Re Allenborough case(easement)

Facts

Ellenborough Park is a large area of parkland in Weston-super-Mare. The land was owned in 1855 by two tenants in common, who sold off parts of the land for the building of houses, and granted rights to the owners of the houses to enjoy the parkland which remained. The land was enjoyed for some time to come, until 1955, when Judge Danckwerts delivered his decision on the case which arose. Part of the problem arose out of the fact that the War Office had taken possession of the land during World War II, and compensation was due to be paid to the owners of the properties built on land surrounding the land which had been occupied during the war. Beneficiaries of the trust of the original owners of the land challenged this, stating that the property owners had only a personal advantage (a licence, with no proprietary rights), and not an easement proper (which would include proprietary rights).


Judgement

Evershed MR determined the following criteria for defining an easement, which were taken from Cheshire's "Modern Real Property":

(1) There must be a dominant and a servient tenement
(2) an easement must "accommodate" (i.e. benefit) the dominant tenement
(3) dominant and servient owners must be different persons and
(4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant

It was decided from this that the occupiers of the properties in question were therefore the proper beneficiaries and that they did enjoy an easement over the parkland in question.

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