Regular updates on relevant case law and legislation

CHAPTER 17 EASEMENTS

Box A4(iv) The right must not totally exclude the servient owner

Although Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 was a Scottish case, it was heard by the House of Lords and is therefore likely to be followed in England and Wales. The circumstances of the case were very unusual. Mr Moncrieff had a right of access to his house over Mr Jamieson’s land but he had also parked his car in a turning circle at the end of this access road, again on Mr Jamieson’s land, because there was nowhere to park on his own property. There was no other vehicular access to Mr Moncrieff’s house. When the parties fell out, Mr Jamieson denied him the right to park in the turning circle (by building a wall), which meant that Mr Moncrieff would have had to park his car on the public highway, some considerable distance away, and walk down the access road to his house. It was held that an ancillary right would be implied if it was reasonably necessary for the enjoyment of the main right. In the circumstances of the case it was reasonably necessary for Mr Moncrieff to be able to park to enjoy his right of access. The case is also worthy of note for other reasons. First, Scots law now recognises a servitude (easement) of a right to park. Second, despite differing reasons, the House of Lords paved the way for the recognition of a free standing easement of a right to park a car. The status of an easement of a right to park a car has been unclear given the concern over excluding the servient owner from his land when cars are parked there. However, the House of Lords held that, in principle, a right to park could be an easement. It wasn’t so much whether the servient owner had reasonable use of his land but whether he kept possession and control of it.

In Odey v Barber (2006) EWHC 3109 (Ch); [2008] 2 WLR 618, moving calves as well as sheep was not a radical change because the track could be used for agricultural use which did not restrict its use to sheep.

Box B7 Prescription (legal easement)

The right must be used without permission – nec precario

In Odey v Barber (2006) EWHC 3109 (Ch); [2008] 2 WLR 618, it was also held that it didn’t matter whether permission was given voluntarily or in response to a request, i.e. whether permission was unsolicited or not. Either form of permission would defeat a claim by prescription.

Remedies for unlawful interference with an easement and how easements come to an end

In Odey v Barber (2006) EWHC 3109 (Ch); [2008] 2 WLR 618, a right of way had not been abandoned where the claimants had to construct an alternative track because the original track had been blocked by the owner. Furthermore, the claimants had complained about the blockage from 1995 and so had never shown an intention to abandon its use. Silber J said:

“To establish abandonment of an easement the conduct of the dominant owner must, in our judgment, have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement.” per Buckley LJ in Gotobed v Pridmore (1971) EG 759, 760…

The claimants had not shown this intention in the case.

<< back