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Scope of Enjoyment of Easements and Profits à Prendre

Document Cited authorities 14 Cited in Related
AuthorWilliam Webster/Robert Weatherley
Pages25-28
Chapter 5


Scope of Enjoyment of Easements and Profits à Prendre

INTRODUCTION

5.1 This chapter is concerned with the scope of particular easements. In the case of an express grant or reservation it is a question of construction of the deed. In the case of an implied grant (involving easements of necessity or of intended use or those within the rule of Wheeldon v Burrows or passing by virtue of section 62 of the Law of Property Act 1925), it is a question, primarily, of looking at what rights were necessary for the reasonable enjoyment of the land. In the case of prescription, the crucial factors are how the land has been used during the qualifying period and the conduct of the servient owner in the light of such use.

EXPRESS GRANT OR RESERVATION

5.2 The court will construe a document according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances.1

IMPLIED GRANT/PRESCRIPTION BY LOST MODERN GRANT

5.3 Reference should be made to McAdams v Robinson,2which sets out the relevant principles governing the extent to which an easement, granted by implication of a conveyance, could still be enjoyed by the owner of the dominant land who had redeveloped the land and thereby changed its use. Neuberger LJ said3that in the great majority of cases, there should be little difference in the principles arising by prescription seeing as an easement arising by prescription involves a fictional lost grant, whereas an easement arising by implied grant under the rule in Wheeldon v Burrows arises by implied grant. As he put it, ‘In each case the existence, nature and extent of the deemed grant must depend on the circumstances existing at the date of grant’.

1St Edmondsbury & Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468 at 478

(citation from Cannon v Villars (1878) 8 Ch D 414 at 420).

2[2005] 1 P & CR 520 (applied in Wood v Waddington [2015] EWCA Civ 538).

3[2005] 1 P & CR 520 at [22].

26 Restrictions on the Use of Land

5.4 Sir Martin Nourse also said this:4

The following observations may be made about the relevant authorities:

i) In general, authorities on prescriptive easements apply equally to implied easements and vice versa.

ii) In general, authorities on prescriptive easements apply equally to rights of drainage: see Wood v Saunders (1875) 10 Ch App 582 at 584–5 … (where Williams v James (infra) was expressly applied)...

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