Use for land other than dominant tenement
The rule that a right of way or other easement over Blackacre has to “accommodate” an identifiable dominant tenement (Whiteacre) comes under particular stress where the dominant owner also owns adjoining land (Redacre), which is not so identifiable.
In such a case, it is hardly surprising that the servient owner can rightly object if the easement is exercised for purposes relating to the ownership of Redacre (the rule in Harris v Flower (1904) 74 LJ Ch 127) .
Nor will it help the dominant owner to show (if he can) that the use attributable to Redacre imposes no extra burden of any significance upon Blackacre: see Das v Linden Mews Ltd [2002] EWCA Civ 590; [2002] 28 EG 130, a car-parking case, applying Peacock v Custins [2000] EGCS 132.
In both cases, the Court of Appeal recognised a limited and somewhat ill-defined exception to the Harris v Flower rule, which applies where the dominant owner, having arrived at Whiteacre, then goes on to Redacre for some purpose connected with his enjoyment of Whitacre: perhaps to have a picnic. However, what the court refused to do in Linden Mews was to enlarge that exception to fit any case where the use of Redacre could be described as ancillary to the use of Whiteacre: see Sandi Murdoch’s
Use for land other than dominant tenement
The rule that a right of way or other easement over Blackacre has to “accommodate” an identifiable dominant tenement (Whiteacre) comes under particular stress where the dominant owner also owns adjoining land (Redacre), which is not so identifiable.
In such a case, it is hardly surprising that the servient owner can rightly object if the easement is exercised for purposes relating to the ownership of Redacre (the rule in Harris v Flower (1904) 74 LJ Ch 127) .
Nor will it help the dominant owner to show (if he can) that the use attributable to Redacre imposes no extra burden of any significance upon Blackacre: see Das v Linden Mews Ltd [2002] EWCA Civ 590; [2002] 28 EG 130, a car-parking case, applying Peacock v Custins [2000] EGCS 132.
In both cases, the Court of Appeal recognised a limited and somewhat ill-defined exception to the Harris v Flower rule, which applies where the dominant owner, having arrived at Whiteacre, then goes on to Redacre for some purpose connected with his enjoyment of Whitacre: perhaps to have a picnic. However, what the court refused to do in Linden Mews was to enlarge that exception to fit any case where the use of Redacre could be described as ancillary to the use of Whiteacre: see Sandi Murdoch’s Unneighbourly musings Estates Gazette 15 June 2002, p144.
