguish between cases where a landowner is simply making use of the whole of his land as he pleased and cases where a particular benefit of a particular part of land is being enjoyed 

What is the rule: I do not consider that Long v Gowlett can be taken as authority for an extra requirement added … in agree that in cases where there has been no diversity of occupation, all that is necessary to establish is that the exercise of the relevant rights has been continuous and apparent in the sense developed for the purposes of Wheelton

ER Ives v High

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