An easement is a proprietary right that permanently binds the land over which it is exercised.There is no statutory jurisdiction to discharge or modify easements. Consequently, they subsist until they are released, abandoned, or extinguished in some other way – sometimes by statute, but usually as a result of unity of ownership. The release or abandonment of an easement is established by reference to the actions of the dominant landowner; the actions of servient landowners cannot of themselves extinguish the rights granted.
The litigation in Westminster City Council v Dwyer [2014] EWCA Civ 153; [2014] PLSCS 58 concerned a covered passageway that was subject to a right of way. The passageway fell into disuse when the council built housing on the dominant land and a street trader began using it as a place to store market stalls and other equipment. He converted it into a fully enclosed storage unit, which he used without objection for forty years. In due course, he applied for, and was registered with, possessory title to the passageway and was astonished by a subsequent request to restore the passageway to provide access to a new development on the dominant land.
The trader argued that the right of way had been abandoned. However, abandonment of an easement is notoriously hard to prove. The courts tend to the view that owners of property do not normally wish to divest themselves of it, unless it is to their advantage to do so, even though they have no present use for it. Therefore, non-user will not, of itself, cause any presumption that an easement has been abandoned. The dominant landowner must also have shown by his behaviour that he and his successors in title have no intention of asserting the right again: Tehidy Minerals v Norman [1971] 2 QB 528. Indeed, in Benn v Hardinge [1992] 66 P&CR 246, non-user for 175 years was insufficient to justify a claim that a right of way had been abandoned.
The result was inevitable; the Court of Appeal decided that this was a straightforward case of non-user of a right of way during a period when no one needed to use it. The market trader had made superficial changes to the passageway, by laying two courses of brickwork and erecting corrugated iron shuttering and a gate. He had also bricked up a doorway. However, all these changes could be quickly and easily reversed at modest expense, without causing any significant prejudice to the trader. There was no evidence to suggest that the right of way had been abandoned for all time; therefore, there had been no abandonment at all.
Interestingly, the court accepted that it was just about conceivable that a right of way might be partially abandoned in the sense that its benefit could be severed from some part of the originally dominant land. However, it refused to entertain the notion that there had been, or could be, a partial abandonment of a right of way by reference to different classes of potential users of it. Easements attach themselves to land; they are not granted to persons or classes of persons and cannot exist in gross.
Allyson Colby is a property law consultant
