UNIVERSITY OF TECHNOLOGY, JAMAICA

FACULTY OF LAW 2022/2023

LECTURE NOTES- EASEMENTS

LECTURER: MS. SHANICE N. TROWERS

PROGRAMME: Bachelor of Laws

STAGE/YEAR: Year III Semester I

MODULE TITLE: REAL PROPERTY II

Definition
An easement is a right enjoyed by an owner of land over the land of another such as a
right of way, of light of support or a flow of air or water. An easement must exist for the
accommodation and better enjoyment of land to which it is annexed. An easement is
acquired by grant or prescription. The land owned by the possessor of the easement is
called the dominant tenement and the servient tenement is the land over which the
right is enjoyed.

Easements are rights in alieno solo, i.e. a right over the property of another person.

Easement may be Positive or Negative

A positive easement consists of a right to do something on the land of another; a
negative easement restricts the use the owner of the servient tenement may make of his
land.

CHARACTERISTICS OF AN EASEMENT
The characteristics of an easement were stated by Dankwerts J in Re Ellenborough
Park [1955] 3 ALL ER 667 as follows:
1. There must be a dominant and servient tenement;
2. The easement must accommodate the dominant tenement; that is, it must be
connected with its enjoyment and be for its benefit;
3. The dominant and servient owners must be different persons;
4. The right claimed must be capable of forming the subject-matter of a grant.
5. The right must be against other land.

There must be a Dominant and Servient Tenement

There must be a servient tenement or a property which is burdened by the easement. If

there is no servient tenement the claimant’s rights would be a licence and not an
easement. There cannot be an “easement in gross”; i.e. an easement cannot exist where

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the claimant has no interest in the dominant tenement,’ the enjoyment of which is
dependent on an easement over a servient tenement.
According to Owusu, the claimant should have a property to which the easement is
appurtenant- that is a legal right or privilege attached to a property and inherited with
it.

The Easement must Accommodate the Dominant Tenement

The right is not merely for a personal advantage but must exist for the better enjoyment
of the dominant tenement. Note that accommodation includes the more purposeful use
of a building on the dominant tenement as noted in the case of Moody v. Steggles (1879)
12 Ch. D 26, at p. 266

Note also that the dominant and servient tenements need not be adjacent to each other;
though this is usually the case. An example of this is where a utility company is granted
an easement to place its poles and wires over X’s land, even though the utility
company’s land may be far away from X’s land, the servient tenement.

See also the cases of Hill v Tupper (1863) 2 H&C 121, Todrick v Western National
Omnibus Co. Ltd [1934] Ch 561 and re Ellenborough Park [1953] 3 All ER 667 on
this point

The Dominant and Servient Owners must be Different Persons

Where the dominant and servient tenements become owned or occupied by the same
person, any easement which existed prior to this will be extinguished as one cannot
grant an easement to oneself. In Antigua v. Boxwill (1969), 15 WIR 56, 61, Persuad
JA said:

“it is well known that it is an essential characteristic of every easement that there must be
both a servient and dominant tenement, and the owner of the dominant tenement and the
owner of the servient tenement must be different persons”.

Similarly, a tenant cannot acquire an easement against his landlord, a similar view is to
be found in Bailey v. Great Western Railway Co. (1881) 26 Ch. D. 434, 441. In
Gayford v. Moffatt (1868) 4 Ch. App. 133, it was said: that the possession of the tenant
of a demised close was the possession of his landlord. Persuad J in Antigua v. Boxwill
(1969) continued saying:

“and it seems to be an utter violation of the first principles of the relation of landlord and
tenant to suppose that the tenant whose occupation of close A was the occupation of his
landlord could by that occupation acquire an easement of close B, also belonging to his
landlord”. It seems to me that the converse must also be true, that is, that a landlord may
not enjoy an easement over lands occupied by his tenants, unless such a right expressly
reserved, and even in that event, it is doubtful whether that right could be classified as an
easement”.

The Right Claimed must be Capable of Forming the Subject-Matter of a

Grant {“Grantable”}

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An easement is a right in property and the grantee is able to assign it as he can with
other real property. The easement must therefore be precise enough to be identifiable.
Rights to privacy or to a view or for branches of a tree to overhang another’s land are
not easements, but rights to fix a sign of another building and to hang clothes on a line
which passes over another person’s land-these are easements.

(a) According to Owusu the right claimed as an easement should be clear in conception
and there should be no uncertainty as to its nature. It should not to be vague or too wide
and uncertain to form the subject matter of a grant.

(b) The right must be sufficiently definite. In Harris v. De Pinna, (1886) 33 Ch. D 238,
262 Lord Bowen held that the claim to a general flow of light and air over a servient
land was not founded in law. His lordship explained: “…So the passage of undefined air
gives rise to no rights and can give no rights for the best of all reason, the reason of
common sense, because you cannot acquire any rights against others by a user which they
cannot interrupt.”

(c) The right must not substantially deprive the servient owner of possession of the
servient tenement. The case of Copeland v. Greenhalf [1952] is an English property
law case establishing that excessive use of another's land cannot be granted by way of
an easement. The defendant claimed that he held a prescriptive right to leave an
unlimited number of cars on his neighbour's land, by way of such a right having existed
for some fifty years previously. The court found that the claim would amount to the
defendant effectively becoming a joint user of the plaintiff's land, and this was not
something which could be implied as a right.

See also the case of Grisby v. Melville [1972] 1 WLR 1355

Parking

In the case of Leon Asper Amusements Ltd v Northmain Carwash (1966) 56 DLR
173, an agreement was entered into between the plaintiffs and the predecessors in title
of the defendant which provided for the sale to the defendant’s predecessors a parcel of
land which was located across from where the plaintiffs owned a Theatre. Under the
agreement, the plaintiffs reserved the right to use the northerly half of the parcel as a
parking lot to be used by patrons of the theatre for parking after 6pm each day.
Defendant sought to direct the patrons of the theatre where they were to park their
cards. It was held that the rights created related to the business of a moving picture
theatre and are for the benefit of the land on which business was carried on; they were
not personal to the plaintiffs, that was an easement and the defendant, the servient
tenement owner could not so deal with it as to render the easement over it incapabable
of being enjoyed or more difficult of enjoyment by the owner of the dominant tenement.

It appears where the parking rights are restriced in terms of time, the objection based
on user which would exclude the owner of the servient tenement might not be
sustained, provided that there is not such a complete invasion of the servient tenement

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as would leave the servient owner without any reasonable use of his land, whether for
parking or anything else.

In Newman v Jones (1982, unreported case), it was held that a right to park cars on
the forecourt of a block of flats passed as an easement. The court said “I feel no
hesitation in holding that a right of a landholder to park a car anywhere in a defined area
nearby is capable of existing as an easement.”

See also the case of London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
and Batchelor v Marlow on this point.

ACQUISITION OF EASEMENT

An easement may be acquired by the following:

1. By Statute
Legislation may grant easements which are necessary for the laying of main pipes
by utility companies. The object of such statutory provisions is to facilitate the
discharge of public utility functions. These rights which originate in statutes usually
arise in a form which does not have all the essential characteristics of easements.
Such statutory rights of easements may be in gross and may also not be appurtenant
to a specific piece of land.

In Jamaica, Section 4 of the Prescription Act states that where any beach has been
used by the public for fishing or bathing or recreation and any road or pathway
over any land adjoining such beach has been used by the public as a means of access
to such beach without interruption for 20 years, the members of the public acquire
by virtue of legislation, a statutory easement to use such beach or road or pathway.

2. By Grant or Reservation:
(a) express grant or reservation
(b) implied grant or reservation
(c) presumed grant (prescription)

(1) Acquisition by Express Grant or Reservation

An express grant arises “by means of express words or grant and by means of statute”.

A seal is generally required for the creation and transfer of an easement irrespective of
its duration.

An easement falls within the category of interests enforced by the statutory

requirement of the Statute of Frauds whereby written evidence is required. Land is
defined by statute to include easements. Section 2; Conveyancing Act, 1973 Rev., Ch.
73 (Jamaica).

Where the instrument is signed but not sealed, an equitable easement will arise under
the Walsh v. Lonsdale doctrine. Part performance and estoppel can equally be invoked to

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remedy the lack of deed or writing where a party has relied on a misrepresentation or
an oral transfer of an easement.

It is also necessary to define, or at least refer to, the dominant tenement, since this
affords the clearest proof that the right was intended to be annexed to that land.

Principle: law requires a deed, but equity may give effect to a grant or reservation in
the absence of a deed, on principles analogous to that of Walsh v. Lonsdale.

Express Reservation

By this a grantor reserves the right to use the property after it has been conveyed.

Implied Grant or Reservation

An implied grant arises where, in the circumstances of the grantee’s enjoyment and use
of his land, an easement is implied. Three (3) such circumstances are identifiable:
(a) quasi-grant or the rule in Wheeldon v. Burrowes;
(b) necessity;
(c) common intention;
The Wheeldon v Burrows doctrine is based on the assumption that a grantor intends
his grant to be effectual. For that reason it is said that every grant is intended by both
the grantor and the grantee to go with such reasonable incidents as to enable the
grantee to enjoy the grant in a proper and substantial way.

The Grantor would therefore be enjoined to allow the grantee to avail himself of those
facilities which he the grantor enjoyed when the two properties were vested in him and
which could conduce to the reasonable enjoyment of the property transferred. At the
time when the title to the two properties was vested in the grantor, the use of the
retained property for the more convenient enjoyment of the other property could not
constitute an easement. This is due to the fact that one cannot exercise rights against
himself and that easement by definition is a right in land of another person. The use of
the grantors retained property for his own benefit in the utilization of the transferred
property is classified as a quasi-easement, which matures into an easement enforceable
against the retained property after the other property has been transferred.

The doctrine expounded in Wheeldon v Burrows is founded on the maxim that a

grantor should not derogate from his grant. See also the case of Wheeler v J.J.
Saunders Ltd [1995] 2 All E.R. 697. See also Colonial Bank v Administrator-
General (1899) 7 S.C.J.B. 225

The elements of the rule in Wheeldon v Burrows can therefore be summarized

as follows:
1. The user was reasonably necessary to the use and fair enjoyment of the estate
transferred;
2. The grantor had used, and was at the time of the grant using, the quasi-servient
property which is retained by him for the benefit of the property transferred by
him; and
3. Such user was continuous and apparent.

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 EASEMENT OF NECESSITY

Where a common owner disposes of part of his land and either the part disposed of or
the part retained is left without any means of access, an easement of necessity will be
implied in favour of an inaccessible part of the land.

According to Owusu, an easement of necessity is one without which the estate retained
or granted cannot be used at all.

How does the Easement of necessity differ from that in the Wheeldon v. Borrows Rule.
1). It should be shown that there is absolute or strict necessity for the easement
claimed; an easement of necessity is not one which is merely necessary for the
reasonable enjoyment of the claimant’s property as required under the Wheeldon v.
Borrows doctrine.

2). Unlike Wheeldon v. Burrows easement, it does not have to be shown that the servient
tenement was previously used in a particular way to serve the land transferred; an
easement of necessity is implied if the easement claimed is actually necessary to the
enjoyment of the land transferred.

3). This doctrine can be used to support a claim for an easement by both the grantor and the
grantee, unlike the Wheeldon v. Burrows type of easement, which can be claimed
by the grantee only.

Typically, an easement of necessity arises when as a result of a transfer, the land sold or
retained by the vendor becomes landlocked and for that reasons it cannot be used at all;
the only possible means of ingress and egress is over the land sold or retained.

Where a land is transferred without an outlet, the law implies a right of access over the
grantor’s adjacent property to ensure that the grantee has reasonable access to his
property.

There are two main requirements which must be satisfied for the creation of an
easement of necessity:
(a) Necessity: the easement claimed must be actually necessary for the use
of the claimant’s dominant land;
(b) Unity of Ownership or Title: the title or titles to the two properties in
issue must have been vested in one person.

Necessity
An easement will arise by implication here if it can be shown that the easement claimed
is absolutely necessary to the utilization of the property. Absolute physical necessity is
therefore required; a reasonable necessity or convenience is insufficient. It should be
shown that without the easement claimed the property cannot be used at all.

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If there is an alternate route, the doctrine will not apply, even if the alternate
route is difficult to use.

Mere convenience is an insufficient basis to found an easement of necessity. A way of

convenient is not a way of necessity.

The right of way claimed should be the only access to the property from the public
highway.

There should be absolute inaccessibility giving rise to an absolute necessity for access.

Water Access

If a person is granted property and his only access to it is by means of a water course, a
claim for easement over the vendor’s property may not be sustained as he can use the
watercourse as a means of ingress and egress to his property though it would be more
convenient for him to use the way across the vendor’s property than to use the
waterway.

Nathanson J considered the issue in Hirtle v. Ernst, 299 APR 216. From said case, the
following emerged as elements to be factored into determining necessity, for the
purpose of easement of necessity: (a) Whether the water route is available to meet the
requirements of the uses to which the property would reasonably be put; (b) Whether
access is available for transportation of things needed for the reasonable use of the land
to be accessed; (c) Whether the water access has transport facilities for carrying on the
ordinary and necessary activities of life to and from the land; (d) Whether the water is
navigable or usable as a highway for commerce and travel; (e) Whether the water-way
can be used as of right, and would not be a breach of law to use.

See also the case of Manjand v. Drammeh (1991) 61 P & CR 194.

Note: the common law insists that a way of necessity terminates at the moment when
the necessity lapses.

Unity of Title or Ownership

This head requires that the two properties; i.e. the dominant and servient tenements,
should have been owned by one person, and the severance by that person should have
given rise to the necessity for the implication of the easement claimed.

Owusu submits that the ownership interest of a common owner under the unity of title
requirement should be more than a mere possessory right of a licensee.

The interest of the common owner should be substantial; it should be such an interest
as would give the transferor dominion and control over both lots and full use of the
same. If the transferor’s interest in one of the properties is partial and, for that reason,
does not give him the power to exercise dominion and unilateral control over all the
properties, the ownership interest required of a common owner would not be sufficient
for the purpose of the easement of necessity doctrine.

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The unity of title need not be immediate, provided it can be shown that such common
ownership existed at any point in time in the chain of title to the properties. If the title
to the two properties can be traced, however, distant that may be, to a common owner
who effected the severance which gave rise to the necessity of easement, the right of
way may be dormant through several conveyances, but it can be exercised at any time.

COMMON INTENTION
Where the parties agreed that the property transferred will be used for certain
purposes, such as to operate a particular business or enterprise, under circumstances
which would require the use of the adjacent or other property of the grantor in order to
carry out that specific purpose, an easement is imposed on that other property.

Otherwise stated, where on the severance of two properties the estate granted will
within the parties’ contemplation be put to a particular use, and the parties’ intended
that the property, which was one of the two properties previously under common
ownership, should be used in a defined and particularized manner, an easement would
be implied to give effect to the purpose so defined by the parties.

In Wong v. Beaumont Property Trust Ltd [1964] 2 ALL ER, a lease was taken of
cellars with a covenant that the premises be used as a popular restaurant and
undertaking on the part of the lessee to control all smells and odours according to
health regulation and so as not to become a nuisance. The parties did not realize that a
ventilation duct fixed to the wall of the landlord’s property would be required in order
to comply with the undertaking. As the venture succeeded as a popular Chinese
restaurant, the smell and odour became intolerable. The occupant of the above floor
complained to the health inspector who directed that the ventilation duct be
constructed. The landlords objected. The plaintiffs sought a declaration and damages.
The COA affirmed the declaration of the trial court that the plaintiff was entitled to an
easement to give effect to the common intention of the parties.

PRESUMED GRANT (PRESCRIPTION)

In general, where a person can show that he and his predecessors have enjoyed user
as of right for at least 20 years, the law will presume that an easement exists.
Prescription is based on acquiescence of the servient owner.

Where a property has been used over long periods of time, the common law presumes
that such user must have originated from an express grant. Therefore, if a right has been
exercised against the property of another for a long period of time, an easement may be
created for the benefit of the property for which the right was exercised.

Continuous User
The user must be continuous. Where the right is exercised intermittently, the intervals
must not be excessive.

Fee Simple Owner

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Tenant of the Dominant Tenement
The prescriptive right must be exercised by a fee simple owner against a fee simple
owner. Otherwise stated, the acts on which the prescriptive claim is based should have
been performed by or on behalf of a fee simple owner against a fee simple owner. A user
by a tenant for life or by a tenant for a term of years (lessee) cannot therefore constitute
an easement by prescription, except where the right can be said to have been exercised
on behalf of the landlord against a servient tenement owner.

Prescriptive right under common law can arise only where it has been exercised since
time immemorial. It is therefore not possible for a tenant who has an estate which is
less than a fee simple to acquire an easement by prescription, except where, as it
normally happens, the exercise of the right is on behalf of the fee simple owner.

Tenant of the Servient Tenement

Where at the commencement of the user the servient tenement is occupied by a lessee
or a tenant for life, a prescriptive claim would not succeed, except where the landlord
was aware of the exercise of the right against the property which he has let to the
tenant and was able to prevent it.

An easement is not a temporary encumbrance; it affects property permanently. The

claimant should therefore be required to show that the owner of the reversionary
interest expectant on the tenant’s term knew that the easement was enjoyed.
It would be unfair to allow a prescriptive claim against a landowner who would not
know of the exercise of the right claimed and who would be in a position to prevent the
exercise of that right.
See also Palk v Shinner (1852) 18 QB 568 and Daniel v. North (1809) 11 East 372,
Pugh v. Savage [1970] 2 QB 373

User as of Right
The prescriptive right should have been exercised “as of right”, i.e. it should not have
been enjoyed from time to time at the pleasure and will of the servient owner. For a
user for a long period to ripen into an easement, it should have been exercised “nec
vi(not by force), nec clam (not secret), nec precario (not by permission)”. Nec vi; Nec
clam; Nec precario- it should have been exercised without force, without secrecy and
without permission.

Nec Vi- Without Force

A user which faces resistance from the servient owner negatives any prescriptive claim.
As soon as the user is challenged and protested against, it cannot be “as of right”.

Nec Clam- Without Secrecy

The acts on which the prescriptive claim is founded should not have been performed
clandestinely. Acquiescence or passive consent on the part of the servient owner seems
to lie at the root of prescription.

Nec Precario- Adverse and Not Permissive

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The grant of a licence by the servient owner would render the act permissive, and thus
vitiate a claim based on prescription. A permissive use cannot be a prescriptive
easement.

Prescription at Common Law

Immemorial User
At common law an easement can be acquired if it can be shown that the right has been
exercised for a time beyond memory. Time immemorial constitutes: “from time
whereof the memory of man runneth not to the contrary”. The year 1189 is accepted by
the courts as the limit of legal memory in England.
The courts are therefore willing to allow a prescriptive which is based on user where
its commencement cannot be accounted for.

20-Year User- Presumption of Immemorial User

The courts in England have held that if there has been a 20-year user and over, it would
be deemed that the user has been enjoyed since the time adopted by the courts. This is a
presumption which is rebuttable.

Statutory Prescription- Prescription Act

The Prescription Act was passed to rectify the problems resulting from the application
of the common law doctrine of prescription. In Gardener v. Hodgson’s Kingston
Brewery Co. Ltd [1903] AC 230, 236, Lord McNaughten said: “The Act was
passed….for the purpose of getting rid of the inconvenience and injustice arising from
the meaning which the law of England attached to the expression “time immemorial”
and “time whereof the memory of man runneth not to the contrary.” The law as it stood
put an intolerable strain on the consciences of judges and jurymen. The Act was an Act
“for shortening the time of prescription in certain cases.” And really it did nothing more.

Shorter Period of 20 Years and Longer Period of 40 Years

The Act has been widely adopted in the Caribbean. The statute in most of the Caribbean
territories provide two periods: (a) a shorter period of 20 years; and (b) a longer period
of 40 years, on which a prescriptive claim of can easement can be based.

Single Period- 20 Years

The Jamaican Prescription Act, 1973 Rev., Cap. 304 s. 2 and that of Grenada provides
for a period of 20 years.

Single Period of 16 Years

In Trinidad and Tobago statute proclaims 16 years; i.e. Prescription Act 1950 Rev., Ch. 5,
No. 8 (Trinidad and Tobago); s. 2. However the Land Law Conveyancing Act, 1981, No.
20 (Trinidad and Tobago), s. 160 (1) makes it 12 years.

“Next Before Suit or Action”

The property in dispute must have been used for the requisite period immediately prior
to the date of the commencement of the suit: “next before suit or action”. The right

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conferred by the statute subsists as an inchoate right until an action is instituted either
to dispute or vindicate it.

The courts have construed the statute literally to the effect that, however long the
period of actual enjoyment of the right, no prescriptive claim can be sustained under the
Act till the right claimed is litigated in a court of law. In Hyman v. Van Den Berg [1907]
2 Ch. 517, 525, Parker J said: “until it be brought in question, the right, if it can be
called a right, is inchoate only, and in order to establish it when brought in question the
enjoyment relied on must be an enjoyment for twenty years next proceeding some such
action or suit”.

“User as of Right”
The user should be as of right”. The statute requires that the property should have been
“enjoyed by the person claiming the right thereto”, and that an averment that the
property was enjoyed “as of right” was enough for the purpose of founding a
prescriptive title to it.

THE EXTENT OF EASMENTS

Prescription and Implied Grants (Common Intention, Wheeldon v. Burrows, and
Easement of Necessity)
An easement which is derived from an implied grant or prescription can be enjoyed or
used for all purposes according to the ordinary and reasonable use to which the
dominant tenement could have been applied at the time of the acquisition of the
easement.

There should be a substantial variance in the mode or extent of user or enjoyment as a

result of a “change of identity” or “radical change in character” of the dominant
tenement for the enjoyment or so of the easement to be restrained.

Where there is a change in the character or use of the dominant tenement, two issues
are to be resolved:
(1) Is the change radical; and, does the change lead to
(2) Substantial increase in the burden on the servient tenement.

If the change is radical, then, the use of the right will be restrained. However, where
there is no change in the character and use of the dominant tenement but the level of
the use of the easement has risen, even if substantially, the enjoyment of the easement
will be allowed to continue.

In Giles v. County Building Constructions (Hertford) Ltd (1971) 22 P&CR 978, the
erection of a three-story block of six flats, a bungalow and a house and eight garages for
a convent in place of two attached dwelling-houses which were used by the convent
when the prescriptive right was acquired was not considered by Brightman J. Counsel
for the plaintiff argued that the improvement had the effect of altering the condition of
the convent sight and increasing the burden on the servient tenement by the use of
the terrace roadway for access to the convent sight.

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 Birghtman J’s view was that it was: “evolution rather than mutation”. Assuming
the right of way exist over the terraced roadway for the benefit of the convent site, that
right existed to serve the purposes of the convent site as the site of the dwelling-houses
and the convent site will continue to be used for dwelling-houses. To some extent, of
course, the matter must be one of degree, because it quite see that the erection of a
skyscraper block of flats on the convent site might well be said to cause a radical
change in the character of the dominant tenement which alters its identity. But that is
not proposed here.

In British Railways Board v. Glass [1964]3 ALL ER 418, the defendant had a caravan
site which was reached by using a railway level-crossing by prescriptive right, which
the defendant’s predecessor in title started to exercise before the war, i.e. 1938. At that
time there were only three caravans and a tent dwelling, which had a wooden floor at
the site. The number of permanent caravans increased to six and there were five more
that came and went after the war began. Before the writ was issued on 26 July 1962 the
number of caravans had increased to 29.

It was contended that the extent of the use of a prescriptive right of way gained by
prescription is to be measured by the actual amount of use made of the way by the
owners of the dominant tenement during the whole prescription period, and that the
extent may not be increased from the initial user though it may be decreased. This
contention was dismissed in a majority decision of the English COA-Harman and Davies
L.JJ. (Lord Denning dissenting) affirming the decision of Ungoed-Thomas J. Harman L.J.
said: “a right to use a way for this purpose or that has never been to my knowledge
limited to a right to use the way so many times a day or for such and such a number of
vehicles so long as the dominant tenement does not change its identity. If there be a
radical change in the character of the dominant tenement, then the prescriptive right
will not extend to it in that condition. The obvious example is the change of a small
dwelling-house to a large hotel, but there has been no change of the character according
to the facts found in this case.”

A pasture land cannot be changed into a manufactory and still enjoy the prescriptive
right of way which was attached to the property when it was a pasture land, if the
conversion would prejudice the servient tenement.
In Milner’s Safe Company Limited v. Great Northern and City Railway Company
[1907] 1 Ch. 208, the defendant acquired by prescription the right of way over a
passage running to the back of terraced houses for loading and unloading vans for its
business and residential purposes. The defendant constructed an underground railway
station on the site of two of the houses. The court held that the passage way could not
be used for the benefit of the underground railway station as a thoroughfare to or from
the station by passengers. The heavy traffic of travelers, especially in the morning and
again in the evening rush hours, would necessarily impede the use of the servient
tenement. A railway station is something entirely different from any dwelling-house,
warehouse, or even manufactory, and could not have been contemplated by the grantor,
according to the court.
In Wimbledon and Putney Conservators v. Dixon (1875) 1 Ch. D. 362, a prescriptive
right of way was acquired for agricultural purposes. The English COA held that it could
not be used for the transportation of building materials to be used in the erection of

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houses or other buildings, other than the ordinary farm buildings on the dominant land.
It was the COA’s view that such an alteration in the character of the dominant land
would substantially change and throw a considerable burden on the servient tenement.
James LJ said: “I am satisfied that the true principle is the principle laid down in the
cases, that you cannot from evidence of user of a privilege connected with the
enjoyment of property in its original state, infer a right to use it, into whatsoever form
or for whatever purpose that property may be changed, that is to say, if a right of way to
a field be proved by evidence of user, however general, for whatever purpose, qua field,
the person who is the owner of that field cannot from that say, I hade a right to turn that
field into a manufactory, or into a town, and then use the way for the purposes of the
manufactory or town so built”

Express Grant

Where there is an express grant of an easement, the scope of the easement is

determined by construing the document according to the ordinary and natural meaning
of the words contained in the document as a whole in the light of surrounding
circumstances.
See Cannon v. Willars [1874-80] ALL ER Rep, @ 599, Jessel MR

In Edmundsbury and Ipswitch Diocesan, etc v. Clark (No. 2) [1975] 1 ALL ER 772,
where a church reserved “a right of way over the land” which it conveyed to Clark. The
question was whether the easement of “right of way” entitled the church to a full free
and uninterrupted right of way with or without vehicles of all kinds over the disputed
strip for all purposes connected with the church or churchyard; i.e. whether it was a
vehicular right of way or a right of way on foot only.
The COA found the reservation to be in the loosest terms, i.e. simply “right of way”.
There was therefore enough justification in the COA’s view to have held that the words
“right of way” had to be considered in the light of the circumstances prevailing at the
time of the conveyance to Clark. Megarry J (decision affirmed by COA) found that the
way was for pedestrians only and not for vehicles. There was a gate which made it
impossible for vehicles to reach the church, and the condition and narrowness of the
way made it necessary to restrict the ambit of the right of way to and from the church to
pedestrian access.

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