First Division of the Court of Session – A claim was made that a railway company, which was a statutory undertaker, was obliged to maintain a railway bridge over which a public right of way.
Held: There was insufficient evidence of public user for 40 years.
Also, the public could not acquire a public right of way over the railway by user because it was incompatible with the statutory purposes of the railway company.
Lord Kinnear stated: ‘I am of opinion, in the first place, that no right of way can be acquired by user over the line of the defenders’ railway, and especially at a point where the railway traffic is so great as on the main line close to Portobello station. It must always be presumed that if people having no statutory right of any kind have been allowed to cross the line, their passage is permitted only so long as it does not interfere with the purposes of the railway traffic. . . I am of opinion that no such right can be maintained, and that on the same principle on which it has been repeatedly held that a railway company cannot voluntarily grant a right inconsistent with the performance of the purposes for which it acquired its land. I assent entirely to the doctrine laid down by Lord Watson that the reference to the prescriptive right of way to an implied grant is a juridical speculation to account for an established rule, and not itself a rule of law. But at the same time I do not think it possible that a right of way which it would be ultra vires to grant can be lawfully acquired by user.’

Lord Kinnear, Lord President (Lord Kinross), Lord Adam and Lord McLaren
(1904) 6 F 620
Scotland
Cited by:
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 11 November 2021; Ref: scu.562183

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

Quasi-Easements granted on sale of part of Estate

S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the workshop. The plaintiff who had purchased the land claimed the right to build on the land so as to obstruct the windows. The defendant workshop owner claimed an easement of access of light through continuous enjoyment.
Held: No right of light was reserved by implication. Only rights of necessity would be implied.
On the grant of part of land there will pass to the grantee all continuous and apparent easements, meaning quasi-easements which are necessary to the enjoyment of the property conveyed, and which have been and are at the time of the grant used by the owners of the whole for the benefit of the part conveyed. If the grantor requires any right over the tenement conveyed he must expressly reserve it.
Lord Justice Thesiger said: ‘two propositions may be stated as that I call general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements) or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity;
Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz., that a grantor shall not derogate from his grant.’

Thesiger James and Baggallay LJJ
[1879] 12 ChD 31, [1879] 28 WR 196, [1879] 48 LJ Ch 853, [1879] 41 LT 327, [1879] UKLawRpCh 204, (1879-1880) 12 ChD 31
Commonlii
England and Wales
Cited by:
Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Cited – McAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
Cited – Sovmots Investments Ltd v Secretary of State for the Environment HL 28-Apr-1977
The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. . .
Cited – Akumah v London Borough of Hackney HL 3-Mar-2005
The authority set up a parking scheme for an estate of house of which it was the landlord. Those not displaying parking permits were to be clamped. The appellant complained that the regulations had been imposed by council resolution, not be the . .
Cited – Millman v Ellis CA 1996
The defendant had sold part of his land to the claimant. A right of way was granted over a lane. The purchaser asserted that he had the use of a lay-by on the lane which would otherwise be dangerous. The vendor said the plan did not include a right . .
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 – Cory v Davies 1923
The second proposition in Wheeldon v Burrows is subject to exceptions, and reciprocal rights and reservations into leases should be implied. . .
Cited – Rysaffe Trustee Company (CI) Ltd and Another v Ataghan Ltd and others ChD 8-Aug-2006
Complex family trusts had been created over many years. Various documents were now disputed, and particularly the extent of land demised by a lease, and whether a surender of a lease had occurred. Landslides had disturbed the boundaries of the land. . .
Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
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 . .
Cited – 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 – Odey and Others v Barber ChD 29-Nov-2006
The claimants sought a declaration that they had two rights of way over a neighbour’s land. One was claimed by continuous use for twenty years, and the second was said to have been implied under the 1925 Act. No express grant was suggested. . .
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .
Cited – Rees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 10 November 2021; Ref: scu.185665

Application for permission to appeal – dispute as to width of public footpath.

Jackson LJ
[2016] EWCA Civ 48
Bailii
England and Wales

Land

Updated: 10 November 2021; Ref: scu.562142

The parties disputed whether the defendants, trustees of a local charitable Turkish trust providing funeral service, had acquired an exclusive rights of burial within an area of the claimants’ cemetery.
Held: There were signficant deficiencies in the evidence provided in support of the defendants’ claim. It was impossible to identify the land over which the claim was made, and nor was there any accounting trace of the payment said to have been made, even though the records still existed. The claim was rejected.

Sir William Blackburne
[2014] EWHC 2629 (Ch)
Bailii
Cemeteries Clauses Act 1847, London Necropolis and National Mausoleum Act 1852
England and Wales
Citing:
Cited – Reed v Madon ChD 1989
The existence of exclusive rights of burial gives the owner of a body a right which is to be equated with a right of property, interference with which is actionable
Morritt J described an exclusive right of burial arising under the 1847 Act as . .
Cited – Oates and Another v Hooper and Another CA 26-Nov-2010
The court was asked whether a seller of property who had purported to give a premature notice of rescission under the Law Society’s 2003 Standard Conditions of Sale was in repudiatory breach of contract.
Held: The court must look at the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 November 2021; Ref: scu.535413

Property had been sold with a right reserved to park two vehicles on retained land. The parties now disputed whether the right included rights for additional visitors’ vehicles to use the necessary right of way and parking spaces additional to the purchasers.
Held: The grant did not include such additional rights. The test derived from Moncrieff was whether, in the circumstances of the grant, it would be a reasonable necessary use of the designated land to use it for stationing vehicles for the duration of the user’s visit to the property. It was not enough that the use was merely desirable. Once the parties had agreed and set out an explicit right, an additional right could only be implied only exceptionally.

Lord Justice Waller, Lady Justice Arden and Lord Justice Moore-Bick
[2009] EWCA Civ 115, [2009] 21 EG 104, [2009] 10 EG 111, [2009] NPC 33
Bailii, Times
England and Wales
Citing:
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 . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 November 2021; Ref: scu.311763

The ‘sea-beach or foreshore throughout the whole length of the borough of Hastings, including the locus in quo’ had been used ‘from time immemorial’ by the public ‘as a place of public resort’, subject only to the corporation’s statutory powers to regulate the use by byelaws.
Held: The powers conferred upon locaal commissioners or local boards of health under the 10 CYL 11 Vict. cc. 34, 39, or under any special act, for regulating the mode of bathing on the seashore, and licensing bathing-machines there, do not warrant the licensees of such machines iri placing them or any part of the foreshore which is private property
Erle CJ was apparently unenthusiastic about the majority view in Blundell, saying ‘I am desirous of guarding my judgment so as not to restrict the valuable usage or right of Her Majesty’s subjects to resort to the sea-shore for bathing purposes’

Erle CJ, Williams J
[1864] EngR 170, (1864) 15 CB NS 600, (1864) 143 ER 920
Commonlii
Citing:
Cited – Blundell v Catterall 7-Nov-1821
The defendant used a beach ‘between the high-water mark and the low-water mark of the River Mersey’ at Great Crosby in Lancashire for the purpose of providing bathing facilities (including bathing machines and carriages for members of the public who . .

Cited by:
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 09 November 2021; Ref: scu.281884

The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to 1193. In this case, the Commissioners had established, in reliance on the legal principles as to prescription, a right to a several fishery, in gross, without stint in the disputed waters.

Morgan J
[2008] EWHC 3091 (Ch)
Bailii
England and Wales
Citing:
Cited – Mellor v Spateman 1669
A corporation may prescribe to have a common of pasture. . .
Cited – Hayward v Chaloner CA 1968
The alleged tenant (the rector of a parish) knew that rent should have been paid but had not paid it. ‘Only one of the previous rectors gave evidence. He was the Rev. Richard Phillips (dates) He knew the rectory cottages and said that the land . .
Cited – Shuttleworth v Le Fleming 1865
The provisions of the Prescription Act 1832 do not apply to profits a prendre in gross. . .
Cited – Johnson v Barnes 1873
A corporation may prescribe to have an exclusive right of pasture. . .
Cited – Tilbury v Silva 1890
The evidence of user necessary to induce the court to presume a lost modern grant should be stronger than that upon which the court will presume a grant based on immemorial user. . .
Cited – Goodman v Mayor of Saltash HL 1882
A gift was made of a right to fish to the freemen of the Borough of Saltash.
Held: The gift was as valid as a charitable gift as would be a gift to the inhabitants of the locality in general. When long and continuous enjoyment is established, . .
Cited – Lord Chesterfield v Harris HL 17-Jul-1911
The House considered the nature and ownership of fishing rights on the River Wye. Freeholders in adjoining parishes had been fishing a non-tidal portion of the river for centuries, not by stealth or indulgence, but openly, continuously, as of right . .
Cited – Lord Chesterfield v Harris ChD 18-Nov-1906
A claim was made to an unlimited right of fishing on the River Wye, said to be vested in the freehold tenants of the manor and to have been acquired by prescription.
Held: The claim was to a right in the nature of a profit a prendre, and was . .
Cited – Lord Chesterfield v Harris CA 27-Jun-1908
The court considered the acquisition of a profit a prendre of fishing, by prescription over a stretch of the River Wye.
Held: Lord Chesterfield’a appeal succeeded. To be valid, a profit appurtenant must, as I have said, be limited and that . .
Cited – Malcomson v O’Dea 1863
In considering a claim to have acquired a right by prescription it is relevant to investigate acts of ownership asserted in relation to the right which is claimed as well as acts of enjoyment or user of the right. . .
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
Cited – Lord Advocate v Lord Blantyre HL 1879
The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act . .
Cited – Neill v Duke of Devonshire HL 1882
The House considered the right to a several fishery in the river Blackwater. There were letters patent granted by James I and Charles I. Held; Lord Selborne LC said: ‘These written titles (if the possession and enjoyment has been consistent with . .
Cited – Blount v Layard CA 1888
The court said how unfortunate it would be if the owner of an exclusive fishery were forced to insist on his rights by reason of a fear that tolerated fishing by members of the public might crystallise into a public right of fishing, which it would . .
Cited – RPC Holdings Limited v Rogers 1953
A prescriptive right of way had been enjoyed in connection only with agricultural use of the dominant land, which was a field.
Held: The way could not be used in connection with the use of the field as a caravan and camping site. Harman J . .
Cited – Staffordshire and Worcestershire Canal Navigation v Bradley 1912
. .
Cited – Smith v Andrews 1891
. .
Cited – Lovett v Fairclough 1990
. .
Cited – Lord Chesterfield v Harris CA 27-Jun-1908
The court considered the acquisition of a profit a prendre of fishing, by prescription over a stretch of the River Wye.
Held: Lord Chesterfield’a appeal succeeded. To be valid, a profit appurtenant must, as I have said, be limited and that . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 November 2021; Ref: scu.278845

UTLC Compensation – planning permission – compulsory acquisition of land required for new highway – appeal against certificate of appropriate alternative development restricting residential development to 100% affordable housing – development plan – material consideration of extant planning permission on balance of site – Land Compensation Act 1961, s18 – appeal allowed

[2016] UKUT 172 (LC)
Bailii
Land Compensation Act 1961 18
England and Wales

Land

Updated: 02 November 2021; Ref: scu.562446

UTLC COMPENSATION – LIMITATION – Compulsory Purchase – whether the Reference to the Tribunal is barred by s 10(3) of the Act – whether the Claimant knew or could reasonably be expected to have known that its interest in the acquired land vested in the Acquiring Authority more than 6 years before the Notice of Reference to the Tribunal.

[2016] UKUT 113 (LC)
Bailii
England and Wales

Land

Updated: 02 November 2021; Ref: scu.562441

The appellant challenged by case stated a refusal of the Crown Court to order removal of a gate which he said obstructed a public footpath. The land-owner had persuaded the magistrates that the gate was not on the line of the footpath. The claimant said the finding of fact was perverse.
Held: There was clear evidence capable of supporting the conclusion reached by the Crown Court. As to the interpretation of the map and statement: ‘the definitive map is the primary and source document. If the accompanying statement cannot be read as supplying particulars of the position of the footpath shown on the map then the position as shown on the map prevails over the position described in the statement. It is conclusive evidence unless and until review under section 53(2).’ and ‘At review, neither the map nor its accompanying statement is conclusive evidence of its contents. In the case of irreconcilable conflict between the map and the statement, there is no evidential presumption that the map is correct and the statement not correct. The conflict is evidence of error in the preparation of the map and statement.’

Lloyd Jones J
[2009] EWHC 3293 (Admin), [2010] PTSR CS15
Bailii
Highways Act 1980 130B(2), Countryside and Rights of Way Act 2000, National Parks and Access to the Countryside Act 1949 27(4)
England and Wales
Citing:
Cited – Norfolk County Council, Regina (on the Application Of) v Secretary of State for Environment, Food and Rural Affairs Admn 10-Feb-2005
The claimant sought to challenge the confirmation of a public footpath. Pitchford J described how the court should interpret the definitive map made under the 1981 Act: ‘The correct approach to interpretation of the definitive map and statement must . .
Cited – LE Walwin and Partners Limited v West Sussex County Council ChD 1975
The parties disputed the extent of a public bridleway. The definitive map appeared to show a bridleway stopping at a point where it met a footpath. However the definitive statement described the bridleway as running ‘to the foreshore’ ie. beyond the . .
Cited – Trevelyan (On Behalf Of Himself and The Ramblers Association) v The Secretary of State for The Environment, Transport and The Regions CA 23-Feb-2001
An inspector, determining an application to remove a public bridleway from the definitive map, and where there was evidence only of use by foot, was right to start from the presumption that, if a right of way was shown on the definitive map, it was . .
Cited – John Trevelyan (Suing on Behalf of Himself and All Other Members of Ramblers Association) v Secretary of State for Environment, Transport and Regions Admn 24-Jan-2000
An inspector determining an application to remove a public bridleway from the definitive map, where there was evidence only of use by foot, was right to start from the presumption that, if a right of way was shown on the definitive map, it was . .
Cited – Suffolk County Council v Mason HL 1979
The House considered the status of a pedestrian right of way through a caravan site to a beach, and the 1949 Act: ‘The sections which follow section 27 deal with the further steps which have to be taken before the definitive map is completed and . .

Cited by:
Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 November 2021; Ref: scu.384153

COMPULSORY PURCHASE – Compensation – strip of unregistered land with untraceable owner – site assembly to enable redevelopment of former public house with planning consent – no access to site without subject land – likely claim for adverse possession – valuation as amenity land

[2020] UKUT 304 (LC)
Bailii
England and Wales

Land

Updated: 02 November 2021; Ref: scu.655601

The acquisition of an easement by prescription did not require a presumption of grant but the incapacity of the owner of the servient tenement to grant excluded prescription.

Palles CB
[1900] 2 IR 325
England and Wales
Cited by:
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 02 November 2021; Ref: scu.562184

British Columbia Court of Appeal – the right to build and use a swimming pool and other improvements on part of a neighbour’s land (the pool was never in fact built but a gazebo was) was regarded as capable of being an easement.

[1992] 5 WWR 577
Canada
Cited by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 November 2021; Ref: scu.581349

The parties disputed the boundary between their respective plots.
Held: Simon Barker QC J set out (and then applied) the principles for resolving boundary lines: ‘1 Where, as in this case, the property in question is registered land, the file plans show only general boundaries and not the exact line of the boundaries unless the property is said to be ‘more particularly described in the plan.’
2 Similarly, Ordnance Survey plans, if not forming part of the registered title as filed plans, are no more than a general guide to a boundary feature, and they should not be scaled up to delineate an exact boundary. This is because the lines marking the boundaries become so thick on being scaled up as to render them useless for detailed definition.
3 In order to determine the exact line of a boundary, the starting point is the language of the conveyance aided, where the verbal description does not suffice, by the representation of the boundaries on any plan, or guided by the plan if that is intended to be definitive.
4 If that does not bring clarity, or the clarity necessary to define a boundary, recourse may then be had to extrinsic evidence – such as topographical features on the land that existed, or maybe supposed to have existed, when the dividing conveyance was executed.
5 Admissible extrinsic evidence may also include evidence of subsequent conduct where of probative value in showing what the original parties intended.
6 Evidence of later features – that is, later than the earliest dividing conveyance – may or may not be of relevance. The probative significance of such evidence depends upon the extent to which, if at all, the dividing conveyance, or evidence of its terms, exists.
7 Where a boundary is in dispute, it is important to bring certainty to the determination by proclaiming the boundary and not leaving the plot ‘fuzzy at the edges’ (Neilson v Poole (1969) 20 PandCR 909, Megarry J).

8 Even where a boundary line may be determined by reference to a conveyance, other evidence may be admitted and probative in establishing a different boundary obtained by adverse possession, showing enclosure of the land in denial of the title of the true owner. As the phrase implies, title is established by intentionally taking exclusive possession of land without the consent of, and adverse to the interests of, the true owner, and maintaining such possession continuously for the limitation period.
9 As to informal boundary agreements, the statutory requirement that contracts for the sale or other disposition of land be in writing does not apply. That is because the purpose of such agreements is to demarcate an unclear boundary referred to in title documents and not to transfer an interest in land.
10 Such agreements are usually oral and the result of neighbours meeting to avoid or resolve a potential or actual dispute. However, there is scope for a boundary agreement to be implied or inferred – that is, to be the logical conclusion to be drawn from primary facts.
11 When bearing these principles in mind as the platform on which to place and examine the facts, a judge should have regard to three further important yardsticks or rules of thumb. These are: (1) when considering any acquisition of property, it is vital to consider what a reasonable layman would think he was buying; (2) every case turns on its own facts; and (3) the task of the court is to assess all available and admissible material in arriving at its answer, and then to achieve the correct answer.’

Simon Barker QC J
[2011] EWHC 1362 (Ch)
Bailii
England and Wales
Citing:
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Neilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 November 2021; Ref: scu.442739

The court analysed the differences between Scottish and English land law with regard to rights acquired by prescription. Although in both countries a right of public way may be acquired by prescription, it was in England never practically necessary to rely on prescription to establish a public way. It was enough that there was evidence on which those who had to find the fact may find that there was a dedication by the owner whoever he was. (Lord Watson) The constitution of such a right according to the law of Scotland does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. The inference of intention to dedicate drawn from long and uninterrupted user as of right was an inference of fact and that the justices were not bound to draw the affirmative inference.
Lord Blackburn said that: ‘where there has been evidence of a user by the public so long and in such manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find that fact may find that there was a dedication by the owner, whoever he was.’
Lord Kinnear said: ‘The points to be noted are, first, that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee.’ and
after emphasising that ‘the question is whether the facts are sufficient to raise the presumption’, he said: ‘I think it fallacious to assume dedication on a partial view of the evidence, and only after that has been done to inquire whether conflicting facts are strong enough to dislodge a conclusion already reached’. And
‘the presumption cannot be held to be established in law at any intermediate stage of the proof, or until the whole facts and circumstances have been fully considered’ and
‘The question is one of fact, turning upon probabilities of conduct’.
Lord Atkinson rejected the respondent counsel’s argument that there had been a deciation which he summed up as: ‘Proof of open, uninterrupted, and continuous user raises a praesumptio juris in favour of dedication. If evidence be not produced to rebut this presumption, it must prevail. In the present case there was such evidence of user, no rebutting evidence was produced, the justices were therefore bound in law to find that this way was dedicated to the public, and their decision to the contrary was a decision made without any evidence to support it, and consequently invalid in point of law’.
Lord Watson explained: ‘According to the law of Scotland, the constitution of such a right does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. . . I am aware that there are dicta to be found, in which the prescriptive acquisition of a right of way by the public is attributed to implied grant, acquiescence by the owner of the soil, and so forth; but these appear to me to be mere speculations as to the origin of the rule, and their tendency is to obscure rather than to elucidate its due application to a case like the present.’

Lord Blackburn, Lord Watson, Lord Kinnear, Lord Atkinson
(1885) 10 App Cas 378, (1884-85) LR 10 App Cas 378
Scotland
Cited by:
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 02 November 2021; Ref: scu.187793

UTLC RESTRICTIVE COVENANT – modification – application to permit construction of single storey extension – reasonableness – practical benefits – effects upon visual amenity – injury – Law of Property Act 1925 section 84, grounds (aa) and (c) – application granted and modification ordered

P R Francis FRICS
[2012] UKUT 128 (LC)
Bailii
Law of Property Act 1925 84
England and Wales

Land

Updated: 01 November 2021; Ref: scu.460262

The land owner appealed against an injunction given to prevent him carrying out building works which the neighbours said would breach a restrictive covenant. The covenants negatived a building scheme.
Held: The appeal failed. Covenants of the nature imposed have long been used in conveyances, transfers and leases and it is clear that the expanded phrase ‘nuisance or annoyance’ in such covenants is directed at conferring a wider protection than the remedies available for the tort of nuisance at common law. The covenant against causing a nuisance or annoyance to neighbours did extend to the erection of buildings.

Ward, Wilson, Rimer LJJ
[2010] 3 EG 104, (2009) 153(41) SJLB 30, [2010] 1 P and CR DG13, [2009] NPC 117, [2009] EWCA Civ 1081
Bailii
England and Wales
Citing:
Cited – Tod-Heatley v Benham 1888
What was ‘annoyance’ between neighbours
The court considered how to construe a covenant in a lease ‘nor do or wittingly or willingly cause or suffer to be done any act, matter, or thing in or upon or about the said premises, which shall or may be or grow to the annoyance, nuisance, . .
Cited – Mahon and Another v Sims QBD 8-Jun-2005
A land transfer had contained a clause requiring a restrictive covenant agreeing not to erect any building without the approval by the neighbours of plans.
Held: The term ‘transferors’ was to be read to include the transferors’ successors in . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – C and G Homes Ltd v Secretary Of State For Health CA 1991
The court was asked whether a health authority’s housing of former mental in-patients in two houses on a residential estate resulted in a breach of one or both of two covenants burdening the houses. One covenant, (20) was: ‘Not to cause or permit or . .
Cited – Wood v Cooper 1894
There was a long lease of land with a dwellinghouse built on it. The lease contained covenants: ‘not to erect or build or cause to be erected or built upon the said piece of ground thereby demised, without the previous license in writing of the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2021; Ref: scu.376230

UTLC COMPENSATION – compulsory purchase – open storage land acquired as part of Morrisons foodstore – whether Case 2 of First Schedule to Land Compensation Act 1961 applies where other land not developed in accordance with current development plan – whether demand for foodstore existed – whether land required for foodstore would have been made available – development value – apportionment between freeholder and lessee -whether Pointe Gourde should be applied and, if so, the extent of the scheme to be disregarded – compensation awarded andpound;79,200.

[2009] UKUT 281 (LC)
Bailii
Land Compensation Act 1961
England and Wales
Citing:
Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2021; Ref: scu.415054

The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common ownership. They asserted the existence of a bridleway easement along a track to the public highways. The judge had found insufficient evidence to establish a claim by use.
Held: The claimants’ appeal failed. There was no evidence that there been had any use of the sort alleged at the time of the conveyance, and therefore there was no quasi-easement to be inferred under section 62.

Mummery, Longmore, Richards LLJ
[2011] EWCA Civ 61
Bailii
Law of Property Act 1925 62
England and Wales
Citing:
Cited – Wheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
Cited – Payne v Inwood CA 1996
A claim for an easement based upon section 62 of the 1925 Act failed. There had not been regular use of the path in question with the putative dominant tenement to gain access to it. Roch LJ said: ‘Section 62 of the 1925 Act cannot create new rights . .
Cited – Borman v Griffith 1930
Maugham J said: ‘Where . . two properties belong to a single owner and are about to be granted and are separated by a common road, or where a plainly visible road exists over one for the apparent use of the other, and that road is necessary for the . .
Cited – Sovmots Investments Ltd v Secretary of State for the Environment HL 28-Apr-1977
The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. . .
Cited – Nickerson v Barraclough (2) ChD 2-Jan-1980
The Vice-Chancellor said: ‘if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the . .
Cited – Nickerson v Barraclough CA 2-Jan-1981
The plaintiff had bought land landlocked save over a bridge and a lane beonging to the defendant leading to the highway. He claimed a right of way relying on a conditional grant from 1906, section 62 of the 1925 Act, and also asserted a way by . .
Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2021; Ref: scu.428362

The claimants sought to register a right of way over the common by virtue of use over forty years. The defendants denied that they were able to grant an easement inder the 1871 Act, and that therefore no claim could be laid under prescription.
Held: Though the 1871 Act contained a wide provision against alienation, it was not so wide as to prevent the grant of an easement over the land, provided it was consistent with the land remaining open to general use. As prescription is based on the fiction of a grant, a landowner who could not have granted the claimed easement cannot suffer prescription.
Mummery LJ discussed the 1871 Act: ‘Discussion and conclusion on vires issue . .
The social value reflected in the 1871 Act was conservation of the natural environment in an urban locality for the benefit of an expanding local population. A scheme was established ‘with a view to the preservation’ of the commons as ‘open spaces of large extent, unenclosed and unbuilt on’ for ‘great local and public advantage’ by vesting them in an incorporated body of appointed and elected conservators, on whom duties were imposed and powers conferred.
The environmental purpose can be protected and promoted without adopting a narrow, literal interpretation of the 1871 Act. The legislative text should be read sensibly in context. In this way full effect can be given, so far as a fair and reasonable reading of the statutory language allows, to the stated purpose and the scheme devised to attain it.
. . I accept that section 35 is a very wide prohibition against alienation of the commons by the conservators. I also agree that there is a sense in which the grant of an easement over land is disposing of part of it. It is a disposal of a right over land which form the commons. There is a parcel of rights and interests in that land. However, on reading section 35 in the wider context of the Act as a whole, its apparent aim and its general scheme, I do not construe it as preventing the conservators from lawfully granting an easement over the access way.
First, looking at the aim of the 1871 Act broadly, the grant would not be incompatible with the conservators’ overriding duty to conserve the commons as an unenclosed, unbuilt on, open space. The access way would not cease to be an open space if the claimants were granted an easement over it. The grant of an easement would not entitle them to enclose or build on the access way. The easement would not interfere with the ability of members of the public to continue to enjoy the part of the commons across which the access way runs.
Secondly, looking at the detail of the matter, the wording of section 35 is, in my judgment, reasonably open to an interpretation enabling the conservators to grant easements in circumstances consistent with the conservation of the commons in their existing state as an open space.
The question is whether the grant of the easement would be a disposal of part of the commons in breach of the prohibition in section 35. I begin by asking whether there is a possible reason for making it unlawful to grant the claimants a right of way over the access way. A grant would entitle the claimants to pass and re-pass over only a narrow strip of the commons running alongside the verge of the highway. It would not give them exclusive possession of any part of the surface of the commons or detract from the openness of the space of the access way.
Section 35 makes it unlawful for the conservators to ‘dispose’ of any part of ‘the commons’ by sale, lease, grant and so on. A number of points arise on the language in which the prohibition is expressed. It is of some significance that the restriction relates to ‘the commons’ rather than to ‘land’ or to an ‘estate, interest or right in land’. The latter are the expressions apt to include rights in or over land and incorporeal hereditaments, such as a right of way: see the Interpretation Act 1978, Schedule 2 paragraph 5(b). ‘The commons’ refer not so much to the land itself or to the rights and interests in the land, as to the physical area of open space, which is to remain unenclosed and unbuilt on. The grant of a right of way to the claimants over the small defined access way would impose a legal burden on the land, but not one that would diminish the area of the commons as a physical area of open space or result in any physical enclosure of it or building on it. In these circumstances I do not think that the conservators would be unlawfully disposing of or alienating part of the commons contrary to section 35.’
Carnwath LJ said: ‘On the 1987 Act, I have come to the conclusion that the simplest approach is best: that is, to apply the operative provisions in accordance with their own terms. Section 8 permits the disposal of ‘land’. ‘Land’ includes ‘hereditaments . . of any tenure’ (Interpretation Act 1978, Schedule 2, paragraph 5(b)), and thus includes incorporeal hereditaments such as easements. Section 35 prohibits disposal of ‘part of the commons’. In ordinary language words ‘part of the commons’ denotes a physical concept, not a legal right. It is natural to talk of selling, leasing or granting a part of the commons. But an easement is not a part of the commons; it is a right granted over the commons. There is no corresponding definition of ‘commons’ to stretch the meaning to include such rights. Nor the does the purpose of the Act require such an extension. Any easements granted by the conservators would have to be consistent with their overall objectives, and they have full control of the nature of any easements and the conditions under which they are granted.
In summary, section 8 permits the grant of easements, and section 35 does not prohibit it. On these short grounds, I would allow the appeal. I am encouraged to see that the same result follows from the more analytical approach adopted by Mummery LJ, with which I also agree.’

Mummery, Garnwath, Richards LJJ
[2008] EWCA Civ 200, [2008] NPC 35, [2008] 2 EGLR 107, [2008] 12 EG 97, [2008] 3 All ER 1038, [2008] 1 WLR 1172
Bailii
Wimbledon & Putney Commons Act 1871, Prescription Act 1832
England and Wales
Citing:
See Also – Housden and Another Housden v Conservators of Wimbledon and Putney Commons (Easements) LRA 21-Aug-2006
LRA EASEMENT – right of way – prescription – Wimbledon and Putney Commons Act 1871 ss. 8 and 35 – Prescription Act 1832, ss. 2 and 3 – true construction of the word ‘dispose’ – definition of ‘the commons’ – . .

Cited by:
Applied – Evans v Wimbledon and Putney Commons Conservators and Others Admn 8-Nov-2013
The claimant owned property by Putney Lower Common. He objected to a proposal to develop further neighbouring land, and in particular the grant of access over the common to the proposed development.
Held: Housden must be applied, and ‘Of . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.266211