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 the case was remitted for retrial.
Four conditions must be complied with for there to be a valid easement or profit:
a. There must be a dominant and servient tenemen
b. The easement or profit must accommodate the dominant tenement.
c. The dominant and servient tenements must not both be owned or occupied by the same person.
d. The easement or profit must be capable of forming the subject matter of a grant.
There is no test of real or appreciable benefit to the dominant tenement which has to be passed before a right claimed can be said to ‘accommodate’ it or to establish the necessary connection or nexus between the right and the dominant tenement.
The proposed right would effectively prevent use of the land for up to eight months of the year during the daytime by its owners, and they would unable to gate the land.
The judge had not considered fully the facts before her, and the appeal court could not substitute its own judgment in that respect. It was necessary to establish the maximum number of ponies which might be allowed to graze, and further amendment might yet be required to the pleadings.

Warren J
[2009] EWHC 1361 (Ch), [2009] 2 P and CR DG20, [2010] 1 All ER 539, [2010] 1 P and CR 12
England and Wales
CitedLord 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 . .
CitedIn 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 . .
CitedHill v Tupper 1-May-1863
The canal company had by deed granted the sole right to use the canal for pleasure boats to the plaintiff. The defendant disturbed that right by using the canal for the same purpose.
Held: The claim failed. The right under the contract was not . .
CitedMulvaney 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: . .
CitedBettison and Another v Penton and Another CA 22-Jan-1998
A common right of grazing which was quantified but not related to the ability of the land to sustain it was capable of existing in gross, and was therefore severable entirely from the land to which it related. The severance was no necessary . .
CitedBettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
CitedWhite v Taylor (No 2) ChD 1969
The alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the . .
CitedTehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
CitedBatchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
CitedClos Farming Estates v Easton and Another 9-Dec-2002
(New South Wales Court of Appeal) A question arose whether a right to enter servient land, to carry out works of viticulture and to harvest the grapes and sell them was a right capable of existing as an easement. The judge at first instance held . .
CitedDyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
CitedMoncrieff 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 . .
CitedMcAdams 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, . .
CitedMills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .

Cited by:
CitedLondon Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .

Lists of cited by and citing cases may be incomplete.


Updated: 10 December 2021; Ref: scu.347021