its a report on easements and profits. easement act 1882.
Citation preview
Easements and ProftsThanks to Jim Helman and Sahe McCrystal –
errors are mine
(c) Cameron Stewart 2009
What is an easement?
Halsbury’s Laws of England:
A right annexed to land to utilise other land of different
ownership in a particular manner (not involving the taking of any
part of the natural produce of that land or any part of its soil)
or to prevent the owner of the other land from utilising his land
in a particular manner.
Corporeal rights – those things that are tangible eg. land
Incorporeal rights – those things that are intangible eg. easements
and other legal rights.
(c) Cameron Stewart 2009
Positive easments
An easement may be a positive easement - a right to do something on
someone else's land. Examples of recognised positive easements
include:
the right to place electricity and telephone wires over
neighbouring land;
a right of way over a neighbour's land;
the right to discharge water onto neighbouring land from a
drain;
the right to fix a signboard on a neighbour's land.
(c) Cameron Stewart 2009
Negative easments
An easement may also be negative, which restricts what the
neighbour can do on his or her land. Examples of recognised
negative easements are:
an easement of light to receive light for a certain window;
an easement of air, to receive air through a defined channel like a
ventilation shaft;
an easement of flow of water, to receive a flow of water along the
waterways - ie the neighbouring owner cannot block the flow of
water.
(c) Cameron Stewart 2009
Easements are not...
Natural Rights – Rights that are incidental to land ownership and
automatically arise in the bundle of rights attaching to a freehold
estate. You don’t have to acquire them – they just automatically
attach.
Right to support for land in its natural state (not built on –
right not to have earth undermined);
Right to the flow of water. Any other rights necessary to enjoy the
land must be acquired as easements.
Personal Rights – rights enforceable in contract that don’t attach
to the land – for example a licence to enter land for a certain
purpose.
Exclusive possession – that’s a lease
(c) Cameron Stewart 2009
Four characteristics
Four essential characteristics: Considered in Re Ellenborough Park
[1956] 1 Ch 131
• must be a dominant and servient tenement.
• the easement must accommodate the dominant tenement.
• can't be common ownership of the dominant and servient tenement
(but see the Conveyancing Act and section 88B).
• the right must be capable of forming the subject matter of a
grant.
(c) Cameron Stewart 2009
Dominant and servient tenement
The easement cannot be for the benefit of a person.
It must be for the benefit of another piece of land, the dominant
tenement.
If the benefit merely flows to a person, then it is a licence, not
an easement.
Ascertaining whether or not a right is attached to the dominant
tenement or is merely a personal right requires construction of the
instrument which created the right
(c) Cameron Stewart 2009
Dominant and servient tenement
Whether it creates a right which affixes to land – is it meant to
be enforceable against all the world? Is it something that the
owner of the dominant tenement will need / want for the enjoyment
of that land? (easy to demonstrate for example in the case of a
right of way for landlocked land).
What land is intended to be the dominant tenement?- if this is not
clearly identifiable from the instrument – extrinsic evidence may
be adduced to ascertain this, but only on the basis of ‘objective
factors’ like layout of the land and actual use at the date of the
granting of the easement
(c) Cameron Stewart 2009
Dominant and servient tenement
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.
(c) Cameron Stewart 2009
Accommodation of the dominant tenement
There must be a connection between the easement and the enjoyment
and occupation of the dominant tenement. In other words the
easement must confer a benefit upon the dominant tenement.
The benefit conferred must be connected to the land of the dominant
tenement and not just be a personal privilege or commercial
advantage accruing to the current owner of the dominant
tenement
(c) Cameron Stewart 2009
Accommodation of the dominant tenement
The crucial question here is whether the privilege provided by the
easement has a ‘necessary connection’ with the land: is the
easement reasonably necessary for the better enjoyment of the
dominant tenement as a parcel of land?
(c) Cameron Stewart 2009
Accommodation of the dominant tenement
Must it be adjoining land? No but probably needs to be close to get
benefit
Estate created in 1855
The purchasers of the land adjacent to the park and other blocks
within 100 metres of the park were given rights to use the park as
‘pleasure ground’ provided that they contributed to its
upkeep.
During WWII the military had occupied the park and then paid the
owner of the park compensation for use
Should the owners of the houses (who had long since changed from
the original grantees) get some of the compensation as they had
been denied their rights under their easements?
(c) Cameron Stewart 2009
There were two main issues in the case:
Could a right to a ‘pleasure ground’ constitute an easement? Did it
‘accommodate’ the dominant tenement?
Could the owners of the land not directly bordering the park also
claim an easement given that they were not directly next
door?
(c) Cameron Stewart 2009
How do you show accommodation? Lord Evershed MR @ 173:
It is not sufficient to show that the right increased the value of
the property conveyed, unless it is also shown that it was
connected with the normal enjoyment of that property. It appears to
us that the question whether this connexion exists is primarily one
of fact, and depends largely on the nature of the alleged dominant
tenement and the nature of the right granted.
Was the right to use the pleasure park connected to the use and
enjoyment of the houses that the right had been granted to? The
court said yes because the park was intended to be a garden for
these properties – use of a garden enhances and is connected to the
normal use and enjoyment of land – so is capable of forming an
easement.
(c) Cameron Stewart 2009
Accommodation of the dominant tenement
What about the second issue: the houses that did not border the
park?
Easements were also found to have attached for these houses as well
because, despite the fact that they were not directly next to the
park, the nexus between the use and enjoyment of the park and their
land could still be found.
(c) Cameron Stewart 2009
Accommodation 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.
(c) Cameron Stewart 2009
Gallagher v Rainbow (1994) 179 CLR 624
Private Road jointly owned by lots 14, 15, 16, 17. Each have ¼
ownership and an easement to use the other ¾ of the road (cross
easements). The owners of 2 of the lots decide to subdivide into 3
smaller lots. The owner of 1 of the lots that was not going to be
subdivided brought an injunction to restrain the owners of the lots
to be subdivided from using the easement to carry out the
subdivision. She argued that the easement only applied to the
larger lot and if it was subdivided then it would not attach to the
smaller subdivided components. (In this way hoping to prevent the
subdivision because she would then refuse permission for the owners
of the subdivided lots to use her ¼ of the road).
(c) Cameron Stewart 2009
Per Brennan, Dawson and Toohey JJ at 633 –
In this case, the easement would attach to each of the new
subdivisions because the easement provided access for all of the
land of the dominant tenement and was not one that could only
benefit the whole dominant tenement in its original form.
(c) Cameron Stewart 2009
Frater v Finlay (1968) 91 WN (NSW) 730
Easement to receive water with obligation to pay half the cost of
keeping the well and pipes and tanks and equipment in good order
and condition
Two easements or one?
Cannot, in itself, amount to an easement independent and separate
from the easement to receive water.
(c) Cameron Stewart 2009
Newton DCJ:
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”.
(c) Cameron Stewart 2009
The dominant and servient tenement must not be held and occupied by
the same person
You cannot have an easement over your own land
Statutory exceptions to this rule now exist:
CA s 88B – Recording or registering a plan of land indicating an
easement creates an easement even if the dominant and servient
tenement are in the same ownership (old system or Torrens).
RPA s 46A –Allows owner of common land to register easements
with respect to that land; Also not s 47(6) provides that easements
recorded on Torrens Register are not extinguished because land
comes into common ownership.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
What sort of rights can be easements?
The right cannot be too broad or imprecise. It has to be defined
sufficiently well to be capable of constituting an interest in the
servient tenement.
Re Ellenborough Park [1956] 1 Ch 131 – mere right of recreation? No
- defined utility
Riley v Penttila [1974] VR 547. A subdivision for residential
development included an area “for the purposes of recreation or a
garden or a park” and the Victorian Supreme Court held that the
right granted to the owners of the surrounding residential blocks
to use the communal area was an easement.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Courts will be kinder to express easements
Jackson v Mulvaney [2003] 1 WLR 360 per Latham LJ at 368 – “the
court will undoubtedly lean in favour of the creation of an
[express] easement if the intention of the parties was clearly to
that end”.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Rights that can be too vague:
Free flow of air – how do you define it? What are its boundaries?
Won’t be too vague if the right is to air from a defined
channel;
Protection from television interference;
Protection of a view;
Protection from the weather.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Easements cannot be granted that have the effect of giving rights
of exclusive possession or control to the owner of the dominant
tenement over the servient land, or even rights to share ongoing
possession. If the substance of the right granted amounts to a
grant of exclusive possession – the right is really a grant of
possession over the land which is a different interest.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Degree of possession/judicial interpretation – fact scepticism.
Eg’s from Butt:
A right to store goods in a cellar was not an easement because it
amounted to a grant of possession but a right to store coal in a
shed was an easement;
A right to run electricity wires over land which prohibited the
owner from building or planting trees under the wires was not an
easement; but a right to run pipes underground is.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Copeland v Greenhalf [1952] 1 Ch 488 - right to park trucks –
Upjohn J:
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 this wide and undefined nature can be the proper
subject-matter of an easement.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Moncrieff v Jamieson [2007] 1 WLR 2620 – Land A was a small cottage
at the bottom of a cliff. The only access to the cottage was by
boat or by means of stairs in the cliff, leading to a private road
which led to a public road.
The cottage had an easement attached to use the private road.
Could the easement extend to a right to park on the servient land
at the top of the hill or did it only allow the owner of the
dominant land to drive across the land?
Was a right to park capable of being an easement or did it amount
to a grant of exclusive possession?
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Judges conceded that the grant of the easement DID have a right to
park attached to itthe parties creating the grant would have
intended that there be a right to park included with the right – as
a necessary incident of the grant.
But was it possible to make such a grant?
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Lord Hope of Craighead (Lord Mance in agreement) – there seems to
be no fundamental objection to an easement which excludes the owner
of the servient tenement from part of his property while the
easement is being exercised. Doesn’t go much further than saying
that there is no fundamental objection to such a grant.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Lord Scott of Foscote – Lord Scott finds that a grant of ‘exclusive
possession’ over an area of a servient tenement cannot be an
easement. However, he finds that there was no such grant here.
Instead, he finds that the grant of a right to park is a grant of
‘sole use’ of the parking area at any time that the owner of the
dominant tenement chooses to park there. This distinction between
possession and sole use is drawn by Lord Scott by pointing out that
the right of the dominant tenement holder to park on the land of
the servient owner does not prevent the servient owner from also
using the land – from also parking on the land or from building
over the land etc etc. It just stops them doing anything to the
land that would prevent the dominant owner from parking
there.
(c) Cameron Stewart 2009
The right must be capable of forming the subject matter of a
grant
Lord Neuberger of Abbotsbury – Not satisfied that an easement is
prevented from being an easement simply because the right granted
would involve the servient owner being effectively excluded from
the property. Here Lord Neuberger agrees with Scott’s distinction
between the exclusive occupation of the property provided the
servient owner retains possession and control. However, Lord
Neuberger does something a little strange. He indicates that if the
right to park is a right to park in a large space, such that the
servient owner is not precluded from one particular spot of the
land all the time – instead, the car could be parked in any number
of spots – then that is fine. However, he says that if the space is
only large enough for one car and the car must be parked in that
one spot, it might not be capable of forming an easement as this
would exclude the servient land owner.
(c) Cameron Stewart 2009
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.
(c) Cameron Stewart 2009
Creation of Easements
When old system land is conveyed, the CA s 67 deems the conveyance
to include any easements attached to the land unless a contrary
intention is expressed (don’t have to use old forms of
conveyance).
(c) Cameron Stewart 2009
Express grant in Torrens
Torrens – RPA s 46 provides for the creation of easements through
execution and registration of an approved form of transfer. The
easement is noted on both the folios of the burdened and benefited
land. Registration confers indefeasible title on the easement (RP
Act s 47). A transfer of an interest under Torrens vests all
relevant interests including easements in the transferee without
the necessity of using specific words (RP Act s 51).
(c) Cameron Stewart 2009
Conveyancing Act s 88(1)
(1) Except to the extent that this Division otherwise provides, an
easement expressed to be created by an instrument coming into
operation after the commencement of the Conveyancing (Amendment)
Act 1930 , and a restriction arising under covenant or otherwise as
to the user of any land the benefit of which is intended to be
annexed to other land, contained in an instrument coming into
operation after such commencement, shall not be enforceable against
a person interested in the land claimed to be subject to the
easement or restriction, and not being a party to its creation
unless the instrument clearly indicates:
(a) the land to which the benefit of the easement or restriction is
appurtenant,
(b) the land which is subject to the burden of the easement or
restriction:
Provided that it shall not be necessary to indicate the sites of
easements intended to be created in respect of existing tunnels,
pipes, conduits, wires, or other similar objects which are
underground or which are within or beneath an existing building
otherwise than by indicating on a plan of the land traversed by the
easement the approximate position of such easement,
(c) the persons (if any) having the right to release, vary, or
modify the restriction, other than the persons having, in the
absence of agreement to the contrary, the right by law to release,
vary, or modify the restriction, and
(d) the persons (if any) whose consent to a release, variation, or
modification of the easement or restriction is stipulated
for.
(c) Cameron Stewart 2009
Conveyancing Act s 88(1)
Papdopolas v Goodwin [1982] 1 NSWLR 43 is authority for the
proposition that ‘clearly indicate’ means ‘point to’ rather than
‘state’. Therefore as long as the land benefitted and burdened can
be clearly identified from the instrument, this will be
sufficient.
(c) Cameron Stewart 2009
Express reservation
Reservation occurs when a landowner grants away part only of
her/his land and reserves an easement in favour of the retained
land (the dominant tenement) over the land granted away (the
servient tenement).
The term ‘reserve’ is a little misleading. In reality what happens
is that the owner of the dominant tenement sells the fee simple in
the servient tenement. At the same time, the new owner of the
servient tenement makes a grant of an easement back.
s 44A of the CA validates reservations contained in the transfer of
the fee simple.
(c) Cameron Stewart 2009
Easements created through law
Easements created by statutes for public utilities
Section 88K Easements –the court has a right under s 88K to force a
right to use land where it is reasonably necessary in the interests
of the effective use of the neighbouring land.
Easement must be ‘reasonably necessary’: this means that the
easement must be reasonably necessary for the use of the dominant
land not just for the convenience of the RP of that land.
Reasonable necessity is not absolute necessity – so it doesn’t have
to be the absolutely only option; but it should be necessary and
the most reasonable option in the light of other possible solutions
to the need for the easement.
(c) Cameron Stewart 2009
Easements created through law
117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998)
NSWLR 504 – This case involved a dispute over easements in a
redevelopment.
The owners of 117 York St wanted to pull down an existing building
and build a new building that would cover the entire block.
They needed three easements over a neighbouring block of apartments
– an easement to construct a scaffold along the boundary of the
land to build the wall on the boundary, an easement to allow a
gutter to hang slightly into the airspace of the neighbour and an
easement to swing a crane into the airspace of the neighbour to
construct the building.
Negotiations proceeded amicably, but got stuck on the crane. The
owners of the building approached the council to find other places
to put the crane, but all involved blocking major CBD roads and the
requests were refused. They could have used an internal crane at a
cost of $250 000 extra – but this was very expensive. Negotiations
broke down. The builders thought that $20 000 was fair compensation
for the right to swing the crane; the neighbours wanted $400 000
(they’d worked out what an internal crane would cost – and factored
it in). The matter ended up in court because they couldn’t agree
and the owners of York St sought an easement under s 88K.
(c) Cameron Stewart 2009
Easements created through law
Hodgson CJ at 508-509 stated that the phrase in s 88K(1) of the CA
“if the easement is reasonably necessary for the effective use or
development of other land” means:
In my opinion: (1) the proposed easement must be reasonably
necessary either for all reasonable used or developments of the
land, or else for some one or more proposed uses or developments
which are (at least) reasonable as compared with the possible
alternative uses or developments; and (2) in order that an easement
be reasonably necessary for a use or development, that use of
development with the easement must be (at least) substantially
preferable to the use or development without the easement.
(c) Cameron Stewart 2009
Easements created through law
Hodgson J found that the construction of a building which extended
to the boundaries of the land was a reasonable use of the land as
compared with other options (not building to the borders or making
a smaller building) and the easements were reasonable for that
purpose; Also, development with the easements was preferable
because otherwise it would cost another $250 000 and the
inconvenience to the neighbour was minor. Easement granted;
compensation awarded = $23 000
(c) Cameron Stewart 2009
Common law doctrine
An implied easement arises when the common law implies the grant or
reservation of an easement when no easement was expressly granted.
The common law may imply a grant or reservation of an easement into
a conveyance from the presumed intentions of the parties. There are
a group of circumstances in which it is established that the law
will imply an easement
(c) Cameron Stewart 2009
Abutting Private Road
Where a conveyance or lease of land is made and is described as
abutting a private road owned by the vendor there will be an
implied easement for use of the road. Of very limited use now as
very few private roads still exist.
Applies to Torrens land
(c) Cameron Stewart 2009
Abutting Private Road
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”. Isaacs J:
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.
Limited to where the road is also Torrens land: Cowlisaw v Ponsford
(1928) SR(NSW) 331 at 336
(c) Cameron Stewart 2009
Common Intention Easement
Where both parties to a grant share a common intention as to the
use to be made of the land by the grantee and an implied easement
is necessary to give effect to that common intention (common
intention easement).
The reverse applies where implication is needed to give effect to
the parties common intention as to the use of the reserved land by
the grantor.
Courts are jealous of these because grantor should have made an
express grant and will only find them where necessary (for example
– grant of a house with shared wall – easement of support for
grantor).
(c) Cameron Stewart 2009
Non Derogation from Grant
Under the doctrine of ‘non derogation from grant’ easements may be
implied by the court in circumstances where a grantor grants land
to a grantee for a specific purpose and that specific purpose
requires some sort of easement over neighbouring land held by the
grantor. In these cases the easement is granted to stop the grantor
from doing something on retained land that makes the land disposed
of unfit or materially less fit for the intended use. The parties
must have contemplated that the intended use of the land would
require some sort of easement over the retained land (Nelson v
Walker (1910) 10 CLR 560).
(c) Cameron Stewart 2009
Continuous and Apparent Easements
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.
Allen owned adjoining lots. On one lot he built a shed which had
three windows on the side for light and which was on the border of
his property. Allen sold the property that bounded the shed. A
dispute arose years later between the owner of the neighbouring
property who wanted to build in a manner which would completely
block the light to the shed and the present owner of the shed
claimed that he had a continuous and apparent easement for light
through the windows.
(c) Cameron Stewart 2009
Continuous and Apparent Easements
Thesiger LJ at 49 stated the principle for continuous and apparent
easements as:
[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 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 granteddows.
(c) Cameron Stewart 2009
Continuous and Apparent Easements
Four elements necessary to show a W v B easement:
There must be a grant of a part of the land (a severance);
At the time of the grant, exercise of the quasi easement must be
continuous and apparent;
The quasi easement must be necessary for the reasonable enjoyment
of the land granted;
Just before the time of severance, the grantor must have been using
the quasi easement for the benefit of the land granted.
(c) Cameron Stewart 2009
Continuous and Apparent Easements
If the grantor grants away both parcels of land at the same time,
the two grantees will get any continuous and apparent easements
that were in existence at the time of the grant. This is based on a
legal presumption of the parties intention with respect to the
conveyances – that the common transferor intended one party to take
the burden and another party to take the benefit of any continuous
and apparent easement and that those parties who knew about the
other transaction also intended that to happen – See McGrath v
Campbell [2006] NSWCA 180
(c) Cameron Stewart 2009
Easements by Necessity
“If the grantor intends to reserve any right over the tenement
granted, it is his duty to reserve it expressly in the grant …..
[but there is] the well-known exception which attaches to cases of
what are called ways of necessity” per Thesinger LJ at 48 in
Wheeldon v Burrows (1879) 12 Ch D 31
(c) Cameron Stewart 2009
Easements by Necessity - intention
North Sydney Printing Ltd v Sabemo Investments Co Pty Ltd [1971] 2
NSWLR 150
The owners of land subdivided it. The owners had a right under
local council ordinances to require the council to purchase a piece
of the land for the creation of a parking lot. That piece of land
would be landlocked after the subdivision but on one side it joined
a pre-existing council car park. Once subdivided, they sold off the
land they owned to someone else, leaving only the landlocked bit in
the middle in their ownership. The subdivided (not landlocked) bit
was bought by Sabemo. No right of way easement was created. It was
established in evidence that the P never intended to create an
easement when the land was subdivided because the P intended to
sell the landlocked land to the council.
(c) Cameron Stewart 2009
Easements by Necessity
The council offered to buy the land but at a price that was
unacceptable to the P. So the P sought an easement of necessity
over the land that they had sold.
P had decided to build his own carpark and needed the easement to
create a driveway into the land.
The P argued that easements of necessity arise as a matter of
public policy whenever land becomes landlocked. Therefore intention
is irrelevant.
The court rejected this argument holding that easements of
necessity are based on the presumed intentions of the parties and
therefore may be rebutted by evidence of actual intention. As P had
never intended that an easement should be created, had not thought
it was needed, the court would not find an easement of
necessity.
(c) Cameron Stewart 2009
Easements by Necessity - usage
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 been put at the time when the action first arose. In
his judgment, Jessel M.R. said:
...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 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.
(c) Cameron Stewart 2009
Implied Easements - Torrens
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.
(c) Cameron Stewart 2009
Implied Easements - Torrens
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.
(c) Cameron Stewart 2009
Mahoney JA:
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.
(c) Cameron Stewart 2009
McGrath v Campbell [2006] NSWCA 180
The case involved a Wheeldon v Burrows easement where one grantor
made two simultaneous grants of land to two separate parties. There
was a continuous and apparent easement being exercised before the
sale. Under Wheeldon v Burrows principles, the court would presume
that the vendor and each purchaser intended in their contracts that
the easement would be granted. The question came to court when the
owner of the dominant tenement tried to enforce their rights to use
the easement against the owner of the servient tenement. Both were
RP’s. Could the owner of the dominant tenement enforce the easement
against the owner of the servient tenement and then force them to
register that easement?
(c) Cameron Stewart 2009
Easements by Necessity - Torrens
The NSWCA held in this case that in order for the owner of the
dominant tenement to enforce the easement against the owner of the
servient tenement they would, at very least, have to show an
inpersonam claim – some claim in law or equity that arose and gave
the owner of the dominant tenement a legal or equitable right
against the owner of the servient tenement.
(c) Cameron Stewart 2009
Implied Easements - Torrens
The court sidestepped the registration question by finding that
there was no impersonam claim in the case. The court found that for
there to be an inpersonam claim, the RP had to live with the
consequences of the transactions that they created. In this case
they had not created the transaction – it was a consequence of the
presumed intentions of the vendor of the land when he sold the two
pieces of land simultaneously.
As any Wheeldon v Burrows right emerged out of the presumed
intention of the vendor and the new owner of the dominant land in
ANOTHER TRANSACTION, despite the fact that the court also presumed
the intention into the transaction that bought the servient land,
you couldn’t enforce it in personam.
(c) Cameron Stewart 2009
Implied Easements - Torrens
Tobias JA (with whom Giles and Hodgson JA were in agreement)
stated:
[A]s I have endeavoured to demonstrate, such an implied easement
arises out of the common intention of the relevant parties, which
is presumed by operation of law. Prescriptive easements arise in a
similar way. If prescriptive easements are trumped by the
indefeasibility provisions of the RP Act, logic requires that those
provisions should apply to implied easements in the same way ….
However it is unnecessary for me to express a concluded view on
this issue.” (at [118-119])
(c) Cameron Stewart 2009
This quote suggests that if the matter arises for determination,
neither prescriptive easements nor implied easements operate under
the Torrens system – you can’t force the owner of the servient land
to register such an easement; you can’t enforce such an easement
against an RP or the successor in title of the RP of the servient
land as the easement can’t be registered and doesn’t fall under the
easement exception to indefeasibility of title.
(c) Cameron Stewart 2009
Prescriptive easements
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.
(c) Cameron Stewart 2009
Prescriptive easements
Barton v The Church Commissioners for England [2008] EWHC 3091 –
right of piscary licensed to fishing association – potential
interference by mooring barges business
The Church Commissioner were found to have had such rights from
time immemorial
(c) Cameron Stewart 2009
Prescriptive easements
Prescription at common law is based upon a presumed grant which the
law assumes to have been made prior to 1189, the first year of the
reign of Richard I. Enjoyment of the right must be proved from a
time "whereof the memory of man runneth not to the contrary" that
is to say during legal memory and the period of legal memory runs
from 1189. As it is usually impossible to prove user or enjoyment
further back than the memory of living persons, proof of enjoyment
as far back as living witnesses can speak raises a prima facie
presumption of an enjoyment from an earlier time. Where evidence is
given of the long enjoyment of a right to the exclusion of others,
the enjoyment being as of right in a manner referable to a possible
legal origin, it is presumed that the enjoyment in that manner was
in pursuance of a legal origin and in the absence of proof that the
commencement of the user was modern, the user is deemed to have
arisen beyond legal memory. Unexplained user of an incorporeal
right for a period of twenty years is held to be presumptive
evidence of the existence of the right from time immemorial but the
rule is not inflexible, the period of twenty years being fixed as a
convenient guide. In a claim to prescription at common law, it is
not necessary to prove user during the specific period of twenty
years before the commencement of the proceedings in which the claim
is made.
(c) Cameron Stewart 2009
Prescriptive easements
As this rule was ridiculous for Australian circumstances, the High
Court held in Delohery v Permanent Trustee Co of NSW (1904) 1 CLR
283 that the doctrine of the “lost modern grant” was the proper
means to categorise an easement acquired by prescription.
(c) Cameron Stewart 2009
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”.
Prescriptive easements are legal
(c) Cameron Stewart 2009
Prescriptive easements
The use for the 20 year period must be continuous, but as with W v
B easements, the nature of continuous use needed will depend on the
land and the nature of the right claimed. So, a support easement
(building support) will be continuous, but a right of way may not
be used every day.
(c) Cameron Stewart 2009
Prescriptive easements
Can you tack an earlier period of use by another person to your use
in order to make up the 20 years. Probably not – because a
prescription easement does not exist until after 20 years of use,
before it comes into existence, the user has no property interest
that they can pass on to the next user in order to tack the two
periods together.
However, some case law suggests that you can tack periods of use
together – notably a NZ case called Auckran v the Pakuranga Hunt
Club (1904) 24 NZLR 235; however Butt doubts that such cases are
correctly decided as it is unclear what interest the original user
passes to each of the subsequent users to allow for such tacking to
occur.
(c) Cameron Stewart 2009
Prescriptive easements
Dobbie v Davidson (1991) 23 NSWLR 625 - This involved a dispute
between the owners of adjoining rural properties in the Goulburn
area. From the early 1900s, the owners of "Ellerslie" used an
access road through "Lumley Park"(LP) daily. (Note that there was
no other means of access. There was a route for a road marked on
the local government map, but it had never been built, and would be
very expensive, involving a bridge over a creek.)
(c) Cameron Stewart 2009
Prescriptive easements
The first question for the court was whether the use of the road
over the long period was as of right or by express
permission.
The trial judge had commented that the original use, sometime
before 1905, was by an act of neighbourliness on the part of the
owners of LP, seeing that there was no other means of access to
Ellerslie.
The owners of LP wanted to rely on that point, arguing that express
permission negatived an easement.
(c) Cameron Stewart 2009
Prescriptive easements
The NSW Court of Appeal found that there was no evidence of
specific permission, or of the user ever asking permission; and
there was never an attempt by the owners of LP to prevent or
interfere with such use, nor to assert that the use of the access
road was only by permission. (Clearly there were difficulties
providing and testing the evidence.) The Court concluded that
uninterrupted use for so long by so many people without hindrance,
check or control converted the licence into a right.
(c) Cameron Stewart 2009
Williams v State Transit Authority (2004) 60 NSWLR 286
The dominant land was the Randwick Race Course and they claimed an
easement for their sewerage pipes by long use of land owned by the
State Transport Authority which was next to the Race Course. The
STA agreed to sell the land to a third party but after they
exchanged contracts, Randwick lodged a caveat and the matter ended
up in court.
The question was whether the prescriptive easement gave Randwick an
equitable right to force the STA to register the easement – and a
right at all against Randwick.
Answer: No
Prescriptive easements
Mason P - 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 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.
(c) Cameron Stewart 2009
- Omitted or misdescribed easements
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 interests 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 interest. But, in my opinion,
such an argument involves at least two difficulties.
(c) Cameron Stewart 2009
(c) Cameron Stewart 2009
- Omitted or misdescribed easements
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.
(c) Cameron Stewart 2009
- Omitted or misdescribed easements
McGrath & v Campbell [2006] NSWCA 180 – (from the headnote) Two
adjoining lots were owned by a single registered proprietor. The
northern lot (Lot 6) faced a main road, while the southern lot (Lot
12) was bounded by a street known as Brighton Avenue. A registered
easement had been created over both lots in favour of a third
adjoining property, which permitted access to the third lot from
Brighton Avenue. The easement had also been used for some years as
an access point for Lot 12, although this use had never been noted
on the register.
In 1980, Lot 6 was sold to the respondents and Lot 12 was sold to
the appellants and the transfers of title were recorded in the
register as having occurred on the same day. The respondents
continued to use the easement over Lot 12 to access Lot 6 until a
dispute arose in 1995.
The respondents argued that the circumstances of the sale gave rise
to an implied easement over Lot 12 for the benefit of Lot 6, and
that the simultaneous transfers of the two lots gave rise to an
equity or right in personam enforceable against the appellants. The
appellants argued that the indefeasibility provisions of the Real
Property Act 1900 , and the circumstances of the transfers in this
case, prevent the recognition of any such equity.
(c) Cameron Stewart 2009
Implied easements can arise but they are equitable :
79 One might accept, for present purposes, that had Lots 6 and 12
been under old system title, the authority of Aldridge v Wright may
have carried the day in favour of the Campbells. According to
Professor Butt in Land Law (2006, 5th ed) at 446, such an easement
would be a legal and not merely an equitable interest. Professor
Butt refers to the statement of Priestley JA in Dobbie v Davidson
(1991) 23 NSWLR 625 at 646 to the effect that easements such as
those arising under the doctrine of Wheeldon v Burrows are
equitable, and suggests that this approach may be explained upon
the basis that the easement in that case arose over Torrens title
land and was, at the time of the litigation, unregistered. As an
unregistered interest it could only be an “equitable” and not a
“legal” interest. The finding by the primary judge in [71] that the
Wheeldon v Burrows implied easement in the present case brought
about “in equity, the result that lot 6 had the benefit of, and lot
12 was burdened by” may be explained in a similar way.
(c) Cameron Stewart 2009
- Omitted or misdescribed easements
While the original title holders may be bound in equity, the
personal equity will not be created in the case of simultaneous
transfers of title in circumstances where the new owners of the
putative servient tenement have not in any way contributed to the
creation of the implied easement or conducted themselves in any way
which could be regarded as unconscionable
(c) Cameron Stewart 2009
- Omitted or misdescribed easements
Easements by prescription (long use) – 20 yrs - doctrine of the
lost modern grant - 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).
(c) Cameron Stewart 2009
- Omitted or misdescribed easements
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.
Both Kirby P and Priestly JA found that the missing easement had
been omitted in the conversion
(c) Cameron Stewart 2009
(c) Cameron Stewart 2009
- Omitted or misdescribed easements
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.
(c) Cameron Stewart 2009
Mason P:
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 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.
(c) Cameron Stewart 2009
Extent of use
Express easements – grant of reservation – check the intention –
construed in its natural meaning
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.
(c) Cameron Stewart 2009
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.
(c) Cameron Stewart 2009
Extent of use
Cozens-Hardy M.R. 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 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.
(c) Cameron Stewart 2009
Extent of use
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.”
Land then used as caravan park
Massive increase in usage
(c) Cameron Stewart 2009
Extent of use
Lord Denning MR:
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.
Excessive use went beyond the grant
(c) Cameron Stewart 2009
Extent of use
In Gallagher v Rainbow (1994) 179 CLR 624 McHugh J set out some
general principles at pages 639 – 641 on the construction of
easements:
In construing the grant of an easement … the court will consider
(1) the locus in quo [site of the easement] over which the way is
granted; (2) the nature of the terminus ad quem [the nature of the
servient tenement] and (3) the purpose for which the way is to be
used.
(c) Cameron Stewart 2009
Extent of use
Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA
45 –Westfield are the owners of the Skygarden complex in Pitt St
Mall. Perpetual are the owners of the GlassHouse complex.
Glasshouse abuts Pitt St Mall and King St. Former owners of
GlassHouse granted an easement to former owners of Skygarden to run
an access ramp and driveway UNDER Glasshouse in order to access
Skygarden from King St. The terms of the grant of easement
read:
Full and free right of carriageway for the grantee its successors
in title and registered proprietors for the time being of an estate
or interest in possession of the land herein indicated …… to go,
pass and repass at all times and for all purposes with vehicles to
and from the said lots benefited or any such part thereof across
the lots burdened.
(c) Cameron Stewart 2009
Extent of use
Westfield acquired more shopping complexes – namely Imperial Arcade
and Centrepoint. It decided to redevelop them and use its access
under GlassHouse as the central access point to those malls too –
so cars accessing the land on the other side of Skygarden would
drive under Glass house and Skygarden to Imperial / Centrepoint.
They sought a declaration that they could use the right of way for
this purpose and Glasshouse defended arguing that they could only
use the right of way to access Skygarden.
(c) Cameron Stewart 2009
Extent of use
Westfield argued that the words ‘for all purposes’ meant that the
purpose of driving under Glasshouse in order to cross Skygarden and
get to Imperial was covered. Perpetual argued that the grant only
encompassed ‘going, passing and repassing’ over Glass House “to and
from’ Sky Garden, not across Sky Garden.
(c) Cameron Stewart 2009
Extent of use
The High Court held that Perpetuals submission was correct. They
said the phrase ‘for all purposes’ had to be read in the context of
the grant as a whole – granting the capacity to use the easement
for all purposes connected with the grant of the easement. The
easement in this case was granted for all purposes involving
travelling to and from Sky Garden not across Sky Garden. So,
Westfield had the right to cross Glass House for ANY purpose
provided that that crossing was just to and from Sky Garden not
across Sky Garden. The court said that any other construction would
impost a greater burden on the owners of Glass House than had been
intended by the original grant.
(c) Cameron Stewart 2009
Corporation of London case, Jessel MR:
...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.
(c) Cameron Stewart 2009
Extent of use
What of changes in technology? In Lock v Abercester [1939] 1 Ch
861, Bennett J said:
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.
(c) Cameron Stewart 2009
Abandonment – must be intent to relinquish
Non-use is not abandonment – more is needed
(c) Cameron Stewart 2009
Section 89 CA – obselete
Section 49 RPA – 20 years of non-use RG may treat easement as
abandoned but does not effect CL rules
(c) Cameron Stewart 2009
Extinguishment
Treweeke v 36 Wolsely Road Pty Ltd (1972) 128 CLR 274 - this case
involved two blocks of land in Double Bay that were subdivided in
1927. Block A (#36), the dominant tenement, was granted an express
easement involving a 3 foot wide right of way over block B (#34)
(the servient tenement) in order to access the water. (Block B had
water frontage but block A didn’t). Mrs. Treweeke took the fee
simple and possession of block B in 1928. At this time there was a
clump of bamboo growing over the site at which access to the right
of way began for the grant of easement. Over the next few years she
increased the bamboo plantation, installed a retaining wall, built
a fence and constructed a swimming pool, all of which impeded the
right of way. Mrs T was still the owner when this case arose. The
fence had been built with the consent and cooperation of block
A.
(c) Cameron Stewart 2009
Extinguishment
The respondents in this case were the body corporate of 4 flats
constructed on the dominant tenement. The evidence demonstrated
that over the 40 years since the grant of the easement, the
residents of block A had not used the right of way to access the
water because it was impassable in many places including a 4 foot
sheer rock face. However, they did cross a small part of the right
of way on regular occasions in order to use an alternative route to
access the water. It was also shown that for some years occupiers
of block A had used a path on another person's land until access to
that path had been blocked off.
(c) Cameron Stewart 2009
Extinguishment
The dispute arose when the body corporate sought to assert its
rights under the easement and asked Mrs. T to grant a fresh
accessible easement if the body corporate gave up its rights under
the existing easement (and didn't force her to move the swimming
pool). Mrs. T. sought a declaration from the court that the
easement had been abandoned on the basis of non-use and the
construction of the fence. (Bamboo plantation, retaining wall and
swimming pool were all her own installations and therefore could
not be raised as evidence of abandonment.)
(c) Cameron Stewart 2009
Extinguishment
the High Court found that the construction of a fence did not
evince a clear intention to abandon the easement because the fence
could be moved or a gate could be inserted. With respect to non
use, the high court found that an easement will not be extinguished
by non-use alone. Instead the length of non use will be a relevant
factor in ascertaining intention on the part of the owner of the
dominant tenement - in particular whether there was any intention
to permanently relinquish the right. In this case, the non-use of
the right of way could be explained by the state of the path,
including the dangerous rock face, rather than an intention to
abandon.
(c) Cameron Stewart 2009
Extinguishment
Pieper v Edwards [1982] 1 NSWLR 336 – This case involved an express
easement for a carriageway registered on the folio. Pieper owned
the dominant tenement. He bought the dominant tenement in 1979 at
which time the right of way over the servient tenement was blocked
by a fence and a gully pit. Pieper asked if the right of way was
still valid and the person selling him the land said it was.
However, in 1970, an agreement had been entered into by a previous
owner of the dominant land to release the right of way. The paper
work had been completed, but the transfer had never been
registered.
(c) Cameron Stewart 2009
Extinguishment
Pieper v Edwards [1982] 1 NSWLR 336 – This case involved an express
easement for a carriageway registered on the folio. Pieper owned
the dominant tenement. He bought the dominant tenement in 1979 at
which time the right of way over the servient tenement was blocked
by a fence and a gully pit. Pieper asked if the right of way was
still valid and the person selling him the land said it was.
However, in 1970, an agreement had been entered into by a previous
owner of the dominant land to release the right of way. The paper
work had been completed, but the transfer had never been
registered.
(c) Cameron Stewart 2009
Extinguishment
When Pieper tried to exercise the right of way, the owner of the
servient land, Edwards, sought an order under s 89(1) that the
easement be extinguished because the previous owners of the
dominant tenement had agreed to modify or extinguish the easement
(as set out in s 89(1)(b)). In response Pieper argued that he had
indefeasible title to the registered easement and had relied on the
folio when he bought the land. He said that to allow extinguishment
in these circumstances would undermine confidence in the
register.
(c) Cameron Stewart 2009
Extinguishment