Easements and Rights of Way in UK Law

They are (l) There must be a dominant and a servient tenement: (2) an easement must "accommodate" the dominant tenement: (3) dominant and servient owners must be different persons and (4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

But for the purposes of the present case, as the arguments made clear, the cognate questions involved under this condition are; whether the rights purported to be given are expressed in terms of too wide and vague a character; whether, if and so far as effective, such rights would amount to rights of point occupation or would substantially deprive the park owners of proprietorship or legal possession; whether, if and so far as effective, such rights constitute me-re rights of recreation, possessing no quality of utility or benefit; and on such grounds cannot 'qualify as easements.

It has therefore a bearing upon the question of the "connection" between the right enjoyed and the premises of the relevant house owners; and must be discussed under the head of Dr Cheshire's first condition, But, in our judgment, the language of the Deedof 1864 is clear to the effect that the right of enjoyment of 'the garden was interned to be annexed to the premises sold, rather than given as a privilege personal to their purchaser.

The enjoyment contemplated was the enjoyment of the vendors' ornamental garden in its physical state as such - the right, that is to say, of walking on or over those parts provided for such 'purpose, that is, pathways and (subject to restrictions in the ordinary course in the interest of the grass) the lawns; to restin or upon the seats or other places provided; and, if certain parts were set apart for particular recreations such as tennis or bowls, to use those parts for those purposes, subject again, in the ordinary course, to the provisions made for their regulation; but not to trample at will all over the park, to cut or pluck the flowers or shrubs, or to interfere in the laying out or upkeep of the park.

In this part of his argument Mr. Cross was invoking a principle which is, in our judgment, of unchallengeable authority, expounded, in somewhat varying language, in many judicial utterances, of which the Judgments in ( Ackroyd v. Smith 10 Common Bench, page 164) are, perhaps, most commonly cited.

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.

No doubt a garden is a pleasure on high authority, it is the purest of pleasures; but, in our judgment, it is not a right having no quality either of utility or benefit as those words should be understood. The right here in suit is, for reasons already given, one appurtenant to the surrounding houses as such, and constitutes a beneficial attribute of residence in a house as ordinarily understood.