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, which is used for a particular purpose at the time of the conveyance, what are the principles governing the extent to which the easement can still be enjoyed by the owner of that property if he changes its use and/or constructs buildings on it?’
Held: ‘It would only be if the redevelopment of the site represented a radical change in its character and it would lead to a substantial increase in the burden, that the dominant owner’s right to enjoy the easement of passage of water through the Pipe would be suspended or lost. ‘ The case law is not consistent. The works of construction entitled the judge to reach his conclusion. A court is not in law, limited to considering the actual extent of the enjoyment of the easement by the dominant land at the time of the creation or grant of the easement. Though the court doubted the judge’s conclusion that th alteration would lead to a substantial increase in use, his decision was not so wrong as to allow interference.
Lord Justice Peter Gibson Lord Justice Neuberger and Sir Martin Nourse
[2004] EWCA Civ 214, Gazette 11-Mar-2004, [2005] 1 PandCR 520, [2004] 3 EGLR 93
Bailii
England and Wales
Citing:
Cited – Pyer v Carter 21-Feb-1857
Where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entititled to the benefit and is subject to the burthen of all existing drains communicating with the other house, without any express . .
Cited – Watts v Kelson CA 1870
Property containing cattle sheds was sold, together with an implied right to the supply of water along pipes leading from a tank on the vendor’s land. The purchaser demolished the cattle sheds and erected cottages in their place.
Held: A . .
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 – British Railways Board v Glass CA 1965
An easement arising by prescription involves a fictional lost grant. The court considered the extent of user of an easement in relation to a prescriptive right of way for the benefit of land used as a caravan site: ‘A right to use a way for this . .
Cited – Ray v Fairway Motors (Barnstaple) Limited CA 1968
It was argued that an easement of support, obtained by prescription, could no longer be enjoyed where the owner of the dominant land had extended his building so as to increase, indeed virtually to double, the weight thrown onto a wall on the . .
Cited – Lutrell’s Case 1601
A prescriptive right to a watercourse was not lost by the dominant owner demolishing two ancient fulling mills and erecting in their place two new corn grinding mills. The Exchequer Chamber held that the dominant owner ‘might alter the mill into . .
Cited – Cargill v Gotts CA 1981
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The . .
Cited – Wimbledon and Putney Commons Conservators v Dixon CA 1875
A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting . .
Cited – Williams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .
Cited – Harvey v Walton 1873
(Court of Common Pleas) A right of eavesdropping was not lost when the dominant owner demolished the building on his land and replaced it with another, taller, building. ‘We are of opinion that the question here . . is whether there has been a . .
Cited – Attwood and Another v Bovis Homes Ltd ChD 18-Apr-2000
The dominant land, which had always been used for agricultural purposes, had a prescriptive right to drain surface water over neighbouring land. Though the proposed development of a housing estate on the dominant land, would be very substantial, the . .
Cited – Giles v County Building Constructors (Hertford) Limited ChD 1971
A right of way had arisen by prescription in favour of land which had two detached dwelling houses on it.
Held: The right of way could continue to be used, even after the two houses had been demolished and replaced by a three-storey block of . .
Cited – Milner’s Safe Company Limited v Great Northern and City Railway Company ChD 1907
A right of way had been impliedly granted in favour of a number of terraced houses over a passage running to the back of those houses, which were used at the time of grant for residential and warehouse use. A right to use the passageway for an . .
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 – Harvey v Walters CCP 1873
The court was asked whether an easement survived a change in usage: ‘We are of the opinion that the question here . . is, whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a . .
Cited – Wood v Saunders 1875
The dominant land at the time of sale contained a house ‘adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat’ on land retained by the vendor. The purchaser subsequently extended the house, . .
Cited by:
Cited – Jones v Scott ChD 17-Nov-2006
The claimant asserted a right of way over neighbouring land, acquired by prescription. The defendant disputed that twenty years use could be shown.
Held: The claimant had failed to discharge the burden of proof as to the historical existence . .
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 – 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 – 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 . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.193930
