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As can be traced back through the historic case law surrounding easements, there has been much dispute as to exactly what constitutes such a privilege; and so in Re Ellenborough Park, a generosity of scope was favourably agreed upon and the principle further refined.
When the considerate nature of the original owner of Ellenborough Park (itself no more than an expansive parcel of land) bestowed conditional rights upon the future freeholders of property encircling it, those privileges allowed exclusive enjoyment of the space and fresh air afforded them, yet the vendor had no idea how many years later, that same kindness of spirit would be challenged by those succeeding him.
For almost 100 years, the owners of the chosen properties had enjoyed uninterrupted peaceful use, until the second world war brought with it, the temporary military occupation of both the park and the homes built around it. After returning the houses back to their current owners (along with suitable compensation for their use), it was decided by the trustees of Ellenborough Park, that continued access to the gardens would no longer be accepted, and that under the terms of the original conveyance, no such easements had ever been put into effect.
Under the general terms prescribed by common law, there are a number of criteria that need to be met for an easement to exist. These critical elements include the principles that those assigned the granting of an easement must take it on the understanding that use of such a covenant relies upon utility and benefit from the right, and that benefit of the easement must derive from the granting of such a right. Because Ellenborough Park was cosmetically different from most commonly prescribed easements, it was argued that the mere capacity to wander around freely upon a large plot of land (albeit subject to expressly detailed maintenance contributions) amounted to no more than a ‘jus spatiandi’, which is a phrase typically assigned to public parks and recreational areas requiring little more than careful observation of the rules associated with their use.
In the first hearing, the judge found in favour of the defendants, and so when further considered under appeal, an in-depth examination of the founding conveyance revealed very succinct terminology as to support and endorse the intentions of the estate owner, in that he had not only established by definition the presence of easements to the freeholders, but that such consideration had been expressly granted by way of the deed’s construction. This decision has since proven instrumental to the variances in the physical representation of easements, and the reinterpretation of covenants provided for by way of grant.
“Unless therefore, I am compelled by the state of the authorities I am not anxious to deprive the owners of the plots on the former White Cross Estate of the rights which the vendors’ conveyances from 1855 to 1864 or thereabouts, attempted to give them.”
“[T]he conveyances of parts of the White Cross Estate conferred on the purchasers and their successors in title legal and effective easements to use the pleasure ground known as Ellenborough Park in the manner in which it was intended by the conveyances to be used.”
“This is a case of an express grant which on its true construction shows an intention to create easements running with the land.”
“[T]he language of the deed of 1864 is clearly to the effect that the right of enjoyment of the garden was intended to be annexed to the premises sold, rather than given as a privilege personal to their purchaser.”
“There is clear authority that, if such be the substantial effect of the covenant, its benefit and burden will run with the land.”
“[A]n easement must be appurtenant to an estate for the benefit of that estate and its owner and that it cannot at the same time lawfully be enjoyed by any other person.”
“We see nothing repugnant to a man’s proprietorship or possession of a piece of land that he should decide to make it and maintain it as an ornamental garden, and should grant rights to a limited number of other persons to come into it for the enjoyment of its amenities.”
“No doubt a garden is a pleasure – on high authority it is the highest of pleasures – but in our judgement it is not a right having no quality either of utility or benefit as those words should be understood.”