Definition of user: the exercise of a right to the enjoyment of property
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- CONTINUOUS AND APPARENT’ QUASI-EASEMENT
- NECESSARY TO THE REASONABLE ENJOYMENT OF THE LAND ’
- USED PRIOR TO AND AT THE TIME OF THE GRANT ’
| Easement under the Wheeldon v Burrows
Where X owns two adjoining tenements, Greenacre and Blueacre, and he is in the habit of walking or driving across Blueacre as an alternative means of access from Greenacre to the outside world, one cannot speak of X enjoying an easement over the Blueacre itself; but if X sells Greenacre to Y, the doctrine of non derogation from grant requires that Y should not be in a less favourable position than X was, and Y may become entitled to an easement of way over the Blueacre. In this context, X’s enjoyment of access across Blueacre may conveniently be called be called a quasi-easement, which, on sale of Greenacre, ripens into a full legal easement. This principle was establish in Wheeldon v Burrows, in which it was held that, upon grant of part of the grantor’s land, there would pass to the grantee, as easements, all quasi-easement over the land retained that: Were continuous and apparent; and Were necessary to the reasonable enjoyment of the land granted; and Had been, and were at the time of the grant, used by the grantor for the benefit of the part granted. ‘CONTINUOUS AND APPARENT’ QUASI-EASEMENT These are quasi-easement that are ‘accompanied by some obvious and permanent mark on the land itself, or at least by some mark which will be disclose by some careful inspection of the premises’,8 such as a made road (Brown v Alabaster), or a worn track (Hansford v Jago), drains discoverable with ordinary care (Pyer v Carter), and windows enjoying light (Allen v Taylor). ‘NECESSARY TO THE REASONABLE ENJOYMENT OF THE LAND’ This, does not mean that the easement must be one off necessity, and the requirement may be satisfied despite the presence of some alternative mean of access (Horn v Hiscock). It seems that the easement simply enhances the enjoyment of land- e.g. where it affords a ‘short cut’ to some place outside- the requirement will be satisfied. ‘USED PRIOR TO AND AT THE TIME OF THE GRANT’ In Meyers v Charles, M agreed to sell a parcel of land in Antigua to C. The only means of acces to the parcel was by an access road over the land retained by M. Although it seemed that C, would be entitled to an easement of necessity anyways. The Court held that C was entitled to an easement under the Wheeldon v Burrows, because there had been use prior to and at the time of the grant. Download 50.55 Kb. Share with your friends:
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