Commissioner of Stamp Duties V Livingston [1965] ac




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Evershed MR gave the single judgment of the court:

. . . The substantial question in the case, which we have briefly indicated, is one of considerable interest and importance. It is clear from our brief recital of the facts that if the owners of the houses are now entitled to an enforceable right in respect of the use and enjoyment of Ellenborough Park, that right must have the character and quality of an easement as understood by, and known to, our law. It has therefore been necessary for us to consider carefully the qualities and characteristics of easements, and for such purpose to look back into the history of that category of incorporeal rights in the development of English real property law.



He considered a number of cases and concluded: . . . although the existence of gardens surrounded by houses, the owners or occupiers of which enjoy in practice the amenities of the gardens, is a well known feature of town development throughout the country, no other case appears to have come before the courts in which the validity of the rights in fact enjoyed in the gardens has ever been tested . . .

Before we proceed to . . . matters of fact, it will be proper as a foundation for all that follows in this judgment to attempt a brief account of the emergence in the course of the history of our law, of the rights known to us as “easements”, and thereafter, so far as relevant for present purposes, to formulate what can now be taken to be the essential qualities of those rights. For the former purpose we cannot do better than cite a considerable passage from the late Sir William Holdsworth’s Historical Introduction to the Land Law (Clarendon Press 1927), at p. 265, where the learned author states:

“Both the term ‘easement’ and the thing itself were known to the medieval common law. At the latter part of the sixteenth century it was described in Kitchin’s book on courts, and defined in the later editions of the ‘Termes de la Ley’”

After stating the definition and observing its obvious defects from the point of view of modern law, Sir William proceeds:

“But these defects in the definition are instructive because they indicate that the law as to easements was as yet rudimentary. It was still rudimentary when Blackstone wrote. In fact, right down to the beginning of the nineteenth century there was but little authority on many parts of this subject . . . The industrial revolution, which caused the growth of large towns and manufacturing industries, naturally brought into prominence such easements as ways, watercourses, light and support; and so Gale’s book [Gale on Easements, 12th ed) became the starting point of the modern law, which rests largely upon comparatively recent decisions. But, though the law of easements is comparatively modern, some of its rules have ancient roots. There is a basis of Roman rules introduced into English law by Bracton and acclimatized by Coke [in Coke upon Littleton] . . . The law, as thus developed, sufficed for the needs of the country in the eighteenth century. But, as it was no longer sufficient for the new economic needs of the nineteenth century, an expansion and an elaboration of this branch of the law became necessary. It was expanded and elaborated partly on the basis of the old rules, which had been evolved by the working of the assize of nuisance, and its successor, the action on the case; partly by the help of Bracton’s Roman rules; and partly, as Gale’s book shows, by the help of the Roman rules taken from the Digest, which he frequently and continuously uses to illustrate and to supplement the existing rules of law.”

. . . [This passage] sufficiently serves to explain the appearance and the prominence of Roman dicta in the English law of easements, commonly called indeed by the Latin name of “servitudes”. And it may well be possible that Farwell J’s rejection of the jus spatiandi as a legal right by English law [in A G v Antrobus [1905] 2 Ch 188, the Stonehenge case he refers to again below] was derived in part from its similar rejection by the law of Rome . . . Nevertheless, apart from the opinion of Farwell J, there has been, as we have already observed, no judicial authority for adopting the Roman view in this respect into the English law. Moreover, the exact characteristics of the jus spatiandi mentioned by the Roman lawyers have to be considered. It by no means follows that the kind of right which is here in question, arising out of a method of urban development that would not have been known to Roman lawyers, can in any case be said to fall within its scope. In any event, its validity must depend, in our judgment, on a consideration of the qualities which must now be attributed to all easements by the law relating to easements as it has now developed in England.

For the purposes of the argument before us counsel were content to adopt as correct the four characteristics formulated in Dr Cheshire’s Modern Real Property (7th Edition) p 456 et seq. They are (i) there must be a dominant and a servient tenement; (ii) an easement must accommodate the dominant tenement; (iii) dominant and servient owners must be different persons; and (iv) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

He pointed out that the first and third of these characteristics could be disregarded for present purposes - each of the houses was a dominant tenement, Ellenborough Park was the servient tenement, and Ellenborough Park and the houses had different owners.

The argument in the case is found accordingly to turn on the meaning and application to the circumstances of the present case of the second and fourth conditions; ie first, whether the alleged easement can be said in truth to “accommodate” the dominant tenement, in other words, whether there exists the required “connection” between the one and the other; and, second, whether the right alleged is “capable of forming the subject matter of a grant”.

The exact significance of this fourth and last condition is, at first sight perhaps, not entirely clear. As between the original parties to the “grant” it is not in doubt that rights of this kind would be capable of taking effect by way of contract or licence. But for the purposes of the present case, as the arguments made clear, the cognate questions involved under this condition are:

(a) whether the rights purported to be given are expressed in terms of too wide and vague a character;

(b) whether . . . such rights would amount to rights of joint occupation or would substantially deprive the owners of the park of proprietorship or legal possession; and

(c) whether . . . such rights constitute mere rights of recreation, possessing no quality of utility or benefit.

. . . It is clear from [the 1864 conveyances] that the original common vendors were engaged on a scheme of development of this part of the White Cross Estate designed to produce a result of common experience: namely, a row of uniform houses facing inwards on a park or garden which was intended to form, and formed in fact, an essential characteristic belonging (and properly speaking “appurtenant”) to all and each of them. In substance, instead of each house being confined to its own small or moderate garden, each was to enjoy in common, but in common exclusively with the other houses in the crescent, a single large “private” garden . . . In our judgment, the language of [the 1864 conveyances] 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 the purchaser. The enjoyment was not exclusive to those premises alone; it was to be held in common with the like rights annexed to the other houses in [Ellenborough Crescent]. But it was not contemplated that like rights should be otherwise extended so as to belong in any sense to premises not forming part of (or at least closely connected with) the square or their owners.

The position of the grant in [the 1864 conveyances] and its language show that, in the respects we have mentioned, the right granted was intended and treated as in pari materia with the rights of way and drainage similarly conferred . . . It was conceded that the rights, if effectual and enforceable, were conditional . . . on the house owners making their appropriate contributions to the cost of upkeep. In this respect, again, they were analogous . . . to the rights of way over the Crescent . . . As a complement to the rights of enjoyment of the garden, subject to the condition of contribution, was the covenant by the vendors against building on the park and to the effect that the park should at all times remain as an ornamental garden. Counsel for the owners of the park did not seriously challenge the contentions of counsel for the owners of the houses that in their context the words of the covenant to which we have last referred could fairly be construed as implying a negative covenant on the vendors’ part against any user by them of the park otherwise than as a garden. There is clear authority that, if such be the substantial effect of the covenant, its benefit and burden will run with the land. The last consideration appreciably reinforces the view which we take of the meaning and intention of the deed to attach the garden rights in all respects like the rights of way and drainage to the land conveyed.

It remains to interpret the actual terms of the grant itself - “the full enjoyment of the pleasure ground set out and made . . .” Counsel for the owners of the park fastened on the presence of the word “full”, and the absence of any indication of the way in which the pleasure ground was to be used - or of any limitations on its use - and contended that the right or privilege given was a jus spatiandi in its strict sense, that is, a right to go or wander on the park and every part of it and enjoy its amenities (and even its produce) without stint.

We do not so construe the words in their context. Although we are now anticipating to some extent the question which arises under the fourth of Dr Cheshire’s conditions, it seems to us, as a matter of construction, that the use contemplated and granted was the use of the park as a garden, the proprietorship of which (and the produce of which) remained vested in the vendors and their successors. The enjoyment contemplated was the enjoyment of the vendors’ ornamental garden in its physical state as such - the right, that is to say, of walking on or over those parts provided for such purpose, that is, pathways and (subject to restrictions in the ordinary course in the interest of the grass) the lawns; to rest in or on the seats or other places provided; and, if certain parts were set apart for particular recreations such as tennis or bowls, to use those parts for those purposes, subject again, in the ordinary course, to the provisions made for their regulation; but not to trample at will all over the park, to cut or pluck the flowers or shrubs, or to interfere in the laying out or upkeep of the park. Such use or enjoyment is, we think, a common and clearly understood conception, analogous to the use and enjoyment conferred on members of the public, when they are open to the public, of parks or gardens such as St James’s Park, Kew Gardens or the gardens of Lincoln’s Inn Fields. In our judgment, the use of the word “full” does not import some wider, less well understood or definable privilege . . .

Nor does any difficulty arise out of the condition as to contribution, and counsel for the owners of the park did not, indeed, so suggest. The obligation being a condition of the enjoyment, each house would be bound to contribute its due (that is, proportionate) share of the reasonable cost of upkeep.

. . . We pass accordingly to a consideration of the first of Dr Cheshire’s conditions - that of the accommodation of the alleged dominant tenements by the rights as we have interpreted them. He quoted with approval Cheshire’s explanation of what he meant by “accommodating” the dominant tenement: “a right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment of that tenement, for if it has no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all, but a mere contractual right personal to and only enforceable between the two contracting parties.”

Can it be said, then, of the right of full enjoyment of the park in question which was granted by the [1864 conveyances] and which, for reasons already given, was, in our view, intended to be annexed to the property conveyed to [the original purchaser of the plot] that it accommodated and served that property? It is clear that the right did, in some degree, enhance the value of the property and this consideration cannot be dismissed as wholly irrelevant. It is, of course, a point to be noted; but we agree with the submission of counsel for the owners of the park that it is in no way decisive of the problem; it is not sufficient to show that the right increased the value of the property conveyed unless it is also shown that it was connected with the normal enjoyment of that property.

It appears to us that the question whether or not this connection exists is primarily one of fact, and depends largely on the nature of the alleged dominant tenement and the nature of the right granted. As to the former, it was in the contemplation of the parties to the [1864 conveyances] that the property conveyed should be used for residential and not commercial purposes. . . . As to the nature of the right granted, the [1864 conveyances] show that the park was to be kept and maintained as a pleasure ground or ornamental garden, and that it was contemplated that it should at all times be kept in good order and condition and well stocked with plants and shrubs; and the vendors covenanted that they would not at any time thereafter erect or permit to be erected any dwelling house or other building (except a grotto, bower, summer house, flower stand, fountain, music stand or other ornamental erection) within or on any part of the pleasure ground.

On these facts counsel for the owners of the park submitted that the requisite connection between the right to use the park and the normal enjoyment of the houses which were built around it or near it had not been established. He likened the position to a right granted to the purchaser of a house to use the zoological gardens free of charge or to attend Lord’s cricket ground without payment. Such a right would undoubtedly, he said, increase the value of the property conveyed, but could not run with it at law as an easement, because there was no sufficient nexus between the enjoyment of the right and the use of the house. It is probably true, we think, that in neither of counsel’s illustrations would the supposed right constitute an easement, for it would be wholly extraneous to, and independent of, the use of a house as a house, ie as a place in which the householder and his family live and make their home. And it is for this reason that the analogy which counsel sought to establish between his illustrations and the present case cannot, in our opinion, be supported. A much closer analogy, as it seems to us, is the case of a man selling the freehold of part of his house and granting to the purchaser . . . the right, appurtenant to such part, to use the garden in common with the vendor . . . In such a case the test of connection or accommodation would be amply satisfied; for just as the use of a garden undoubtedly enhances, and is connected with, the normal enjoyment of the house to which it belongs, so also would the right granted, in the case supposed, be closely connected with the use and enjoyment of the part of the premises sold.

Such, we think, is in substance the position in the present case. The park became a communal garden for the benefit and enjoyment of those whose houses adjoined it or were in its close proximity. Its flower beds, lawns and walks were calculated to afford all the amenities which it is the purpose of the garden of a house to provide; and apart from the fact that these amenities extended to a number of householders instead of being confined to one . . . we can see no difference in principle between Ellenborough Park and a garden in the ordinary signification of that word. It is the collective garden of the neighbouring houses to whose use it was dedicated by the owners of the estate and as such amply satisfied, in our judgment, the requirement of connection with the dominant tenements to which it is appurtenant. The result is not affected by the circumstance that the right to the park is in this case enjoyed by some few houses which are not immediately fronting on the park. The test for present purposes, no doubt, is that the park should constitute in a real and intelligible sense the garden (albeit the communal garden) of the houses to which the enjoyment is annexed. But we think that the test is satisfied as regards these few neighbouring, though not adjacent, houses. We think that the extension of the right of enjoyment to these few houses does not negative the presence of the necessary “nexus” between the subject matter enjoyed and the premises to which the enjoyment is expressed to belong.

Counsel for the owners of the park referred us to, and to some extent relied on, Hill v Tupper (1863) 2 H & C 121, but in our opinion there is nothing in that case contrary to the view which we have expressed. In that case the owner of land adjoining a canal was granted the exclusive right to let boats out for hire on the canal. He did so and then sought to restrain a similar activity by a neighbouring landowner. He sought to establish that his grant constituted an easement but failed. As Pollock CB said in his judgment “it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee.” It is clear that what the plaintiff was trying to do was to set up, under the guise of an easement, a monopoly which had no normal connection with the ordinary use of his land, but which was merely an independent business enterprise. So far from the right claimed sub serving or accommodating the land, the land was but a convenient incident to the exercise of the right. For the reasons which we have stated we are unable to accept the contention that the right to the full enjoyment of Ellenborough Park fails in limine to qualify as a legal easement for want of the necessary connection between its enjoyment and the use of the properties comprised in the [1864 conveyances].

We turn next to Dr Cheshire’s fourth condition for an easement - that the right must be capable of forming the subject matter of a grant. As we have earlier stated, satisfaction of the condition in the present case depends on a consideration of these questions: (a) whether the right conferred is too wide and vague, (b) whether it is inconsistent with the proprietorship or possession of the alleged servient owners, and (c) whether it is a mere right of recreation without utility or benefit.

To the first of these questions the interpretation which we have given to the [1864 conveyances] provides, in our judgment, the answer; for we have construed the right conferred as being both well defined and commonly understood. In these essential respects the right may be said to be distinct from the indefinite and unregulated privilege which, we think, would ordinarily be understood by the Latin term “jus spatiandi”, a privilege of wandering at will over all and every part of another’s field or park, and which, though easily intelligible as the subject matter of a personal licence, is something substantially different from the subject matter of the grant in question, viz., the provision for a limited number of houses in a uniform crescent of one single large but private garden. Our interpretation of the deed also provides, we think, the answer to the second question: the right conferred no more amounts to a joint occupation of the park with its owners, no more excludes the proprietorship or possession of the latter, than a right of way granted through a passage or than the use by the public of the gardens of Lincoln’s Inn Fields (to take one of our former examples) amount to joint occupation of that garden with the London County Council, or involve an inconsistency with the possession or proprietorship of the council as lessees. It is conceded that in any event the owners of the park are entitled to cut the timber growing on the park and to retain its proceeds. We have said that in our judgment, under the deed, the flowers and shrubs grown in the garden are equally the property of the owners of the park. We see nothing repugnant to a man’s proprietorship or possession of a piece of land that he should decide to make of 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.

Counsel for the owners of the park relied in this part of his case on the recent decision of Copeland v Greenhalf [1952] 1 All ER 809 and the ratio of the judgment of Upjohn J. The relevant facts were that a claim was made to a prescriptive right to deposit, and leave for an indefinite time, vehicles on an undefined part of a strip of land which was subject to a right of way. It appeared that the claimant was by trade a wagon repairer, and that the vehicles were deposited by him on the land in the course of his business and while awaiting repairs. It further appeared that wagons were commonly repaired while remaining so deposited. On these facts the learned judge -very justifiably (if we may say so) - found that the claimant was occupying and seeking the right to occupy an unspecified part of the land for the purpose of his business, and carrying on such business on the land so occupied. The learned judge said (at p 812):

“ . . . in my judgment the right claimed here goes wholly outside any normal idea of an easement, that is, the right of the occupier of a dominant tenement over a servient tenement. This claim really amounts to a claim to a joint user of the land by the defendant. Practically he is claiming the whole beneficial user of the strip of land on the south east side of the track so that he can leave there as many or as few lorries as he likes for any time that he likes and enter on it by himself, his servants and agents, to do repair work. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession, if necessary to the exclusion of the owner, or, at any rate, to a joint user, and no authority has been cited to me which would justify me in coming to the conclusion that a right of this wide and undefined nature can be the proper subject matter of an easement. It seems to me that for this claim to succeed it must really amount to a right of possession by long adverse possession. I say nothing, of course, as to the creation of such rights by grant or by covenant. I am dealing solely with the question of a claim arising by prescription.”

We do not think that the facts of Copeland v Greenhalf bear any real relation to the present case, and the judgment of Upjohn J constitutes no authority relevant to our decision.



He then turned to the third of the questions arising under Cheshire’s fourth condition - is the right of utility and benefit, or is it merely of mere recreation and amusement? He traced this requirement back to a dictum of Martin B in Mounsey v Ismay (1865) 3 H & C at 498. He referred to several cases in which the requirement of utility and benefit had been assumed or discussed, including Solomon v Vintners’ Co (1859) H & N at 593 “in which it was suggested that one who had for a long period played rackets against the wall of a neighbour would have a right not to have the wall pulled down, and the Scottish case of Dempster v Cleghorn (1813) 2 Dow 40 which concerned a dispute between inhabitants of the City of St Andrews and others who claimed the right of playing golf on the St Andrews’ Golf Links, and a tenant whose rabbits were said to be interfering with the proper maintenance of the golf course (a case said to have excited “great warmth of feeling - which indeed may sufficiently appear from the allegation that some of the rabbits on the course were English rabbits”). He pointed out that in Mounsey v Ismay itself, where the question at issue was whether the freemen and citizens of a town had a right to hold horse races on a piece of land on specific days throughout the year, the right claimed failed to qualify as an easement because there was no dominant tenement. Anything said by Martin B about the requirement of utility and benefit was, therefore obiter dictum:

In any case, if the proposition [that there is a requirement of utility and benefit] is well founded, we do not think that the right to use a garden of the character with which we are concerned in this case can be called one of mere recreation and amusement, as those words were used by Martin B. No doubt a garden is a pleasure, and on high authority it is the purest of pleasures; but, in our judgment, it is not a right having no quality either of utility or benefit as those words should be understood. The right here in suit is, for reasons already given, one appurtenant to the surrounding houses as such, and constitutes a beneficial attribute of residence in a house as ordinarily understood. Its use for the purposes, not only of exercise and rest but also for such normal domestic purposes as were suggested in argument - for example, for taking out small children in perambulators or otherwise - is not fairly to be described as one of mere recreation or amusement, and is clearly beneficial to the premises to which it is attached. If Martin B’s test is applied, the right in suit is, in point of utility, fairly analogous to a right of way passing over fields to, say, the railway station, which would be none the less a good right, even though it provided a longer route to the objective. We think, therefore, that the statement of Martin B must at least be confined to the exclusion of rights to indulge in such recreations as were in question in the case before him, horse racing or perhaps playing games, and has no application to the facts of the present case.



As appears from what has been stated earlier the right to the full enjoyment of Ellenborough Park which was granted by the [1864 conveyances] was in substance no more than a right to use the park as a garden in the way in which gardens are commonly used. In a sense, no doubt, such a right includes something of a jus spatiandi in as much as it involves the principle of wandering at will round each and every part of the garden except, of course, such parts as comprise flower beds, or are laid out for some other purpose, which renders walking impossible or unsuitable. We doubt, nevertheless, whether the right to use and enjoy a garden in this manner can with accuracy be said to constitute a mere jus spatiandi. Wandering at large is of the essence of such a right and constitutes the main purpose for which it exists. A private garden, on the other hand, is an attribute of the ordinary enjoyment of the residence to which it is attached, and the right of wandering in it is but one method of enjoying it. On the assumption, however, that the right now in question does constitute a jus spatiandi, or that it is analogous thereto, it becomes necessary to consider whether the right which is in question in these proceedings is, for that reason, incapable of ranking in law as an easement.

. . . A G v Antrobus [1905] 2 Ch 188 . . . was an action which was brought by the Attorney General at the relation of the chairman of the local parish council and certain gentlemen interested in the preservation of public rights in open spaces and footpaths against the then owner of the land on which Stonehenge stands, for an order for the removal of certain fences which the defendant had erected round Stonehenge. It will be seen accordingly that the object of the action was to establish public, as distinct from private, rights. The public rights, as so asserted, were to have free access to Stonehenge by means of roads running up and through the same, such rights being founded on an alleged trust, created by a lost grant or declaration or by lost statute, for the free user by the public of Stonehenge as a place of resort and for the free access of the public thereto by means of the said roads. At the trial, as appears from the judgment of Farwell J, the plaintiffs produced no evidence that Stonehenge was subject to a trust for its free user by the public, but asked the court to presume a lost grant or statute because for many years past the public had been in the habit of visiting the place. This the learned judge declined to do. He found as a fact that there had, for many years past, been a large amount of traffic to Stonehenge as the end and object of the journey, and that the journeys had been made for the purpose of visiting the stones and of staying there for such period as each visitor might find pleasant for the purposes of inspection, instruction and general enjoyment. In refusing to presume a lost grant or statute conferring on the public the right of free user of Stonehenge the learned judge said “ . . . the right of walking around and inspecting the stones is not one which could be the subject matter of a grant . . .” Later in his judgment, when considering whether certain of the tracks which led to Stonehenge were public highways, he said (ibid at 205-6):

“The whole object of the journeys was to see the stones, and as there can be no legal right of visiting, walking about, and inspecting the stones in the public, these visits must be deemed to have been by the permission of the owner . . Further, the tracks which lead into the circle cease there and do not cross, and the public have no jus spatiandi or manendi within the circle. The claim, therefore, is to use tracks which in fact lead nowhere.”



Now it is quite true that in this judgment Farwell J said that the jus spatiandi is not “known to our law as a possible subject matter of grant or prescription” and that this formula is on its face wide enough to exclude the purported grant in express terms of such a right to a purchaser as appurtenant to his property. But no such grant was in question in the case, which was solely concerned with the alleged rights of the public as a whole. In our judgment the learned judge was addressing his mind to those rights and to those alone, and he held that as they could not be the subject matter of a grant he was unable to presume a lost grant which purported to create them. He held also that a jus spatiandi cannot be acquired by public user as an easement and this is clearly so if only for the reason that there can be no dominant tenement to which the easement could be said to be appurtenant. It does not necessarily follow from this, however, that no such jus could be acquired by individuals by prescription and still less does it follow (which is the material point for present purposes) that no such jus could be created in favour of an individual for the better enjoyment of his property by a grant which was express in its terms . . .

He concluded that Danckwerts J had reached the correct conclusion in this case, and that accordingly the appeal should be dismissed.
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