Characteristics of Easements

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  Major issue here is about the meaning and application in the circumstances of second and fourth conditions of easements (listed below): Can the alleged easement be said to “accommodate” the dominant tenement – in other words does the connexion exist between one and the other and secondly, whether the right alleged is capable of forming the subject matter of the grant: Are the rights purpoted to be given expressed in too wide of terms or too vague in character, are such rights mere recreation rights possessing no quality of utility or benefit and on such grounds can’t qualify as easements.
  

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  Court considers previous cases dealing with easements but points out that no other case has been brought forward that deals with the validity of the rights in fact enjoyed in the gardens in this type of situation.
  

1. 
   There must be a dominant and a servient tenement.
   
2. 
   An easement must accommodate the dominant tenement
   
3. 
   The dominant and servient owners must be different persons.
   
4. 
   Must be capable of forming the subject matter of a grant
   

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  Point 1 and 3 are not problematic in this situation. There is clear distinction here between the garden as the servient tenement and the houses as dominant tenements. Pretty clear that they are owned by different persons.
  
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  Second element – To accommodate the dominant tenement, the easement must be reasonably necessary for its better enjoyment – If the purported easement merely increases the value of the land, it is no more than a personal right, enforceable between the parties (but it can be considered)  In this case, the use of the park replaces the use of a garden, often attached to the enjoyment of a house. The fact that some houses are further away from the park than others does not limit the reality of this use. Park became a ‘communal garden’ and as such satisfies the requirement of connection.
  
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  Insufficient to show that the right increased the value of the property conveyed, unless it is also shown that it was connected with the normal enjoyment of that property
  
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  The houses lacked a garden so the communal garden accommodated this lack by providing the enjoyment in communal form that would often be expected to be provided individually on the dominant tenement.
  
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  Fourth element – satisfaction of this condition depends on 3 factors:
  
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  1) The right conferred must be “well defined and commonly understood”;
  
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  2) The right must be consistent with the proprietorship or possession of the alleged servient owners; AND
  
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  3) The right must be a “right of utility and benefit and not one of mere recreation and amusement”.
  

2. Doesn’t affect the landowner’s proprietorship right to use the garden normally, the enjoyment contemplated was the enjoyment of the vendors’ ornamental garden in its physical state, i.e. right to walk over parts provided for such purposes; owners may cut down timber and retain its proceeds (cultural understanding again)

3. Not just recreational  for domestic purposes (taking children in ‘perambulators’ is not recreational; it’s beneficial to the premises, etc). Judge seemed to adhere to B. Martin’s test: is the right in suit fairly analogous to a right of way passing over fields?
Test to determine whether an easement has been created:

1) there must be a dominant and a servient tenement;

2) the easement must “accommodate” the dominant tenement;

3) dominant and servient owners must be different persons; AND

4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
Ratio: – 4 part test for determining if an easement has been created: 1) there must be a dominant and a servient tenement; 2) the easement must “accommodate” the dominant tenement; 3) dominant and servient owners must be different persons; AND 4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

This case is interesting to link with the earlier garden case we saw in expropriation. Question of communal and individual property rights is being approached from a very different angle here. Also really interesting to think about in relation to adverse possession. What’s left in the bundle of rights for the garden owner?