Settlement — Estate — Farm subject to tenancy — Trustees apportioning trust property between beneficiaries — Certain beneficiaries claiming easement over land of others — Whether trustees creating right of way when apportioning estate land — Declaration made
The claimants were the trustees of a settlement of which the six defendants were the beneficiaries. The main trust property was an estate of 3,000 acres that the trustees had divided between the first four defendants (HC) and the last two defendants (LC) under their powers of appropriation and appointment.
A dispute arose concerning a 29 acre farm that was let on a agricultural tenancy and that formed part of the estate and the settlement. Although the trustees’ geographical dividing lines generally respected the integrity of existing farms or properties, in the case of this farm, they had divided the property into two parts, allocating to LC the farm buildings and the bulk of the land (the red land) and to HC most of the fields to the east of the farm buildings (the green land).
From the time of the appointments, the entire beneficial interest in the relevant properties passed to the defendants and the claimants were obliged thereafter, on request, to convey the properties to them. The defendants’ position was therefore akin to a purchaser of land prior to completion, which was treated as being entitled in equity to all rights appurtenant to the land. Thus, a question arose as to whether the claimants had created a right of way over the red land into the green land, pursuant to the rule in Wheeldon v Burrows (1879) 12 ChD 31 and as a way of necessity.
The claimants sought the direction of the court as to whether they had created such a right to enable them to determine if some adjustment in the appropriation was required in order to restore the correct division of the distribution to the two groups.
Held: A declaration was made.
The HC defendants were not entitled to the execution of a conveyance by the claimants that included expressly, or by implication, an easement of way for vehicular passage over the red land.
The rule in Wheeldon (which was ultimately one of construction based upon the presumption against derogation from grant) provided for the creation of such continuous and apparent easements or such easements as were necessary to the reasonable enjoyment of the property conveyed. However, where separate parcels in common ownership were simultaneously disposed of to different transferees, each would acquire by implication the same easements over any other part as though that other part had been retained.
The concept of simultaneity had to be understood and interpreted in context as these rules were ultimately guides to ascertaining the transferor’s presumed intentions. The question was whether the dispositions were to be regarded as part and parcel of a single transaction, which was so in the present case.
The requirement of “continuous and apparent” was satisfied since a quasi-easement did not require a made-up track and the passage was reasonably necessary for the enjoyment of the green land, namely for its agricultural exploitation.
The absence of use of a precise way was not fatal to the creation of an easement but it had to have a terminus a quo (starting point) and a terminus ad quem (end), which could not be established in this case.
A way of necessity existed over the red land since the green land was landlocked in the absence of an easement under Wheeldon. However, on the evidence, the need for a way for vehicular traffic had ceased in 2003 together with the entitlement to a corresponding easement of necessity: Holmes v Goring (1824) 2 Bing 76 considered.
Eileen O’Grady, barrister
