Chapter 15: Easements
Definition
Easements may be defined as "... rights possessed by the owner of one piece of land (the dominant land) whereby the owner of other (servient) land is obliged either to suffer something to be done on his land, or to refrain from doing something on his own land, for the benefit of the dominant land." (Law Commission, Transfer of Land: Appurtenant Rights, Working Paper No.36, 1971, para.15).
This definition makes it clear that easements are rights appurtenant to land. In other words, they are intended to run with land and are enforceable by the owner for the time being of one piece of land against the owner for the time being of another piece of land. It is also evident from this definition that easements may be either positive (e.g. a right of way) or negative (e.g. a right to light).
Classification
Easements may be classified as incorporeal hereditaments or third party rights in land. Thus, rights recognised as easements are treated as proprietary, rather than purely contractual, in the sense that they are capable of binding successors in title of the original grantor and grantee.
Comparisons and Contrasts
In understanding the law relating to easements, it is helpful to distinguish between easements and other categories of rights which have certain similarities with easements. These include:
• licences
• local customary rights
• natural rights
• profits a prendre
• public rights
• restrictive covenants
Licences
A licence constitutes a permission to do something on or affecting land which would otherwise constitute a trespass. The key distinction between a licence and an easement is that the former is a personal right (i.e. a right in personam which is normally enforceable only against the person who created it), but the latter is a property right (i.e. a right in rem which may be enforceable against anyone who interferes with it). Although this distinction has been eroded to some extent by developments in the law relating to licences, its conceptual significance remains intact.
Local Customary Rights
Local customary rights are rights which accrue to members of a particular local community. The content of these rights is often similar to the subject-matter of easements. However, as participation in these rights is defined by reference to membership of a local community rather than landownership, they do not necessarily benefit any defined dominant tenement. Moreover, as a local community (comprising, say, the fluctuating population of a village) has no separate legal personality, it is incapable of acquiring rights under a grant. Common law recognition of these "communal easements" stems instead from the idea of "custom". As such, a local customary right must be certain, reasonable, commencing from time immemorial (in theory pre-1189, but in practice uninterrupted use for at least 20 years provided that there is no evidence that the use originated after 1189), uninterrupted, and applicable to a particular geographical area. Examples of local customary rights include rights to play sports or to hold an annual fair on a defined piece of land.
Natural Rights
Natural rights are rights which are automatically available to landowners as incidents of landownership. They differ from easements in that they do not depend on any grant. Thus, for example, a landowner has a natural right to support for her land (but not buildings) from neighbouring land. As in cases of interference with an easement, interference with a natural right gives rise to an action for nuisance. In this context, Simpson has argued that "[t]he terminology which speaks of natural rights is now, however, suspect; it is simpler and more intelligible to talk of the situations in which a landowner can sue in tort without proving the existence of a servitude, than to speak of natural rights and attempt to list these" (A. W. B. Simpson, A History of the Land Law, 2nd edition, 1986, Clarendon Press, Oxford, pp.263-264)
Profits a Prendre
A profit a prendre is a right to take and carry away something from servient land. It may comprise a right to take part of the servient land itself (e.g. peat, turf, gravel, etcetera), or something growing on the servient land (e.g. grass, crops, trees, etcetera), or wild animals or fish found on the servient tenement.
In contrast to profits, easements do not comprise rights take anything from the servient land. As such, an easement can be described as "a privilege without profit".
Public Rights
Public rights are rights which are exercisable by any member of the public. As these rights exist by virtue of the general law, they do not depend on a specific grant to any individual. Moreover, as these rights are available to all members of the public, they do not depend on the existence of a dominant tenement. Examples of public rights include rights of passage along a public highway, rights to fish in the sea, and rights of passage in navigable tidal waters.
In contrast to some other jurisdictions, English law recognises no general right to wander over open countryside (also known as "ius spatiandi", see Attorney-General v Antrobus [1905] 2 Ch 188). Indeed, public rights in relation to recreational use of the countryside - for activities such as hill walking, horse riding, or mountain biking - are poorly defined in English law. Instead of a general right of access, recreational uses of open land are regulated by complex and overlapping statutory regimes (see, for example, National Parks and Access to the Countryside Act 1949, Countryside Act 1968, Water Resources Act 1991).
Restrictive Covenants
There are certain similarities between easements and restrictive covenants. Indeed, restrictive covenants are sometimes referred to as "negative easements". However, there are also important differences between these two categories of rights. For example, whereas easements can be acquired by various means (see the section of this workbook entitled "Acquisition of Easements"), restrictive covenants can be created only by deed. Moreover, while easements may be legal or equitable, restrictive covenants are enforceable only in equity. On the other hand, while the subject-matter of easements is strictly limited, the content of restrictive covenants is potentially much broader (see the "Covenants" workbook).
Benefit and Burden
All easements have both a benefit and a burden. For example, if A, the owner of Acre, grants B, the owner of Hectare, a right of way over Acre, the right of way confers a benefit on Hectare but it also imposes a burden on Acre. Thus, B, as owner for the time being of Hectare, acquires a right to pass and re-pass over the way, and A, as owner for the time being of Acre, is under an obligation not to interfere with B's passage.
The significance of this distinction becomes apparent when it is realised that lawyers treat the transmission of the benefit of an easement separately from the transmission of its burden. Therefore, a person seeking to enforce an easement must show not only that she has acquired the benefit of the easement, but also that the person against whom it is to be enforced has become subject to its burden. This leads directly to questions about the protection of easements.
Legal and Equitable Easements
An easement may be either legal or equitable. The practical importance of the distinction is that it affects the circumstances in which the burden of an easement is binding upon successors in title of the original grantor:
Legal: A legal easement must be "an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute" (section 1(2)(a) of the Law of Property Act 1925), and it must also be created by deed, statute, or prescription (see the "Acquisition of Easements" section of this workbook).
Equitable: An easement will be equitable if it (a) falls outside the scope of section 1(2)(a) (e.g. it is created as a life interest); or (b) is created for value but lacks the formalities required for creation be deed (e.g. a contract to create an easement).
Protection of Easements
Once an easement has been duly created or acquired, its benefit becomes annexed to the dominant land and passes automatically to successors in title of the original grantee. This applies whether the easement is legal or equitable and whether the land is registered or unregistered.
The burden of a legal easement is also automatically binding on successors in title of the original grantor regardless of whether the land is registered or unregistered. In contrast, if the burden of an equitable easement is to be enforceable against third parties, it should normally be protected by registration. The mode of registration varies according to whether the land is:
Registered or Unregistered
Registered Land
The burden of an equitable easement may be protected by the entry of a minor interest against the title of the servient land. However, an equitable easement may also be protected as an overriding interest under either section 70(1)(a) or section 70(1)(g) of the Land Registration Act 1925 (see Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204).
Unregistered Land
The burden of an equitable easement is registrable as a Class D(iii) land charge against the name of the grantor. However, an unregistered equitable easement may also be enforceable against a third party in circumstances where it is possible to establish estoppel (see E R Ives Investment Ltd v High [1967] 2 QB 379).
Policy Issues
The law relating to easements enables landowners to acquire limited rights of use in relation to land owned by others. This promotes efficiency of land use in that it allows for the co-existence of multiple use rights in relation to a single piece of land. It is therefore economically and socially beneficial that a system of land law should make provision for limited use rights which are capable of enduring over time. This argument can be illustrated by the following counter-example:
In the absence of "easement-like" rights, the only means whereby a person could obtain an enduring right of way over a piece of land would be to purchase the land outright (i.e. acquire the fee simple absolute in possession). Clearly, a system of land law which required a person to purchase a piece of land when all she wanted to do was to pass and re-pass over it from time to time would be unlikely to result in the efficient use of land.
Despite the benefits of facilitating limited but enduring third party rights in land, it is also clear that there are potential costs in terms of restrictions on the subsequent marketability, use and development of land burdened by these rights. Thus, as Gray and Symes have argued:
"Since the concern here is with the borderline of the law of property, it should come as no surprise that the law has traditionally imposed certain stringent requirements as to the definition of the rights which may qualify as easements ... and as to their mode of creation and acquisition. The marketability of land would be gravely affected if these rules were not fairly clear and fairly rigorously applied. Otherwise titles to land would become encumbered by useless and anti-social user-rights of dubious enforceability, vested in unspecified or unascertainable third parties. The resulting chaos would be gravely prejudicial to the large social interest which pervades our law of property - the interest that property should be freely alienable." (K. Gray and P. Symes, Real Property and Real People, 1981, Butterworths, London, p.577).
Much of the historical development and technical detail of the law relating to easements can be understood in terms of attempts to balance these benefits and costs in the context of changing social and economic conditions.
Despite the utility of easements in facilitating the private planning of land use and development, it is important to note that easements constitute a "market mechanism" for the distribution of rights in land. As for other rights in land, the scope for compulsory acquisition of easements is strictly limited by statute (e.g. Compulsory Purchase Act 1965, Acquisition of Land Act 1981, Town and Country Planning Act 1990). In this context, failure to obtain easements can also have detrimental effects in relation to the use and development of land.
For example, in British Railways Board v Secretary of State for the Environment and London Borough of Hounslow [1993] JPL 342 the plaintiffs sought to develop part of a disused railway yard for residential purposes. Development of the site hinged upon the grant of rights of way and other easements over land owned by the local authority. When it became clear that the local authority was not prepared to grant the necessary rights of way, planning permission was refused and the proposed development abandoned.
Characteristics of Easements
The classification of a particular right as an easement has important consequences, particularly in terms of its capacity to run with land so as to bind successors in title of the original grantor and grantee. Moreover, easements may be created or acquired by means other than express agreement between the owners of dominant and servient land (see the "Acquisition of Easements" section of this workbook).
In these circumstances, the courts have imposed strict conditions on the types of rights which are capable of qualifying as easements. This section of the workbook analyses the characteristics which must be present if a right a right is to qualify as a valid easement.
"Four Essentials"
The four essential requirements of a valid easement were set out in the case of In re Ellenborough Park [1956] Ch 131. Adopting the formulation of these requirements from Cheshire's Modern Real Property, 7th edition, pp.456 et seq, Evershed MR said that:
(1) there must be a dominant and a servient tenement;
(2) an easement must 'accommodate' the dominant tenement;
(3) the dominant and servient owners must be different persons; and
(4) a right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant.
These four requirements will now be considered in more detail.
(1) there must be a dominant and a servient tenement
An easement must be linked to two parcels of land. There must be a dominant tenement in favour of which the easement is acquired, and a servient tenement over which the easement may be exercised. This requirement is designed to prevent the creation of easements in gross.
There are, however, exceptions to the rule against easements in gross, particularly for easements required in connection with the activities of public authorities and private utility companies (e.g. water, gas, electricity, telephone). In these circumstances, easements in gross are seen as necessary to fulfil broader social and economic objectives associated with planning activities and the delivery of essential services, even though they do not necessarily benefit any defined dominant land.
(2) the easement must accommodate the dominant tenement
The requirement that an easement must "accommodate" or "benefit" the dominant tenement is intended to distinguish rights which confer purely personal or commercial advantages from those which enhance the utility of land. For example, in Hill v Tupper (1863) 2 H & C 121 the plaintiff had taken a lease of land on a canal bank from the owner of the canal. The lease purported to grant the plaintiff the exclusive right to hire out pleasure boats on the canal. The defendant who also owned land adjacent to the canal proceeded to hire out canal boats from his land. The plaintiff brought an action against the defendant for interference with his "easement" to hire boats on the canal. The Court of Exchequer held that the right claimed by the plaintiff was unconnected with the use and enjoyment of his land and could not, therefore, constitute an easement.
The accommodation requirement also implies that the dominant and servient tenements must be located in reasonable proximity to one another. Thus, it has been said that it is impossible to have "... a right of way over land in Kent appurtenant to an estate in Northumberland" (per Byles J in Bailey v Stephens (1862) 12 CBNS 91 at 115).
(3) the dominant and servient tenements must be owned or occupied by different persons
It is integral to the definition of an easement that it is a right over another person's land. It follows that the dominant and servient tenements must be owned by different persons. As Lord Wilberforce said in Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144:
"... when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist ...".
However, it is important to note that a tenant may acquire an easement over land owned by his landlord. Although in these circumstances both the dominant and servient tenements may be said to be "owned" by the landlord, the requirement for a valid easement is satisfied by the diversity of occupation.
(4) a right over land cannot amount to an easement, unless it is capable of
forming the subject-matter of a grant
This requirement stems from the idea that all easements "lie in grant" (i.e. could have been granted by deed). Ultimately, this is a fiction because easements may be acquired by means other than grant (see the "acquisition of easements" section of this workbook). Nevertheless, this requirement imports the following conditions for the creation of a valid easement:
(a) there must be a capable grantor and grantee;
(b) the right must be sufficiently definite;
(c) the right must be within the class of rights generally recognised as easements;
(d) the right must not impose any positive burden on the servient owner;
(e) the right must not be inconsistent with the proprietorship or possession of the servient owner.
These five elements are analysed in more detail in the remainder of this section of the workbook.
(a) there must be a capable grantor and grantee
The grant of an easement will be invalid unless the grantor has the power to grant the right claimed as an easement over the servient tenement. This follows directly from the general principle of nemo dat quod non habet (i.e. no one can give what she does not have). For example, an easement granted by a tenant for life cannot endure beyond the tenant's life interest. Moreover, as the life tenant's interest in land is equitable, any easement which he creates is also necessarily equitable.
Equally, the grantee must be a legal person capable of receiving a grant for the benefit of the dominant tenement. It follows that easements cannot be granted in favour of individuals who do not own land or social groups lacking separate legal personality (e.g. the members for the time being of a local community), although they may be able to acquire local customary rights.
(b) the right must be sufficiently definite
Given that an easement must "lie in grant" (i.e. be capable of being granted by deed), it follows that a right cannot qualify as an easement unless it can be described with a reasonable degree of precision. The rule against easements which are "too vague and uncertain" also serves to confine the restrictions which easements may place on the use and development of servient land and to limit the opportunity for disputes about their scope.
The following have been prevented from qualifying as easements on the grounds that they are "too vague and uncertain" or "too indefinite": a right to a view (William Aldred's Case (1610) 9 Co Rep 57b), a general jus spatiandi or right to wander at will over land (In re Ellenborough Park [1956] Ch 131), a right to a flow of air (Harris v De Pinna (1886) 33 ChD 238).
(c) the right must fall within the class of rights generally recognised as easements
Although a right which exhibits the four characteristics noted in In re Ellenborough Park is capable of existing as an easement, it is difficult to predict how the courts will respond to claims for new types of rights to be recognised as easements. It is often said that the list of easements is not closed, but it is also clear that the courts have been cautious about classifying new types of rights as easements. The contrasting objectives are neatly captured in the following statements from 19th century cases:
"[I]t must not ... be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner. It is clearly inconvenient both to the science of the law and to the public weal that such a latitude should be given." (per Lord Brougham LC in Keppell v Bailey (1834) 2 My & K 517 at 535).
"The category of easements must alter and expand with the changes that take place in the circumstances of mankind." (per Lord St Leonards LC in Dyce v Hay (1852) 1 Macq 305 at 312).
The cautious approach towards the classification of new rights as easements reflects the broader policy tension between, on the one hand, resistance to the creation of third party rights which may restrict the marketability of land. and, on the other hand, recognition of new rights which can promote the efficient utilisation of land.
Although it is relatively rare that new rights are recognised as easements, it was held in Dowty Boulton Paul Ltd v Wolverhampton Corporation (No. 2) [1976] 1 Ch 13 that a right to use an airfield was capable of existing as an easement. Russell LJ said at 23: "I do not see in principle why such a right cannot exist as an easement. A tendency in the past to freeze the categories of easements has been overtaken by the decision in In re Ellenborough Park."
For examples of right which have been held to be capable of existing as easements, see examples of easements.
(d) the right must not impose any positive burden on the servient owner
It is generally held that a right which imposes a positive burden (e.g. an obligation to spend money) on a servient owner cannot qualify as an easement. Although from the standpoint of the dominant owner an easement may be either positive (i.e. a right to do something on a neighbour's land) or negative (i.e. a right ot prevent a neighbour from doing something on the neighbour's own land), the servient owner's role in both instances is essentially passive. Thus, in Rance v Elvin (1985) 50 P & CR 9, the Court of Appeal refused to accept as an easement a right to a supply of water (i.e. a positive obligation to supply), but admitted a right to an uninterrupted passage of water through pipes beneath neighbouring land (i.e. a negative obligation not to interfere with supply).
There are exceptions to the rule against easements which impose positive burdens on servient owners. For example, a well-known exception is the "easement of fencing" whereby a servient owner can be obliged to take positive action to maintain fencing: Crow v Wood [1971] 1 QB 77).
New Negative Easements
In Phipps v Pears [1965] 1 QB 76 the plaintiff sought to recover damages for interference with "an easement of protection from the weather" resulting from the demolition of buildings on the defendant's land. The Court of Appeal rejected the plaintiff's claim on the basis that a right of protection from the weather was not capable of existing as an easement. In particular, Lord Denning said that such an easement would be entirely negative and "... the law has been very chary of creating any new negative easements".
(e) the right must not be inconsistent with the proprietorship or possession of the servient owner
An easement is a form of third party right in land in the sense that it constitutes a limited right over land belonging to another. Therefore, a right which amounts to a claim to exclusive possession or joint occupation of servient land cannot constitute an easement. Thus, in Copeland v Greenhalf [1952] Ch 488 the defendant claimed to have acquired a right to store and repair vehicles on a strip of land owned by the plaintiff. Upjohn J held that this was "... virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which could justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement".
In contrast, the following rights have been held to be capable of existing as easements despite the fact that they necessarily entail an element of exclusive possession or joint occupation: a right to use a coal shed (Wright v Macadam [1949] 2 KB 744), a right to use a lavatory (Miller v Emcer Products Ltd [1956] Ch 304), and a right to park a car anywhere on a defined area of land (London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31.
Ellenborough Park Revisited
As we have seen, the leading authority on the characteristics of a valid easement is In re Ellenborough Park [1956] 1 Ch 131. This case concerned a right to use a park comprising ornamental gardens. The right was shared in common by the owners of houses adjoining the park. In each case the original purchasers of the houses had been granted: "... the full enjoyment ... at all times hereafter in common with other persons to whom such easements may be granted of the pleasure ground set out and made in front of such plot of land ... in the centre of the square called Ellenborough Park ... subject to the payment of a fair and just proportion of the costs charges and expenses of keeping in good order and condition the said pleasure ground". The park itself was vested in trustees who were responsible for its upkeep. The dispute arose in relation to compensation after the Second World War when the park had been requisitioned for military purposes. Compensation was available to the owners of the houses only if they could show interference with their property rights. As such, it was essential for them to establish that their right to use the park constituted an easement rather than a contractual licence.
Acquisition of Easements
In analysing whether a particular right is enforceable as an easement it is necessary to consider not only whether it has the required characteristics, but also how it has been acquired. Much of the difficulty in this area of law stems from the variety of methods whereby easements may be acquired.
The various methods of acquisition are set out schematically in the diagram on the next page. To discover more about each method of acquisition, click on the relevant box.
Scope, Interference and Remedies
In addition to issues about whether rights are capable of existing as easements and whether they have been duly created or acquired, practical questions also arise about the scope or extent of easements and the appropriate remedies in cases of interference,
This section of the workbook begins by considering how the scope of an easement is determined (i.e. how can we establish the precise nature and extent of the rights of the dominant owner and the obligations of the servient owner?). It then examines the remedies available in cases of interference with an easement and investigates issues affecting the choice of remedy.
Questions about the scope of an easement raise particular difficulties in cases where the use of the relevant land has changed over time resulting in increased or novel demands in relation to the exercise of the easement. Therefore, in analysing the scope of an easement it is helpful to think in terms of the following:
Purpose: is the right restricted to use for a particular purpose (e.g. a right of way may be limited to use in connection with the use of the dominant land as a private residence or it may extend to use for all purposes)?
Form: is the right restricted to a particular form of use (e.g. a right of way may be limited to use on foot or it may also extend to use by vehicles)?
Intensity: is the right restricted to a particular intensity of use (e.g. a right of way may be limited to a particular volume of traffic or it may be unrestricted)?
Generally, where changes in the form, purpose or intensity of use substantially increase the burden on the servient owner in comparison with that which existed at the time of grant, the servient owner may seek an injunction to prevent "excessive user".
The precise scope of an easement (i.e. limitations with regard to purpose, form and intensity) depends largely on the circumstances surrounding its acquisition. As such, it is helpful to distinguish between the following:
• Easements created by express grant or reservation or by statute;
• Easements acquired by implied grant or reservation; and
• Easements acquired by presumed grant.
At common law, interference with an easement gives rise to a right of abatement. In other words, a dominant owner is entitled to remove any obstruction which interferes with the exercise of her easement. However, there are important limitations on the exercise of this right. For example, it may not be used in circumstances which might result in a breach of the peace or where third parties might be endangered. Unless the dominant owner is certain of her legal rights before entering the servient owner's land and causing damage to property, she may expose herself to liability in trespass.
The more usual course of action is for the injured landowner to seek legal redress in the form of damages and/or an injunction. Note that a claim for interference with an easement is framed as an action in the tort of nuisance. This section of the workbook examines how the courts decide whether to grant an injunction or damages for interference with easements.
The remedies available in cases of interference with an easement are damages and/or an injunction. The policy factors influencing the choice of remedy may be summarised as follows:
In cases involving continuing interference with an easement, an award of damages is usually an inadequate remedy. The effect of awarding damages alone in these circumstances is to enable a servient owner to "buy-off" the dominant owner's property rights. The courts have generally been reluctant to sanction this form of "compulsory purchase".
However, if a servient owner has erected buildings or carried out other construction work in a manner which interferes with an easement, a mandatory injunction requiring demolition of the buildings may be seen as economically and socially wasteful. In this context, it is important to note that an injunction is a discretionary remedy. In cases where, for example, a servient owner has acted innocently and the grant of a mandatory injunction would cause him substantial loss, the courts may be prepared to exercise discretion in awarding damages instead of an injunction.
In deciding whether to grant damages or an injunction for interference with an easement, the courts generally apply the principles set out by A.L. Smith L.J. in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 at 323:
"... (1) If the injury to the plaintiff's legal rights is small, (2) And is one which can be estimated in money, (3) And is one which could be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction:- then damages in substitution for an injunction may be given."
However, A.L.Smith L.J. went on to point out that in determining the appropriate remedy the court is also entitled to take into account the behaviour of the defendant:
"There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with reckless disregard to the plaintiff's rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction."
Pugh v Howells (1985) 48 P & CR 298 provides an example of how the principles developed in Shelfer's Case are applied in practice. In this case, the plaintiffs and defendants owned adjoining terraced houses. Despite repeated warnings from the plaintiffs, the defendants built a two-storey extension at the rear of their house which interfered with the plaintiffs' right to light. Although the trial judge awarded damages of £500 instead of an injunction, the Court of Appeal reversed this decision and granted an injunction requiring the removal of the second storey of the extension. The fact that the defendants had built the extension hastily over a bank holiday weekend in full knowledge of the plaintiffs' objections was held to justify the grant of a mandatory injunction requiring removal of the extension above ground floor level.
More complex questions about the relationship between scope, interference and remedies have arisen in cases involving easements in common (i.e. where several pieces of land in different ownership each have an easement, such as a right of way, over the same servient tenement). These issues are examined in the remainder of this section of the workbook.
In Jelbert v Davis [1968] 1 WLR 589 the plaintiff had acquired part of a large agricultural estate together with an easement over land retained by the vendor. The easement was expressed as "a right of way at all times and for all purposes over the driveway ... leading to the main road, in common with all other persons having the like right". The plaintiff subsequently obtained planning permission to use his land as a caravan site for up to 200 caravans between April and October each year. The defendants, who also had rights to use the driveway, objected that use of the driveway by 200 caravans would be excessive and a nuisance.
It was held in the Court of Appeal that the terms of the plaintiff's grant made it clear that his right to use the driveway had to be reconciled with the rights of other users. As such, the plaintiff's proposed user was excessive and would be prevented by an injunction. However, when invited to consider what level of user might be permissible, Lord Denning said:
"So far as this lane is concerned, however, the parties must abide by the law as we declare it to be. I am quite clear that 200 units is excessive. We are asked to state what number is permissible. I am afraid we cannot give any guidance on this point. It is a matter of fact and degree depending on what happens. Beyond saying that 200 units are too much, I am afraid we must leave it to the parties themselves to work out what is a reasonable user."
The approach adopted in Jelbert v Davis can be compared with that in Rosling v Pinnegar (1986) 54 P & CR 124, another case concerning a right of way over a lane enjoyed in common by several landowners. In this case, the defendant landowner had restored an architecturally significant house on his land and opened it to the public. He invited members of the public visiting the house to make use of the lane. The plaintiffs, who also had rights to use the lane, complained that the defendant's actions resulted in wrongful and excessive use of the right of way.
For the same reason as that given in Jelbert v Davis, the trial judge upheld the plaintiffs' claim. However, in addition to a general injunction restraining unreasonable interference with the use of the right of way, the trial judge made a detailed order regulating the use of the right of way. In particular, the order specified the maximum number of people and size of vehicles permitted to use the right of way, it also limited the dates and times when the defendant could arrange for members of the public to use the right of way. The judge's order was subsequently upheld with minor amendments by the Court of Appeal. It is interesting to note that in this case May LJ expressed his suspicion that the plaintiffs were seeking to use the dispute over the right of way as a means of securing their broader objective of preventing the defendant from opening his house to the public.
Termination of Easements
When landowners create easements they commit themselves and their successors in title to obligations of indefinite duration. Easements inevitably restrict the development and use of land and, with the passage of time, these restrictions may come to be seen as unnecessary or undesirable. In some circumstances, easements may also fall into disuse or become redundant (e.g. as a result of changes in the use of the dominant tenement). It is therefore important that there should be some means of terminating easements.
At the same time, easements constitute a valuable form of property and the courts are therefore reluctant to find that an easement has been extinguished in circumstances where such a finding is opposed by the dominant owner. There is no general statutory regime for the modification or discharge of easements (as there is for restrictive covenants under section 84 of the Law of Property Act 1925). There are nevertheless several more limited methods, at common law and by statute, whereby an easement may be extinguished.
The methods of terminating easements at common law are as follows:
(a) Express Release: It is always open to the current owners of the dominant and servient tenements to agree to discharge an easement (often in exchange for payment by the servient owner). At common law an express release must be effected by deed.
(b) Implied Release: There are also circumstances in which the courts will find that an easement is extinguished on the basis of an implied release by the dominant owner. These circumstances can be categorised under the headings of abandonment and frustration (click on these headings for more information).
(c) Merger or "Unity of Seisin": An easement may also be extinguished when the fee simple absolute in possession of both the dominant and servient tenements come under single ownership. In these circumstances, rights which were formerly exercised as easements simply become part of the ordinary incidents of ownership.
Easements may also be extinguished in pursuit of various statutory powers. For example, the Channel Tunnel Act 1987 provided powers of compulsory purchase in connection with land required for the construction of the Channel Tunnel. These included the following provisions (Schedule 5, Part III, paragraph 5):
"(1) All private rights of way over any land which may be acquired compulsorily under this Act shall be extinguished on the acquisition of the land ...
(2) Any person who suffers loss by the extinguishment of any right under this paragraph shall be entitled to compensation."
Similar provisions are included in many other enactments which authorise public agencies or private bodies to acquire land compulsorily (see, for example, sections 236 and 237 of the Town and Country Planning Act 1990, section 151 of the Water Act 1989).
This definition makes it clear that easements are rights appurtenant to land. In other words, they are intended to run with land and are enforceable by the owner for the time being of one piece of land against the owner for the time being of another piece of land. It is also evident from this definition that easements may be either positive (e.g. a right of way) or negative (e.g. a right to light).
Classification
Easements may be classified as incorporeal hereditaments or third party rights in land. Thus, rights recognised as easements are treated as proprietary, rather than purely contractual, in the sense that they are capable of binding successors in title of the original grantor and grantee.
Comparisons and Contrasts
In understanding the law relating to easements, it is helpful to distinguish between easements and other categories of rights which have certain similarities with easements. These include:
• licences
• local customary rights
• natural rights
• profits a prendre
• public rights
• restrictive covenants
Licences
A licence constitutes a permission to do something on or affecting land which would otherwise constitute a trespass. The key distinction between a licence and an easement is that the former is a personal right (i.e. a right in personam which is normally enforceable only against the person who created it), but the latter is a property right (i.e. a right in rem which may be enforceable against anyone who interferes with it). Although this distinction has been eroded to some extent by developments in the law relating to licences, its conceptual significance remains intact.
Local Customary Rights
Local customary rights are rights which accrue to members of a particular local community. The content of these rights is often similar to the subject-matter of easements. However, as participation in these rights is defined by reference to membership of a local community rather than landownership, they do not necessarily benefit any defined dominant tenement. Moreover, as a local community (comprising, say, the fluctuating population of a village) has no separate legal personality, it is incapable of acquiring rights under a grant. Common law recognition of these "communal easements" stems instead from the idea of "custom". As such, a local customary right must be certain, reasonable, commencing from time immemorial (in theory pre-1189, but in practice uninterrupted use for at least 20 years provided that there is no evidence that the use originated after 1189), uninterrupted, and applicable to a particular geographical area. Examples of local customary rights include rights to play sports or to hold an annual fair on a defined piece of land.
Natural Rights
Natural rights are rights which are automatically available to landowners as incidents of landownership. They differ from easements in that they do not depend on any grant. Thus, for example, a landowner has a natural right to support for her land (but not buildings) from neighbouring land. As in cases of interference with an easement, interference with a natural right gives rise to an action for nuisance. In this context, Simpson has argued that "[t]he terminology which speaks of natural rights is now, however, suspect; it is simpler and more intelligible to talk of the situations in which a landowner can sue in tort without proving the existence of a servitude, than to speak of natural rights and attempt to list these" (A. W. B. Simpson, A History of the Land Law, 2nd edition, 1986, Clarendon Press, Oxford, pp.263-264)
Profits a Prendre
A profit a prendre is a right to take and carry away something from servient land. It may comprise a right to take part of the servient land itself (e.g. peat, turf, gravel, etcetera), or something growing on the servient land (e.g. grass, crops, trees, etcetera), or wild animals or fish found on the servient tenement.
In contrast to profits, easements do not comprise rights take anything from the servient land. As such, an easement can be described as "a privilege without profit".
Public Rights
Public rights are rights which are exercisable by any member of the public. As these rights exist by virtue of the general law, they do not depend on a specific grant to any individual. Moreover, as these rights are available to all members of the public, they do not depend on the existence of a dominant tenement. Examples of public rights include rights of passage along a public highway, rights to fish in the sea, and rights of passage in navigable tidal waters.
In contrast to some other jurisdictions, English law recognises no general right to wander over open countryside (also known as "ius spatiandi", see Attorney-General v Antrobus [1905] 2 Ch 188). Indeed, public rights in relation to recreational use of the countryside - for activities such as hill walking, horse riding, or mountain biking - are poorly defined in English law. Instead of a general right of access, recreational uses of open land are regulated by complex and overlapping statutory regimes (see, for example, National Parks and Access to the Countryside Act 1949, Countryside Act 1968, Water Resources Act 1991).
Restrictive Covenants
There are certain similarities between easements and restrictive covenants. Indeed, restrictive covenants are sometimes referred to as "negative easements". However, there are also important differences between these two categories of rights. For example, whereas easements can be acquired by various means (see the section of this workbook entitled "Acquisition of Easements"), restrictive covenants can be created only by deed. Moreover, while easements may be legal or equitable, restrictive covenants are enforceable only in equity. On the other hand, while the subject-matter of easements is strictly limited, the content of restrictive covenants is potentially much broader (see the "Covenants" workbook).
Benefit and Burden
All easements have both a benefit and a burden. For example, if A, the owner of Acre, grants B, the owner of Hectare, a right of way over Acre, the right of way confers a benefit on Hectare but it also imposes a burden on Acre. Thus, B, as owner for the time being of Hectare, acquires a right to pass and re-pass over the way, and A, as owner for the time being of Acre, is under an obligation not to interfere with B's passage.
The significance of this distinction becomes apparent when it is realised that lawyers treat the transmission of the benefit of an easement separately from the transmission of its burden. Therefore, a person seeking to enforce an easement must show not only that she has acquired the benefit of the easement, but also that the person against whom it is to be enforced has become subject to its burden. This leads directly to questions about the protection of easements.
Legal and Equitable Easements
An easement may be either legal or equitable. The practical importance of the distinction is that it affects the circumstances in which the burden of an easement is binding upon successors in title of the original grantor:
Legal: A legal easement must be "an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute" (section 1(2)(a) of the Law of Property Act 1925), and it must also be created by deed, statute, or prescription (see the "Acquisition of Easements" section of this workbook).
Equitable: An easement will be equitable if it (a) falls outside the scope of section 1(2)(a) (e.g. it is created as a life interest); or (b) is created for value but lacks the formalities required for creation be deed (e.g. a contract to create an easement).
Protection of Easements
Once an easement has been duly created or acquired, its benefit becomes annexed to the dominant land and passes automatically to successors in title of the original grantee. This applies whether the easement is legal or equitable and whether the land is registered or unregistered.
The burden of a legal easement is also automatically binding on successors in title of the original grantor regardless of whether the land is registered or unregistered. In contrast, if the burden of an equitable easement is to be enforceable against third parties, it should normally be protected by registration. The mode of registration varies according to whether the land is:
Registered or Unregistered
Registered Land
The burden of an equitable easement may be protected by the entry of a minor interest against the title of the servient land. However, an equitable easement may also be protected as an overriding interest under either section 70(1)(a) or section 70(1)(g) of the Land Registration Act 1925 (see Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204).
Unregistered Land
The burden of an equitable easement is registrable as a Class D(iii) land charge against the name of the grantor. However, an unregistered equitable easement may also be enforceable against a third party in circumstances where it is possible to establish estoppel (see E R Ives Investment Ltd v High [1967] 2 QB 379).
Policy Issues
The law relating to easements enables landowners to acquire limited rights of use in relation to land owned by others. This promotes efficiency of land use in that it allows for the co-existence of multiple use rights in relation to a single piece of land. It is therefore economically and socially beneficial that a system of land law should make provision for limited use rights which are capable of enduring over time. This argument can be illustrated by the following counter-example:
In the absence of "easement-like" rights, the only means whereby a person could obtain an enduring right of way over a piece of land would be to purchase the land outright (i.e. acquire the fee simple absolute in possession). Clearly, a system of land law which required a person to purchase a piece of land when all she wanted to do was to pass and re-pass over it from time to time would be unlikely to result in the efficient use of land.
Despite the benefits of facilitating limited but enduring third party rights in land, it is also clear that there are potential costs in terms of restrictions on the subsequent marketability, use and development of land burdened by these rights. Thus, as Gray and Symes have argued:
"Since the concern here is with the borderline of the law of property, it should come as no surprise that the law has traditionally imposed certain stringent requirements as to the definition of the rights which may qualify as easements ... and as to their mode of creation and acquisition. The marketability of land would be gravely affected if these rules were not fairly clear and fairly rigorously applied. Otherwise titles to land would become encumbered by useless and anti-social user-rights of dubious enforceability, vested in unspecified or unascertainable third parties. The resulting chaos would be gravely prejudicial to the large social interest which pervades our law of property - the interest that property should be freely alienable." (K. Gray and P. Symes, Real Property and Real People, 1981, Butterworths, London, p.577).
Much of the historical development and technical detail of the law relating to easements can be understood in terms of attempts to balance these benefits and costs in the context of changing social and economic conditions.
Despite the utility of easements in facilitating the private planning of land use and development, it is important to note that easements constitute a "market mechanism" for the distribution of rights in land. As for other rights in land, the scope for compulsory acquisition of easements is strictly limited by statute (e.g. Compulsory Purchase Act 1965, Acquisition of Land Act 1981, Town and Country Planning Act 1990). In this context, failure to obtain easements can also have detrimental effects in relation to the use and development of land.
For example, in British Railways Board v Secretary of State for the Environment and London Borough of Hounslow [1993] JPL 342 the plaintiffs sought to develop part of a disused railway yard for residential purposes. Development of the site hinged upon the grant of rights of way and other easements over land owned by the local authority. When it became clear that the local authority was not prepared to grant the necessary rights of way, planning permission was refused and the proposed development abandoned.
Characteristics of Easements
The classification of a particular right as an easement has important consequences, particularly in terms of its capacity to run with land so as to bind successors in title of the original grantor and grantee. Moreover, easements may be created or acquired by means other than express agreement between the owners of dominant and servient land (see the "Acquisition of Easements" section of this workbook).
In these circumstances, the courts have imposed strict conditions on the types of rights which are capable of qualifying as easements. This section of the workbook analyses the characteristics which must be present if a right a right is to qualify as a valid easement.
"Four Essentials"
The four essential requirements of a valid easement were set out in the case of In re Ellenborough Park [1956] Ch 131. Adopting the formulation of these requirements from Cheshire's Modern Real Property, 7th edition, pp.456 et seq, Evershed MR said that:
(1) there must be a dominant and a servient tenement;
(2) an easement must 'accommodate' the dominant tenement;
(3) the dominant and servient owners must be different persons; and
(4) a right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant.
These four requirements will now be considered in more detail.
(1) there must be a dominant and a servient tenement
An easement must be linked to two parcels of land. There must be a dominant tenement in favour of which the easement is acquired, and a servient tenement over which the easement may be exercised. This requirement is designed to prevent the creation of easements in gross.
There are, however, exceptions to the rule against easements in gross, particularly for easements required in connection with the activities of public authorities and private utility companies (e.g. water, gas, electricity, telephone). In these circumstances, easements in gross are seen as necessary to fulfil broader social and economic objectives associated with planning activities and the delivery of essential services, even though they do not necessarily benefit any defined dominant land.
(2) the easement must accommodate the dominant tenement
The requirement that an easement must "accommodate" or "benefit" the dominant tenement is intended to distinguish rights which confer purely personal or commercial advantages from those which enhance the utility of land. For example, in Hill v Tupper (1863) 2 H & C 121 the plaintiff had taken a lease of land on a canal bank from the owner of the canal. The lease purported to grant the plaintiff the exclusive right to hire out pleasure boats on the canal. The defendant who also owned land adjacent to the canal proceeded to hire out canal boats from his land. The plaintiff brought an action against the defendant for interference with his "easement" to hire boats on the canal. The Court of Exchequer held that the right claimed by the plaintiff was unconnected with the use and enjoyment of his land and could not, therefore, constitute an easement.
The accommodation requirement also implies that the dominant and servient tenements must be located in reasonable proximity to one another. Thus, it has been said that it is impossible to have "... a right of way over land in Kent appurtenant to an estate in Northumberland" (per Byles J in Bailey v Stephens (1862) 12 CBNS 91 at 115).
(3) the dominant and servient tenements must be owned or occupied by different persons
It is integral to the definition of an easement that it is a right over another person's land. It follows that the dominant and servient tenements must be owned by different persons. As Lord Wilberforce said in Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144:
"... when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist ...".
However, it is important to note that a tenant may acquire an easement over land owned by his landlord. Although in these circumstances both the dominant and servient tenements may be said to be "owned" by the landlord, the requirement for a valid easement is satisfied by the diversity of occupation.
(4) a right over land cannot amount to an easement, unless it is capable of
forming the subject-matter of a grant
This requirement stems from the idea that all easements "lie in grant" (i.e. could have been granted by deed). Ultimately, this is a fiction because easements may be acquired by means other than grant (see the "acquisition of easements" section of this workbook). Nevertheless, this requirement imports the following conditions for the creation of a valid easement:
(a) there must be a capable grantor and grantee;
(b) the right must be sufficiently definite;
(c) the right must be within the class of rights generally recognised as easements;
(d) the right must not impose any positive burden on the servient owner;
(e) the right must not be inconsistent with the proprietorship or possession of the servient owner.
These five elements are analysed in more detail in the remainder of this section of the workbook.
(a) there must be a capable grantor and grantee
The grant of an easement will be invalid unless the grantor has the power to grant the right claimed as an easement over the servient tenement. This follows directly from the general principle of nemo dat quod non habet (i.e. no one can give what she does not have). For example, an easement granted by a tenant for life cannot endure beyond the tenant's life interest. Moreover, as the life tenant's interest in land is equitable, any easement which he creates is also necessarily equitable.
Equally, the grantee must be a legal person capable of receiving a grant for the benefit of the dominant tenement. It follows that easements cannot be granted in favour of individuals who do not own land or social groups lacking separate legal personality (e.g. the members for the time being of a local community), although they may be able to acquire local customary rights.
(b) the right must be sufficiently definite
Given that an easement must "lie in grant" (i.e. be capable of being granted by deed), it follows that a right cannot qualify as an easement unless it can be described with a reasonable degree of precision. The rule against easements which are "too vague and uncertain" also serves to confine the restrictions which easements may place on the use and development of servient land and to limit the opportunity for disputes about their scope.
The following have been prevented from qualifying as easements on the grounds that they are "too vague and uncertain" or "too indefinite": a right to a view (William Aldred's Case (1610) 9 Co Rep 57b), a general jus spatiandi or right to wander at will over land (In re Ellenborough Park [1956] Ch 131), a right to a flow of air (Harris v De Pinna (1886) 33 ChD 238).
(c) the right must fall within the class of rights generally recognised as easements
Although a right which exhibits the four characteristics noted in In re Ellenborough Park is capable of existing as an easement, it is difficult to predict how the courts will respond to claims for new types of rights to be recognised as easements. It is often said that the list of easements is not closed, but it is also clear that the courts have been cautious about classifying new types of rights as easements. The contrasting objectives are neatly captured in the following statements from 19th century cases:
"[I]t must not ... be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner. It is clearly inconvenient both to the science of the law and to the public weal that such a latitude should be given." (per Lord Brougham LC in Keppell v Bailey (1834) 2 My & K 517 at 535).
"The category of easements must alter and expand with the changes that take place in the circumstances of mankind." (per Lord St Leonards LC in Dyce v Hay (1852) 1 Macq 305 at 312).
The cautious approach towards the classification of new rights as easements reflects the broader policy tension between, on the one hand, resistance to the creation of third party rights which may restrict the marketability of land. and, on the other hand, recognition of new rights which can promote the efficient utilisation of land.
Although it is relatively rare that new rights are recognised as easements, it was held in Dowty Boulton Paul Ltd v Wolverhampton Corporation (No. 2) [1976] 1 Ch 13 that a right to use an airfield was capable of existing as an easement. Russell LJ said at 23: "I do not see in principle why such a right cannot exist as an easement. A tendency in the past to freeze the categories of easements has been overtaken by the decision in In re Ellenborough Park."
For examples of right which have been held to be capable of existing as easements, see examples of easements.
(d) the right must not impose any positive burden on the servient owner
It is generally held that a right which imposes a positive burden (e.g. an obligation to spend money) on a servient owner cannot qualify as an easement. Although from the standpoint of the dominant owner an easement may be either positive (i.e. a right to do something on a neighbour's land) or negative (i.e. a right ot prevent a neighbour from doing something on the neighbour's own land), the servient owner's role in both instances is essentially passive. Thus, in Rance v Elvin (1985) 50 P & CR 9, the Court of Appeal refused to accept as an easement a right to a supply of water (i.e. a positive obligation to supply), but admitted a right to an uninterrupted passage of water through pipes beneath neighbouring land (i.e. a negative obligation not to interfere with supply).
There are exceptions to the rule against easements which impose positive burdens on servient owners. For example, a well-known exception is the "easement of fencing" whereby a servient owner can be obliged to take positive action to maintain fencing: Crow v Wood [1971] 1 QB 77).
New Negative Easements
In Phipps v Pears [1965] 1 QB 76 the plaintiff sought to recover damages for interference with "an easement of protection from the weather" resulting from the demolition of buildings on the defendant's land. The Court of Appeal rejected the plaintiff's claim on the basis that a right of protection from the weather was not capable of existing as an easement. In particular, Lord Denning said that such an easement would be entirely negative and "... the law has been very chary of creating any new negative easements".
(e) the right must not be inconsistent with the proprietorship or possession of the servient owner
An easement is a form of third party right in land in the sense that it constitutes a limited right over land belonging to another. Therefore, a right which amounts to a claim to exclusive possession or joint occupation of servient land cannot constitute an easement. Thus, in Copeland v Greenhalf [1952] Ch 488 the defendant claimed to have acquired a right to store and repair vehicles on a strip of land owned by the plaintiff. Upjohn J held that this was "... virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which could justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement".
In contrast, the following rights have been held to be capable of existing as easements despite the fact that they necessarily entail an element of exclusive possession or joint occupation: a right to use a coal shed (Wright v Macadam [1949] 2 KB 744), a right to use a lavatory (Miller v Emcer Products Ltd [1956] Ch 304), and a right to park a car anywhere on a defined area of land (London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31.
Ellenborough Park Revisited
As we have seen, the leading authority on the characteristics of a valid easement is In re Ellenborough Park [1956] 1 Ch 131. This case concerned a right to use a park comprising ornamental gardens. The right was shared in common by the owners of houses adjoining the park. In each case the original purchasers of the houses had been granted: "... the full enjoyment ... at all times hereafter in common with other persons to whom such easements may be granted of the pleasure ground set out and made in front of such plot of land ... in the centre of the square called Ellenborough Park ... subject to the payment of a fair and just proportion of the costs charges and expenses of keeping in good order and condition the said pleasure ground". The park itself was vested in trustees who were responsible for its upkeep. The dispute arose in relation to compensation after the Second World War when the park had been requisitioned for military purposes. Compensation was available to the owners of the houses only if they could show interference with their property rights. As such, it was essential for them to establish that their right to use the park constituted an easement rather than a contractual licence.
Acquisition of Easements
In analysing whether a particular right is enforceable as an easement it is necessary to consider not only whether it has the required characteristics, but also how it has been acquired. Much of the difficulty in this area of law stems from the variety of methods whereby easements may be acquired.
The various methods of acquisition are set out schematically in the diagram on the next page. To discover more about each method of acquisition, click on the relevant box.
Scope, Interference and Remedies
In addition to issues about whether rights are capable of existing as easements and whether they have been duly created or acquired, practical questions also arise about the scope or extent of easements and the appropriate remedies in cases of interference,
This section of the workbook begins by considering how the scope of an easement is determined (i.e. how can we establish the precise nature and extent of the rights of the dominant owner and the obligations of the servient owner?). It then examines the remedies available in cases of interference with an easement and investigates issues affecting the choice of remedy.
Questions about the scope of an easement raise particular difficulties in cases where the use of the relevant land has changed over time resulting in increased or novel demands in relation to the exercise of the easement. Therefore, in analysing the scope of an easement it is helpful to think in terms of the following:
Purpose: is the right restricted to use for a particular purpose (e.g. a right of way may be limited to use in connection with the use of the dominant land as a private residence or it may extend to use for all purposes)?
Form: is the right restricted to a particular form of use (e.g. a right of way may be limited to use on foot or it may also extend to use by vehicles)?
Intensity: is the right restricted to a particular intensity of use (e.g. a right of way may be limited to a particular volume of traffic or it may be unrestricted)?
Generally, where changes in the form, purpose or intensity of use substantially increase the burden on the servient owner in comparison with that which existed at the time of grant, the servient owner may seek an injunction to prevent "excessive user".
The precise scope of an easement (i.e. limitations with regard to purpose, form and intensity) depends largely on the circumstances surrounding its acquisition. As such, it is helpful to distinguish between the following:
• Easements created by express grant or reservation or by statute;
• Easements acquired by implied grant or reservation; and
• Easements acquired by presumed grant.
At common law, interference with an easement gives rise to a right of abatement. In other words, a dominant owner is entitled to remove any obstruction which interferes with the exercise of her easement. However, there are important limitations on the exercise of this right. For example, it may not be used in circumstances which might result in a breach of the peace or where third parties might be endangered. Unless the dominant owner is certain of her legal rights before entering the servient owner's land and causing damage to property, she may expose herself to liability in trespass.
The more usual course of action is for the injured landowner to seek legal redress in the form of damages and/or an injunction. Note that a claim for interference with an easement is framed as an action in the tort of nuisance. This section of the workbook examines how the courts decide whether to grant an injunction or damages for interference with easements.
The remedies available in cases of interference with an easement are damages and/or an injunction. The policy factors influencing the choice of remedy may be summarised as follows:
In cases involving continuing interference with an easement, an award of damages is usually an inadequate remedy. The effect of awarding damages alone in these circumstances is to enable a servient owner to "buy-off" the dominant owner's property rights. The courts have generally been reluctant to sanction this form of "compulsory purchase".
However, if a servient owner has erected buildings or carried out other construction work in a manner which interferes with an easement, a mandatory injunction requiring demolition of the buildings may be seen as economically and socially wasteful. In this context, it is important to note that an injunction is a discretionary remedy. In cases where, for example, a servient owner has acted innocently and the grant of a mandatory injunction would cause him substantial loss, the courts may be prepared to exercise discretion in awarding damages instead of an injunction.
In deciding whether to grant damages or an injunction for interference with an easement, the courts generally apply the principles set out by A.L. Smith L.J. in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 at 323:
"... (1) If the injury to the plaintiff's legal rights is small, (2) And is one which can be estimated in money, (3) And is one which could be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction:- then damages in substitution for an injunction may be given."
However, A.L.Smith L.J. went on to point out that in determining the appropriate remedy the court is also entitled to take into account the behaviour of the defendant:
"There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with reckless disregard to the plaintiff's rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction."
Pugh v Howells (1985) 48 P & CR 298 provides an example of how the principles developed in Shelfer's Case are applied in practice. In this case, the plaintiffs and defendants owned adjoining terraced houses. Despite repeated warnings from the plaintiffs, the defendants built a two-storey extension at the rear of their house which interfered with the plaintiffs' right to light. Although the trial judge awarded damages of £500 instead of an injunction, the Court of Appeal reversed this decision and granted an injunction requiring the removal of the second storey of the extension. The fact that the defendants had built the extension hastily over a bank holiday weekend in full knowledge of the plaintiffs' objections was held to justify the grant of a mandatory injunction requiring removal of the extension above ground floor level.
More complex questions about the relationship between scope, interference and remedies have arisen in cases involving easements in common (i.e. where several pieces of land in different ownership each have an easement, such as a right of way, over the same servient tenement). These issues are examined in the remainder of this section of the workbook.
In Jelbert v Davis [1968] 1 WLR 589 the plaintiff had acquired part of a large agricultural estate together with an easement over land retained by the vendor. The easement was expressed as "a right of way at all times and for all purposes over the driveway ... leading to the main road, in common with all other persons having the like right". The plaintiff subsequently obtained planning permission to use his land as a caravan site for up to 200 caravans between April and October each year. The defendants, who also had rights to use the driveway, objected that use of the driveway by 200 caravans would be excessive and a nuisance.
It was held in the Court of Appeal that the terms of the plaintiff's grant made it clear that his right to use the driveway had to be reconciled with the rights of other users. As such, the plaintiff's proposed user was excessive and would be prevented by an injunction. However, when invited to consider what level of user might be permissible, Lord Denning said:
"So far as this lane is concerned, however, the parties must abide by the law as we declare it to be. I am quite clear that 200 units is excessive. We are asked to state what number is permissible. I am afraid we cannot give any guidance on this point. It is a matter of fact and degree depending on what happens. Beyond saying that 200 units are too much, I am afraid we must leave it to the parties themselves to work out what is a reasonable user."
The approach adopted in Jelbert v Davis can be compared with that in Rosling v Pinnegar (1986) 54 P & CR 124, another case concerning a right of way over a lane enjoyed in common by several landowners. In this case, the defendant landowner had restored an architecturally significant house on his land and opened it to the public. He invited members of the public visiting the house to make use of the lane. The plaintiffs, who also had rights to use the lane, complained that the defendant's actions resulted in wrongful and excessive use of the right of way.
For the same reason as that given in Jelbert v Davis, the trial judge upheld the plaintiffs' claim. However, in addition to a general injunction restraining unreasonable interference with the use of the right of way, the trial judge made a detailed order regulating the use of the right of way. In particular, the order specified the maximum number of people and size of vehicles permitted to use the right of way, it also limited the dates and times when the defendant could arrange for members of the public to use the right of way. The judge's order was subsequently upheld with minor amendments by the Court of Appeal. It is interesting to note that in this case May LJ expressed his suspicion that the plaintiffs were seeking to use the dispute over the right of way as a means of securing their broader objective of preventing the defendant from opening his house to the public.
Termination of Easements
When landowners create easements they commit themselves and their successors in title to obligations of indefinite duration. Easements inevitably restrict the development and use of land and, with the passage of time, these restrictions may come to be seen as unnecessary or undesirable. In some circumstances, easements may also fall into disuse or become redundant (e.g. as a result of changes in the use of the dominant tenement). It is therefore important that there should be some means of terminating easements.
At the same time, easements constitute a valuable form of property and the courts are therefore reluctant to find that an easement has been extinguished in circumstances where such a finding is opposed by the dominant owner. There is no general statutory regime for the modification or discharge of easements (as there is for restrictive covenants under section 84 of the Law of Property Act 1925). There are nevertheless several more limited methods, at common law and by statute, whereby an easement may be extinguished.
The methods of terminating easements at common law are as follows:
(a) Express Release: It is always open to the current owners of the dominant and servient tenements to agree to discharge an easement (often in exchange for payment by the servient owner). At common law an express release must be effected by deed.
(b) Implied Release: There are also circumstances in which the courts will find that an easement is extinguished on the basis of an implied release by the dominant owner. These circumstances can be categorised under the headings of abandonment and frustration (click on these headings for more information).
(c) Merger or "Unity of Seisin": An easement may also be extinguished when the fee simple absolute in possession of both the dominant and servient tenements come under single ownership. In these circumstances, rights which were formerly exercised as easements simply become part of the ordinary incidents of ownership.
Easements may also be extinguished in pursuit of various statutory powers. For example, the Channel Tunnel Act 1987 provided powers of compulsory purchase in connection with land required for the construction of the Channel Tunnel. These included the following provisions (Schedule 5, Part III, paragraph 5):
"(1) All private rights of way over any land which may be acquired compulsorily under this Act shall be extinguished on the acquisition of the land ...
(2) Any person who suffers loss by the extinguishment of any right under this paragraph shall be entitled to compensation."
Similar provisions are included in many other enactments which authorise public agencies or private bodies to acquire land compulsorily (see, for example, sections 236 and 237 of the Town and Country Planning Act 1990, section 151 of the Water Act 1989).
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