Reservation of easement — Agreement to grant an easement — Failure to register agreement as estate contract — Agreement void against subsequent purchasers — Whether easement by reservation enforceable — Whether easement extinguished by operation of law — Interlocutory appeal dismissed
The respondents own a bakery at 27 West Street, Buckingham. In 1982 they sold some land (the “red” land) at the rear of their premises to the owner of an hotel; it was intended that the land would form part of the hotel car-park. Under the agreement that preceded the conveyance, the respondents reserved a right-of-way as an easement over the red land, and the purchaser agreed to grant to the respondents, as a continuation of that right-of-way, an easement through other land already in the ownership of the purchaser. The conveyance included the reservation of the easement over the red land, but there was no grant of an easement to continue the right-of-way over the land already owned by the purchaser. The respondents failed to register an estate contract to protect the agreement by the purchaser to grant the necessary easement, and that agreement became void against subsequent purchasers of the hotel and car-park, including the appellants. The appellants now wish to extend the hotel by building over the car-park. The appellants appealed against an interlocutory injunction granted by Peter Gibson J (November 29 1988) in an action by the respondents to prevent any interference with their right-of-way. The appellants contended that as part of the right-of-way was no longer enforceable as an equitable easement, the easement over the red land, which was the subject of the 1982 conveyance, had been extinguished and there was no triable issue.
Held The appeal was dismissed; there was a triable issue. Although an easement must accommodate the dominant tenement, there was no rule of law that the question of accommodation must be decided at any time other than the date of the grant. The right-of-way did not now accommodate the dominant tenement, since part of it was unenforceable, but at the time of the 1982 agreement it did.
If the easement over the red land had been extinguished when the rest of the right-of-way became unenforceable, then it was extinguished, if at all, by operation of law. Earlier authorities showed that where the dominant tenement was extinguished, easements benefiting the dominant tenement were also extinguished. But in this case both the dominant and servient tenements existed; there was no authority that established that in these circumstances an easement is extinguished. It was possible that circumstances might change in the future and the right-of-way could be perfected by a grant.
The fact that there was no, or very little, practical use that could be made of the easement over the red land did not mean that the easement over the red land had been abandoned: Re Yateley Common: Arnold v Dodd (1976) 241 EG 537.
Holmes v Goring
(1824) 2 Bing 76 distinguished.
Nicholas Patten QC and Daniel Hochberg (instructed by Pitmans, of Reading) appeared for the appellants; and John McDonnell QC and Mark Cunningham (instructed by Chandler Ray, of Buckingham) appeared for the respondents.
