| Re Ellenborough Park | |
| Court: | Court of Appeal |
| Date Decided: | 15 November 1955 |
| Full Name: | [the trustees for the statutory and will trusts of the park landowners (deceased)] [very detailed names and descriptions, never cited in full] -and- Helen Maddison (Married Woman) and Fred Allen [a selection of the owners of the neighbouring houses] |
| Citations: |
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| Decision By: | Sir Raymond Evershed MR (reading the judgment of the court) |
| Concurring: | |
| Prior Actions: | Appellant (a fiduciary "representative" rather than a hostile litigant) also "lost" at first instance before Danckwerts J (in the High Court) |
| Subsequent Actions: | none |
| Opinions: | Held: "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 right here ... 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 prams 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." |
| Transcripts: | The court-approved transcript at bailii.org |
| Keywords: | Scope of law of easements; creation of easements; express easement and/or easement by prescription; whether right to use park in title deeds an easement; nature of rights capable of forming an easement in law |
Re Ellenborough Park. 1955. EWCA. Civ. 4. was an English land law case which reformulated the tests for an easement (the scope of the law of easements). It found an easement to use a communal garden to be a valid easement in law. There is no requirement for all of the houses to be immediately next to the garden to benefit from it.
Ellenborough Park is a 7.5acres park in Weston-super-Mare (split by a minor road, not considered by either side, nor the courts consequential). The larger park was owned in 1855 by two tenants in common who sold off outlying parts for the building of houses, and granted rights in the purchase/sale deeds to the house owners (and expressly to their successors in title) to enjoy the parkland which remained.[1]
The land was enjoyed freely until 1955, when Judge Danckwerts delivered his decision on a complex dispute at first instance. The knub of the case appealed centred on a monetary question affecting the land for the first time. It centred on the fact that the War Office had used the land during World War II, and compensation was due to be paid to the neighbours (if correctly alleging a proprietary interest to use the land, namely an easement) or the landowner, the trustees of the original owner if they were the sole person(s) with an owning interest (under the Compensation Defence Act 1939, section 2 (1)).
The landowner (of the park), the beneficiaries of the trust of the original owners of the land, challenged the assertion of an "easement" from the immediate neighbours enjoying the expressed right to use the park in their deeds (title), which they in practice also regularly enjoyed. They stated these neighbouring owner-occupiers (and their tenants) had only a personal advantage (a licence, with no proprietary rights), and not an easement proper (which would include proprietary rights).[1]
Lord Evershed MR held the occupiers of the properties in question did enjoy an easement over Ellenborough Park. He determined that four criteria for defining an easement existed, taken from Cheshire's Modern Real Property, and said: