Land: Easements
- Definition: right enjoyed + exercised over land of another (ius in alieno solo).
can be legal (s1(2) LPA 1925).
positive: right to enjoy/use land of another in particular way (e.g. right of way);
negative: right to restrict way in which another may use land (e.g. right of light) – now rare.
- Structure:
1. capable of being an easement (a. Re Ellenborough Park criteria; b. 3 additional factors).
2. properly acquired? (a. express grant/reservation; b. implied grant/reservation).
3. enforceable vs. 3rd party? (registered/unregistered land rules).
Capability
Essential Characteristics (Re Ellenborough Park, [Evershed MR]): must be attached to land.
- 1. Dominant + servient tenement must exist (London & Blenheim Estates v Ladbroke Retail Parks).
2 identifiable pieces of land at time of grant: dominant (benefits) + servient (burdened)
if not cannot be easement: cannot exist in gross (i.e. independent of land – would prob. be licence).
Hawkins v Rutter: right to park barge on oyster bed not easement (barge not land).
Alfred Becket v Lyons: right to collect coal from sea shore not easement (no dominant tenement).
