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 applied to their minds to the problem of the advertisements, they would or should have made provision for securing to the landlord such right as he now claims) it is sufficient for the landlord to establish the absence of any evidence of a contrary intention, it seems to me that the proposition is in direct conflict with the principle, which is not only well established but which also, in my judgment, ought not to be lightly qualified, the principle that it is the duty of a grantor to reserve expressly any right he wishes to maintain against his grantee or at least to prove affirmatively that such a reservation was clearly intended by him and his grantee at the time of the grant.’
Jenkins LJ referred to the Pwllbach Colliery case and said: ‘I find myself unable to agree with the judge’s conclusion. The question is whether the circumstances of the case as proved in evidence are such as to raise a necessary inference that the common intention of the parties was to reserve to the landlord . . some, and if so what, rights in regard to the display of advertisements, or such as to preclude the tenant from denying the implied reservation to the landlord of some such rights consistently with good faith. That question must be approached with the following principles in mind: (i) if the landlord intended to reserve any such rights over the demised premises it was his duty to reserve them expressly
(ii) the landlord having failed in this duty, the onus was upon him to establish the facts to prove, and prove clearly, that his case was an exception to the rule
(iii) the mere fact that the tenant knew at the date of the lease that the landlord was using the outer walls of the demised premises for the display of the advertisements in question did not suffice to absolve the landlord from his duty of expressly reserving any rights in respect of them he intended to claim, or to take the case out of the general rule.’
Judges:
Lord Evershed MR, Jenkins LJ
Citations:
[1951] 1 Ch 808
Jurisdiction:
England and Wales
Citing:
Cited – Pwllbach Colliery Co v Woodman HL 1915
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 . .
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 11 June 2022; Ref: scu.253280