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 building owned by the defendants.
Held: ‘I do not think that there is any room for doubt as to the law. The difficulty, as is not uncommon, is to apply a perfectly well established principle of law to the facts of the particular case. As I understand it, the principle dating back at least to Lutrell’s case, is that an easement is extinguished when its mode of user is so altered as to cause prejudice to the servient tenement. Whilst an easement of support in relation to a building may be extinguished if the building is so altered or reconstructed as to throw a substantially increased burden on the servient tenement to the prejudice of the owner thereof.’ and ‘It seems to me that there is all the difference in the world between an easement of light and an easement of support’. ‘Substantial prejudice’ in this context meant ‘A substantial additional restriction upon the use to which the servient tenement could be put or upon legitimate activities thereon. In my judgment, it is for the servient owner to establish this.’
Judges:
Willmer LJ, Russell LJ, Fenton-Atkinson LJ
Citations:
(1968) 20 P and CR 261
Jurisdiction:
England and Wales
Citing:
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 by:
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, . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 20 April 2022; Ref: scu.194011