was an
English land law
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal ...
case which reformulated the tests for an easement (the scope of the law of
easement
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
s). It found an easement to use a communal garden to be a valid easement in law. There is no requirement for all of the houses to be immediately next to the garden to benefit from it.
Facts
Ellenborough Park is a park in Weston-super-Mare (split by a minor road, not considered by either side, nor the courts consequential). The larger park was owned in 1855 by two tenants in common who sold off outlying parts for the building of houses, and granted rights in the purchase/sale deeds to the house owners (and expressly to their successors in title) to enjoy the parkland which remained.
[The court-approved transcript]
at bailii.org
The land was enjoyed freely until 1955, when
Judge Danckwerts delivered his decision on a complex dispute at first instance. The knub of the case appealed centred on a monetary question affecting the land for the first time. It centred on the fact that the
War Office
The War Office was a department of the British Government responsible for the administration of the British Army between 1857 and 1964, when its functions were transferred to the new Ministry of Defence (MoD). This article contains text from ...
had used the land during
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, and compensation was due to be paid to the neighbours (if correctly alleging a proprietary interest to use the land, namely an easement) or the landowner, the trustees of the original owner if they were the sole person(s) with an owning interest (under the Compensation Defence Act 1939, section 2 (1)).
The landowner (of the park), the beneficiaries of the trust of the original owners of the land, challenged the assertion of an "easement" from the immediate neighbours enjoying the expressed right to use the park in their deeds (title), which they in practice also regularly enjoyed. They stated these neighbouring owner-occupiers (and their tenants) had only a personal advantage (a licence, with no proprietary rights), and not an easement proper (which would include proprietary rights).
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Judgment
Lord Evershed MR
Francis Raymond Evershed, 1st Baron Evershed, PC (8 August 1899 – 3 October 1966) was a British judge who served as Master of the Rolls, and subsequently became a Law Lord.
Background and education
Evershed was the son of Frank Evershed, a b ...
held the occupiers of the properties in question did enjoy an easement over Ellenborough Park. He determined that four criteria for defining an easement
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
existed, taken from Cheshire's ''Modern Real Property'', and said:
See also
*Easements in English law
Easements in English law are certain rights in English land law that a person has over another's land. Rights recognised as easements range from very widespread forms of rights of way, most rights to use service conduits such as telecommunication ...
Notes
;References
;Notes
{{Reflist, group=n
References
*N Gravells (ed), ''Landmark Cases in Land Law'' (2013)
English property case law
English land case law
Court of Appeal (England and Wales) cases
1955 in British law
1955 in case law