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Easements and exclusive possession

Published online by Cambridge University Press:  02 January 2018

Peter Luther
Peter Luther*
Affiliation:
University of Essex
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Extract

The case of Copelund v Greenhalf has puzzled students of land law for over forty years. It is usually taken as authority for the proposition that a claim to an easement will fail if it amounts, in effect, to a claim of exclusive possession of the servient land. The plaintiff, the owner of a strip of land leading to an orchard, had sought to restrain the defendant, a wheelwright with premises across the road from the orchard, from leaving vehicles awaiting repair on the strip of land. The defendant countered that he and his father had used the strip (save for enough space to allow access to the orchard) for storage of vehicles for 50 years; he therefore claimed a prescriptive easement, under s 2 of the Prescription Act 1832, to do so.

Type
Research Article
Information
Legal Studies , Volume 16 , Issue 1 , March 1996 , pp. 51 - 62
Copyright
Copyright © Society of Legal Scholars 1996

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References

1. [1952] 1 Ch 488.

2. Ibid at 498.

3. See for example Miller R v Emcer Products Ltd [1956] Ch 304 and London & Blenheim Estates v Ladbroke Retail Parks [1992] 1 WLR 1278.

4. K Gray Elements of Land Law (London: Butterworths, 2nd edn, 1993) p 1076, n 20.

5. See for example B Ziff and MM Litman Easements and Possession: An Elusive Limitation [1989] Conv 296 (commenting on Self Holdings Ltd v Husky Oil Operations Ltd (1989) 56 DLR (4th) 193). The ‘substantial interference’ analysis has been enthusiastically adopted by Kevin Gray (see Elements of Land Law (2nd ed) p 1076–1079). The orthodox view of Copeland v Greenhalf is restated in Cheshire and Burn's Modern Law of Real Property (London: Butterworths, 15th edn by EH Burn, 1994) pp 527–528.

6. [1949] 2 KB 744.

7. In Wright v Macadam the claim was based not on prescription, but on the application of s 62 of the Law of Property Act 1925.

8. JR Spencer [1973] CLJ 30-though Spencer does make the point (glossed over by some commentators) that Wright v Macadam was not a case involving a prescriptive claim, and Upjohn J had specifically restricted his comments in Copeland v Greenhalf to this type of claim.

9. S Anderson ‘Easements and Prescription-Changing Perspectives in Classification’ (1975) 38 MLR 641.

10. (1848) 11 QB 666, 116 ER 623; 17 LJ(QB) 138.

11. Gale on Easements (London: Sweet & Maxwell, 15th edn by SG Maurice, 1986) p 36.

12. Perhaps the explanation for this is that at this period any activity on another's land which made a profit (in the ordinary sense), as mixing muck for the practice of commercial farming might do, would best be characterised as a profit (in the lawyer's sense of profit a prendre): see for example Drewell v Towler (1832) 3 B & Ad 735, 110 ER 268, in which counsel drew a distinction between using another's land to dry one's own clothes, and using another's land to dry other people's clothes: ‘if the right were construed to mean a right of hanging the clothes of others, it would not be a mere easement, but a right to make a profit’ (Ibid at 737 (B & Ad), 269 (ER).

13. The Queen's Bench reporters nowhere mention the word easement, but refer to Patteson J querying whether the right could be a profit a prendre, as pleaded. The Law Journal reporter calls the right an easement in his headnote, and includes a question from Lord Denman CJ in which he seems to refer to it as such. To be fair to Gale and its editors, it is admitted (p 36) that many of the rights in their list have ‘inferentially or by tacit assumption’ been recognised as easements.

14. Upjohn J in Copeland v Greenhalf considered that the right claimed in Pye v Mumford might have been ‘a matter of local customary right’-the same method of explaining the inexplicable that has been used in some cases of so-called ‘fencing easements’: see Egerton v Harding [1975] QB 62; Gale on Easements p 39–43.

15. (1883) 25 Ch D 357.

16. Heywood v Mallalieu was relied on by Romer LJ in Miller v Emcer Products Ltd [1956] Ch 304 at 316, though note the comments of RE Megarry (1956) 72 LQR 172, to the effect that a modern court might prefer to define such an arrangement as a licence.

17. Hinde v Chorlton (1866) LR 2 CP 104.

18. (1822) 5 B & Aid 356, 106 ER 1221-with the important proviso that to be an easement the right must be annexed to a particular house. This antedates the introduction of a general rule that there must be a dominant tenement, but is again a matter of remedies, not rights (of Anderson, supra n 9): if the right were not attached to a particular house-in which case an interference with it would be, as Holroyd J put it (5 B & Aid 356 at 362, 106 ER 1221 at 1223) ‘a detriment to the occupation of the house’-then it would not cease to exist as a right, but the only remedy to protect it would be an action in the Ecclesiastical Court. For a temporal court to have jurisdiction, there had to be temporal damage.

19. The claimant in Hinde v Chorlton did not occupy the pew, but ‘let sittings therein at rents or payments varying from 10 shillings to I5 shillings per annum’, receiving more than 40 shillings a year as a consequence.

20. 5 Geo 4, c Ixiv, s 3 1 (text on p 107–8 of the report of the case).

21. Whoever the owner might have been-there was some uncertainty whether by virtue of the private Act ownership had passed from the rector to the trustees: the court held that it had not.

22. (1870) LR 5 CP 224.

23. Ibid at 233 (original emphasis).

24. The analysis in Brumfitt v Roberts is complicated by the fact that the private Act in question allowed for the creation of rights not annexed to a particular house: a statutory reversal, for the church in question, of Mainwaring v Giles.

25. (1859) 5 CB(NS) 717, 141 ER 288.

26. (1905) 21 TLR 634.

27. See the exchange between Cockburn CJ and counsel for the plaintiff in Lancaster v Eve (1859) 5 CB(NS) 717 at 723, 141 ER 288 at 291, interrupting an argument about fixtures and annexation. This dialogue was quoted by Vaughan Williams LJ in Philpot v Bath, and the same solution adopted, as a coda to a case argued entirely on the Real Property Limitation Act 1833.

28. (1829) 6 Bing 150, 130 ER 1237.

29. (1829) 6Bing 150at 161, 130 ER 1237 at 1242.

30. (1890) 44 Ch D 12.

31. These alterations-however worthy the cause-were perhaps the last in a long series of annoyances for Booth's neighbours: the report states that Booth's premises had previously been used between 1875 and 1885 first as a skating rink and then as a meat market.

32. The hesitation is most apparent in the opinion of Lindley LJ (1890) 44 Ch D 12 at 25: ‘[If] it is necessary for us to say that the grantee has got the ownership of the use of the gateway, so be it. That may be the necessary legal consequence. I am not sure that is not so. I rather think it is.’ For the same team of Cotton, Lindley and Lopes WJ still further out of their depth, see the discussion of Whitby v Mitchell (1890) 44 Ch D 85 in AWB Simpson History of Land Law (Oxford: Clarendon Press, 2nd edn, 1986) pp 216–7.

33. Ibid at 22.

34. Ibid at 26.

35. [1952] Ch 488 at 493 (Cozens-Hardy Horne).

36. This argument was rejected by reference to Moody v Steggles (1879) 12 Ch D 261.

37. [1952] I Ch 488 at 498.

38. This point, that the case centred on the uncertainty of the claimed right, not its exclusivity, is tentatively made by B Ziff and M Litman (supra, n 5), who note (p 279) that the case ‘seems to have been argued as a question of vagueness’. P Jackson The Law of Easements and Profits (London: Butterworths, 1978) cites Copeland v Greenhalf as a case on uncertainty (p 18), but he appears to regard it as a case which falls into the area of overlap between two distinct rules, one prohibiting uncertainty, the other prohibiting exclusion of the owner.

39. [1915] AC 599.

40. [1952] 1 Ch 488 at 495.

41. [1915] AC 599 at 617.

42. Ibid.

43. Though not for the necessary period of time: they were claiming against the Crown, and so were required to show at least sixty years occupation.

44. [1915] AC 599 at 617–8.

45. [1914] 3 KB 911.

46. Ibid at 917.

47. [1956] 1 Ch 131 at 176. The court in In Re Ellenborough Park expressed approval of the decision in Copeland v Greenhalf (Ibid at 177), but neither analysed nor applied it.

48. If the claimant fails to establish either an easement or ownership, the court may still fight shy of declaring him a trespasser: in the Southern Nigeria case, the respondents were deemed to have an irrevocable licence to continue their occupation of the reclaimed land.

49. This danger is, it must be admitted, compounded by the fact that even read as a case on uncertainty Copeland v Greenhalf is neither particularly clear-cut nor particularly persuasive.

50. [1967] Ch 194.

51. [1956] Ch 304.

52. See the comments of C Sara Boundaries and Easements (London: Sweet & Maxwell, 1991) p 178, on the arguments in these cases, referring to them as ‘fairly forlorn submissions’.

53. [1972] 1 WLR 1355.

54. Ibid at 1364E-F.

55. [1974] 1 WLR 80.

56. [1992] I WLR 1278.

57. Ibid at 1286C-D. This, like the comment of Brightman J in Grigsby v Melville, is obiter dictum, and again the issue was not considered when the case reached the Court of Appeal; [1994] 1 WLR 31.

58. Ibid at 1288C.

59. This echoes the approach taken in Ward v Kirkland [1967] I Ch 194 at 223, where a ‘substantial interference’ test makes an early appearance: it is clear that the judge (Ungoed-Thomas J) takes this to mean substantial interference only with that part of the servient tenement over which the claimed right is to be exercised.