Creation of Easements and Profits

AuthorWilliam Webster/Robert Weatherley
Chapter 2

Creation of Easements and Profits


2.1 Easements and profits may be created in the following ways:

(a) by statute;
(b) by express grant or reservation;
(c) by implied grant or reservation;
(d) by prescription.


2.2 Local Acts1or statutory rights analogous to easements conferred on relevant undertakers in relation to (for instance) telecommunications and the laying of electric cables, gas pipes, water pipes and sewers.2



2.3 This can be an express grant by deed. No special words are required. The scope of the grant is a question of construction.


2.4 This is where a landowner reserves easements or profits over land sold by him for the benefit of any retained land.3

1London & NW Railway v Evans [1893] 1 Ch 16, which concerned an Act giving a right of support to a canal constructed under statutory powers.

2See Gale on Easements at 1-119–1-130.

3Law of Property Act 1925, s 65(1) provides that a reservation of a legal estate ‘shall operate at law without any execution of the conveyance by the grantee of the legal estate out of which the reservation is made, or any regrant by him, so as to create the legal estate reserved, and so as to vest the same in possession in the person … for whose benefit the reservation is made’.

10 Restrictions on the Use of Land


Easements of necessity

2.5 Such an easement is implied where the use is essential for the use of the land granted or retained. The dominant land must be ‘absolutely inaccessible or useless’ without the easement.4The question is not whether the easement is merely convenient or necessary for the reasonable enjoyment of the land, but whether the land can be used at all without the implied grant or reservation.5The necessity must also relate to the purpose for which the dominant land was being used at the time of the grant.6It is open to debate whether an easement of necessity will be lost by operation of law once the necessity has ceased.7The weight of authority is, however, against this.8

Easements of intended use

2.6 This is where the parties to the grant shared an intention that the land would be used in a particular manner and where the easement is necessary to give effect to this purpose.9In Adams v Shrewsbury,10the Court of Appeal considered the appropriate evidential basis under this head.

Easements within the rule in Wheeldon v Burrows11

2.7 These are easements which are implied in grants of land which are regarded as reasonably necessary or obvious to the parties.12The rule operates to convert into easements rights previously enjoyed by the grantor (known as ‘quasi-easements’) which, as the land was in common ownership, cannot have been easements. The rule is that upon the grant of part of a tenement, there passes to the grantee as easements all quasi-easements over the land retained which were:
(a) continuous and apparent; (b) necessary for the reasonable enjoyment of the land granted; and (c) which were used by the grantor for the benefit of the part

4Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 577.

5Titchmarsh v Royston Water Co Ltd (1899) 81 LT 673.

6Corporation of London v Riggs (1880) 13 Ch D 798, where a way of necessity had arisen in the case of encircled agricultural land, but a subsequent lessee of the retained land was unable to open tea rooms on the site when it was held that the way of necessity could only be used for agricultural purposes.

7Holmes v Goring (1824) 2 Bing 76; Donaldson v Smith [2006] All ER (D) 293; Proctor v

Hodgson (1855) 10 Exch 824; Barkshire v Grubb (1881) 18 Ch D 616; Huckvale v Aegean Hotels Ltd (1989) 58 P & CR 163 at 168–169, per Nourse LJ; Maud v Thornton [1929] IR 454 at 458, per Meredith J.

8Megarry & Wade at 28-015.

9Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 at 646–647; Wong v Beaumont Property

Trust [1965] 1 QB 173; Donovan v Rana [2014] EWCA Civ 99, where a drainage easement was found to be necessary to give effect to the inferred common intention of the parties on a transfer of land.

10[2005] EWCA Civ 2006, [2006] 1 P & CR 27 at [28], per Neuberger LJ.

11(1879) 12 Ch D 31; Borman v Griffith [1930] 1 Ch 493 at 499.

12Moncrieff v Jamieson [2007] UKHL 42, [2008] 4 All ER 752 at [113], per Lord Neuberger.

granted. The rule is not confined to rights of way,13and extends to rights of support, light14and drainage.15

Law of Property Act 1925, section 62

2.8 Section 62(1) of the Law of Property Act 1925 operates (by way of express grant) to pass on a conveyance of land ‘all liberties, privileges easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land or any part thereof, or, at the time of the conveyance, … enjoyed with … the land or any part thereof’. Section 62(2) is in similar terms and applies to ‘land, having houses or other buildings thereon’, and any conveyance of such land is deemed to include all ‘cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses or other buildings conveyed …’. Both sub-sections apply if no contrary intention of the parties is expressed in the conveyance or their contract. Section 62 operates to convert quasi-easements into full easements or profits, provided the right in question was enjoyed at the time when the conveyance was made (irrespective of its legal basis) and is capable of existing as an easement. For instance, rights that are merely temporary,16intermittent or precarious17will not found a permanent right and so will not pass under section 62. It is also important to note that section 62 only applies when, prior to the date of the conveyance, the quasi-dominant and quasi-servient tenements were occupied by different persons18or where the quasi-easements were continuous and apparent,19in which case it does not matter if both tenements were occupied by the grantor prior to the conveyance. A conveyancer should, however, take care to revoke pre-existing licences in order to prevent their

13Brown v Alabaster (1887) 37 Ch D 490; Hansford v Jago...

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