Re Ellenborough Park; Re Davies, deceased; Powell v Maddison

JurisdictionEngland & Wales
Judgment Date15 November 1955
Judgment citation (vLex)[1955] EWCA Civ J1115-1
Date15 November 1955
CourtCourt of Appeal

In The Matter of the Statutory Trusts affecting the freehold land situate at Weston-super-Mare in the County of Somerset and known as Ellenborough Park


In The Matter of the Trusts of the Will Of William Henry Davibs deceased. so far as they relate to the said freehold and

Hugh Powell, Charles Paul Oxley and Austin
Braybrooke Kettle
Helen Maddison (Married Woman) and Fred Allen

[1955] EWCA Civ J1115-1


The Master of the Rolls, (Sir Raymond Evershed),

Lord Justice Birkeit and

Lord Justice Romer.

In The Supreme Court of Judicature

Court of Appeal

MR. GEOFFREY CROSS, Q.C. and MR NIGEL WARREN (instructed by Messrs Robins, Hay & Waters, agents for Messrs-Burges, Salmon & Co., Bristol) appeared on behalf of the Appellant (first Defendant).

MR. T.A.C. BURGESS (instructed by Messrs Waterhouse & Co., agents for Messrs John Hodge & Co, Weston-super-Mare) appeared on behalf of the Respondents (Plaintiffs).

MR. R.W. GOFF, Q.C. and MR MAURICE BERKELEY (instructed by Messrs Robbins, Olives & Lake, agents for Messrs Griggs & Colette, Weston-super-Mare) appeared on behalf of the Respondent (second Defendant)


The Judgment I am about to read is the Judgment of the Court.


The substantial question raised in this appeal is whether the Respondent, or those whom he has been appointed to represent, being the owners of certain houses fronting upon, or, in some few cases, adjacent to, the garden or park known as Ellen borough Park in Weston-super-Mare, have any right known to the law, and now Enforceable by them against the owners of the park, to the use and enjoyment of the park to the extent and in the manner later more Precisely defined. Both the premises now belonging to the Respondent, or to the owners for whom he acts as champion, and also the park itself, were originally part of an Estate known as the White Cross Estate. The houses in question were built and the park laid out in the middle of the last century. None of the owners of the houses is an original grantee from the proprietors of the White Cross Estate. Similarly, the present owners of the park are the successors in title of the original grantors of the premises of the house owners.


A second question is also raised in the appeal. It is, on the basis that the house owners have an enforceable right in law against the park owners, in what proportions between the house owners on the one side, and the owners of the park on the other, should certain sums of money be divided, which have been paid to the latter by the War Office, in respect of the occupation of the park under requisition by the Military Authorities during the War? Mr. Justice Danckwerts, who came to a conclusion on the main question in favour of the Respondent, also made an Order as to part of these compensation moneys: but as to the rest directed an enquiry of a somewhat complicated character, for the purpose of ascertaining how the remainder of such moneys should be divided between the owners of the park, on the one hand, and the house owners, on the other.


Although the payment of the compensation moneys was the circumstance which gave rise, in fact, to the present substantial question in the case, this Court has been absolved from anydetermination of the question of their division: for; with a view to avoiding the considerable costs of the enquiry which has been directed, the parties before us have agreed upon a compromise of that question which the Court is prepared to approve: and the compromise also extends to the application of those moneys in the alternative event of this Court arriving at a different view from that of Mr. Justice Danckwerts upon the main question. It is the Plaintiffs in the action who are the present owners of the garden or park; but they hold the property as trustees upon certain trusts under which the first Defendant, Mrs. Maddison, is one of the beneficiaries. She has accordingly been the Appellant in this Court. The second Defendant, Fred Allen, who is the Respondent to this appeal, was appointed by Mr. Justice Danckwerts to represent for the purposes of the proceedings "all persons claiming to have any rights of user of the … property known as Ellenborough Park as a private open space. "In the course of the hearing before us it appeared that Mr. Allen is in fact not the owner of any of the relevant premises, but is a tenant of one of the houses which belongs to a Limited Company, It was agreed by learned Counsel before us that the Limited Company should be added as a Defendant to the proceedings, and its name added to the Brief of Mr. Goff, who appeared for the Respondent and who informed us that he had been sufficiently instructed by the Company, The appeal proceeded before us accordingly on the basis that the house owner was before the Court, and the Order which will be drawn up must provide for the necessary amendment of the proceedings.


The substantial question in the case which we have briefly indicated, is one of considerable interest and importance. It is clear from our brief recital of the facts that if the house owners are now entitled to an enforceable right in respect of the use and enjoyment of Ellenborough Park, that right must have the character and quality of an casement as understood by, and known to, our law. It has therefore been necessary for us to consider carefully thequalities and characteristics of easements, and for such purpose to look back into the history of that category of incorporeal rights in the development of English real property law. It may be fairly assumed that in the case of ( Duncan v. Louch 6 Queen's Bench, page 904) the Court of Queen's Bench in the year 1845, and particularly Lord Denman, Chief Justice, who delivered the first Judgment in the Court, was of opinion that such a right as the Respondent claims was capable of fulfilling the qualifying conditions of an easement. And Mr. Justice Buckley in the case in 1904 of ( Keith v. Twentieth Centaury Club Limited 90 Law Times, page 775) answered certain questions which Mr. Justice Byrne had ordered to be set down to be argued before the Court, themselves depending upon the assumption that such a right could exist in law. On the other hand, Sir George Farwell, a Judge peculiarly experienced and learned in real property law, on two occasions, namely, in 1903 in the case of ( International Tea Stores v. Hobbs 1903, 2 Chancery, page 165) and in 1905 in ( Attorney-General v. Antrobus 1905, 2 Chancery, page. 188) used language appearing to treat as axiomatic the proposition, that a right which should properly be described as a jus spatiandi was a right excluded by English law, as by Roman law, from the company of servitudes.


The four cases which we have mentioned must be considered hereafter at greater length. But it can be said at once that, with the possible exception of the first, none of them constitutes or involves a direct decision upon the question now before us: and although the existence of gardens surrounded by houses, the owners or occupiers of which enjoy in practice the amenities of the gardens, is a well-known feature of town development throughout the country, no other case appears to have come before the Courts in which the validity of the rights in fact enjoyed in the gardens has ever been tested.


A full statement of the facts of the present case was contained in the Judgment of Mr Justice Danckwerts. That Judgmentis reported in the Law Reports – see 1955, 3 Weekly Law Reports, page 91 – and a statement of the facts is set out at the beginning of the Report. Save in two respects, therefore, we do not think it useful or necessary to set the facts out again in this Judgment. But having regard particularly to certain of the arguments by way of analogy put before us by Mr. Cross,. it is necessary to decide what precisely was the nature of the rights which, under the original conveyances, the owners of the Estate purported to grant to the purchasers of the relevant plots of land; and what corresponding obligations the vendors undertook. We shall therefore have to examine closely the exact form of the conveyances, one of which has been before the Court, and has been accepted by Counsel as typical of all the relevant conveyances.


And, second, by reason of Mr. Cross's more general argument, based on the alleged absence of the required connection between the rights to enjoy the garden and the premises themselves (as distinct from the persons of their owners), which arc said to constitute the dominant tenements, we must also state precisely, by reference to further evidence filed before us and by our leave, where these premises are situated.


But, before we proceed to those matters of fact, it will be proper as a foundation for all that follows in this Judgment to attempt a brief account of the emergence in the course of the history of our law, of the rights known to us as 'easements', and thereafter, so far as relevant for present purposes, to formulate what can now be taken to be the essential qualities of those rights. For the former purpose we cannot do better than the considerable passage from the late Sir William Holdsworth's Historical Introduction to the Land Law (Clarendon Press 1927). At page 265 of that book the learned author states: "Both the term 'easement' and the thing itself were known to the mediaeval common law. At. the latter part of the sixteenth century it was described in Kitchin's book on courts, and defined in the later editions of the 'Termes de is Ley'. "After stating the definitionand observing its obvious defects from the point of view of modern law Sir William proceeds: "But these defect's in the definition are instructive because they indicate that the law as to easements was as yet rudimentary.


"It was still rudimentary when Blackstone wrote. In fact, right down to the beginning of the nineteenth...

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