References: [1864] EngR 129, (1864) 4 De G J & S 185, (1864) 46 ER 888
Links: Commonlii
Coram: Lord Chancellor Lord Westbury
To imply a grant or reservation of an easement as arising upon the disposition of one of two adjoining tenements by the owner of both, where the easement had no legal existence anterior to the unity of possession and is not one of necessity, is a theory in part not required by, and in other part inconsistent with, the principles of English law that regulate the effect and operation of grants of real property.
If the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant ; and the operation of a plain grant not pretended to be otherwise than in conformity with the contract between the parties ought not to be limited and cut down hy the fiction of an implied reservation.
The grantor cannot derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent casements enjoyed by an adjoining tenement which remains the property of the grantor.
The comparison of the disposition of the owner of two tenements to the destination du pere de famille of the French code civil is a fanciful analogy from which rules of law ought not to be derived.
Where the owner of two tenements sells and conveys one for an absolute estate therein, he puts an end by contract to any relation which he had himself created between the tenement sold and the adjoining tenement, and discharges the tenement so sold from any burthen imposed upon it during his joint occupation ; and the condition of such tenement is thenceforth determined by the contract of alienation and not by the previous user of the vendor during such joint ownership.
The right to overhang a bowsprit is capable of being an easement.
This case is cited by:
- Cited – Bradley and Another -v- Heslin and Another ChD (Bailii, [2014] EWHC 3267 (Ch))
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .