Pwllback Colliery Company v Woodman [1915] AC 634

Key point

  • The grant of an easement can be implied by common intention, but see commentary

Facts

  • P were sub-lessees of land (coal miners), and a right was granted in the lease to carry on the trade of miners
  • W butcher held the adjacent lease from the same landowner subject to easements belonging to adjoining property
  • P erected on the land a machine near to W’s buildings, resulting in coal dust depositing on those buildings
  • W claimed nuisance

Held (House of Lords)

  • There was nuisance as P did not have an easement

Lord Parker

  • Implication of an easement can be from the circumstances under which a grant of land was made to give effect to the common intention of the parties
  • Implication is in reference to the purpose in which the land granted or retained is to be used
  • It is essential that the parties should intend the land benefiting to be used for some ‘definite or particular’ manner
  • In the current case the use of the screens which occasioned the coal dust was not in the contemplation of the parties when the lease was created, the lessee company was a tinplate company

Commentary

  • In Nickerson v Barraclough common intention was treated as the basis for implication by necessity rather than an independent ground for implication