An easement is a right that benefits one piece of land (the dominant land) over another piece of land (the servient land).
Easements can either be made expressly by way of a deed of grant or they can be created by prescription and pursuant to the Doctrine of Lost Modern Grant or implied in certain circumstances.
Once an easement is created it becomes attached to the land and will continue until it is expressly released by deed or by implication or until there is unity of estate between the dominant and the servient tenement.
The principle that unity of ownership extinguishes an easement was affirmed in the case of Payne v Inwood (1997) 74P. & C.R. While the title deeds may appear to contain the relevant easements, at the point that both parts of land fall into common ownership, generally any easements registered against the land will usually disappear. However, there must be unity of absolute interests of both estates.
Sometimes an easement, right of way or profit can be impliedly released by the owner’s actions or in rare cases by the owner’s inaction.
The extinguishment of an easement by implied release must be based upon the intention of the dominant owner (the party with the benefit of the easement). It is a question of fact whether an act amounts to an abandonment or was intended as such. A right of way can be abandoned in whole or in part.
There is no obligation on a party to exercise his right of way. Failing to use an easement or right of way is not of itself sufficient to imply a release and abandonment will not be inferred.
In the case of Benn v Hardinge (1992) 60 P&CR 246 the Court of Appeal said that the failure to use the right for 175 years was not enough on its own to indicate an intention to abandon.
In the case of Williams v Usherwood (1983) 45 P & CR 235 Two adjoining houses shared a driveway. Ownership of the driveway was split and each of the owners given rights of way over that part of the driveway in the other’s ownership. Due to the layout the driveway was only of practical use to one owner who erected a fence separating the entire driveway from the other house. The owners of the dominant tenement never exercised the right of way. Ownership of the dominant tenement changed in 1937 and both owners thereafter treated the fence as the boundary between the properties. The Court of Appeal held that in those circumstances the defendant had acquired adverse possession of that part of the driveway not already owned by him, and that the plaintiff’s predecessor in title had abandoned the right of way in about 1937 when she evinced an intention only to use an alternative driveway for access to her property.
In that case Cumming-Bruce LJ said: “To establish abandonment of an easement the conduct of the dominant owner must, in our judgment, have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement … Abandonment is not, we think, to be lightly inferred. Owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it”.
In Cook v Mayor and Corporation of Bath (1868) 6 Eq 177, it was held that the blocking up of an entrance even for as in that case a period of 40 years does not amount to an abandonment of a right of way which prevents the dominant owner from reopening it and then using the way.
There is an assumption that the right has been abandoned where it can be shown that the original character of the dominant land has been changed to such an extent that the right of way has become unnecessary or impossible to exercise. However, this is only a presumption and can be rebutted by the owner producing evidence to show that the original character of the dominant land can be restored at a later date and that the need for the right would be revived.
While the proof of abandonment in itself is extremely difficult the position might be different if the party claiming that the easement/right of way has been abandoned were able to show some form of acquiescence or proprietary estoppel.
Abandonment can occur where the dominant owner consents to or acquiesces in some permanent act by the servient owner that has the effect of preventing the exercise of the right in future over the right of way or part of the way. A period of non-use coupled with an act (or failure to act) showing a clear intention to abandon the right is enough.
Mere acquiescence in the creation of some of obstruction on the servient land may (or may not) amount to an abandonment. That depends on its (ir)removability. In the case of Snell & Prideaux Ltd v Dutton Mirrors Ltd. [1995] 1 EGLR 259 one of the facts held not to amount to abandonment was acquiescence in the servient owner erecting a pillar in the middle of the passageway blocking vehicular access since it was easily removable.
In that case it was said by Stuart–Smith LJ that: “The erection of a house or other substantial and permanent building which completely defeats the right if acquiesced in by the dominant owner would be taken as a clear indication that the right was being abandoned. But if the obstruction can be removed, albeit at some inconvenience and expense to the servient owner, the court should in my judgment, be slow to infer that acquiescence in its existence is sufficient to amount to evidence of intention to abandon for all time the right.”
This is a complex area of the law and is fact sensitive. Quinn & Co specialise in this area and would be able to assist you in claiming or defending a claim for extinguishment or implied release of a right of way or other easements. If you wish to discuss your case and see how we can help you please contact Joseph Quinn on 01392 248858 or email us at mail@quinnlaw.co.uk or fill in our contact form and we will call you as soon as possible.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.