Lecture 19 – Easements
Using and losing easements:
Rules concerning excessive user: does there come a point where a user is too
extensive?
Extinguishment: once acquired easement, are they ways to lose it?
Extent of express easements:
Extent to which you can use an easement is dependent on how you acquired it. How was it
acquired? Expressly or by one of the implied or prescriptive routes? That will tell you which
route to go down.
Express easements: i.e. granted by deed. Note it may be predecessors, not the current
owners. You look to the deed, words written down you can interpret. Construed
generously. If wording is general ‘right of way for all purposes’ it will be construed
generously. The problem is where the wording limits the user. See Dutta v Hayes –
agricultural purposes right of way. When the owner of dominant tenement who
wanted to use it for non-agricultural purposes, the easement did not cover it. If no
restriction, generally, you can use it for any lawful purpose.
See case of White v Grand Hotel: dominant tenement was a house. House had right of way
along lane to the rear (so horses could get to stables). The dominant tenement became part of
hotel. Now being used for vehicular access. Was this too excessive? No, the right of way was
not restricted to a certain type of user. No restriction on the original grant:
‘unless there is some limitation to be found in the grant, in the nature of the width of
the road or something of that kind, full effect must be given to the grant, and we
cannot consider the subsequent user as in any way sufficient to cut down the
generality of the grant’.
See case of Todrick v Western National Omnibus: express right of way. Lane not equipped to
deal with buses. Court held the use was greater than that which the road could bare. Consider
the nature of the land.
As to a test: express easements and excessive user: case of Jelbert v Davis: Denning LJ used
the test ‘Did the user go beyond anything contemplated at the time of grant?’. Remember that
all of this is for express grant however.
, Implied easement (necessity, comm intention, s62, W v B or by prescription):
Looking at nature and circumstance at the time of acquisition. Critical case if Mcadams
and Robinson: easement granted under W v B: easement of drainage, at time of
acquisition, the dominant tenement was used as bakery. Proposal to redevelop land into
houses. Held that the change was too much, an injunction was granted. Too extensive a
use. See Neuberger Lord Justice who sets out the test:
- Has the dominant land undergone a radical change in its character or identity? You
need to be able to answer yes to defeat the claim.
- Would the changed use of dominant land result in a ‘substantial increase or alteration
on the burden of the servient land’?
We are looking for ‘radical change’ and a ‘substantial increase’. You need to be able to
answer yes to both questions, if so it will be viewed as too extensive a change. Each case
turns on its own facts:
‘[B]oth questions could be said to involve an exercise which, in many circumstances,
may have a rather uncertain outcome. What may appear to be “a radical change in
character” to one judge could easily appear differently to another judge; equally, one
judge may consider a particular increase in the burden on the servient land to be
“substantial”, whereas another judge may not. It is, perhaps, inevitable that the
questions have to be expressed in this rather generalised way, because each case will
very much turn on its own facts, with regard to the particular easement, the position
on the ground at the date of grant, the surrounding circumstances at the date of grant,
and the nature and effect of the redevelopment that has subsequently taken place.’
Exception to the rule in Harris v Flower:
Where the use of additional land is ancillary to the use of the dominant tenement. The actual
rule states that you can only use the easement to access the dominant tenement, not any
additional land, so this is an exception.
The end of an easement:
By operation of law: if granted an easement for 10 years, it will then come to an end.
Or necessity: if necessity comes to an end, another means of access is available then
the necessity ends.
Dominant and servient tenement turn into single ownership – you are then not
meeting the Ellenborough park test.
Can be extinguished by statute.
Express or relied release by the owner. Usually called deed of release.
Using and losing easements:
Rules concerning excessive user: does there come a point where a user is too
extensive?
Extinguishment: once acquired easement, are they ways to lose it?
Extent of express easements:
Extent to which you can use an easement is dependent on how you acquired it. How was it
acquired? Expressly or by one of the implied or prescriptive routes? That will tell you which
route to go down.
Express easements: i.e. granted by deed. Note it may be predecessors, not the current
owners. You look to the deed, words written down you can interpret. Construed
generously. If wording is general ‘right of way for all purposes’ it will be construed
generously. The problem is where the wording limits the user. See Dutta v Hayes –
agricultural purposes right of way. When the owner of dominant tenement who
wanted to use it for non-agricultural purposes, the easement did not cover it. If no
restriction, generally, you can use it for any lawful purpose.
See case of White v Grand Hotel: dominant tenement was a house. House had right of way
along lane to the rear (so horses could get to stables). The dominant tenement became part of
hotel. Now being used for vehicular access. Was this too excessive? No, the right of way was
not restricted to a certain type of user. No restriction on the original grant:
‘unless there is some limitation to be found in the grant, in the nature of the width of
the road or something of that kind, full effect must be given to the grant, and we
cannot consider the subsequent user as in any way sufficient to cut down the
generality of the grant’.
See case of Todrick v Western National Omnibus: express right of way. Lane not equipped to
deal with buses. Court held the use was greater than that which the road could bare. Consider
the nature of the land.
As to a test: express easements and excessive user: case of Jelbert v Davis: Denning LJ used
the test ‘Did the user go beyond anything contemplated at the time of grant?’. Remember that
all of this is for express grant however.
, Implied easement (necessity, comm intention, s62, W v B or by prescription):
Looking at nature and circumstance at the time of acquisition. Critical case if Mcadams
and Robinson: easement granted under W v B: easement of drainage, at time of
acquisition, the dominant tenement was used as bakery. Proposal to redevelop land into
houses. Held that the change was too much, an injunction was granted. Too extensive a
use. See Neuberger Lord Justice who sets out the test:
- Has the dominant land undergone a radical change in its character or identity? You
need to be able to answer yes to defeat the claim.
- Would the changed use of dominant land result in a ‘substantial increase or alteration
on the burden of the servient land’?
We are looking for ‘radical change’ and a ‘substantial increase’. You need to be able to
answer yes to both questions, if so it will be viewed as too extensive a change. Each case
turns on its own facts:
‘[B]oth questions could be said to involve an exercise which, in many circumstances,
may have a rather uncertain outcome. What may appear to be “a radical change in
character” to one judge could easily appear differently to another judge; equally, one
judge may consider a particular increase in the burden on the servient land to be
“substantial”, whereas another judge may not. It is, perhaps, inevitable that the
questions have to be expressed in this rather generalised way, because each case will
very much turn on its own facts, with regard to the particular easement, the position
on the ground at the date of grant, the surrounding circumstances at the date of grant,
and the nature and effect of the redevelopment that has subsequently taken place.’
Exception to the rule in Harris v Flower:
Where the use of additional land is ancillary to the use of the dominant tenement. The actual
rule states that you can only use the easement to access the dominant tenement, not any
additional land, so this is an exception.
The end of an easement:
By operation of law: if granted an easement for 10 years, it will then come to an end.
Or necessity: if necessity comes to an end, another means of access is available then
the necessity ends.
Dominant and servient tenement turn into single ownership – you are then not
meeting the Ellenborough park test.
Can be extinguished by statute.
Express or relied release by the owner. Usually called deed of release.
