Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus was rightly decided; for no such right can be granted (otherwise than by Statute) to the public at large to wander at will over an undefined open space, nor can the public acquire such a right by prescription.’ and
‘the right conferred no more amounts to a joint occupation of the park with its owners, no more excludes the proprietorship or possession of the latter, than a right of way granted through a passage, or than the use by the public of the gardens of Lincoln’s Inn Fields . . amount to joint occupation of that garden with the London County Council, or involve an inconsistency with the possession or proprietorship of the council as lessees.’
The shared recreational use of a communal private garden could be conferred upon the owners of townhouses built around and near it by means of easements.
To qualify as an easement:
(1) there must be a ‘dominant’ and ‘servient’ tenement;
(2) the right must ‘accommodate and serve’ the dominant tenement;
(3) the dominant and servient tenements must be owned by different persons; and
(4) the easement must be capable of forming the subject matter of a grant.
Lord Evershed MR, Birkett, Romer LJJ
[1956] 1 Ch 131, [1956] 3 All ER 667, [1955] EWCA Civ 4
Bailii
England and Wales
Citing:
Approved – Attorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .
Cited – Duncan v Louch QBD 4-Feb-1845
A dominant owner of an easement has no obligation to repair or maintain the land over which the right of way is exercised.
An easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist . .
Cited by:
Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002
Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
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 – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
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 . .
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 . .
Affirmed – 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.
Torts – Other, Land
Leading Case
Updated: 11 November 2021; Ref: scu.182997