Chapter 9: Easement
Prescription
Where an easement has been exercised for a sufficient period of time the law will presume that it was validly granted.
As Nourse LJ in Buckinghamshire County Council v Moran [1989] 3 WLR 152 observed, prescription and adverse possession are both based on long user but they operate in different ways. Whereas adverse possession depends on extinguishing the owner's title by establishing possession which exceeds the relevant limitation period, prescription operates by presuming that the owner made a grant of the easement even though no actual deed can be produced.
The presumption of the grant of an easement will arise where there has been the open and continuous exercise of a right over another's land:
1. since time immemorial, which the common law takes to be 1189!; or
2. for at least 20 years, in which case the law presumes that there was a grant which has been lost; or
3. for at least 40 years for all easements bar rights to light, and 20 years in the case of a right to light, these being the requisite statutory periods under the Prescription Act 1832.
The Implied Grant of Easements
We have already seen that in certain circumstances easements may be implied as a result of the operation of section 62 of the Law of Property Act 1925, or in the case of prescriptive easements, in recognition of a de facto situation - see 'Formalities' and 'De Facto Interests' respectively. These are not the only varieties of implied easement however. There are three further types which have arisen largely as a result of the ancient common law principle that a grantor may not derogate from his grant. They are:
1. easements of necessity;
2. easements arising as a result of the rule in Wheeldon v Burrows; and
3. easements of common intention.
It should be remembered that easements cannot exist over land which is in common ownership. However, the necessary diversity of ownership can be created by the disposal of part of a piece of land. Wherever there is such a disposal of part, any of these three types of easement may be implied to give effect to the presumed intentions of the parties. Intention plays an important role in this area.
Easements of Necessity
Suppose that both House A and House B, together with all the surrounding land as illustrated below, is owned by Mr. and Mrs Jones. They decide to sell House A to Fred, but retain House B. Clearly, the only access to House A is along the driveway which also serves House B. It will be necessary for Fred to be given a right of way over that part of the driveway which the Jones's intend to retain, or else his property will be landlocked.
Should the parties omit to include an appropriate right in the conveyance, an easement of necessity will be implied. Such easements may be implied not only in favour of a purchaser, but also a seller. Thus in our example, if Mr. and Mrs. Jones had elected to sell House B whilst retaining House A, and had then forgotten to reserve a suitable easement, a right of way would nevertheless have been presumed in their favour.
At one time it was thought that the rationale for the creation of easements of necessity lay in public policy. It could not, it was argued, be in the public interest to allow land to become inaccessible. This idea was rejected however, in Nickerson v Barraclough [1981] Ch 426, in which the court made it clear that the basis of the doctrine was the presumed intention of the parties.
Nickerson v Barraclough and others [1979] Chancery division
Easement - Right of way - Way of necessity - Landlocked building plot - No right of way over proposed new roads until built - Whether way of necessity to be implied from grant - Public policy against land being made unusable - Right of way to plot - Whether means of access to plot beyond - Express or implied intention of parties
In 1973, the plaintiff bought a rectangular field which was landlocked save for a lane belonging to the defendants which ran parallel with the east side of the field and was approached through the plaintiff's gate and over a small bridge at the north east corner where the field adjoined a dyke or ditch. The lane at its north end entered a public highway.
In 1900 both the field and the lane had been part of one estate intended for building purposes. A plan in auction particulars showed building plots with proposed new roads to the north, parallel with the highway and to the east, running along the site of what in 1966 became the defendants' lane. The auction particulars ended with the words: "The vendors do not undertake to make any of the new roads shown on the plan." In 1906 a conveyance of the major part of what became the plaintiff's field (as set out in an abstract of title) contained restrictions and stipulations in the first schedule including: "The vendor did not undertake to make any of the proposed new roads ... nor did he give any rights of way over the same until the same should (if ever) be made." In 1922 a conveyance of a strip of land on the north side of the field and adjoining it brought into one ownership the remaining part of what later became the plaintiff's field. The 1973 conveyance to the plaintiff was expressed to include a right of way for all purposes over the lane "so far as the vendor has power to convey it."
After the plaintiff purchased the field she rebuilt the bridge built by the previous owner which the defendants had pulled down. In 1974 they pulled down the rebuilt bridge. The plaintiff claimed that by virtue of the 1922 conveyance and section 62 of the Law of Property Act 1925fn1 she was entitled to a right of way from her land over the bridge on to the defendants' lane up to the point where it entered the public highway and back again. Alternatively, she claimed that the stipulations in the 1906 conveyance relating to the use of the land as building land operated to confer a right to use the way over the bridge of necessity and/or by operation of law.
On the questions (1) whether public policy would permit the grant of a way of necessity, implied from the deeds, to be negatived by an express term in the grant of 1906, and (2) whether the right of way claimed by the plaintiff under the 1922 conveyance could be used as a means of access both to the strip of land conveyed and to the land beyond it: -
Held, (1) that in accordance with a rule of public policy that no transaction should without good reason be treated as being effectual to deprive any land of a suitable means of access, the court would read the words of the 1906 conveyance as freeing the vendor from any obligation to make up the proposed new roads on the land conveyed but not so as to negative the way of necessity for building purposes implied in the grant (post, pp. 569B-C, 570D-E).
The Rule in Wheeldon v Burrows
Suppose that the Jones's presently own both of the houses shown below, but intend to sell House A. It is quite possible that certain rights are presently enjoyed over the House B plot by House A. For instance, there may be a septic tank used by both houses, situated in the vicinity of House B. It would not be correct to refer to any such rights as easements, since an easement can only exist where the land benefited by the easement and that burdened by it, (the dominant and servient tenements respectively), are in separate occupation. However, should the Jones's sell the property without expressly granting rights equivalent to those that have been enjoyed over House B, there may be an implied grant of what are termed quasi-easements under the rule in Wheeldon v Burrows.
Thesiger J. identified the necessary elements of the rule as follows:
"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 grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted."
[(1879) 12 Ch D 31 at 49]
The rule is based on the theory that a seller must not derogate from his grant by leaving the property without rights that it enjoyed prior to the sale, but which failed to qualify as easements because of the common occupation of dominant and servient tenements. However, the rule will not support the implication of a reservation. Thus if the Jones's had sold the plot of House B without reserving an express right to use the septic tank situated on it, the rule in Wheeldon v Burrows would not imply such a right.
Easements of Common Intention
Where the parties to a transaction have evidenced a common intention that property transferred should be used in a particular way, easements may be implied if necessary to give effect to that intention. A good illustration of this point is Wong v Beaumont Property Trust [1965] 1 QB 173. A lease of a cellar, to be used as a restaurant, had been granted. The terms of the lease required the lessee to comply with health regulations and control and eliminate all smells. It was subsequently found that the ventilation system was inadequate and the lessee wished to erect a new duct on the landlord's retained property. The current landlord refused to allow the work to be carried out. It was held that since the terms of the lease could not otherwise be performed, an easement of common intention arose, enabling the work to be done.
It should be noted that easements of common intention are similar to those of necessity in that they will only be implied where this is genuinely necessary to give effect to the parties' intentions. However the range of easements that may be implied by common intention may well be wider than the narrow rights that may be implied by necessity alone.
As Nourse LJ in Buckinghamshire County Council v Moran [1989] 3 WLR 152 observed, prescription and adverse possession are both based on long user but they operate in different ways. Whereas adverse possession depends on extinguishing the owner's title by establishing possession which exceeds the relevant limitation period, prescription operates by presuming that the owner made a grant of the easement even though no actual deed can be produced.
The presumption of the grant of an easement will arise where there has been the open and continuous exercise of a right over another's land:
1. since time immemorial, which the common law takes to be 1189!; or
2. for at least 20 years, in which case the law presumes that there was a grant which has been lost; or
3. for at least 40 years for all easements bar rights to light, and 20 years in the case of a right to light, these being the requisite statutory periods under the Prescription Act 1832.
The Implied Grant of Easements
We have already seen that in certain circumstances easements may be implied as a result of the operation of section 62 of the Law of Property Act 1925, or in the case of prescriptive easements, in recognition of a de facto situation - see 'Formalities' and 'De Facto Interests' respectively. These are not the only varieties of implied easement however. There are three further types which have arisen largely as a result of the ancient common law principle that a grantor may not derogate from his grant. They are:
1. easements of necessity;
2. easements arising as a result of the rule in Wheeldon v Burrows; and
3. easements of common intention.
It should be remembered that easements cannot exist over land which is in common ownership. However, the necessary diversity of ownership can be created by the disposal of part of a piece of land. Wherever there is such a disposal of part, any of these three types of easement may be implied to give effect to the presumed intentions of the parties. Intention plays an important role in this area.
Easements of Necessity
Suppose that both House A and House B, together with all the surrounding land as illustrated below, is owned by Mr. and Mrs Jones. They decide to sell House A to Fred, but retain House B. Clearly, the only access to House A is along the driveway which also serves House B. It will be necessary for Fred to be given a right of way over that part of the driveway which the Jones's intend to retain, or else his property will be landlocked.
Should the parties omit to include an appropriate right in the conveyance, an easement of necessity will be implied. Such easements may be implied not only in favour of a purchaser, but also a seller. Thus in our example, if Mr. and Mrs. Jones had elected to sell House B whilst retaining House A, and had then forgotten to reserve a suitable easement, a right of way would nevertheless have been presumed in their favour.
At one time it was thought that the rationale for the creation of easements of necessity lay in public policy. It could not, it was argued, be in the public interest to allow land to become inaccessible. This idea was rejected however, in Nickerson v Barraclough [1981] Ch 426, in which the court made it clear that the basis of the doctrine was the presumed intention of the parties.
Nickerson v Barraclough and others [1979] Chancery division
Easement - Right of way - Way of necessity - Landlocked building plot - No right of way over proposed new roads until built - Whether way of necessity to be implied from grant - Public policy against land being made unusable - Right of way to plot - Whether means of access to plot beyond - Express or implied intention of parties
In 1973, the plaintiff bought a rectangular field which was landlocked save for a lane belonging to the defendants which ran parallel with the east side of the field and was approached through the plaintiff's gate and over a small bridge at the north east corner where the field adjoined a dyke or ditch. The lane at its north end entered a public highway.
In 1900 both the field and the lane had been part of one estate intended for building purposes. A plan in auction particulars showed building plots with proposed new roads to the north, parallel with the highway and to the east, running along the site of what in 1966 became the defendants' lane. The auction particulars ended with the words: "The vendors do not undertake to make any of the new roads shown on the plan." In 1906 a conveyance of the major part of what became the plaintiff's field (as set out in an abstract of title) contained restrictions and stipulations in the first schedule including: "The vendor did not undertake to make any of the proposed new roads ... nor did he give any rights of way over the same until the same should (if ever) be made." In 1922 a conveyance of a strip of land on the north side of the field and adjoining it brought into one ownership the remaining part of what later became the plaintiff's field. The 1973 conveyance to the plaintiff was expressed to include a right of way for all purposes over the lane "so far as the vendor has power to convey it."
After the plaintiff purchased the field she rebuilt the bridge built by the previous owner which the defendants had pulled down. In 1974 they pulled down the rebuilt bridge. The plaintiff claimed that by virtue of the 1922 conveyance and section 62 of the Law of Property Act 1925fn1 she was entitled to a right of way from her land over the bridge on to the defendants' lane up to the point where it entered the public highway and back again. Alternatively, she claimed that the stipulations in the 1906 conveyance relating to the use of the land as building land operated to confer a right to use the way over the bridge of necessity and/or by operation of law.
On the questions (1) whether public policy would permit the grant of a way of necessity, implied from the deeds, to be negatived by an express term in the grant of 1906, and (2) whether the right of way claimed by the plaintiff under the 1922 conveyance could be used as a means of access both to the strip of land conveyed and to the land beyond it: -
Held, (1) that in accordance with a rule of public policy that no transaction should without good reason be treated as being effectual to deprive any land of a suitable means of access, the court would read the words of the 1906 conveyance as freeing the vendor from any obligation to make up the proposed new roads on the land conveyed but not so as to negative the way of necessity for building purposes implied in the grant (post, pp. 569B-C, 570D-E).
The Rule in Wheeldon v Burrows
Suppose that the Jones's presently own both of the houses shown below, but intend to sell House A. It is quite possible that certain rights are presently enjoyed over the House B plot by House A. For instance, there may be a septic tank used by both houses, situated in the vicinity of House B. It would not be correct to refer to any such rights as easements, since an easement can only exist where the land benefited by the easement and that burdened by it, (the dominant and servient tenements respectively), are in separate occupation. However, should the Jones's sell the property without expressly granting rights equivalent to those that have been enjoyed over House B, there may be an implied grant of what are termed quasi-easements under the rule in Wheeldon v Burrows.
Thesiger J. identified the necessary elements of the rule as follows:
"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 grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted."
[(1879) 12 Ch D 31 at 49]
The rule is based on the theory that a seller must not derogate from his grant by leaving the property without rights that it enjoyed prior to the sale, but which failed to qualify as easements because of the common occupation of dominant and servient tenements. However, the rule will not support the implication of a reservation. Thus if the Jones's had sold the plot of House B without reserving an express right to use the septic tank situated on it, the rule in Wheeldon v Burrows would not imply such a right.
Easements of Common Intention
Where the parties to a transaction have evidenced a common intention that property transferred should be used in a particular way, easements may be implied if necessary to give effect to that intention. A good illustration of this point is Wong v Beaumont Property Trust [1965] 1 QB 173. A lease of a cellar, to be used as a restaurant, had been granted. The terms of the lease required the lessee to comply with health regulations and control and eliminate all smells. It was subsequently found that the ventilation system was inadequate and the lessee wished to erect a new duct on the landlord's retained property. The current landlord refused to allow the work to be carried out. It was held that since the terms of the lease could not otherwise be performed, an easement of common intention arose, enabling the work to be done.
It should be noted that easements of common intention are similar to those of necessity in that they will only be implied where this is genuinely necessary to give effect to the parties' intentions. However the range of easements that may be implied by common intention may well be wider than the narrow rights that may be implied by necessity alone.
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