EASEMENTS D) Right must be capable of being subject matter of
A right over one piece of land for v) Easement must not be so extensive that
Grant. it deprives servant owner of possession.
the benefit of another piece of i) There must be a capable grantee and grantor Should not be equivalent to ‘exclusive or
Grantor must have freehold or leasehold estate joint possession’ over the servient land
since easement is a proprietary right. ‘There is no easement known in law to
give exclusive and unrestricted use of a
ii) Easement must be sufficiently definite piece of land;’ Lopes LJ
4 ESSENTIAL CHARACTERISTICS OF AN EASEMENT
Harris v De Pinna: general flow air too vague Reasonable use of land test
Re Ellenborugh Park Re Ellenborough: an easement for ‘a beautiful Batchelor v Marlow
A) There must be a dominant & servant tenement view’ or to ‘wander around at will’ is too vague Residual benefit: Is the servient owner
A dominant tenement that enjoys the benefits from the No general easement of Light left with any reasonable use of the Land?
easement, and a servient tenement granting it. May exist only where it is sufficiently definite (e.g. “the essential question is one of degree…
It cannot exist in gross through a window), although it does not warrant a small coal shed in a large property is
It must be attached to a Land to demonstrate the dominant- the dominant land unlimited amount of natural one thing. The exclusive use of a large
servient relationship, and cannot be held personally. light; part of the alleged servient tenement is
London & Blenheim Estates v Ladbrook Retail Parks Ltd Colls v Home & Colonial Stores another”
A proprietary right that is capable of binding
successors in title, not merely a personal right! iii) Right must be within the general categories of Persuasive authority: Control over Land
established easements Moncrieff v Jamieson (Scottish case)
B) Easement must accommodate the dominant tenement Courts adopt a cautious approach towards new Rejects the ouster principle (residual
Direct beneficial impact on the Dominant Land: easements, especially negative ones benefit) test, and questions: Whether the
Moody v Steggles: a claim to put pub sign on neighboring land Positive: gives right to use servient owner’s servant owner still retains possession &
was a valued easement as it was connected with the manner property control over the servient land.
in which C used his property, making the property better Negative: Preventing owner from using his land in Anything less than exclusive possession
Not a mere Personal or Commercial advantage: a particular way (e.g. passive enjoyment upon a by the dominant owner can be an
Hill v Tupper: Lease included the term to put boats on the limitation, preventing its development) easement.
canal, and Hill wanted to claim the sole right to use the canal Phibbs v Pears – a claim for an easement to
“The land was but a convenient incident to the exercise of the protect C’s building with D’s wall from the
right”, and it was used for the business rather than the Land. weather failed
* Does the Easement benefit the Land, or only for its business?
*Would business (purpose of land) be effectively useless w/o it?
Sufficient Proximity iv) Must not involve Positive burden or
It must also be of sufficient proximity for the easement Expenditure
to benefit the dominant land (but need not be adjacent) Servient owner only to suffer from easement, &
not to extend to any positive burden required
C) Dominant & Servient owners must be different persons upon them
There must be diversity of ownership Transco v Stockport MBC: Servient owner not
If all the elements of Re Ellenborugh are satisfied but obliged to make repairs/maintenance of
this, then it is only a quasi-easement easement, but dominant owner may carry out
Note: quasi-easement that can be converted into a full repair works to benefit from the easement.
easement under the rules of ‘implied easements’ Crow v Wood (exception): Maintaining
livestock
Although easement required expenditure &
positive action, maintaining fencing & walls to
control livestock is an exception to the rule.
A right over one piece of land for v) Easement must not be so extensive that
Grant. it deprives servant owner of possession.
the benefit of another piece of i) There must be a capable grantee and grantor Should not be equivalent to ‘exclusive or
Grantor must have freehold or leasehold estate joint possession’ over the servient land
since easement is a proprietary right. ‘There is no easement known in law to
give exclusive and unrestricted use of a
ii) Easement must be sufficiently definite piece of land;’ Lopes LJ
4 ESSENTIAL CHARACTERISTICS OF AN EASEMENT
Harris v De Pinna: general flow air too vague Reasonable use of land test
Re Ellenborugh Park Re Ellenborough: an easement for ‘a beautiful Batchelor v Marlow
A) There must be a dominant & servant tenement view’ or to ‘wander around at will’ is too vague Residual benefit: Is the servient owner
A dominant tenement that enjoys the benefits from the No general easement of Light left with any reasonable use of the Land?
easement, and a servient tenement granting it. May exist only where it is sufficiently definite (e.g. “the essential question is one of degree…
It cannot exist in gross through a window), although it does not warrant a small coal shed in a large property is
It must be attached to a Land to demonstrate the dominant- the dominant land unlimited amount of natural one thing. The exclusive use of a large
servient relationship, and cannot be held personally. light; part of the alleged servient tenement is
London & Blenheim Estates v Ladbrook Retail Parks Ltd Colls v Home & Colonial Stores another”
A proprietary right that is capable of binding
successors in title, not merely a personal right! iii) Right must be within the general categories of Persuasive authority: Control over Land
established easements Moncrieff v Jamieson (Scottish case)
B) Easement must accommodate the dominant tenement Courts adopt a cautious approach towards new Rejects the ouster principle (residual
Direct beneficial impact on the Dominant Land: easements, especially negative ones benefit) test, and questions: Whether the
Moody v Steggles: a claim to put pub sign on neighboring land Positive: gives right to use servient owner’s servant owner still retains possession &
was a valued easement as it was connected with the manner property control over the servient land.
in which C used his property, making the property better Negative: Preventing owner from using his land in Anything less than exclusive possession
Not a mere Personal or Commercial advantage: a particular way (e.g. passive enjoyment upon a by the dominant owner can be an
Hill v Tupper: Lease included the term to put boats on the limitation, preventing its development) easement.
canal, and Hill wanted to claim the sole right to use the canal Phibbs v Pears – a claim for an easement to
“The land was but a convenient incident to the exercise of the protect C’s building with D’s wall from the
right”, and it was used for the business rather than the Land. weather failed
* Does the Easement benefit the Land, or only for its business?
*Would business (purpose of land) be effectively useless w/o it?
Sufficient Proximity iv) Must not involve Positive burden or
It must also be of sufficient proximity for the easement Expenditure
to benefit the dominant land (but need not be adjacent) Servient owner only to suffer from easement, &
not to extend to any positive burden required
C) Dominant & Servient owners must be different persons upon them
There must be diversity of ownership Transco v Stockport MBC: Servient owner not
If all the elements of Re Ellenborugh are satisfied but obliged to make repairs/maintenance of
this, then it is only a quasi-easement easement, but dominant owner may carry out
Note: quasi-easement that can be converted into a full repair works to benefit from the easement.
easement under the rules of ‘implied easements’ Crow v Wood (exception): Maintaining
livestock
Although easement required expenditure &
positive action, maintaining fencing & walls to
control livestock is an exception to the rule.
