The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist.’ and ‘He cannot grant or agree to grant land and at the same time deny to his grantee what is at the time of the grant obviously necessary for its reasonable enjoyment.’
Lord Edmund-Davies said as to Wheeldon v Burrows: ‘The basis of such propositions is, as Lord Parker of Waddington stressed in Pwllbach Colliery Co Ltd v Woodman [1915] A.C. 624, 646, that ‘The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property . . ‘ But there is no common intention between an acquiring authority and the party whose property is compulsorily taken from him, and the very basis of implied grants of easements is accordingly absent.’
Lord Keith of Kinkel said that both the rule in Wheeldon v Burrows and the provisions of section 62 of the 1925 Act had ‘no place in compulsory purchase’.
Lord Wilberforce rejected the submission that the rule in Wheeldon v Burrows could apply in a case where the conveyance was made pursuant to a compulsory purchase order: ‘To apply this to a case where a public authority is taking from an owner his land without his will is to stand the rule on its head: it means substituting for the intention of a reasonable voluntary grantor the unilateral, opposed, intention of the acquirer’
and ‘section 62 does not fit this case. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist
Lord Wilberforce, Lord Edmund-Davies, Lord Keith of Kinkel
[1979] AC 144, [1977] UKHL 3, [1977] 2 All ER 385, [1977] 2 WLR 951, [1977] QB 411
Bailii
Conveyancing Act 1881 6, Law of Property Act 1925 62
England and Wales
Citing:
Appeal from – Sovmots Investments Ltd v Secretary of State for the Environment 1977
. .
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 – Bolton v Bolton ChD 10-May-1879
A contract to sell land with the appurtenances does not pass a right to a way to the land sold which the vendor has used over adjoining land of his own.
Where a grantee is entitled to a way of necessity over another tenement belonging to the . .
Cited – Long v Gowlett 1923
Except where a right claimed is continuous and apparent, there must be diversity of ownership or occupation prior to the conveyance for section 62 (1) to apply. . .
Cited by:
Cited – Akumah v London Borough of Hackney HL 3-Mar-2005
The authority set up a parking scheme for an estate of house of which it was the landlord. Those not displaying parking permits were to be clamped. The appellant complained that the regulations had been imposed by council resolution, not be the . .
Cited – Millman v Ellis CA 1996
The defendant had sold part of his land to the claimant. A right of way was granted over a lane. The purchaser asserted that he had the use of a lay-by on the lane which would otherwise be dangerous. The vendor said the plan did not include a right . .
Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.223148
