Rights of way must have definite starting and finishing points. The courts describe the requirement as being for a “terminus a quo” and a “terminus ad quem”. This ensures that the route of the right of way is certain and that users follow a defined path. Landowners who claim the benefit of a private right of way must also show that one of the termini lies on land in their ownership and that the right of way does not finish at a dead end.
Beech v Kennerley [2012] EWCA Civ 158; [2012] PLSCS 35 concerned a pedestrian right of way along a “wiggly path”, which was reserved out of a transfer of part to facilitate access to a kitchen garden. However, the kitchen garden did not adjoin the path and there was no right of way from the path itself to the kitchen garden. This meant that users had a legal right to walk backwards and forwards along the path, but were not legally entitled to step off it.
The use of the path ceased in 1955 and some of the pathway was subsequently incorporated into a steep embankment. The Court of Appeal was asked to decide whether there was a valid easement and, if so, whether the easement had been abandoned.
The court began by reminding the parties that a right must accommodate land to constitute an easement. This means that it must serve the dominant land in some way and must be reasonably necessary for the better enjoyment of that land. It must also benefit the owner of the land in his capacity as the landowner – and not personally. In other words, it must enhance his ownership and occupation of the land, rather than conferring some personal benefit on him. Rights that do not satisfy these requirements constitute contractual rights. They are still enforceable – but only between the contracting parties.
The grant of a right of way between two separate parcels of land in the same ownership, or to obtain access to a highway, will satisfy these requirements. It accommodates the dominant land because it enhances the use and enjoyment of it.
The right reserved by the transfer was not in the same category and did not pass these tests. It did not constitute a right to use an open space, as was the case in Re Ellenborough Park [1956] Ch 131, because it was expressed to be, and was described as, a conventional right of way along the length of the path. It had a definite finishing point, but did not benefit the dominant land because it culminated in a dead end. Consequently, the right was contractual in nature and was not enforceable against the subsequent owners of the pathway.
This made it unnecessary to decide whether the easement had been abandoned. Interestingly, however, the judge at first instance indicated that the circumstances of this case were such that he would have upheld the claim that the easement had been abandoned – even though the courts are usually extremely reluctant to reach such a conclusion.
Allyson Colby is a property law consultant
