Nickerson v Barraclough
An easement of necessity rests on the presumed intention of the parties, and cannot be implied on grounds of public policy contrary to the terms of the grant.
Facts
Land was sold under a conveyance that referred to a proposed road giving access to it, but stated that the seller did not undertake to make the road. The land could only be reached over the seller's retained land. The later owners of the land claimed an easement of necessity, and the trial judge held that a way of necessity could be implied on grounds of public policy.
Legal principle
The Court of Appeal rejected the argument that an easement of necessity could be implied on grounds of public policy. Brightman LJ said that a way of necessity is based on the implied intention of the parties to the conveyance, and cannot be implied contrary to the express terms of the grant. Public policy that land should not be rendered unusable is not a separate basis for implying an easement.
Related cases on easements
- Batchelor v Marlow [2001] EWCA Civ 1051, [2003] 1 WLR 764
- Copeland v Greenhalf [1952] Ch 488
- Dalton v Angus & Co (1881) 6 App Cas 740
- Re Ellenborough Park [1956] Ch 131
- Hill v Tupper (1863) 2 H & C 121
- Mills v Silver [1991] Ch 271
- Moncrieff v Jamieson [2007] UKHL 42, [2007] 1 WLR 2620
- Phipps v Pears [1965] 1 QB 76
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