Easements and Nuisance

AuthorChristopher Jessel

Chapter 7

Easements and Nuisance


The courts will sometimes recognise positive duties arising from a relationship between neighbours under the law of easements and nuisance. These may constitute positive covenants, as with certain fencing easements, but more often involve a duty imposed by law on a landowner to carry out works in order to avoid harm to nearby property.

An easement involves a right of the dominant landowner over the land of the servient owner. This may be a positive easement, such as passing along a track subject to a right of way or taking water through a pipe, or a negative one, such as a right of light. Whichever sort, it operates restrictively so that the dominant owner can restrain interfering activities by the servient owner, such as blocking a passageway or diverting a watercourse or building so as to reduce the amount of light. The general rule is that the servient owner of land subject to an easement is not liable to carry out any works but that does not mean that there can never be a duty to take action.

Easements are said to lie in grant and therefore to be the subject of a specific arrangement. An express grant can include a positive covenant by either party but that will normally not bind a successor. There may also be an implied grant. Other easements can arise by operation of law, notably by prescription, where the law presumes a grant irrespective of the intentions of the parties, either by lost modern grant or under the Prescription Act 1832.

The normal remedy for interference with an easement is a claim in the tort of nuisance. That tort can also be invoked between neighbouring landowners to claim damages for, or restrain by injunction, unneighbourly activity such as noise or pollution, but not in general to have positive remedial action taken. However even in the Middle Ages, where there was a claim in nocumentum, the court could

70 Positive Covenants and Freehold Land

order a servient owner to remedy an interference so that if he had pulled down a wall he would be required to re-erect or repair it.1

Since the law of tort, particularly nuisance and negligence including occupier’s liability, imposes duties which apply irrespective of any agreement, and indeed often contrary to the wishes of the defendant, any obligation will fall on the landowner for the time being. Liability will be triggered by a particular incident or course of conduct which has caused damage or injury to a neighbouring occupier or which will do so if continued. Where it relates to the past, the person who owned the land at the time the nuisance occurred will primarily be subject to a claim for damages. If positive action is needed to abate the nuisance or prevent a recurrence, it will be the responsibility of the current owner to comply with an injunction and, if title has in the meantime passed to another person, it is the new owner who will need to carry out any works.


Although the general rule is that an easement can not impose a positive burden on the servient owner, there is a well-recognised exception in the easement of fencing. An express obligation to erect and maintain a fence is the classic instance of a positive covenant, and it used to be considered that this could not be enforced against a successor of the original covenantor and that an easement of fencing could only arise from prescription but doubt has recently been cast on this.

Firstly, there may be a custom of fencing which is analogous to an easement, even though in Crow v Wood2Lord Denning said, ‘It appears from the old books that a right to have fences kept up does not arise by custom: see Bolus v Hinstorke3’. In Egerton v Harding,4Sprat’s Cottage, owned by Miss Egerton, and Binswood Farm, owned by Mr and Mrs Harding, both adjoined Binswood Common at East Worldham, Hampshire. Cattle from the farm strayed into the garden of the cottage and caused damage. Miss Egerton claimed damages but lost because the court found that there was a custom, evidenced by immemorial usage, which obliged her to erect a fence against the common to keep cattle out and she had failed to comply with her duty. Such fencing customs are found elsewhere. On Dartmoor they have been confirmed by the Dartmoor Commons Act 1985, s 9 which declares ‘for the avoidance of doubt’ that the custom is for the owner of private land adjoining the commons to fence against animals lawfully on the commons.

1Sir Henry de Bracton, De Legibus et Consuetudinibus Angliae, f 236 (S Thorne (ed), Harvard

University Press, 1977) at 201.

2[1971] 1 QB 77 at 83.

3(1670) 2 Keb 686, 83 ER 100.

4[1975] QB 62, CA.

Secondly, there can be an easement to fence. In Making Land Work: Easements, Covenants and Profits à Prendre the Law Commission said:5

The existence of an easement of fencing is an anomaly; it has been described as a ‘spurious easement’.6It appears to be an exception to the principle that an easement cannot involve the servient owner in the expenditure of money.7It seems that it can arise by prescription, when the servient owner has responded to requests to mend a fence, over many years.8This is clearly anomalous; for a fencing easement to arise by implication or by prescription would be as implausible and contrary to principle as the prescription or implication of any covenant.

In Jones v Price9there was a dispute as to responsibility for maintenance of a fence between two farmers. There was no evidence of any express covenant to fence in the deeds of either party. Willmer LJ held that such a right could be acquired by prescription, commonly established by proof of immemorial usage, or by presumption of a lost grant but usage could not establish the right unless it is shown that repairs have been consistently carried out by the quasi servient owner as a matter of obligation. He said:10

It is clear that a right to require the owner of adjoining land to keep the boundary fence in repair is a right which the law will recognise as a quasi-easement. There is nothing, for instance, to prevent adjoining occupiers from making an agreement between themselves that one or other shall keep the boundary fence in repair. Such an agreement binds only the parties to it, for a covenant to perform positive acts, such as would be involved in the maintenance of a fence, is not one the burden of which runs with the land so as to bind the successors in title of the covenantor: see Austerberry v Oldham Corporation.

He went on:11

That such a right can arise by prescription is well recognised in a number of cases to which we were referred. In the report of Pomfret v Ricroft12 there is a useful note setting out the ancient practice for the enforcement of such a right as follows: ‘The ancient remedy was by the writ de curia claudenda, which lay

5(Law Com 327) (2011) at para 5.93.

6[Fn 121 in original.] ‘Coaker v Willcocks [1911] 2 KB 124, 131, by Farwell LJ’.

7[Fn 122 in original.] ‘Megarry and Wade, para 27-014’.

8[Fn 123 in original.] ‘Gale on Easements, para 1-78’.

9[1965] 2 QB 618.

10[1965] 2 QB 618 at 633.

11[1965] 2 QB 618 at 634.

12(1669) 1 Saund 321 at 322a, 85 ER 454 at 455.

72 Positive Covenants and Freehold Land

for the tenant of the freehold against another tenant of land adjoining to compel him to make a fence or wall, which he ought, by prescription, to make between his land and the plaintiff’s.’

Diplock LJ said that an obligation upon a servient owner to repair a hedge on the land of the dominant owner could not run with the land in law or in equity, but an obligation to maintain a cattle-proof boundary fence upon one’s own land to keep out the cattle of one’s neighbour could run with the land as servient tenement in favour of the neighbouring land as dominant tenement. He said:13

In 1827, the Court of King’s Bench was prepared to assume that it could be created by covenant (see Boyle v Tamlin14, but, since it is a positive obligation, this assumption cannot survive the decision of the Court of Appeal in Austerberry v Oldham Corporation. It was not, in any event, easy to reconcile with Spencer’s case.

Crow v Wood15also involved cattle trespass. The Court of Appeal held that a right to have one’s neighbour keep up fences was a right which lay in grant and was of such a nature that it could pass under the LPA 1925, s 62. Lord Denning said:16

It appears from the old books that a right to have fences kept up does not arise by custom: see Bolus v Hinstorke17. It can arise by prescription at common law: see Lawrence v Jenkins18; but this is only of avail as between adjoining owners. It does not avail when the lands have been in common ownership, as here, until recent years: see Kilgour v Gaddes19... The question is, therefore, whether a right to have a fence or wall kept in repair is a right which is capable of being granted by law. I think it is because it is in the nature of an easement. It is not an easement strictly so called because it involves the servient owner in the expenditure of money. It was described by Gale on Easements,20as a ‘spurious kind of easement’. But it has been treated in practice by the courts as being an easement.

The matter has recently been considered in Churston Golf Club Ltd v Haddock.21In

1972 the then owner of a golf club sold the club and its course to the Aldermen and Burgesses of the County Borough of Torbay. In the conveyance of the golf course, to which the owners of an adjoining farm were also party, the council covenanted

13[1965] 2 QB 618 at 639.

14(1827) 6 B & C 329, 108 ER 473.

15[1971] 1 QB 77, CA.

16[1971] 1 QB 77 at 83.

17 (1670) 2 Keb 686, 83 ER 100.

18(1873) LR 8 QB 274.

19 [1904] 1 KB 457.

2011th edn (1932) at 432.

21[2019] EWCA Civ 544, [2019] All ER (D) 46 (Apr).

with those owners and those deriving title under them...

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