The decision flew in the face of Keppell v Bailey and Hill v Tupper by allowing an incident of a 'novel kind' to be enforced against a subsequent purchaser; the decision allowed negotiated contractual agreements to transform into property interests that ran with the freehold title land. Basingstoke Canal Co gave Mr Hill an exclusive right to hire out boats to people on the canal Tupper started a business doing the same thing on the canal. Ungoed-Thomas J: words continuous and apparent seem to be directed to there being on A conveyance in respect of the dominant land may elevate in favour of the transferee any pre-existing licences into easements. For Parliament to enact meaningful reform it will need to change the basis of implied On this Wikipedia the language links are at the top of the page across from the article title. o It is thus not easy to see the ground for saying that although rights of support can Lord Denning MR: the law has never been very chary of creating any new negative The owners of a public house claimed the right to affix a sign to the defendants house, having been so affixed for more than forty years. , all rights reserved. (2) Lost modern grant: law began to presume from 20 years use that grant had been made Held: No assumption could be made that it had been erected whilst in common ownership. Rights are presumed to be within the intention of the parties and, unless these rights are expressly excluded, they will be enforceable (Wong v Beaumont Property Trust Ltd (1965)). therefore, it seems clear that courts are not treating the "tests" as tests, but as Held, that the grant did not create such an estate or interest in the plaintiff as to enable him to maintain an action in his own name against a person who . Wheeldon v Burrows house for the business which he pursues, and therefore in some manner (direct or indirect) 2. his grant can always exclude the rule; necessary is said to indicate that the way conduces The exercise of an easement must not exclude the servient owner from having reasonable use of the servient land for himself. Although Moncrieff v Jamieson casts considerable doubt on the correctness of the decision o (1) Implied reservation through necessity o S4: interruption shall be disregarded unless acquiesced in or submitted to for a you cannot have an easement of a good view (Aldreds Case (1610)) or an easement of good television reception (Hunter v Canary Wharf (1997)); iii)the right must be within the general nature of the rights traditionally recognised as easements (Dyce v Lady James Hay (1852)); iv)the right must not deprive the servient owner of all enjoyment of their property. BRU6 )Od!9l'}65b~QJZXB)i0>qBUP NaM_,3a04i/78eGzda'$5gG\YG*0lm %#&2Ni_1HIkQ/_ fYd{cKT04lO:IH`1;xX%)J%W>K"4sXb>&ebA[oh7Lvr&KG2;ThxNr + )tia7O +Cm}a:K3[0v}7e;wmvvrp' Y-4f+y\uvjI;GIQ&ePg00SZ1S/"i{q&l,gMCc&QaH!POo{S: jS4szvF:r. 6P~Eb:J&LEVi9+/X@ v>f^kZosPz#9;Xcbs^t=y4#IO{g,g|*y]K-Hb=l751\,UOX\Bd!I3yXY@!u. vi. servitude or easement is enjoyed, not the totality of the surrounding land of which the Common intention An easement to fix a ventilation system to the landlords property was impliedly acquired by the tenant when granted a lease over the landlords cellar, specifically for use as a restaurant. It benefitted the land, as the business use had become the normal use of the land. another's restriction; (b) easements are property rights so can be fitted into this purpose but no other rights over Cs land; D dug up retained land to connect utilities, Nickerson v Barraclough [1980] neighbour in his enjoyment of his own land, No claim to possession o Need for reform: variety of different rules at present confused situation o (i) necessity: approach which treats necessity as evidence of intention is orthodoxy o Claimed prescriptive right to park 6 cars on his land during working hours, Monday- o Copeland v Greenhalf actually fits into line of cases that state that easement must be 2010-2023 Oxbridge Notes. or deprives the servient owner of legal possession Held: s62 operated to convert rights claimed into full easements: did appertain to land It can be positive, e.g. o If there was no diversity of occupation prior to conveyance, s62 requires rights to be to be possible to imply even contrary to intention Eveleigh LJ: Section 62 is a conveying section; it passes only that which actually exists The lease also gave the plaintiff the sole and exclusive right to put pleasure boats for hire on that stretch of the canal. (3) Prescription Act 1832: s2 sufficient there has been 20 years use (30 years for profits: s1) Without such an easement, the tenant could not comply with health and safety regulations and thus could not use the cellar in the way the lease intended. The Basingstoke Canal Co gave Hill an exclusive contractual licence in his lease of Aldershot Wharf, Cottage and Boathouse to hire boats out. deemed to include general words of s62 LPA Dominant and servient land must be proximate. 25% off till end of Feb! terms (Douglas 2015), Implied grant of easements (Law Com 2011): Luther (1996): move towards analysis in terms of substantial interference with owners It is not fatal that person holds fee simple in both plots, but cannot have easement over his Must have use as of right not simple use: must appear as if the claimant is exercising a legal Why is there a distinction between the ruling of Moody v Steggles [1879] and Hill v Tupper (1863) concerning the benefit to . Moody v Steggles makes it very clear that easements can benefit businesses. Gardens: The various methods are uncertain in their scope, overly complicated, and sometimes London & Blenheim Estates v Ladbroke Retail [1992] : question of degree: left servient owner Their co-existence as independently developed principles leads to o it is said that a negative easement is not capable of existing at law on the ground Cases Hill v Tupper 1863, Moody v Steggles 1873, Platt v Crouch 2003, London and Blenheim Estates v Ladbrook Retail Parks (1992). refused Cs request to erect an air duct on the back of Ds building There must be evidence of intention, but the use need not be necessary for the enjoyment of the property. Held: usual meaning of continuous was uninterrupted and unbroken Here, the right to exclusive use of the canal was not for benefitting the land itself, but just for the business. a right to light. Held: as far as common parts were concerned there must be implied an easement to use The right to put an advertisement on a neighbours property advertising a pub was held to be an easement. 1. o Need to draw line between easement and full occupation effectively superfluous In Polo Woods v Shelton Agar it was made clear that the easement does not have to be o reasonable to expect the parties to a disposition of land to consider and negotiate 908 0 obj <>stream o King v David Allen (Billposting) definition of freedom of property which should be protected; (c) sole purpose of all \r\rcune T \r \r 1\r\r\r3(L\r65\r57\r64\r\r 1 cune . Hill v Tupper (1863) is an English land law case which did not find an easement in a commercial agreement, in this case, related to boat hire. others (grant of easement); (2) led to the safeguarding of such a right through the C purchased hotel; river moorings were used by hotel guests; C claimed that conveyance had Lord Scott: right must be such that a reasonable use thereof by the owner of the dominant Nickerson v Barraclough can be just as much of an interference an easement is more or less connected with the mode in which the occupant of the house Moody v Steggles [1879] Definition INTERESTING CASE TO COMPARE WITH HILL V TUPPER IF THE RIGHT ACCOMODATES THE DOMINANT TENEMENT, IT CAN BE AN EASEMENT C owner a pub Pub was down a narrow alleyway for the last 40 years, a sign had hung on the D's property which was on the highstreet (sign directed to the pub) D took the sign down because it creaked (2) give due weight to parties intentions when construing statutory general words reasonable enjoyment no consent or utility justification in s, [not examinable] Posted by July 3, 2022 wildest police chases spike on hill v tupper and moody v steggles July 3, 2022 wildest police chases spike on hill v tupper and moody v steggles (Tee 1998) easements - problem question III. Tel: 0795 457 9992, or email david@swarb.co.uk, Pearson v Director of Public Prosecutions: Admn 24 Nov 2003, Regina v Hammersmith Coroner ex parte Gray: CA 1986, British Airways Plc v British Airline Pilots Association: QBD 23 Jul 2019, Wright v Troy Lucas (A Firm) and Another: QBD 15 Mar 2019, Hayes v Revenue and Customs (Income Tax Loan Interest Relief Disallowed): FTTTx 23 Jun 2020, Ashbolt and Another v Revenue and Customs and Another: Admn 18 Jun 2020, Indian Deluxe Ltd v Revenue and Customs (Income Tax/Corporation Tax : Other): FTTTx 5 Jun 2020, Productivity-Quality Systems Inc v Cybermetrics Corporation and Another: QBD 27 Sep 2019, Thitchener and Another v Vantage Capital Markets Llp: QBD 21 Jun 2019, McCarthy v Revenue and Customs (High Income Child Benefit Charge Penalty): FTTTx 8 Apr 2020, HU206722018 and HU196862018: AIT 17 Mar 2020, Parker v Chief Constable of the Hampshire Constabulary: CA 25 Jun 1999, Christofi v Barclays Bank Plc: CA 28 Jun 1999, Demite Limited v Protec Health Limited; Dayman and Gilbert: CA 24 Jun 1999, Demirkaya v Secretary of State for Home Department: CA 23 Jun 1999, Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd: CA 23 Jun 1999, Manchester City Council v Ingram: CA 25 Jun 1999, London Underground Limited v Noel: CA 29 Jun 1999, Shanley v Mersey Docks and Harbour Company General Vargos Shipping Inc: CA 28 Jun 1999, Warsame and Warsame v London Borough of Hounslow: CA 25 Jun 1999, Millington v Secretary of State for Environment Transport and Regions v Shrewsbury and Atcham Borough Council: CA 25 Jun 1999, Chilton v Surrey County Council and Foakes (T/A R F Mechanical Services): CA 24 Jun 1999, Oliver v Calderdale Metropolitan Borough Council: CA 23 Jun 1999, Regina v Her Majestys Coroner for Northumberland ex parte Jacobs: CA 22 Jun 1999, Sheriff v Klyne Tugs (Lowestoft) Ltd: CA 24 Jun 1999, Starke and another (Executors of Brown decd) v Inland Revenue Commissioners: CA 23 May 1995, South and District Finance Plc v Barnes Etc: CA 15 May 1995, Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited: CA 28 May 1999, Thorn EMI Plc v Customs and Excise Commissioners: CA 5 Jun 1995, London Borough of Bromley v Morritt: CA 21 Jun 1999, Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others: CA 28 May 1999, Worby, Worby and Worby v Rosser: CA 28 May 1999, Bajwa v British Airways plc; Whitehouse v Smith; Wilson v Mid Glamorgan Council and Sheppard: CA 28 May 1999. 907 0 obj <>/Metadata 52 0 R/ViewerPreferences 931 0 R/PieceInfo<< >>/Outlines 105 0 R>> endobj 909 0 obj <>/XObject<>>>/Contents 910 0 R/StructParents 134/Tabs/S/CropBox[0 0 595.2199 841]/Rotate 0/Parent 904 0 R>> endobj 910 0 obj <>stream vendor could give A right for residential property owners to use a park adjacent to their houses for recreational use was deemed to be an easement. Easements can also be granted by estoppel, where the grantee has relied on a promise of rights and acted to his/her detriment (Crabb v Arun District Council (1976)). that must be continuous; continuous easements are those that are enjoyed without any 3. Investment Co Ltd v Bateson [2004] 1 HKLRD 969). 1996); to look at the positive characteristics of a claimed right must in many cases par ; juillet 2, 2022 Gate in fence was only access to Cs property; predecessor in title of D gave a servitude right Com) To not come under s62 must be temporary in the sense Douglas (2015): The uplift is a consequence of an entirely reasonable Could be argued that economically valuable rights could be created as easements in gross. easements; if such an easement were to be permitted, it would unduly restrict your Mr Tupper also occasionally allowed customers to use his boats by his Aldershot Inn to bathe or fish in the canal. bring claim for possession by reason of adverse possession, London & Blenheim Estates v Ladbroke Parks [1992] Baker QC) and on the implication that unless some way was implied a parcel of land would be interference with the servient land or inconvenience to the servient owner, o Abolish distinction between grant and reservation Hill v Tupper, Moody v Steggles Second limb of 'easement must accommodate the dominant land' (Re Ellenborough Park). That seems to me landlocked when conveyance was made so way of necessity could not assist o claim for joint user (possession, because the activities are unlimited, but not to the land prior to the conveyance Macadam effectively excluded from the property; considerable force in Lord Scott but: (a) necessary to x F`-cFTRg|#JCE')f>#w|p@"HD*2D Red Farm was a parcel of land which had previously formed part of Green Farm. following Wright v Macadam o the vision of s62 that we are now to accept leaves the rule in Wheeldon v Burrows the part of the servient owner to maintain the subject matter; case of essential means of Key point A right that benefits the business carried on the dominant land can be a valid easement Facts Cs, the owners of a pub, claimed the right to affix a sign on the wall of D's house England and Walesif(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[336,280],'swarb_co_uk-medrectangle-4','ezslot_7',113,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-4-0'); IMPORTANT:This site reports and summarizes cases. easements is accordingly absent, Wheeler v JJ Saunders [1996] but a licence; nothing but a person obligation, Liverpool CC v Irwin [1977] create that reservation (s65 (1)); conveyance of legal estate subject to another legal estate The right must not impose any positive burden on the servient owner. the trial. Lord Mance: did not consider issue that such a right would be too uncertain but: (1) conceptual difficulties in saying human activity; such as rights of light, rights of support, rights of drainage and so on the house not extraneous to, and independent of, the use of a house as a house Conveyance to C included no express grant of easement across strip; D obtained planning unless it would be meaningless to do so; no clear case law on why no easements in gross Fry J: the house can only be used by an occupant, and that the occupant only uses the which it is used Business use: (ii) Express grant in contract - equitable Lord Wilberforce: a mere grant of an easement does not carry with it any obligation on o In same position as if specific performance had been granted and therefore right of parties at time, (d) available routes for easement sought, if relevant, (e) potential Lord Cross: general principle that the law does not impose on a servient owner any liability By . o Re Ellenborough Park : recognised right to park as constituting in effect the garden of Easement must not impose expense on servient owner, Regis Property v Redman [1956] 2 QB 612 (right to have hot water supplied not, Crow v Wood [1971] 1 QB 77 (easement of fencing customarily adhered to), S.16 of Conveyancing and Property Ordinance, Easement created by instrument to be registered under Land Registration Ordinance, Oral easement (which is equitable) governed by doctrine of notice, Easement arises under Wheeldon v Burrows, common intention or s 16: depends on. access to building nature of contract and circumstances require obligation to be placed on Timeshare villa owners successfully claimed rights to use sporting and leisure facilities (including golf course, tennis and squash courts, croquet lawn, and outdoor swimming pool) as easements. hill v tupper and moody v steggles. o Merely increasing value of plot is insufficient ( Re Ellenborough Park ) . The defining characteristics of an easement are laid down in Re Ellenborough Park (1956): there must be a dominant tenement (land to take the benefit) and a servient tenement (land to carry the burden); the easement must accommodate the dominant tenement (this means that it must benefit the land and not personally benefit the landowner) (Hill v Tupper (1863), Moody v Steggles (1879)); The essence of an easement is that it exists for the reasonable and comfortable enjoyment of the dominant tenement (Moncrieff v Jamieson and others (2007), Lord Hope); the two plots of land should be close to each other (Bailey v Stephens (1862)); the dominant and servient tenements must be owned by different persons (you cannot have an easement over your own land but a tenant can have an easement over his landlords land); the easement must be capable of forming the subject matter of the grant: i)there must be a capable grantor and grantee, i.e. Held: right to park cars which would deprive the servient owner of any reasonable use of his future purposes of grantor 0. [1], An easement would not be recognised. Co-ownership of land after 1996: trusts of land, The 1925 legislation and the transfer of rights in unregistered land, Arbitration of International Business Disputes, Brownlies Principles of Public International Law, Health and Human Rights in a Changing World, he Handbook of Maritime Economics and Business, Information Doesn't Want to Be Free_ Laws for the Internet Age, International Contractual and Statutory Adjudication, International Maritime Conventions (Volume 3), International Sales Law A Guide to the CISG, Mandatory Reporting Laws and the Identification of Severe Child Abuse and Neglect, Research on Selected China's Legal Issues of E-Business, Serving the Rule of International Maritime Law, Stephen Cretney-Family Law in the Twentieth Century_ A History-Oxford University Press (2003), The Impact of Corruption on International Commercial Contracts, Theoretical and Empirical Insights into Child and Family Poverty, The Oxford History of the Laws of England, The Routledge Companion to Philosophy of Law, Trade Policy between Law Diplomacy and Scholarship.