Easements-21.06.06

Law Extension Committee Real Property

Winter 2006 Easements

 ____________________________________  ______________________________________________________ _____________________________________ _____________________ __

EASEMENTS

LECTURE ON 21 JUNE 2006 Note:

Students should read Chapter 16 of Land Law by Peter Butt (5th  Edition) and should also find and read the sections and cases referred to in the Subject Guide commencing on page 14. These notes are not a substitute for reading the text and considering the cases.  ______________________  _________________________________ _______________________ ________________________ _______________________ ____________  _  Nature of Easements

“a right enjoyed by the owner of one piece of land to carry out some limited activity (short of taking possession) on another piece of land” – Butt p 369 Corporeal rights – those things that are tangible eg. land Incorporeal rights – those things that are intangible eg. easements and other legal rights. Four essential characteristics: characterist ics: Considered in  Re Ellenborough Park [1956] 1 Ch 131 •

must be a dominant and servient tenement.

•

the easement must accommodate accommoda te the dominant tenement.

•

•

can't be common ownership of the dominant and servient tenement (but see the Conveyancing Act and section 88B). the right right must be capable of forming the subject subject matter of a grant.

Dominant and servient tenements Must be a right right for the benefit benefit of a piece of land. If it is not annexed annexed to land then it is a personal right and is not an easement. Personal rights bind only the parties to the arrangement and do not 'run with the land'. This position has been altered in relation to some easements classified as ‘easements in gross’ created pursuant to section 88A of the Conveyancing Act 1919. Must accommodate the dominant tenement

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 1 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________

Must be for the benefit of the dominant tenement. Land that has the benefit of an easement may be subdivided and each part of the subdivided land has the benefit of the easement. Land that is consolidated does not confer on any part of the land that does not have the benefit of the easement any rights it did not have before. A brief synopsis of the facts and decision in Bursill Enterprises v Berger Bros Trading Co  (1971) 124 CLR 73 is as follows: •

•

•

•

•

•

•

Berger and Bursill owned adjoining lands fronting George Street, Sydney. Berger had the benefit of a right of way over part of Bursill's land for a distance of 28 feet from George Street and above this land was a building partly constructed on Berger's land and partly over the right of way at a height of 12 feet above the ground. the building was partly supported on a building on Bursill's land. the building had been erected prior to 1872 and in 1872 Bursill's predecessor in title had granted to Berger's predecessor in title by transfer under the Real property Act an extension of the right of way "together with all the buildings at present erected on the said road…and the right to pull down such buildings and to rebuild others at the height of not less than 12 feet from the ground over such road…to the extent and no further than the existing building goes and for any of such purposes to use and to build upon the walls to the extent aforesaid now or hereafter to be erected upon the ….said road…". notification entered on title. Both titles referred to "rights of way". Berger claimed to be able to continue occupation of the 2 storey building, Bursill claimed to be the owner of the building as the owner of the land over which it was constructed. Held that: •

the transfer and grant in 1872 was a transfer of part of the land being the stratum occupied by the building.

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 2 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ •

•

the grant was notified on the folio of the register as what is "notified" to a prospective purchaser is everything that would have come to his knowledge if he had made such searches as he should make as a result of what appears on the title. Bursill was not entitled to demolish the wall that supported Berger's building and that Berger's right to rebuild was limited to a right to erect a building of the same dimensions as the original building

In Frater v Finlay  (1968) 91 WN (NSW) 730 the Court considered a preliminary point taken by the defendant that the provision for the sharing of maintenance costs did not constitute part of the easement and was binding only on the original parties to the agreement. In his decision, Newton D.C.J. considered Re Ellenborough Park  (see above) and made the following comments:  The real issue in this case (Re Ellenborough Park) was whether or not an easement had been created, and the court traced the historical development of the concept of easements from the Roman law of servitudes, noting that the term “easement” was known to the mediaeval common law up to the present time, and finally giving  judicial approval to the four characteristics of easement formulated in Dr. Cheshire’s Modern Real Property , 7th  ed., at pp. 456 et seq. They are (i) there must be a dominant and a servient tenement; (ii) an easement must accommodate the dominant tenement; (iii) dominant and servient owners must be different persons; and (iv) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant. These principles are restated in Gale on Easements , 13th ed., at pp. 6 et seq. In the case which I am called upon to decide there is no question that the defendant is the owner of a dominant tenement and the plaintiff the owner of a servient tenement and the defendant has an easement over the plaintiff’s land to take water through a pipeline into a trough on the lands of the defendant. It also seems clear to me that the obligation of the owner of the dominant tenement to pay half the cost of keeping the well and pipes and tanks and equipment in good order and condition cannot, in itself, amount to an easement independent and separate from the easement to receive water. Viewed on its own, the obligation to contribute could not comply with the second essential of an easement, namely that it must accommodate the dominant tenement. This means that what is required is that the right “accommodates and serves the dominant tenement and is reasonably necessary for the enjoyment of that tenement; for if it has no necessary connection therewith, for although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all but a mere contractual right personal to and enforceable between the two contracting parties”.

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 3 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ In my opinion the obligation of the grantee of the easement to contribute half the cost of repairs formed part of the easement and therefore binds the successors in title, and therefore the plaintiff is entitled to recover one half of such moneys as he is able to prove were expended by him within the terms of the grants.

Unity of ownership and possession A person cannot have an easement over the persons own land. Since an easement is a right, it is not possible to have a right to do something over land you already own. But see Conveyancing Act 88B which allows easements to be created by plan over land in common ownership.

Right must be capable of being the subject matter of a grant Can't be too vague or indefinite. Must be capable of definition (originally by deed) and now more commonly by section 88B instrument. Rights amounting to possession As an easement is a right, it cannot be of such a magnitude that it amounts to possession of the land constituting the site of the easement. A right to store goods in a cellar has been held not to constitute an easement as it gave exclusive possession to the grantee. (Butt [1618]) In Copeland v Greenhalf   [1952] 1 Ch 488 Upjohn J. considered a claim for an easement by prescription and whether in the particular circumstances the right claimed could constitute the subject matter of a valid easement. His Honour went on to say: I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the tract there; he can leave as many or a s few lorries there as he likes for a s long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 4 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ this wide and undefined nature can be the proper subject-matter of an easement.

Easements for overhead power lines cannot prevent buildings being erected beneath the lines although commonly these easements provide for the consent of the supply authority to be required before buildings can be erected. Some restrictions are also placed on trees within power line easements. At [1618] Butt refers to some of the cases where rights that might have been thought to create a right of possession rather than a right in the nature of an easement, have held that easement rights exist. It is difficult to reconcile some of the cases as it is possible by statute to create rights that amount to rights of possession. The right to have an encroaching building remain clearly prevents the owner of the land encroached upon from exercising any rights over that part of the land. An easement for electricity purposes prevents an owner from exercising any rights over the area where the poles are standing. The area might not be large, but it does amount to an exclusive use of that small area.

Creation of easements

Express easements – Old system land At law, easements over land under the old system must be created by deed. Section 23B Conveyancing Act. Easements not validly created by deed may still be enforceable as 'equitable easements' but the requirement to show the four matters referred to in Re Ellenborough Park still exists. Mere writing will be sufficient to create an 'equitable easement' over old system land. Section 23C Conveyancing Act. Part performance might also found a right to an 'equitable easement' if sufficient evidence can be produced. Sections 23E and 54A, Conveyancing Act. Express easement – Torrens title Registration of a transfer. Registration of a lease. Can be included as rights available to the lessee. The rights cease on the expiration of the lease and the handing over of possession to the lessor. Registration of a plan under section 88B Conveyancing Act.

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 5 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________

Section 88 Conveyancing Act. In Dabbs v Seaman (1925) 36 CLR 538 the High Court considered whether Emily Dabbs was entitled to a right of way over land adjoining the land owned by her and marked on her Certificate of Title as “20 feet lane”. In his judgment Isaacs J attempted to clear the issues at the very beginning of his judgment by saying: When the mists of irrelevancy disappear, the question resolves itself into the following proposition, which I hold to be good law and to be absolutely necessary if titles under the Real property Act are to be indefeasible: Where A, a registered proprietor of land under the Real Property Act, transfers to B a part of his land described by a plan indicating that the transferred land is bounded on one side by a 20' lane situated on the other part of the transferor's land and the transfer is duly registered, the, in the absence of either a provision to the contrary on B's certificate of title or some subsequent personal legal or equitable relation to the contrary between B and the owner of the adjoining land, B, so long as he remains the registered proprietor of the land so transferred and described, is entitled (1) to have the land marked “20 feet lane” preserved as such, and (2) to a right of way over the lane.

Implied grant  The most common application of the doctrine of an 'easement of necessity' arises where land has been sold but for some reason no access to a public road is available. It is not common under in New South Wales as the application of the principles surrounding the subdivision of land do not generally allow for land to be so subdivided as to deny access to part of the land subdivided. In Wheeldon v Burrows (1879) 12 Ch D 31 the Court considered an application for an implied reservation of a right to light arising from the sale of land. What has become known as the rule in Wheeldon v Burrows is set out as follows: [O]n the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.

In the case of Corporation of London v Riggs (1880) 13 Ch D 798 the Court considered whether a right of way of necessity in favour of a landlocked piece of land over the surrounding land is a general right “for all purposes” or whether it is limited to the uses to which it had  ______________________________________________________ ______________________________________ © 2006 James Helman Page 6 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________

been put at the time when the action first arose.  Jessel M.R. said:

In his judgment,

I fail to find any exact decision on the point, or anything coming near it, for it does not seem to have been discussed anywhere; and the only scintilla I can find going anywhere near the point is an observation of the Lord Chancellor Cairns in  Gayford v.  Moffat (1), in which he says, reading from Mr. Seargeant Wiliams’  note to Pomfret  v. Ricroft (2): “This principle seems to be the foundation of that species of way which is usually called a way of necessity:” and then he goes on to say, “Now, that is exactly the interpretation of the words used in this grant; ‘with all ways to the premises appertaining;’ it means, with such a way as the law would hold to be necessarily appertaining to premises such as these – that is, a way of necessity; therefore, immediately after this lease was granted, this tenant occupying the inner close became entitled to a way of necessity through the outer close, and that way must be a way suitable to the business to be carried on on the premises demised, namely, the business of a wine and spirit merchant. It is therefore obvious to me that Lord Cairns thought a way of necessity meant a way suitable for the user of the premises at the time when the way of necessity was created; and that is all I can find in the shape of authority on the subject.

In New South Wales the matter came before the Supreme Court in the case of North Sydney Printing v Sabemo Investment Corporation Pty. Ltd [1971] 2 NSWLR 150. In this case, North Sydney Printing subdivided land and sold part of it (lot 5) to Sabemo Investment Corporation. It retained the remainder of the land (lot 4) as it intended to sell this lot to the North Sydney Council. Lot 4 had no road frontage and no access to any public road except through land adjoining it owned by the North Sydney Council. North Sydney Printing and the North Sydney Council could not agree on the terms of an acquisition of lot 4 and North Sydney Printing approached the Court for an order that it was entitled to a right of way of necessity over the land sold to Sabemo Investment Corporation (lot 5). In his judgment, Hope J. set out his interpretation of the authorities concerning rights of way by necessity and said: It seems to me that the balance of authority establishes that a way of necessity arises in order to give effect to an actual or presumed intention. No doubt difficulties could arise in some cases because of differing actual intentions on the part of the parties, but it seems to me that at the least one must be able to presume an intention on the part of the grantor, in a case such as the present, that he intended to have access to the land retained by him over the land conveyed by him before one can imply the grant or reservation of a way of necessity over the land conveyed. In the present case, there was no such intention, and indeed the actual intention of the grantor was to the contrary. Its intention was that there should be no access over any part of lot 5, and  ______________________________________________________ ______________________________________ © 2006 James Helman Page 7 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ that access should be had by joining lot 4 to the land of the council, which fronted Ward Street. If this consolidation had occurred, then lot 4 would have had access to a public way. As I have said, the plaintiff had in November 1969, and has now, a right to compel that consolidation, that is, the owner of lot 4 has a legal power to compel the  joining of his lot with the land owned by the council, which will produce an access from a public way into lot 4, and so allow lot 4 to be used and not left useless. In these circumstances, I do not see how an intention to have access to lot 4 over any part of lot 5 can be presumed, or imputed to the parties or either of them. Indeed, I do not think it can be contended that if the principle upon which the doctrine of ways of necessity is based is related to giving effect to the intention of the parties in relation to the severance, any right of way of necessity could have arisen in the present case. The only basis for holding that such a right was created in the present case would be that the law inevitably makes provision for access over the land conveyed by the person in the position of the present plaintiff, regardless of that person’s intention and regardless of the other circumstances of the case.

 The application of the rule in Wheeldon v Burrows was also considered in Australian Hi Fi Publications Pty. Ltd. v Gehl [1979] 2 NSWLR 618. In this case land was owned by the Savage family. During their ownership a block of shops was erected and subsequently an office block. At that time there were two buildings on the land. The land was subdivided such that lot 1 comprised the shops and some of the land and lot 2 comprised the office block and the land adjoining it.  The Savage family sold lot 1 to Gehl and several years later sold lot 2 to Australian Hi-Fi Publications Pty. Ltd. There was no reference in any of the contracts or transfers or the certificates of title to any easements providing for rights of way. Evidence was adduced that prior to the first sale the tenants of the shops constructed on what became lot 1 used part of the land that became lot 2 to access a public road. The Court considered that if the land had been under old system title then the rule in Wheeldon v Burrows would have allowed the subsequent owners of lot 1 to claim a right of way over those parts of lot 2 used as the right of way. In his  judgment in the Court of Appeal, Mahoney J.A. considered the application of the rule in Wheeldon v Burrows to land held under the Real Property Act and said:  The argument that such an exception should be created has been put, in substance, upon the following basis: that interests such as Wheeldon v. Burrows   easements are interest well recognized by the law; that, as they are incapable of being registered or noted on the register, they will, unless protected by s. 42 (b), be incapable of existing; and that it could not have been the intention of the Act to destroy such

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 8 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ interest. But, in my opinion, such an argument involves at least two difficulties.

His Honour then went on to say: Second, in considering the effect of s. 42 upon unregistered interests, there must be borne in mind the distinction between the persons by whom those interests were created and subsequent registered proprietors. A between the parties actually involved in the Wheeldon v. Burrows   circumstances, rights will be created. Rights, such as those which arose upon the sale of the land by the Savage family to the defendant and his wife, would normally be within the class of rights existing personally against the Savage family as proprietors and so enforceable against them notwithstanding s. 42. Those rights would not be enforceable against a subsequent registered proprietor taking without fraud; the existence of such rights is proscribed by s. 42 to that extent. There is, in my opinion, nothing special in this, such as would warrant the creation of an exception to the ordinary effect of s 42 or the extension of the term “omission” to make such rights enforceable against the subsequent registered proprietor. I see no reason why, for example, a Wheeldon v. Burrows   interest should be in a better position than he interest which would have arisen had the Savage family, by deed, purported to grant to the defendant exactly a right in similar terms. The right created by that deed would not be enforceable against a subsequent registered proprietor. I, therefore, do not think that the term “omission” should be given the meaning contended for by the defendant.

 This matter is also discussed in Butt at paragraphs [2067]-[2071] See also Dobbie v Davidson (1991) 23 NSWLR 625 (below). See discussion of the principle in Wheeldon v Burrows   in Butt paragraphs [1647]-[1652].

Creation by Prescription In England the existence of an easement not created by a document was considered to be proved by evidence establishing that the right had been used since “time immemorial”. This eventually came to be fixed a usage since 1189 and subsequently became the rule that if evidence could be produced that a right had been exercised for at least twenty years then an easement by prescription could be claimed. As this rule was ridiculous for Australian circumstances, the High Court held in Delohery v Permanent Trustee Co of NSW  (1904) 1

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 9 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________

CLR 283 that the doctrine of the “lost modern grant” was the proper means to categorise an easement acquired by prescription. In Delohery v Permanent Trustee Co of NSW   the High Court said that rights to light could be acquired by prescription. This was abolished by the Ancient Lights Declaratory Act 1904 and is now dealt with in section 179 of the Conveyancing Act.  The doctrine of 'the lost modern grant' is dealt with by Butt at paragraph [1659].  The matters required to be proved are: •

 That the use has been “as of right”.

•

 That the use has been “not by force, secrecy, or permission”.

•

 That the use has been “continuous” for twenty years”.

In Williams v State Transit Authority of NSW [2004] NSWCA 179 the Court of Appeal considered an appeal from a judgement of Young CJ in Eq. In the case before Young J, the court was asked to consider whether the doctrine of lost modern grant applied to claim for rights of way over land under the provisions of the Real Property Act. In his judgment Mason P deals with the doctrine commencing at paragraph 78. He says: At common law an easement may be created by twenty years uninterrupted enjoyment of the right claimed. This doctrine of “lost modern grant” requires the court to presume, even if contrary to the truth, the existence of an express grant which has been lost. The presumed grantor must have the legal capacity to have executed the grant.” In particular, s46 of the Real Property Act relevantly provides that “where any easement…..affecting land under the Act is intended to be created, the proprietor shall execute a transfer in the approved form”. Until the present case, there was an unbroken stream of authority in New South Wales to the effect that easements by prescription could not arise over land subject to the Real Property Act where the acts of user occurred during the time the land was under the Act.

His Honour then went on to discuss the various cases including Berger, Australian Hi-Fi and Dobbie v Davidson. In my opinion, it is to pile fiction upon fiction to extend the doctrine of lost modern grant into the Torrens system, because (assuming no relevant exception to s42 or its equivalents) that system contemplates title at law as arising only upon registration. To transpose the fiction  ______________________________________________________ ______________________________________ © 2006 James Helman Page 10 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ of lost modern grant into a Torrens context one has to presume considerably more that the loss of an executed (and delivered) deed. At the very least, one would have to presume the execution and delivery of a registrable instrument. But the logic suggests that one has to go further and presume delivery accompanied by certificate of title, since that is the normal way in which the person entitled to have an interest registered goes about perfecting such title so far as lies in the grantor’s power. Indeed, title is only perfected through the act of a third party (the Registrar General), and there is no basis for inferring that officer’s acquiescence in the user giving rise to the common law doctrine.

In Dobbie v Davidson  (1991) 23 NSWLR 625 the Court was asked to consider whether a track used for access to a property across another property for a period of 60 years prior to the land being brought under the Real Property Act constituted a right of way and further considered whether the “omission” from the certificate of title after the land was brought under the Real Property Act constituted an exception to indefeasibility within what was then s 42(b). In his judgment in the Court of Appeal Kirby P made the following observations: The purpose of the rule by which a prescriptive right is upheld by the law is ultimately to guard the peaceful enjoyment of the use of land where that use has endured for more than twenty years, as of right.”

“The evidence showed that the use of the road constituting the right of way to “Ellerslie” was extensive. In connection with access to that property it had been used by bullock drays and bullock wagons; horse drawn vehicles carrying products; carts, trucks, cars and tractors; visitors, tradespeople, shearing teams, droving stock, electricity and bush fire brigade vehicles; shooters; for carting and bailing hay and by children. None of the aforementioned people using the road over this time ever sought permission from the owners of “Lumley Park”. They  just used it without dispute until the present litigation began.” “Relevant to assigning conduct to one category rather than the other will be: (i) the time during which the conduct has been peacefully followed; (ii) the persistence of the conduct, despite supervening sale and the acquisition of new owners by the dominant and servient tenements; (iii) the unlimited variety of the persons who have utilised the alleged right-of-way; (vi) the absence of physical impediments or obstructions to that use; and (v) the knowledge of the use by the owners of the servient tenement yet their failure to attempt to forbid, limit or control the use of the right-of-way by the owners of the dominant tenement and those having dealings with them. All of the foregoing features were present in the facts of this case.

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 11 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________

After coming to the conclusion that the right of way had existed at the time the land was brought under the provisions of the Real Property Act, Kirby P went on to consider whether this amounted to an omission sufficient to be one of the exceptions to indefeasibility. He considered Australian Hi-Fi Publications v Gehl   (see above) and decided that this case was different to Gehl and that the easement obtained by prescription did amount to an easement omitted from the title and therefore within 42 (b). Creation by the Court  The Conveyancing Act s 88K allows the Court to order that easements be created in the circumstances set out in that section. See section 88K.

Extent of use

Express grant “Where an easement is created by express grant or express reservation, the manner in which it may be used – the extent and mode of permissible enjoyment – is a matter of construing the instrument.” (Butt [1670]) In White v Grand Hotel, Eastbourne [1913] 1 Ch 113 the case concerned a right of way over a privately owned laneway which was granted to the owner of a private house to allow him to access the rear of his property through a gateway. The owner of the dominant tenement sold the premises to a hotel and the rear yard was used as a garage for motor cars belonging to visitors staying at the hotel with the drivers of those vehicles staying in the previously private premises.  The question before the Court was: ... whether the use of the right of way must be restricted so as no longer to enure for the benefit of the owners of St. Vincent Lodge and its stables unless the same continued to be used and occupied precisely as they were in 1883, when the agreement was made, that is to say, as a private dwelling-house.

On Appeal, Cozens-Hardy M.R. considered the manner in which the right of way was created and determined that the right of way was created by agreement and not by prescription. This being so, His Honour then said: ... it is a right of way claimed under a grant and, that being so, the only thing that the Court has to do is to construe the grant: and unless there is some limitation to be found in the grant, in the nature of the  ______________________________________________________ ______________________________________ © 2006 James Helman Page 12 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ width of the road or something of that kind, full effect must be given to the grant, and we cannot consider the subsequent user as in any way sufficient to cut down the generality of the grant.

Jelbert v Davis [1968] 1 WLR 589. In this matter part of a large agricultural estate was conveyed to Jelbert together with “the right of way at all times and for all purposes over the driveway . . . leading to the main road, in common with all other persons having the like right.”

While the land was originally farmed, Jelbert sought and obtained planning permission to operate a caravan and camping park on the land between 1 April and 31 October in each year. The defendants claimed that this intended use was different from that contemplated and would be excessive and constitute a nuisance.  The matter came before the Court of Appeal and Lord Denning M.R. set out the facts at some length. The following extracts are from his  judgment: In particular, of the words “the right of way at all time and for all purposes over the driveway leading to the main road.” What is the extent of that right when the land is changed from agricultural use to a caravan and camping site? The change will mean no doubt that a different   kind of vehicle will be used for different  purposes. But that change is, by itself, quite permissible. It is covered by the words of the grant “at all times and for all purposes.” That is shown by White v. Grand Hotel, Eastbourne Ltd. In view of those cases Mr. Lyndon-Stanford (who appears for M. Davis and Mr. Osborne)) conceded that he could not complain that the way was to be used for caravans instead of agricultural vehicles, such as carts or tractors. He could not object, for instance, to a user in connection with ten caravans. But he did object, he said, to excessive user. In my opinion a grant in these terms does not authorise an unlimited use of the way. Although the right is grant “at all times and for all purposes,” nevertheless it is not a sole right. It is a right “in common with all other persons having the like right.” It must not be used so as to interfere unreasonably with the use by those other persons, that is, with their use of it as they do now, or as they may do lawfully in the future. The only way in which the rights of all can be reconciled is by holding that none of them must use the way excessively. More generally, the true proposition is that no one of those entitled to the right of way must use it to an extent which is beyond anything which was contemplated at the time of the grant.” . . . ... The question thus turns on the facts and circumstances of the particular case.” . . .  ______________________________________________________ ______________________________________ © 2006 James Helman Page 13 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ ... If 200 units, such as caravans, doormobiles or cars, used this caravan site, there would be 600 people there. All those people might go out in a car two or three times a day. In the morning to the beach. In the afternoon for an outing. And such like. All of them would be using the driveway. It seems to me that the user on that scale would interfere greatly with the rights of Mr. Osborne and Mr. Davis. ... In my opinion, therefore, the proposed user for 200 units would be excessive. It would be far beyond anything contemplated at the time of the grant.

Implication “Where an easement arises by necessity, the extent of permissible use is limited by the necessity which led to its being created, and having regard to the use then made of the dominant tenement.” Butt [1673]  This issue was considered in Corporation of London v Riggs   (see above) where the enclosed land was used for agricultural purposes at the time of the sale of the surrounding land but where the use was subsequently changed to building purposes. It was held that the owner of the enclosed land was only entitled to a right of way by necessity for its use at the time of the grant, and could not claim a right of way suitable for some other use. In his judgment, Jessel M.R. put the following proposition:  That of course brings us back to the question, What does the necessity of the case require? The object of implying the re-grant, as stated by the older Judges, was that if you did not give the owner of the reserved close some right of way or other, the could neither use nor occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is.  That appears to me to be the meaning of a right of way of necessity. If  you imply more, you reserve to him not only that which enables him to enjoy the thing he has reserved as it is, but that which enables him to enjoy it in the same way and to the same extent as if he reserved a general right of way for all purposes: that is – as in the case I have before me – a man who reserves two acres of arable land in the middle of a large piece of land is to be entitled to cover the reserved land with houses, and call on his grantee to allow him to make a wide metalled road up to it. I do not think that is a fair meaning of a way of necessity:  ______________________________________________________ ______________________________________ © 2006 James Helman Page 14 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ I think it must be limited by the necessity at the time of the grant; and that the man who does not take the pains to secure an actual grant of a right of way for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the grant was made. I am not aware of any other principle on which this case can be decided.

In the case of Lock v Abercester [1939] 1 Ch 861 Mary Jane Lock sought a declaration that she was entitled to a right of way over certain land to a road. The evidence presented by the plaintiff established and easement for persons on foot and with carriages and horses. The defendant argued that this did not entitle the plaintiff to cause heavy motor vehicles to pass over the right of way. In his  judgment, Bennett J referred to the evidence as follows:  There is a cloud of witnesses, and their evidence is unimpeachable as to the general use over the period I have stated, namely, more than forty  years, of the way in question as a means of getting with horses and carts to and from the rectory. Having heard the evidence, I have no doubt whatever that the plaintiff has established that there is an easement of way for persons on foot and for carriages and for horses over the way in dispute from the rectory to the main road between Stourport and Worcester.

After considering an argument by the defendant’s Counsel that the plaintiff must prove that the right of way had been used by motor vehicles for the period of time prescribed in the English Prescription Act, Bennett J dealt with the matter as follows: In my judgment that is not the law. What is claimed and what is prescribed for is a carriageway. The right, if established, is for the use of the way by carriages, not for a particular type of carriage or for carriages drawn by a particular kind of animal.  The law must keep pace with the times. As a matter of law I propose to decide that, where proof is given of the user of a way by carriages drawn by horses for the required period so as to establish the right to an easement for a carriageway, the right so acquired is one which enables the owner of the dominant tenement to use the way with mechanically propelled vehicles.

“Where an easement arises by implied grant under the principle in Wheeldon v Burrows, the permissible use is limited by the nature of the use which the grantor exercised immediately before the severance which gave rise to the easement.” Butt [1674]

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 15 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________

Prescription “Where an easement arises by prescription, the extent of permitted use is determined by the manner of use over the twenty years during which it arose. At the end of the twenty years, the right that arises is a right to continue the same use, not a different one.” Butt [1675] In R P C Holdings, Ltd. v Rogers [1953] 1 All ER 1029 the plaintiff company sought a declaration that the defendant was not entitled to cross the plaintiff’s land except for agricultural purposes. The defendant argued that he was entitled to a full right of way “whether on foot or by vehicles and for all purposes and for all persons authorised by the defendant”. After considering the evidence Harman, J found that a track had been in existence over the site of the claimed right of way since 1880 and determined: Accordingly, in my judgment, the defendant does succeed in proving a right of way over this track. The use proved, however, has from the nature of the place been confined to use in connection with agriculture. . . . If then, the right be confined to agricultural purposes, the defendant must fail for, in my judgment, it is clear enough that this will not justify the use of the track in connection with what is virtually a large lodging house. . . . In my judgment, therefore, the defendant in order to succeed must show himself to be entitled to a general right of way for all purposes. The question whether he has such a right appears to me to be the only point in the case presenting any difficulty.

After considering a line of English authority His Honour came to the following conclusion: It seems to me as a result of these three authorities that the question of the extent of the right is one of fact which I as juryman have got to determine, but that I am not to conclude from the mere fact that while the property was in one state the way was for all purposes for which it was wanted, therefore, that is a general right exercisable for totally different purposes which only came into existence at a later date. Sitting as a juryman I can feel no doubt that the way here was a way limited to agricultural purposes, and that to extend it to the use proposed would be an unjustifiable increase of the burden of the easement.

 There is a distinction between circumstances in which there is an attempt to change the use to which an easement by prescription may be put and circumstances that result only in an increase in the extent of the use that amounts only to an intensification rather than a change. This issue was discussed in British Railways Board v Glass [1965] Ch 538. The Court of Appeal determined:  ______________________________________________________ ______________________________________ © 2006 James Helman Page 16 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ (3)

That the defendant had acquired by prescription a right to use the crossing for the purposes of the caravan site, and, it having been admitted by the plaintiffs on the pleadings that the whole of the field to the north of the crossing, the blue land, constituted a caravan site, and no radical change having occurred in the character of the dominant tenement, the mere increase in the number of caravans using the site and the consequent increase in the user of the crossing did not amount to an excessive user of the prescriptive right, and the judge was therefore correct in holding that there had been no such increase in the burden of the easement as would justify the plaintiffs in seeking an injunction.

Lord Denning M.R. did not agree with this finding of the Court and is reported in the headnote as follows:  The rule that the owner of a prescriptive right of way is not entitled to change the character of his land so as substantially to increase or alter the burden on the servient tenement is not confined to the character of the property but extends also to the intensity of the user: no grant of a right of way for 30 caravans could ever be presumed from user for six.

Generally  In Selby v Nettlefold (1873) 9 Ch App 111 the Court held that the persons entitled to a right to use a towing path beside a canal could deviate from the site of the easement across the land of the servient owner and back onto the towing path to deviate around a bridge abutment that had been constructed across the towing path and blocked access along the canal. In Saint v Jenner [1973] 1 Ch 275 the Court of Appeal was asked to consider whether ramps (in the nature of speed humps) that had been installed across a right of way should be removed at the request of the plaintiff. The Court considered that the ramps did not infringe the plaintiff’s right to use the right of way although some orders were made that the ramps be maintained in a particular state of repair. In Middleton v Arthur   BC 200203890 Supreme Court of NSW 16  July 2002 Palmer J discussed the principles of construction of easements and rights of way, the principles of substantial interference and dealt with matters concerning the grant of an injunction and issues arising from allegations of laches acquiescence and delay. After considering the issues in a long judgment he granted an injunction against the defendant preventing the defendant from proceeding with the construction of a studio, and a grill gate and “C” channel that would have infringed on the right of way. This judgment should be read carefully.

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 17 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________

Extinguishment

 There are four ways in which an easement can be extinguished.  These are, express release, implied release, operation of law and b a Court Order pursuant to section 89 of the Conveyancing Act 1919. Express Release Where the party having the benefit of an easement and the party having the burden of an easement agree that the easement can be released or extinguished then this can be achieved by the preparation of appropriate documents. For land under old system title, it is necessary to prepare a deed setting out the terms of the release. This deed must be signed by at least the owner having the benefit of the easement and should be registered in the general registry of deeds. For land under the Real Property Act there is a form of Transfer Releasing Easement which should be prepared, properly signed and registered.

Implied release by abandonment  The courts will not easily imply the release of an easement by abandonment. In Treweeke v 36 Wolseley Road (1973) 128 CLR 274 the High Court affirmed the decision of Hope J in the Supreme Court of NSW to dismiss an application for a declaration that the right of way had been abandoned. In his decision, McTiernan J came to the following conclusion:  The non-user of the total length of the way can reasonably be put down to its precipitous condition at places. It is not reasonable to attribute non-user to renunciation of such a pleasant amenity as a path to the beach at Double Bay. There is ample evidence of the utilization of passable parts of the locus in quo of the right of way as the first stage of daily journeys to the beach by residents of no. 36 Wolseley Road, the dominant tenement. There is evidence of a survey being procured by the owner of one of the home units to determine the precise course of the right of way along the north-western boundary of the servient tenement. There is evidence that the respondent’s agent informed some of the people residing at no. 36 Wolseley Road about the existence of the right of way when purchasing their home units. The correspondence which is in evidence proves that the respondent complained to Mrs Treweeke about the swimming pool when the survey established that it obstructed the right of way. In my opinion, upon the whole of the evidence there is clear proof of the intention of the respondent to retain the right of way. I do not think it can be presumed that release of the right of way occurred at any time before or since the respondent acquired the property, no. 36 Wolsele y Road.  ______________________________________________________ ______________________________________ © 2006 James Helman Page 18 of 19

Law Extension Committee Real Property

Winter 2006 Easements

 ___________________________________________________________________________ In my opinion the appeal should be dismissed.

In Couche v Adams  [2002] NSW SC (31 January 2002) Palmer J considered issues of abandonment, extinguishment and modification of a right of way for the benefit of a terrace in Paddington. The  judgment sets out the facts of the case and the Judge’s reasons for the decision to allow a modification of the easement by extinguishing a very small part of the easement not required for access to numbers 1 and 3 Quarry Street, Paddington. Operation of law Where property is under old system title and both the dominant tenement and servient tenement come into the same ownership then the easement is released by the operation of law. Having been released, the easement is not revived upon the sale of part of the land and it is necessary for it to be re-created by the conveyance. It is necessary for there both to be common ownership and common possession for extinguishment to occur. Conveyancing Act section 89  This section of the Conveyancing Act provides a mechanism for applications to be made to the Supreme Court as set out in the section. -----------------------------------------------------

 ______________________________________________________ ______________________________________ © 2006 James Helman Page 19 of 19