Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. But it is necessary that the parties should intend that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use.
Lord Parker of Waddington said: ‘the right claimed is in the nature of an easement, and apart from implied grants of ways of necessity, or of what are called continuous and apparent easements, the cases in which an easement can be granted by implication may be classified under two heads. The first is where the implication arises because the right in question is necessary for the enjoyment of some other right expressly granted.
The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used.
But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner. It is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use.’
Lord Atkinson said that what must be implied in an easement is what is necessary for the use or enjoyment, in the way contemplated by the parties, of the thing or right granted.
Lord Parker of Waddington
[1915] AC 634
England and Wales
Citing:
Cited – The Lyttelton Times Company Limited v Warners Limited PC 31-Jul-1907
(New Zealand) Premises had been leased for use as a printing house, including printing plant and machinery, and the landlords occupied the upper floors for use as bedrooms for their hotel. The landlords then sought an injunction and damages in . .
Cited by:
Cited – Green v The Right Honourable Lord Somerleyton and others CA 28-Feb-2003
The parties owned areas of marshland divided by a road. The claimant sought a declaration that the defendants had no right to allow floodwater to escape over his land from what he said was an artificial reservoir on the defendant’s land. The . .
Applied – Wong v Beaumont Property Trust Ltd CA 12-Mar-1964
A basement had been let to the plaintiff for use as a Chinese restaurant. The lease required the tenant to use the property as a restaurant, but also to control all smells. To do that it was necessary for the plaintiff to install a proper system for . .
Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005
The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at . .
Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Cited – In re Webb’s Lease, Sandom v Webb CA 1951
The court considered the acquisition of right of way of necessity. Evershed MR said: ‘If by this language Salter J intended to lay it down that in a case such as this (where it is or may be reasonable for the court to assume that, if the parties had . .
Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Applied – Stafford and Another v Lee and Another CA 10-Nov-1992
The plaintiff had built houses on his land and sought an easement of necessity over the neighbour’s drive for access for the houses under the rule in Pwllbach Colliery, saying an intended easement had been granted because it was known to the parties . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.
Land
Leading Case
Updated: 10 November 2021; Ref: scu.179687
