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: The use of the land over the years as a communal garden had created an easement and the defendants had gone along with the use. The judge had made the wrong order in allowing for the restoration of a particular flower bed, he should rather have declared the right to use the flower bed for communal purposes in accordance with the right established.
An activity which would be justified by an express grant does not necessarily support the existence of the same right claimed by prescription since the evidence, overall, may establish a different right or no right at all.
Judges:
Lord Justice Simon Brown, Lord Justice Mance and Lord Justice Latham
Citations:
Times 27-Aug-2002, Gazette 03-Oct-2002, [2002] EWCA Civ 1078, [2003] P and CR 16, [2002] 44 EG 175, [2003] 4 All ER 83, [2003] 1 WLR 360
Links:
Jurisdiction:
England and Wales
Citing:
Cited – In re Ellenborough Park CA 15-Nov-1955
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 . .
Cited – Grigsby v Melville and Another ChD 1972
A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller’s retained property had been included in the conveyance of ‘all that dwellinghouse’
Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
Cited by:
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 – 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: 06 June 2022; Ref: scu.174361