Re Ellenborough Park
A right to use a communal garden could be an easement, and the case sets out the four characteristics of an easement.
Facts
Ellenborough Park was a private garden in Weston-super-Mare, surrounded by houses. When the houses were sold in the 19th century, each purchaser was granted the full enjoyment of the park as a pleasure ground, in common with the other purchasers, subject to paying a fair share of the cost of maintaining it. During the Second World War, the park was requisitioned, and compensation was paid. The question was whether the house owners had easements over the park, so that they were entitled to share in the compensation.
Legal principle
The Court of Appeal held that the right to use the park was an easement. Evershed MR adopted four characteristics of an easement: there must be a dominant and a servient tenement; the easement must accommodate the dominant tenement; the dominant and servient owners must be different persons; and the right must be capable of forming the subject matter of a grant. The right to use the park accommodated the houses, because it was connected with their normal use as family homes, and it was not merely a right to wander at large or a right of mere recreation without utility. It was sufficiently definite to be the subject of a grant.
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
- Hill v Tupper (1863) 2 H & C 121
- Mills v Silver [1991] Ch 271
- Moncrieff v Jamieson [2007] UKHL 42, [2007] 1 WLR 2620
- Nickerson v Barraclough [1981] Ch 426
- Phipps v Pears [1965] 1 QB 76
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