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Facts[]

Ellenborough Park is located across the street from a row of houses. The person who owned the land that the park was on gave the builders of the houses "the full enjoyment at all times hereafter in common pleasure of the ground" when he sold them the land to build the houses. The people who now live in the houses are applying to have their right to use the park recognised as an easement. The trial judge found that this did constitute an easement, which the owners of the land appealed, on the grounds of the ‘Compensation Defence Act 1939’

Issue

  1. What do you need to have in order for an easement to exist?

Decision[]

Appeal dismissed, easement denied .

Reasons[]

Evershed, writing for a unanimous court, states that there are four things that must be present in order for an easement to exist:

  1. there must be a dominant and servient tenement;
  2. an easement must "accommodate" the dominant tenant (the use of the land in question must be "connected" to the use of the dominant land - merely adding to the property
  3. Dominant landowner and servient landowners must be different people;
  4. The right can be granted. (The person granting the easement must be legally capable of doing so).
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