Easement Essay Notes

1. Read case Glen Brand v Doris Creasey. Explain why the court decided that
there was no easement of necessity in this case.

The main issue which arose in this case was whether the claimant was entitled to a
right of way over the defendant’s land on the basis of an easement of necessity.
The claimant alleges that the right of way which the defendant has barred off by
gates and fences is his only means of accessing the main road and beach which
adjoins the properties. He further stated that as he is surrounded by private
property his only way to access his land would be to either jump over the
defendant’s fence or walk through the neighbors land, he states that he currently
used his neighbors land to access his plot and that there has been no objection to
this by the neighbors; however, he claimed that if such neighbors were to refrain
him access he would be landlocked or have to jump the defendant’s fence.

The claimant purchased his plot from Charles Young, within his conveyance there
was no expressed right of way over the defendant’s land given to the Claimant.
The defendants refused to give C a right of way over the land as she claims that her
conveyance which she received from Mike Smith gave her full rights over the land
and the right of way and that to grant C use of the right of way would affect her
livelihood.

The courts in this case assessed the history of ownership of the lands. Both
properties were formally owned by one persons and then conveyed to someone
else (V) who subdivided the property. V granted a conveyance to the defendant for
one portion of the land, which included a right of way in the deed. V also conveyed
another portion of the land to Charles Young, who later sold the land to the
claimant which did not included a right of way.

The courts assessed various case law and texts throughout the case to determine the
basis of an easement of necessity.
- Firstly, the case of Barry v Hasseldine:
In this case the claimant claimed a right of way over the defendant’s land. The defendant
had formerly sold the land to W who conveyed the land to the claimant. The court held
that a way of necessity over D’s land in favor of the grantee and his successors was
implied by law as incidental to the grant, notwithstanding that the land was not entirely
enclosed by the land of the D, such implication was also not rebutted on the grounds that
the grantee would have had a way to land by way of a stranger’s land.
The judge in this case noted that If the grantee has no access to the property which he is
sold except by way of the grantor’s land or by some other person (who he cannot compel
to give him a right of way) – common sense demands that a right way of necessity should
 be implied…. for the purposes for which the grant was granted. And that there fat
that the grantee may seek access over the land of some person other than the grantor is
not relevant as that right of way may be determined (thus being liable to trespass) leaving
the grantee with no lawful method of approaching the land.
A key component in this case was also the fact that D has conveyed the land to the
grantee being aware that the land was enclosed and as such the a right of way arises
against the seller where he knows the land is locked….therefore the law will imply in the
sale a right of way in favor of the purchaser over the land of the grantor.
- The second case the court examined was London v Briggs
In this case the defendant had granted the claimant land which was completely
surrounded by a smaller piece of land, the only way for the defendant and his staff to go
to and from their land was to travel by way of the claimant’s land, which caused injury to
the soil of the land. The claimant agreed that the defendant was entitled to the right of
way by way of necessity for agricultural purposes only.
The court held that there was an implied right of way of necessity …but it was not a way
of necessity for all purposes.
Jessel MR, stated that it appears to me that the right of way must be kimited to that which
is necessary at the time of the grant.
- The court also noted that the principle of easement of necessity is also an exception to the
rule that if an owner wants to reserve a right of way over conveyed land he must
expressly state it in the deed. Therefore the court will consider the easement as impliedly
reserved, though it has not been reserved by expressed words. – Wheeldon v Burrows

The courts further emphasized on the point that for an easement of necessity to exist it must
mean that the property cannot be used at all without such easement and not merely that the
easement is used/needed for reasonable enjoyment of that property. – citing Union Lighterrage v
London Graving Dock Co.

In regards to the facts of the case, the courts noted that upon view of the site it is evident that the
claimant has access to and from his prop to the road and sea without using the right of way or the
defendants land, mainly through the neighbor’s land which was open, and based on the site of it,
it seemed to have been used as a public access way. Thus in keeping with the basis of an E of
Necessity the claimant failed to prove to the court that there was no other way to access his
property, or to satisfy the requirement that the prop cannot be used at all.

In addition, the court also looked at the requirement of unity of ownership for an easement of
necessity. The question arose as to whether an easement of necessity arises in a cases where the
defendant did not sell the land to claimant or his predecessors. The courts sited Professor
Owusu’s text in stating that unity of ownership is required for the establishment of an easement
of necessity. …It is necessary for the claimant to show that the D & S were once in common
ownership. If title to the 2 properties can be traced to a common owner who effected the
severance which gave rise to the necessity of easement, the right of way may be dormant through
several conveyances.
To this end, it must be noted that the original owner’s V … did not mention the right of way in
their deed. The right of way was conveyed to Smith for the first time by V, and he was not the
common owner of the lands. The courts stated that they found it difficult to accept an implication
of necessity where the D was not involved in selling the land owned by the claimant. And in
following the cases of Barry and Riggs it appears that the implication of a way of necessity is
established where D sold the land in question.

Lastly, the C also claimed that he was entitled to an easement over the land by way of
prescription. The court stated that an easement by prescription according to law is acquired by
peaceful, open, uninterrupted enjoyment of land for a period of 20 years. Secondly it must also
be proven that there was no permission granted to the claimant to the use of such land. On such
grounds the court found that the requirement of prescription were not satisfied as no evidence
was shown the C occupied the land for such period and also that the there was evidence that the
D gave permission to the claimant’s predecessor (Young) to use her land to gain access to
another land for the purposes of carrying out caretaking duties.

2. Using Manjang v Drammeh (Ghambia) (1990), Rampersad v Jattan (1989),

Ramdass v Ramdass (1989) (available on the course web-page) discuss the
scope of the doctrine of easements of necessity

In the case of Rampersad v Jattan, the claimant had lived on a plot of land for many years off
Narine Street and according to her she had gained access to her land through land which was
occupied by the defendant. She was said to have purchased her land from P.J. who told her that
his LL at the time was J. J had told the C that the footpath over the D land could be used to
access the public road. Years later, the D put up a gate restricting the C entrance to Narine Street
thus preventing her from using the footpath. She claimed that she was entitle dto such path by
way of necessity. Another issue in this case was who owned the land, it was stated J never owned
the land …moreover D contended that there were alternative routes that C could use. For the
purposes of the judgement the court agreed that J was the common owner of the 2 plots of land at
the time of the grant.
The court noted that a way of necessity arose where on a cnyeance of land by a common owner
of a part of his land…either the part of the conveyed land or the retained is left without any
legally enforceable means of access, and therefore it is entitled to a way over the other part as of
necessity. The court stated that once it is proven by the C that there is no other enforceable way
of access the burden shift to prove that there are alternative routes, and in such a case …it is trite
law that merely permissive use of other land (private property) as a means of access is
disregarded.
The judge declared that the plaintiff is entitled to a right of way of necessity over
the unpaved road or passage way leading from her premises along the lots of the D.

In the case of Ramdass v Ramdass

The issue arose when the D allowed C to build a home at the rear of his plot, C had
used the western side of the plot as a means of access to and from the property as
the land was landlocked. An issue arose between the 2 and the D put up a fence
restricting the C use of the western side of the plot, the C brought a claim against
this stating that she was entitled to use the western side of the plot as a right of way
of necessity as the eastern side is not convenient. The D stated that the Eastern side
of the plot could have been used and that he had instructed C to use that side.
The main matter for the court was whether or not D after allowing C to use the
western side of the land could in fact change the way.

The court relied on the following cases to determine the issue

- Bolton v Bolton: this case stated that where a way of necessity arises its line
is to be chosen by the grator BUT it is for the person entitled to make it up.
In this case there were 2 ways available to the grantor and the question was
which way should be granted. The judge followed Pearson v Spencer and
stated that the Grantor had the right to select the way but it should be a
convenient way.

- In Pearson v Spencer: The issue was regarding farm road which had been
used by C to access its land, the D had restricted such use and had instructed
the C to use another way ( a fence). The court stated that the old way was a
convenient way but it was not a necessary way which meant the defendant
could still access its land by the fence.

The Court held that on a severance of two tenements, any right to use ways,
which during the unity of possession have been used and enjoyed in fact, did
not pass to the owner of the disserved tenement, unless there was something
in the conveyance to show an intention to create the right to use those ways
de novo. But the Court made a distinction when it came to land which was
landlocked. It stated that when property devised or granted is landlocked,
and “there is no other way of getting at it without being a trespasser, so that
it cannot be enjoyed without a way of some sort over the lands of the testator
or grantor, it is clear that a way of necessity is created de novo".
The ground by which a way of necessity is created is that a convenient way
is impliedly granted as a necessary incident. But the Court in Pearson was
not prepared to extend that to mean that the person in whose possession the
servient tenement comes may from time to time vary the direction of the
way of necessity, at his pleasure, so long as he substitutes a convenient way.
The way once created, it held, must remain the same way as long as it
continues at all. It would seem that from, this authority the way had to be
first created and then it was not subject to change. In Pearson the Court held
that the testator did intend to create a convenient way of some sort but that
there was a singular lack of authority as to the manner in which it was to be
ascertained what was to be the direction of the convenient way thus created.

There was ample authority to suggest that the grantor was the one to assign
the way where it is most convenient to himself. In each case it seems to have
been thought that the person by whose act the way was created was
subsequently to select the way, "subject only to this, that it should be
convenient way."

In general, when there was an occupation by a tenant, there must be an

actual existing way by which the premises were used and enjoyed"; and the
Court in Pearson was of the view that the best way to effectuate the intention
of the testator was to construe the implied grant of a way to be a grant of that
way actually used at the time.

In the case of Deacon v SE – it was established that once the line had been
drawn it cannot be altered by the servient owner.

The plaintiff sought an injunction refraining the defendant from closing the
gates. It was held that the right of way granted by the lease being undefined
by the deed, the right to define the line it should take was vested in
defendant as the grantor, but that the defendant, by its action in putting up
the gates and giving keys to the plaintiff, defined the way and could not
afterwards alter it. North J in his judgment held that "the fact that access was
made and the keys given to the plaintiff is conclusive to show that the
defendant recognised the plaintiff's right to pass in that direction. The
defendant was appropriating that particular part of the line over which he
was to go by putting up gates there, of which it gave him the keys. The
defendant was confining as they had a right to do, within a limit his right of
passing over the land to the place where the swing bar was".
However, in Wynne v. Pope it was held by Supreme Court of South Africa
that an easement of necessity can be altered by the owner of the servient
tenement if he can afford to the owner of the dominant tenement another
route as convenient as the original route.
This latter authority goes against the grain of all the English authorities,
particularly the decision in Deacon. Parke J in Pearson said we certainly do
not feel inclined to extend the authority in Homes v. Goring so far as to hold
that the person in whose possession the servient tenement comes may from
time to time vary the direction of the way of necessity at his pleasure so long
as he substitutes a convenient way. We think that we must hold that the way
of necessity once created must remain the same way as long as it continues
at all." I share that view and would hold that a grantor cannot alter the way
of necessity as of right once it has been directed.

In the present case (ramdass) an implied way of necessity arose. The

question was whether the defendant had selected the way to be used. If he
did he was not allowed to change it and if he has not he must choose the
most convenient between the east and the west. The judge held that the
easter n was the most convenient, although the western was usable it was too
steep for everyday use for a home.