Part of land disposed of — Right of way created for access to retained land — Right of way also created for access to further land to be acquired at unspecified future date — Whether easement created binding on successors in title — First instance decision in favour of plaintiff upheld on appeal
A company owned 37 and 37a Upper High Street, Thame (“the property”). The company was effectively owned and controlled by B. In June 1979, when the company was about to go into voluntary liquidation, one-half of the property was sold to developers, who intended to build houses on the property. B was to purchase the company’s interest in what remained of the property. He intended to erect some garages in that area and in order to retain access to it, the company in the transfer to the developers reserved a right of way at all times and for all purposes with or without vehicles over and along an identified strip of the transferred land leading to the rear of the property. B was also thinking of acquiring 36 Upper High Street and therefore the 1979 transfer created a right of way across the transferred land to give access to that property also. The company transferred the retained property to B on April 21 1980. V purchased a house built by the developers on the transferred land on March 16 1989. B never purchased no 36, but acquired a small parcel of land to the rear of that property on May 24 1990. An issue arose whether B had a right of way as against V. The county court found that the 1979 deed was intended to create two rights of way in the nature of easements enforceable by the owners of the retained land and its successors against the developers and their successors. The 1979 transfer was a contract between the original parties and as between them all its provisions were enforceable. However, B had no right of way over V’s premises. B appealed.
Held The appeal was dismissed.
1. It was of the essence of an easement that there must be both a dominant and a servient tenement. The easement must confer a benefit on the dominant tenement as such. The dominant and servient tenements must not be capable of forming the subject-matter of a grant. There could be no easement in gross: see Rangeley v Midland Railway Co (1898) 3 Ch App 306, at pp310-311.
2. The grant of a right to nominate unspecified land within a specified period as the dominant tenement in respect of rights in the nature of easements did not create an interest in land which, when registered bound successors in title to the servient tenement. The dominant tenement had to be identified with certainty: see London & Blenbeim Estates Ltd v Ladbroke Retail Parks Ltd [1993] EGCS 100.
3. In the present case there was no limitation in transfer to enable the dominant tenement to be identified. It merely referred to the land to the rear of the property. It was not clear whether that meant any land capable of benefiting from the right of way or a sufficient amount of land which used in conjunction with the property would benefit that property, or whether it meant a single parcel of land or more than one.
4. This case was not distinguishable from London & Blenbeim Estates and the reasoning of Peter Gibson LJ in that case applied equally here.
David Ainger (instructed by Price Williams & Ostler) appeared for the appellant, B; David Di Mambro (instructed by Fowler Holloway & Yates, of Brighton) appeared for the respondent, V.
