Beech and another v Kennerley

Easements – Right of way – Validity of grant – Appellant’s predecessor in title selling land to respondents’ predecessor but reserving right of way over path – Right reserved for purpose of enabling tenant to access kitchen garden on land sold – Path falling short of kitchen garden – Whether valid easement created – Whether right accommodating dominant tenement – Whether right enforceable against successors in title of grantor – Appeal dismissed The appellant and the respondents owned neighbouring houses. The respondent’s property was built on land that had originally formed part of the garden of the appellant’s property; a predecessor in title of the appellant had sold off that land as a building plot in 1954. The 1954 conveyance reserved to the vendor and his successors in title a right of way on foot over a path on the plot. The path was initially used by a tenant of part of the appellant’s property in order to get to a kitchen garden on the plot, which he used with the permission of the plot owner. The path did not run all the way to the kitchen garden, and it was still necessary for the tenant to cross part of the plot over which no right of way existed. He used the path for approximately 12 months before commencing cultivation of a kitchen garden on his own land instead. His widow subsequently gave a statutory declaration, in connection with a sale of the plot in 1971, that neither of them had used the right of way since 1955. After the 1971 sale, successive owners of the plot carried out works that partly destroyed the path and created a steep embankment on its former route.   The respondents brought proceedings against the appellant to resolve disputes as to: (i) the location of the boundary between their two properties; and (ii) whether the right of way continued to exist for the benefit of the appellant’s land. The judge determined both issues in favour of the respondents. He found that the boundary ran along the centre line of a hedge that had existed at the time of the relevant transfer. As to the right of way, he found that it had been granted for the purpose of enabling the tenant of the flat to access the kitchen garden and had ceased to exist when that kitchen garden was given up. The appellant appealed. Held: The appeal was dismissed.   (1) The judge had correctly construed the relevant transfer as showing the boundary running along the centre line of a hedge and had reached sound conclusions as to the position of that hedge at the time of the transfer. His decision on the location of the boundary was affirmed.   (2) An easement of way was a right to pass and repass between two fixed points. It had to have both a terminus a quo and a terminus ad quem: in other words, the limits and direction of the right of way had to be defined in the grant, in order both to give it the degree of certainty that was required for the creation of a right over land and to identify the scope of the right granted. The right had also to accommodate the dominant tenement; it had to benefit that tenement in the sense of enhancing the grantee’s ownership and occupation of land, rather than conferring some personal benefit on him: Hill v Tupper (1863) 2 H&C 121 applied.   The sole purpose of the right of way reserved in the 1954 conveyance had been to assist the tenant in getting to the kitchen garden. The right had been reserved in favour of the appellant’s predecessor in title solely to confer on his tenant a benefit that depended for its attainment on a licence from the then owner of the respondents’ property. That licence had been granted for a limited purpose and duration and was personal to the tenant. It followed that the right of way had conferred a personal benefit on the tenant rather than a right that was capable of permanently enhancing or benefiting the ownership of the appellant’s property. Further, since the path fell short of the kitchen garden land, the appellant’s predecessor, in whose favour the right was granted, never had any entitlement to travel beyond the end of the path. There had been no valid grant of an easement of way along the path. The right of way was contractual only and was not enforceable against successors in title of the grantor.   The right granted by the 1954 conveyance could not be construed as some form of jus spatiendi conferring a right to pass and repass over a specified area. It was in terms a right of way on foot only along the path, rather than a right to walk around the garden of the respondent’s property whether for leisure or otherwise. The judge’s finding that the right had been granted to enable access to the kitchen garden was also destructive of any suggestion that it had any wider purpose: Re Ellenborough Park [1956] Ch 131 distinguished. Philip Rainey QC and Christopher Heather (instructed by Charles Russell LLP) appeared for the appellant; Timothy Morshead QC and Timothy Polli (instructed by Hart Brown LLP) appeared for the respondent. Sally Dobson, barrister