Law Extension Committee

Real Property

Winter 2006
Easements

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EASEMENTS
LECTURE ON 21 JUNE 2006
Note:

Students should read Chapter 16 of Land Law by Peter Butt

(5th Edition) and should also find and read the sections and
cases referred to in the Subject Guide commencing on page
14. These notes are not a substitute for reading the text and
considering the cases.
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Nature of Easements
a right enjoyed by the owner of one piece of land to carry out some
limited activity (short of taking possession) on another piece of land
Butt p 369
Corporeal rights those things that are tangible eg. land
Incorporeal rights those things that are intangible eg. easements and
other legal rights.
Four essential characteristics: Considered in Re Ellenborough Park
[1956] 1 Ch 131
must be a dominant and servient tenement.
the easement must accommodate the dominant tenement.
can't be common ownership of the dominant and servient
tenement (but see the Conveyancing Act and section 88B).
the right must be capable of forming the subject matter of a
grant.
Dominant and servient tenements
Must be a right for the benefit of a piece of land. If it is not annexed
to land then it is a personal right and is not an easement.
Personal rights bind only the parties to the arrangement and do not
'run with the land'. This position has been altered in relation to some
easements classified as easements in gross created pursuant to
section 88A of the Conveyancing Act 1919.
Must accommodate the dominant tenement

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Must be for the benefit of the dominant tenement.

Land that has the benefit of an easement may be subdivided and each
part of the subdivided land has the benefit of the easement.
Land that is consolidated does not confer on any part of the land that
does not have the benefit of the easement any rights it did not have
before.
A brief synopsis of the facts and decision in Bursill Enterprises v
Berger Bros Trading Co (1971) 124 CLR 73 is as follows:
Berger and Bursill owned adjoining lands fronting George
Street, Sydney.
Berger had the benefit of a right of way over part of Bursill's
land for a distance of 28 feet from George Street and above
this land was a building partly constructed on Berger's land
and partly over the right of way at a height of 12 feet above the
ground.
the building was partly supported on a building on Bursill's
land.
the building had been erected prior to 1872 and in 1872
Bursill's predecessor in title had granted to Berger's
predecessor in title by transfer under the Real property Act an
extension of the right of way "together with all the buildings at
present erected on the said roadand the right to pull down
such buildings and to rebuild others at the height of not less
than 12 feet from the ground over such roadto the extent
and no further than the existing building goes and for any of
such purposes to use and to build upon the walls to the extent
aforesaid now or hereafter to be erected upon the .said
road".
notification entered on title. Both titles referred to "rights of
way".
Berger claimed to be able to continue occupation of the 2
storey building, Bursill claimed to be the owner of the building
as the owner of the land over which it was constructed.
Held that:
the transfer and grant in 1872 was a transfer of part of the
land being the stratum occupied by the building.

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the grant was notified on the folio of the register as what is

"notified" to a prospective purchaser is everything that
would have come to his knowledge if he had made such
searches as he should make as a result of what appears on
the title.
Bursill was not entitled to demolish the wall that supported
Berger's building and that Berger's right to rebuild was
limited to a right to erect a building of the same dimensions
as the original building
In Frater v Finlay (1968) 91 WN (NSW) 730 the Court considered a
preliminary point taken by the defendant that the provision for the
sharing of maintenance costs did not constitute part of the easement
and was binding only on the original parties to the agreement. In his
decision, Newton D.C.J. considered Re Ellenborough Park (see above)
and made the following comments:
The real issue in this case (Re Ellenborough Park) was whether or not
an easement had been created, and the court traced the historical
development of the concept of easements from the Roman law of
servitudes, noting that the term easement was known to the
mediaeval common law up to the present time, and finally giving
judicial approval to the four characteristics of easement formulated in
Dr. Cheshires Modern Real Property, 7th ed., at pp. 456 et seq. They
are (i) there must be a dominant and a servient tenement; (ii) an
easement must accommodate the dominant tenement; (iii) dominant
and servient owners must be different persons; and (iv) a right over
land cannot amount to an easement unless it is capable of forming the
subject matter of a grant. These principles are restated in Gale on
Easements, 13th ed., at pp. 6 et seq. In the case which I am called upon
to decide there is no question that the defendant is the owner of a
dominant tenement and the plaintiff the owner of a servient tenement
and the defendant has an easement over the plaintiffs land to take
water through a pipeline into a trough on the lands of the defendant.
It also seems clear to me that the obligation of the owner of the
dominant tenement to pay half the cost of keeping the well and pipes
and tanks and equipment in good order and condition cannot, in itself,
amount to an easement independent and separate from the easement
to receive water. Viewed on its own, the obligation to contribute could
not comply with the second essential of an easement, namely that it
must accommodate the dominant tenement. This means that what is
required is that the right accommodates and serves the dominant
tenement and is reasonably necessary for the enjoyment of that
tenement; for if it has no necessary connection therewith, for although
it confers an advantage upon the owner and renders his ownership of
the land more valuable, it is not an easement at all but a mere
contractual right personal to and enforceable between the two
contracting parties.

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In my opinion the obligation of the grantee of the easement to
contribute half the cost of repairs formed part of the easement and
therefore binds the successors in title, and therefore the plaintiff is
entitled to recover one half of such moneys as he is able to prove were
expended by him within the terms of the grants.

Unity of ownership and possession

A person cannot have an easement over the persons own land. Since
an easement is a right, it is not possible to have a right to do
something over land you already own.
But see Conveyancing Act 88B which allows easements to be created
by plan over land in common ownership.

Right must be capable of being the subject matter of a grant

Can't be too vague or indefinite. Must be capable of definition
(originally by deed) and now more commonly by section 88B
instrument.
Rights amounting to possession
As an easement is a right, it cannot be of such a magnitude that it
amounts to possession of the land constituting the site of the
easement. A right to store goods in a cellar has been held not to
constitute an easement as it gave exclusive possession to the grantee.
(Butt [1618])
In Copeland v Greenhalf [1952] 1 Ch 488 Upjohn J. considered a
claim for an easement by prescription and whether in the particular
circumstances the right claimed could constitute the subject matter of
a valid easement. His Honour went on to say:
I think that the right claimed goes wholly outside any normal idea of an
easement, that is, the right of the owner or the occupier of a dominant
tenement over a servient tenement. This claim (to which no closely
related authority has been referred to me) really amounts to a claim to
a joint user of the land by the defendant. Practically, the defendant is
claiming the whole beneficial user of the strip of land on the south-east
side of the tract there; he can leave as many or a s few lorries there as
he likes for a s long as he likes; he may enter on it by himself, his
servants and agents to do repair work thereon. In my judgment, that is
not a claim which can be established as an easement. It is virtually a
claim to possession of the servient tenement, if necessary to the
exclusion of the owner; or, at any rate, to a joint user, and no authority
has been cited to me which would justify the conclusion that a right of

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this wide and undefined nature can be the proper subject-matter of an
easement.

Easements for overhead power lines cannot prevent buildings being

erected beneath the lines although commonly these easements provide
for the consent of the supply authority to be required before buildings
can be erected. Some restrictions are also placed on trees within
power line easements.
At [1618] Butt refers to some of the cases where rights that might
have been thought to create a right of possession rather than a right
in the nature of an easement, have held that easement rights exist.
It is difficult to reconcile some of the cases as it is possible by statute
to create rights that amount to rights of possession. The right to have
an encroaching building remain clearly prevents the owner of the land
encroached upon from exercising any rights over that part of the land.
An easement for electricity purposes prevents an owner from
exercising any rights over the area where the poles are standing. The
area might not be large, but it does amount to an exclusive use of that
small area.
Creation of easements
Express easements Old system land
At law, easements over land under the old system must be created by
deed. Section 23B Conveyancing Act.
Easements not validly created by deed may still be enforceable as
'equitable easements' but the requirement to show the four matters
referred to in Re Ellenborough Park still exists.
Mere writing will be sufficient to create an 'equitable easement' over
old system land. Section 23C Conveyancing Act. Part performance
might also found a right to an 'equitable easement' if sufficient
evidence can be produced. Sections 23E and 54A, Conveyancing Act.
Express easement Torrens title
Registration of a transfer.
Registration of a lease. Can be included as rights available to the
lessee. The rights cease on the expiration of the lease and the handing
over of possession to the lessor.
Registration of a plan under section 88B Conveyancing Act.

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Section 88 Conveyancing Act.

In Dabbs v Seaman (1925) 36 CLR 538 the High Court considered
whether Emily Dabbs was entitled to a right of way over land
adjoining the land owned by her and marked on her Certificate of Title
as 20 feet lane. In his judgment Isaacs J attempted to clear the
issues at the very beginning of his judgment by saying:
When the mists of irrelevancy disappear, the question resolves itself
into the following proposition, which I hold to be good law and to be
absolutely necessary if titles under the Real property Act are to be
indefeasible: Where A, a registered proprietor of land under the Real
Property Act, transfers to B a part of his land described by a plan
indicating that the transferred land is bounded on one side by a 20'
lane situated on the other part of the transferor's land and the transfer
is duly registered, the, in the absence of either a provision to the
contrary on B's certificate of title or some subsequent personal legal or
equitable relation to the contrary between B and the owner of the
adjoining land, B, so long as he remains the registered proprietor of the
land so transferred and described, is entitled (1) to have the land
marked 20 feet lane preserved as such, and (2) to a right of way over
the lane.

Implied grant
The most common application of the doctrine of an 'easement of
necessity' arises where land has been sold but for some reason no
access to a public road is available. It is not common under in New
South Wales as the application of the principles surrounding the
subdivision of land do not generally allow for land to be so subdivided
as to deny access to part of the land subdivided.
In Wheeldon v Burrows (1879) 12 Ch D 31 the Court considered an
application for an implied reservation of a right to light arising from
the sale of land. What has become known as the rule in Wheeldon v
Burrows is set out as follows:
[O]n the grant by the owner of a tenement of part of that tenement as it
is then used and enjoyed, there will pass to the grantee all those
continuous and apparent easements (by which, of course, I mean quasi
easements), or, in other words, all those easements which are
necessary to the reasonable enjoyment of the property granted, and
which have been and are at the time of the grant used by the owners of
the entirety for the benefit of the part granted.

In the case of Corporation of London v Riggs (1880) 13 Ch D 798

the Court considered whether a right of way of necessity in favour of a
landlocked piece of land over the surrounding land is a general right
for all purposes or whether it is limited to the uses to which it had
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been put at the time when the action first arose. In his judgment,
Jessel M.R. said:
I fail to find any exact decision on the point, or anything coming near it,
for it does not seem to have been discussed anywhere; and the only
scintilla I can find going anywhere near the point is an observation of
the Lord Chancellor Cairns in Gayford v. Moffat (1), in which he says,
reading from Mr. Seargeant Wiliams note to Pomfret v. Ricroft (2): This
principle seems to be the foundation of that species of way which is
usually called a way of necessity: and then he goes on to say, Now,
that is exactly the interpretation of the words used in this grant; with
all ways to the premises appertaining; it means, with such a way as
the law would hold to be necessarily appertaining to premises such as
these that is, a way of necessity; therefore, immediately after this
lease was granted, this tenant occupying the inner close became
entitled to a way of necessity through the outer close, and that way
must be a way suitable to the business to be carried on on the premises
demised, namely, the business of a wine and spirit merchant.
It is therefore obvious to me that Lord Cairns thought a way of
necessity meant a way suitable for the user of the premises at the time
when the way of necessity was created; and that is all I can find in the
shape of authority on the subject.

In New South Wales the matter came before the Supreme Court in the
case of North Sydney Printing v Sabemo Investment Corporation
Pty. Ltd [1971] 2 NSWLR 150. In this case, North Sydney Printing
subdivided land and sold part of it (lot 5) to Sabemo Investment
Corporation. It retained the remainder of the land (lot 4) as it
intended to sell this lot to the North Sydney Council. Lot 4 had no
road frontage and no access to any public road except through land
adjoining it owned by the North Sydney Council. North Sydney
Printing and the North Sydney Council could not agree on the terms of
an acquisition of lot 4 and North Sydney Printing approached the
Court for an order that it was entitled to a right of way of necessity
over the land sold to Sabemo Investment Corporation (lot 5).
In his judgment, Hope J. set out his interpretation of the authorities
concerning rights of way by necessity and said:
It seems to me that the balance of authority establishes that a way of
necessity arises in order to give effect to an actual or presumed
intention. No doubt difficulties could arise in some cases because of
differing actual intentions on the part of the parties, but it seems to me
that at the least one must be able to presume an intention on the part
of the grantor, in a case such as the present, that he intended to have
access to the land retained by him over the land conveyed by him
before one can imply the grant or reservation of a way of necessity over
the land conveyed. In the present case, there was no such intention,
and indeed the actual intention of the grantor was to the contrary. Its
intention was that there should be no access over any part of lot 5, and
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that access should be had by joining lot 4 to the land of the council,
which fronted Ward Street. If this consolidation had occurred, then lot
4 would have had access to a public way. As I have said, the plaintiff
had in November 1969, and has now, a right to compel that
consolidation, that is, the owner of lot 4 has a legal power to compel the
joining of his lot with the land owned by the council, which will produce
an access from a public way into lot 4, and so allow lot 4 to be used
and not left useless. In these circumstances, I do not see how an
intention to have access to lot 4 over any part of lot 5 can be presumed,
or imputed to the parties or either of them. Indeed, I do not think it
can be contended that if the principle upon which the doctrine of ways
of necessity is based is related to giving effect to the intention of the
parties in relation to the severance, any right of way of necessity could
have arisen in the present case. The only basis for holding that such a
right was created in the present case would be that the law inevitably
makes provision for access over the land conveyed by the person in the
position of the present plaintiff, regardless of that persons intention
and regardless of the other circumstances of the case.

The application of the rule in Wheeldon v Burrows was also

considered in Australian Hi Fi Publications Pty. Ltd. v Gehl [1979]
2 NSWLR 618. In this case land was owned by the Savage family.
During their ownership a block of shops was erected and
subsequently an office block. At that time there were two buildings on
the land. The land was subdivided such that lot 1 comprised the
shops and some of the land and lot 2 comprised the office block and
the land adjoining it.
The Savage family sold lot 1 to Gehl and several years later sold lot 2
to Australian Hi-Fi Publications Pty. Ltd. There was no reference in
any of the contracts or transfers or the certificates of title to any
easements providing for rights of way.
Evidence was adduced that prior to the first sale the tenants of the
shops constructed on what became lot 1 used part of the land that
became lot 2 to access a public road. The Court considered that if the
land had been under old system title then the rule in Wheeldon v
Burrows would have allowed the subsequent owners of lot 1 to claim a
right of way over those parts of lot 2 used as the right of way. In his
judgment in the Court of Appeal, Mahoney J.A. considered the
application of the rule in Wheeldon v Burrows to land held under the
Real Property Act and said:
The argument that such an exception should be created has been put,
in substance, upon the following basis:
that interests such as
Wheeldon v. Burrows easements are interest well recognized by the law;
that, as they are incapable of being registered or noted on the register,
they will, unless protected by s. 42 (b), be incapable of existing; and
that it could not have been the intention of the Act to destroy such

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interest. But, in my opinion, such an argument involves at least two
difficulties.

His Honour then went on to say:

Second, in considering the effect of s. 42 upon unregistered interests,
there must be borne in mind the distinction between the persons by
whom those interests were created and subsequent registered
proprietors. A between the parties actually involved in the Wheeldon v.
Burrows circumstances, rights will be created. Rights, such as those
which arose upon the sale of the land by the Savage family to the
defendant and his wife, would normally be within the class of rights
existing personally against the Savage family as proprietors and so
enforceable against them notwithstanding s. 42. Those rights would
not be enforceable against a subsequent registered proprietor taking
without fraud; the existence of such rights is proscribed by s. 42 to
that extent. There is, in my opinion, nothing special in this, such as
would warrant the creation of an exception to the ordinary effect of s 42
or the extension of the term omission to make such rights enforceable
against the subsequent registered proprietor. I see no reason why, for
example, a Wheeldon v. Burrows interest should be in a better position
than he interest which would have arisen had the Savage family, by
deed, purported to grant to the defendant exactly a right in similar
terms. The right created by that deed would not be enforceable against
a subsequent registered proprietor.
I, therefore, do not think that the term omission should be given the
meaning contended for by the defendant.

This matter is also discussed in Butt at paragraphs [2067]-[2071]

See also Dobbie v Davidson (1991) 23 NSWLR 625 (below).
See discussion of the principle in Wheeldon v Burrows in Butt
paragraphs [1647]-[1652].

Creation by Prescription
In England the existence of an easement not created by a document
was considered to be proved by evidence establishing that the right
had been used since time immemorial. This eventually came to be
fixed a usage since 1189 and subsequently became the rule that if
evidence could be produced that a right had been exercised for at least
twenty years then an easement by prescription could be claimed.
As this rule was ridiculous for Australian circumstances, the High
Court held in Delohery v Permanent Trustee Co of NSW (1904) 1

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CLR 283 that the doctrine of the lost modern grant was the proper
means to categorise an easement acquired by prescription.
In Delohery v Permanent Trustee Co of NSW the High Court said
that rights to light could be acquired by prescription. This was
abolished by the Ancient Lights Declaratory Act 1904 and is now dealt
with in section 179 of the Conveyancing Act.
The doctrine of 'the lost modern grant' is dealt with by Butt at
paragraph [1659].
The matters required to be proved are:
That the use has been as of right.
That the use has been not by force, secrecy, or permission.
That the use has been continuous for twenty years.
In Williams v State Transit Authority of NSW [2004] NSWCA 179
the Court of Appeal considered an appeal from a judgement of Young
CJ in Eq. In the case before Young J, the court was asked to consider
whether the doctrine of lost modern grant applied to claim for rights of
way over land under the provisions of the Real Property Act.
In his judgment Mason P deals with the doctrine commencing at
paragraph 78. He says:
At common law an easement may be created by twenty years
uninterrupted enjoyment of the right claimed. This doctrine of lost
modern grant requires the court to presume, even if contrary to the
truth, the existence of an express grant which has been lost. The
presumed grantor must have the legal capacity to have executed the
grant.
In particular, s46 of the Real Property Act relevantly provides that
where any easement..affecting land under the Act is intended to be
created, the proprietor shall execute a transfer in the approved form.
Until the present case, there was an unbroken stream of authority in
New South Wales to the effect that easements by prescription could
not arise over land subject to the Real Property Act where the acts of
user occurred during the time the land was under the Act.

His Honour then went on to discuss the various cases including

Berger, Australian Hi-Fi and Dobbie v Davidson.
In my opinion, it is to pile fiction upon fiction to extend the doctrine of
lost modern grant into the Torrens system, because (assuming no
relevant exception to s42 or its equivalents) that system contemplates
title at law as arising only upon registration. To transpose the fiction
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of lost modern grant into a Torrens context one has to presume
considerably more that the loss of an executed (and delivered) deed.
At the very least, one would have to presume the execution and
delivery of a registrable instrument. But the logic suggests that one
has to go further and presume delivery accompanied by certificate of
title, since that is the normal way in which the person entitled to have
an interest registered goes about perfecting such title so far as lies in
the grantors power. Indeed, title is only perfected through the act of a
third party (the Registrar General), and there is no basis for inferring
that officers acquiescence in the user giving rise to the common law
doctrine.

In Dobbie v Davidson (1991) 23 NSWLR 625 the Court was asked to

consider whether a track used for access to a property across another
property for a period of 60 years prior to the land being brought under
the Real Property Act constituted a right of way and further
considered whether the omission from the certificate of title after the
land was brought under the Real Property Act constituted an
exception to indefeasibility within what was then s 42(b).
In his judgment in the Court of Appeal Kirby P made the following
observations:The purpose of the rule by which a prescriptive right is upheld by the
law is ultimately to guard the peaceful enjoyment of the use of land
where that use has endured for more than twenty years, as of right.
The evidence showed that the use of the road constituting the right of
way to Ellerslie was extensive. In connection with access to that
property it had been used by bullock drays and bullock wagons; horse
drawn vehicles carrying products; carts, trucks, cars and tractors;
visitors, tradespeople, shearing teams, droving stock, electricity and
bush fire brigade vehicles; shooters; for carting and bailing hay and by
children. None of the aforementioned people using the road over this
time ever sought permission from the owners of Lumley Park. They
just used it without dispute until the present litigation began.
Relevant to assigning conduct to one category rather than the other
will be: (i) the time during which the conduct has been peacefully
followed; (ii) the persistence of the conduct, despite supervening sale
and the acquisition of new owners by the dominant and servient
tenements; (iii) the unlimited variety of the persons who have utilised
the alleged right-of-way; (vi) the absence of physical impediments or
obstructions to that use; and (v) the knowledge of the use by the
owners of the servient tenement yet their failure to attempt to forbid,
limit or control the use of the right-of-way by the owners of the
dominant tenement and those having dealings with them.
All of the foregoing features were present in the facts of this case.

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After coming to the conclusion that the right of way had existed at the
time the land was brought under the provisions of the Real Property
Act, Kirby P went on to consider whether this amounted to an
omission sufficient to be one of the exceptions to indefeasibility. He
considered Australian Hi-Fi Publications v Gehl (see above) and
decided that this case was different to Gehl and that the easement
obtained by prescription did amount to an easement omitted from the
title and therefore within 42 (b).
Creation by the Court
The Conveyancing Act s 88K allows the Court to order that easements
be created in the circumstances set out in that section.
See section 88K.
Extent of use
Express grant
Where an easement is created by express grant or express
reservation, the manner in which it may be used the extent and
mode of permissible enjoyment is a matter of construing the
instrument. (Butt [1670])
In White v Grand Hotel, Eastbourne [1913] 1 Ch 113 the case
concerned a right of way over a privately owned laneway which was
granted to the owner of a private house to allow him to access the rear
of his property through a gateway. The owner of the dominant
tenement sold the premises to a hotel and the rear yard was used as a
garage for motor cars belonging to visitors staying at the hotel with
the drivers of those vehicles staying in the previously private premises.
The question before the Court was:
... whether the use of the right of way must be restricted so as no
longer to enure for the benefit of the owners of St. Vincent Lodge and its
stables unless the same continued to be used and occupied precisely as
they were in 1883, when the agreement was made, that is to say, as a
private dwelling-house.
On Appeal, Cozens-Hardy M.R. considered the manner in which the
right of way was created and determined that the right of way was
created by agreement and not by prescription. This being so, His
Honour then said:
... it is a right of way claimed under a grant and, that being so, the
only thing that the Court has to do is to construe the grant: and unless
there is some limitation to be found in the grant, in the nature of the
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width of the road or something of that kind, full effect must be given to
the grant, and we cannot consider the subsequent user as in any way
sufficient to cut down the generality of the grant.

Jelbert v Davis [1968] 1 WLR 589. In this matter part of a large

agricultural estate was conveyed to Jelbert together with the right of
way at all times and for all purposes over the driveway . . . leading to
the main road, in common with all other persons having the like
right.
While the land was originally farmed, Jelbert sought and obtained
planning permission to operate a caravan and camping park on the
land between 1 April and 31 October in each year. The defendants
claimed that this intended use was different from that contemplated
and would be excessive and constitute a nuisance.
The matter came before the Court of Appeal and Lord Denning M.R.
set out the facts at some length. The following extracts are from his
judgment:
In particular, of the words the right of way at all time and for all
purposes over the driveway leading to the main road. What is the
extent of that right when the land is changed from agricultural use to a
caravan and camping site? The change will mean no doubt that a
different kind of vehicle will be used for different purposes. But that
change is, by itself, quite permissible. It is covered by the words of the
grant at all times and for all purposes. That is shown by White v.
Grand Hotel, Eastbourne Ltd.
In view of those cases Mr. Lyndon-Stanford (who appears for M. Davis
and Mr. Osborne)) conceded that he could not complain that the way
was to be used for caravans instead of agricultural vehicles, such as
carts or tractors. He could not object, for instance, to a user in
connection with ten caravans. But he did object, he said, to excessive
user.
In my opinion a grant in these terms does not authorise an unlimited
use of the way. Although the right is grant at all times and for all
purposes, nevertheless it is not a sole right. It is a right in common
with all other persons having the like right. It must not be used so as
to interfere unreasonably with the use by those other persons, that is,
with their use of it as they do now, or as they may do lawfully in the
future. The only way in which the rights of all can be reconciled is by
holding that none of them must use the way excessively.
More generally, the true proposition is that no one of those entitled to
the right of way must use it to an extent which is beyond anything
which was contemplated at the time of the grant. . . .
... The question thus turns on the facts and circumstances of the
particular case. . . .
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... If 200 units, such as caravans, doormobiles or cars, used this
caravan site, there would be 600 people there. All those people might
go out in a car two or three times a day. In the morning to the beach.
In the afternoon for an outing. And such like. All of them would be
using the driveway.
It seems to me that the user on that scale would interfere greatly with
the rights of Mr. Osborne and Mr. Davis.
... In my opinion, therefore, the proposed user for 200 units would be
excessive. It would be far beyond anything contemplated at the time of
the grant.

Implication
Where an easement arises by necessity, the extent of permissible use
is limited by the necessity which led to its being created, and having
regard to the use then made of the dominant tenement. Butt [1673]
This issue was considered in Corporation of London v Riggs (see
above) where the enclosed land was used for agricultural purposes at
the time of the sale of the surrounding land but where the use was
subsequently changed to building purposes. It was held that the
owner of the enclosed land was only entitled to a right of way by
necessity for its use at the time of the grant, and could not claim a
right of way suitable for some other use. In his judgment, Jessel M.R.
put the following proposition:
That of course brings us back to the question, What does the necessity
of the case require? The object of implying the re-grant, as stated by
the older Judges, was that if you did not give the owner of the reserved
close some right of way or other, the could neither use nor occupy the
reserved close, nor derive any benefit from it. But what is the extent of
the benefit he is to have? Is he entitled to say, I have reserved to myself
more than that which enables me to enjoy it as it is at the time of the
grant? And if that is the true rule, that he is not to have more than
necessity requires, as distinguished from what convenience may
require, it appears to me that the right of way must be limited to that
which is necessary at the time of the grant; that is, he is supposed to
take a re-grant to himself of such a right of way as will enable him to
enjoy the reserved thing as it is.
That appears to me to be the meaning of a right of way of necessity. If
you imply more, you reserve to him not only that which enables him to
enjoy the thing he has reserved as it is, but that which enables him to
enjoy it in the same way and to the same extent as if he reserved a
general right of way for all purposes: that is as in the case I have
before me a man who reserves two acres of arable land in the middle
of a large piece of land is to be entitled to cover the reserved land with
houses, and call on his grantee to allow him to make a wide metalled
road up to it. I do not think that is a fair meaning of a way of necessity:
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I think it must be limited by the necessity at the time of the grant; and
that the man who does not take the pains to secure an actual grant of a
right of way for all purposes is not entitled to be put in a better position
than to be able to enjoy that which he had at the time the grant was
made. I am not aware of any other principle on which this case can be
decided.

In the case of Lock v Abercester [1939] 1 Ch 861 Mary Jane Lock

sought a declaration that she was entitled to a right of way over
certain land to a road. The evidence presented by the plaintiff
established and easement for persons on foot and with carriages and
horses. The defendant argued that this did not entitle the plaintiff to
cause heavy motor vehicles to pass over the right of way. In his
judgment, Bennett J referred to the evidence as follows:
There is a cloud of witnesses, and their evidence is unimpeachable as to
the general use over the period I have stated, namely, more than forty
years, of the way in question as a means of getting with horses and
carts to and from the rectory. Having heard the evidence, I have no
doubt whatever that the plaintiff has established that there is an
easement of way for persons on foot and for carriages and for horses
over the way in dispute from the rectory to the main road between
Stourport and Worcester.

After considering an argument by the defendants Counsel that the

plaintiff must prove that the right of way had been used by motor
vehicles for the period of time prescribed in the English Prescription
Act, Bennett J dealt with the matter as follows:
In my judgment that is not the law. What is claimed and what is
prescribed for is a carriageway. The right, if established, is for the use
of the way by carriages, not for a particular type of carriage or for
carriages drawn by a particular kind of animal.
The law must keep pace with the times. As a matter of law I propose to
decide that, where proof is given of the user of a way by carriages
drawn by horses for the required period so as to establish the right to
an easement for a carriageway, the right so acquired is one which
enables the owner of the dominant tenement to use the way with
mechanically propelled vehicles.

Where an easement arises by implied grant under the principle in

Wheeldon v Burrows, the permissible use is limited by the nature of
the use which the grantor exercised immediately before the severance
which gave rise to the easement. Butt [1674]

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Prescription
Where an easement arises by prescription, the extent of permitted
use is determined by the manner of use over the twenty years during
which it arose. At the end of the twenty years, the right that arises is
a right to continue the same use, not a different one. Butt [1675]
In R P C Holdings, Ltd. v Rogers [1953] 1 All ER 1029 the plaintiff
company sought a declaration that the defendant was not entitled to
cross the plaintiffs land except for agricultural purposes.
The
defendant argued that he was entitled to a full right of way whether
on foot or by vehicles and for all purposes and for all persons
authorised by the defendant.
After considering the evidence Harman, J found that a track had been
in existence over the site of the claimed right of way since 1880 and
determined:
Accordingly, in my judgment, the defendant does succeed in proving a
right of way over this track. The use proved, however, has from the
nature of the place been confined to use in connection with agriculture.
. . . If then, the right be confined to agricultural purposes, the
defendant must fail for, in my judgment, it is clear enough that this will
not justify the use of the track in connection with what is virtually a
large lodging house. . . . In my judgment, therefore, the defendant in
order to succeed must show himself to be entitled to a general right of
way for all purposes. The question whether he has such a right
appears to me to be the only point in the case presenting any difficulty.

After considering a line of English authority His Honour came to the

following conclusion:
It seems to me as a result of these three authorities that the question of
the extent of the right is one of fact which I as juryman have got to
determine, but that I am not to conclude from the mere fact that while
the property was in one state the way was for all purposes for which it
was wanted, therefore, that is a general right exercisable for totally
different purposes which only came into existence at a later date.
Sitting as a juryman I can feel no doubt that the way here was a way
limited to agricultural purposes, and that to extend it to the use
proposed would be an unjustifiable increase of the burden of the
easement.

There is a distinction between circumstances in which there is an

attempt to change the use to which an easement by prescription may
be put and circumstances that result only in an increase in the extent
of the use that amounts only to an intensification rather than a
change. This issue was discussed in British Railways Board v Glass
[1965] Ch 538. The Court of Appeal determined:
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(3)

That the defendant had acquired by prescription a right to use the

crossing for the purposes of the caravan site, and, it having been
admitted by the plaintiffs on the pleadings that the whole of the
field to the north of the crossing, the blue land, constituted a
caravan site, and no radical change having occurred in the
character of the dominant tenement, the mere increase in the
number of caravans using the site and the consequent increase in
the user of the crossing did not amount to an excessive user of the
prescriptive right, and the judge was therefore correct in holding
that there had been no such increase in the burden of the
easement as would justify the plaintiffs in seeking an injunction.

Lord Denning M.R. did not agree with this finding of the Court and is
reported in the headnote as follows:
The rule that the owner of a prescriptive right of way is not entitled to
change the character of his land so as substantially to increase or alter
the burden on the servient tenement is not confined to the character of
the property but extends also to the intensity of the user: no grant of a
right of way for 30 caravans could ever be presumed from user for six.

Generally
In Selby v Nettlefold (1873) 9 Ch App 111 the Court held that the
persons entitled to a right to use a towing path beside a canal could
deviate from the site of the easement across the land of the servient
owner and back onto the towing path to deviate around a bridge
abutment that had been constructed across the towing path and
blocked access along the canal.
In Saint v Jenner [1973] 1 Ch 275 the Court of Appeal was asked to
consider whether ramps (in the nature of speed humps) that had been
installed across a right of way should be removed at the request of the
plaintiff. The Court considered that the ramps did not infringe the
plaintiffs right to use the right of way although some orders were
made that the ramps be maintained in a particular state of repair.
In Middleton v Arthur BC 200203890 Supreme Court of NSW 16
July 2002 Palmer J discussed the principles of construction of
easements and rights of way, the principles of substantial interference
and dealt with matters concerning the grant of an injunction and
issues arising from allegations of laches acquiescence and delay. After
considering the issues in a long judgment he granted an injunction
against the defendant preventing the defendant from proceeding with
the construction of a studio, and a grill gate and C channel that
would have infringed on the right of way. This judgment should be
read carefully.
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Extinguishment
There are four ways in which an easement can be extinguished.
These are, express release, implied release, operation of law and b a
Court Order pursuant to section 89 of the Conveyancing Act 1919.
Express Release
Where the party having the benefit of an easement and the party
having the burden of an easement agree that the easement can be
released or extinguished then this can be achieved by the preparation
of appropriate documents. For land under old system title, it is
necessary to prepare a deed setting out the terms of the release. This
deed must be signed by at least the owner having the benefit of the
easement and should be registered in the general registry of deeds.
For land under the Real Property Act there is a form of Transfer
Releasing Easement which should be prepared, properly signed and
registered.
Implied release by abandonment
The courts will not easily imply the release of an easement by
abandonment. In Treweeke v 36 Wolseley Road (1973) 128 CLR 274
the High Court affirmed the decision of Hope J in the Supreme Court
of NSW to dismiss an application for a declaration that the right of
way had been abandoned. In his decision, McTiernan J came to the
following conclusion:
The non-user of the total length of the way can reasonably be put down
to its precipitous condition at places. It is not reasonable to attribute
non-user to renunciation of such a pleasant amenity as a path to the
beach at Double Bay. There is ample evidence of the utilization of
passable parts of the locus in quo of the right of way as the first stage of
daily journeys to the beach by residents of no. 36 Wolseley Road, the
dominant tenement. There is evidence of a survey being procured by
the owner of one of the home units to determine the precise course of
the right of way along the north-western boundary of the servient
tenement. There is evidence that the respondents agent informed some
of the people residing at no. 36 Wolseley Road about the existence of
the right of way when purchasing their home units.
The
correspondence which is in evidence proves that the respondent
complained to Mrs Treweeke about the swimming pool when the survey
established that it obstructed the right of way. In my opinion, upon the
whole of the evidence there is clear proof of the intention of the
respondent to retain the right of way. I do not think it can be presumed
that release of the right of way occurred at any time before or since the
respondent acquired the property, no. 36 Wolseley Road.
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In my opinion the appeal should be dismissed.

In Couche v Adams [2002] NSW SC (31 January 2002) Palmer J

considered issues of abandonment, extinguishment and modification
of a right of way for the benefit of a terrace in Paddington. The
judgment sets out the facts of the case and the Judges reasons for
the decision to allow a modification of the easement by extinguishing a
very small part of the easement not required for access to numbers 1
and 3 Quarry Street, Paddington.
Operation of law
Where property is under old system title and both the dominant
tenement and servient tenement come into the same ownership then
the easement is released by the operation of law. Having been
released, the easement is not revived upon the sale of part of the land
and it is necessary for it to be re-created by the conveyance. It is
necessary for there both to be common ownership and common
possession for extinguishment to occur.
Conveyancing Act section 89
This section of the Conveyancing Act provides a mechanism for
applications to be made to the Supreme Court as set out in the
section.
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