easements - problem question II

“a purported grant of a right of way for such periods as the servient owner may permit one to use it would not confer any legal right at all.”1 “an easement cannot impose a positive obligation on a servient owner...the servient owner’s only obligation is to refrain from doing anything that impedes enjoyment of the easement by the dominant owner.”2 Figure 1: Brook Farm schematic Brook Farm Greenacre Our instant scenario raises a series of questions concerning the category of ‘incorporeal heriditaments’ known as ‘easements which have long troubled property lawyers.3 Recognised both at equity and law, they represent a powerful body of rights, that though not capable of existing ‘in gross’4 can confer considerable benefit to the so called ‘dominant’ tenement and represent a not inconsiderable burden to the ‘servient’ tenement. Capable of passage upon ‘conveyance’ (s. 187 LPA 1925)5 assuming they have been adequately created6 and protected (see below); they may even crystallise inadvertently.7 1 Green v Ashco Horticulturist Ltd [1966] 1 WLR 889 2 William Old International Ltd v Arya [2009] EWHC 599 3 Aldred’s case (1610) 9 Co Rep 57b; (1610) 77 ER 816, [1558-1774] All ER Rep 622 4 Hawkins v Rutter [1892] 1 Q.B. 668, 672 (C.A.) 5 and indeed even creation as per s. 62 LPA 1925 6 which may be by deed, registration, prescription, statute and/or implication 7 Hair v Gilman [2000] 3 EGLR 74 Concerning registered land and potential ‘easements’ that may (or may not) bind Dominic and Tariq’s respective freehold (fee simple in possession) estates we can distinguish: i. easement (a) concerns Dominic’s purported ‘reserved’ right to move his cattle across “grassland at the edge of Greenacre” to another field for grazing; which Tariq is resisting (for business reasons). ii. easement (b) concerns the signage that Tariq wishes to attach to the wall of the barn on Brook Farm advertising his proposed ‘tourist accommodation’. iii. we need to consider the lawfulness of Tariq’s actions as regards the planting of holy bushes and the padlocking of the connecting gate; effectively closing of proposed easement (a). Nature of Easements: Not established by statute, we can look to Evershed MR’s judgment in re: Ellenborough Park [1956]8 to locate the four ‘essential characteristics of an easement.9 To be capable of being an easement there must be: i. a dominant and servient tenement identifiable at the time the easement is created.10 We note that in the first of these purported easements Brook Farm (as owned by Dominic) constitutes the ‘dominant’ tenement whilst Greenacre (as owned by Tariq) represents the ‘servient’ tenement; in easement (b) we face the converse. ii. the alleged easement must ‘accommodate’ the dominant tenement; not only by being sufficiently proximate - Pugh v Savage [1970]11 but sufficiently connected with the land (contrast Hill v Tupper (1863)12 and Moody v Steggles (1879).13 iii. there must, as Roe v Siddons (1888)14 established be ‘diversity’ of ownership and/or occupation. iv. and finally as established in Ellenborough Park [1956] the alleged easement must be capable of forming the ‘subject’ matter of a grant; which means: 8 [1956] Ch. 131 9 themselves drawn from Professor Cheshire’s scholarship in Modern Real Property 10 London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31 11 [1970] 2 QB 373 12 (1863) 159 ER 51 13 (1879) 12 Ch D 261 14 (1888) 22 Q.B.D. 224 • • • • must be a grantor and grantee right must be sufficiently well defined to put into a deed15 must be analogous to existing easements16 must not exclude servient owner from using the land17 Let us consider the specific easements in turn. Easement (a): With nothing to suggest that Dominic has ‘expressly’ reserved an easement, and neither s. 62 LPA 1925 and/or Wheeldon Burrows (1879) being of any help as regards easements arising by way of ‘reservation’, he is thrown on the perilous waters of ‘implication’ by necessity and/or ‘common intention’ with only ‘prescription’ as a potential backstop. Essentially a ‘quasi-easement’ until 2010 (when Dominic sold Greenacre to Tariq) at the point of ‘conveyance’ it would have been possible to establish an express ‘reservation’. This would have been legal had it been by deed and/or registered disposition; equitable if by written contract. On this the question is silent. With an host of cases establishing that a seller ‘may not derogate from his grant’: Donington Park Leisure v Wheatcroft [2006]18 ((alternatively expressed as the ‘law leans against the seller’) whether by way of grant and/or reservation, the law sets the bar high as regards ‘necessity’ (see cases such as re: MRA Engineering [1988]19 and Manjang v Drammeh [1990]20). Perhaps as in Walby v Walby [2012]21 the court would consider what other alternatives Dominic has; can he access his field by another route. Could it be argued to be analogous with the ventilation scenario that the court considered in Wong v Beaumont [1965]22 certainly mere inconvenience will not suffice: re Dodd (1843).23 15 supra note 2 but also see Coventry v Lawrence (No 1) [2014] thus they generally do not impose positive burdens on the servient tenement: Phipps v Pears [1965] 1 Q.B. 76 16 17 sometimes known as the ‘ouster principle’ Moncrieff v Jamieson [2007] UKHL 42 18 [2006] All ER (D) 94 (Apr) 19 (1987) Times 2 October 20 (1991) 61 P&CR 194 21 [2012] EWHC 3089 (Ch) 22 Dixon certainly considers this to be more a case of common intention that strict necessity. 23 Dodd and Davies v Acklom (1843) 134 ER 1063 Could Dominic rely on ‘common intention’. Certainly for an extended period of time (this question was set in 2017) it would seem that Tariq has acquiesced in Dominic’s actions (traipsing his cows across the field on a weekly basis) whilst Nourse LJ’s judgment in Stafford v Lee [1993]24 established that ‘common intention’ is distinct from necessity per se; which seemingly centres around ‘impossibility’: Pinnington v Galland (1853).25 With Peckham v Ellison [1998]26 establishing that reservation (of an easement) by common intention is possible (contingent on the test in re: Webb’s Lease [1951]27 being satisfied) Chaffe v Kingsley [1999]28 would seem to suggest that it is not to be lightly presumed.29 The onus would be on Dominic to establish that such an intention had been established; it seems unlikely that mere acquiescence would suffice, and the evidence that his father used to walk his cattle along an ‘unidentified’ path some 30 years ago, seems sorely lacking. What of an easement arising by prescription; this certainly seems to be what Dominic is trying to suggest by his reference to his father’s long standing practice. This however seems doomed to fail. In this regard his father’s erstwhile practice is essentially irrelevant. Tariq only bought Greenacre in 2010 (7 years ago)30 and as such any attempt by Dominic to establish ‘long user’ (‘presumed grant’ as it is sometimes called) by whatever means, will not pass muster. Prior to 2010, Dominic’s father’s historical practice was undoubtedly ‘as of right’ (and as such nec clam, nec vi and nec precario) because he owned the farm (including Greenacre) in its entirety and we recall: “a landowner cannot have a true easement against himself.”31 24 (1993) 65 P&CR 172 25 (1853) 156 ER 1 26 [1998] All ER (D) 639 27 [1951] Ch. 808 28 (1999) 77 P&CR 281 Re Webb's Lease [1951] Ch 808 established that the onus was on the appellant to bring his case within one of the exceptions to the general rule that a grantor who intends to reserve any right over the land granted has a duty to reserve it expressly in the grant, as stated by Thesiger LJ in Wheeldon v Burrows (1879) 12 ChD 31 29 30 this question was set in 2017 31 Dixon - Modern Land Law - 7.10.4 Easement (b): What of Tariq’s sign. Here we are immediately reminded of the factual matrix of the successful claim in Moody v Steggles (1879)32 but there is a significant difference. Whilst in Moody the pre-existing sign benefited the dominant tenement, in our instant scenario, the previous benefit (much as with our earlier discussion as regard easement/s by prescription) flowed towards Dominic’s father. It was a sign placed on his own property (the Barn) to benefit his own business/ property (the Farm Shop). Tariq is looking to establish a novel easement. This can only be achieved by Dominic ‘granting’ him this right (by deed and/or registered disposition) affording him the right (as dominant tenement) over Dominic’s ‘servient’ estate. There is nothing to establish necessity, and/or common intention, nor any pre-existing right that might ground a claim under s. 62 LPA 1925 and/or Wheeldon v Burrows. Though Hill v Tupper (1863)33 might suggest that business concerns are inadequate to ground an easement (failing on the grounds of not ‘accommodating’ the dominant tenement)34 both Moody v Steggles (1879) and the more recent Linvale Investments v Walker [2016]35 seem to suggest that the courts are not blind to commercial realities.36 Conclusion: At first blush it would certainly appear to be that both claims (Dominic’s right to lead his cows across Greenacre and Tariq’s aspirations to attach a sign on the wall of Brook Farm) are vulnerable; certainly Tariq (as regards the latter claim) appears to have no grounds upon which to establish his claim. He might be best to simply ‘contract’ with Dominic and/ or pay him to ‘grant’ (and adequately register) a suitable drafted easement. 32 (1879) 12 Ch D 261 33 (1863) 159 ER 51 34 re: Ellenborough Park [1954 D. 1797.] - [1956] Ch. 131 35 [2016] All ER (D) 167 (Jun) as regards 'accommodating' the dominant tenement also see: P & S Platt v Crouch [2003] All ER (D) 440 (Jul) 36 Dominic’s purported easement may hold up to scrutiny on the grounds of ‘common intention’ but Tariq could certainly attempt to employ the ‘ouster’ principle to protect his interest. Acquiescence does not constitute ‘common intention’ and it could be argued that having a herd of cows trampling across your property was excessively disruptive. On the one hand decisions (where easements were not accepted) such as Copeland v Greenhalf [1952]37 Batchelor v Marlow [2003]38 sit in tension with cases such as Wright v Macadam [1949]39 and Moncrieff v Jamieson [2007]40 (where valid easements were established). R Square Properties v Nissan Motors [2014]41 seems to suggest (though not going as far as Lord Scott in Moncrieff) the key question is whether the alleged easement leaves the servient owner a “reasonable use of his own land.” Difficult to call without further evidence (maps/satellite images etc.) and a thorough understanding of Dominic’s grazing ‘alternatives’ it seems the fate of Tariq’s holly bushes and padlocking ‘arrangements’ cannot be clearly predicted. In the event that an easement is established it is likely the court will invoke injunctions to prevent such actions. If on the other hand they uphold Tariq’s version of events Dominic will be potentially liable to actions in trespass even nuisance and his (Tariq’s) ‘arrangements’ can remain intact. A mediated solution involving contract and/or a mutual grant of easements might save one and all considerable inconvenience and expense. 37 [1952] 1 All ER 809 38 [2003] 4 All ER 78 39 [1949] 2 All ER 565 40 [2007] UKHL 42 41 [2014] EWCA Civ 1769