Re Ellenborough Park [1956] Ch 131

Key point

  • Established the requirements for a right over land to amount to a valid easement


  • Owners of the house near Ellenborough park had been granted the right to use it ‘as a leisure garden’ but during WW2 it had been taken over by the government
  • By statute, individual landowners were entitled to compensation if they had been deprived of a legal right

Held (Court of Appeal)

  • The right to use the park was an easement

Lord Evershed MR

Four requirements for a valid easement

  1. There must be a dominant and a servient tenement
  2. An easement must “accommodate” the dominant tenement
  3. Dominant and servient owners must be different persons
  4. The right is capable of forming the subject-matter of a grant

What determines if a subject-matter is capable of grant?

  • Whether the right are expressed in terms of too wide and vague a character
  • Whether such rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession
  • Whether such rights constitute mere rights of recreation, possessing no quality of utility or benefit

Meaning of accommodating the land

  • Whether the easement enhances and is connected with the enjoyment of the dominant tenement
  • Whether the connexion exists is a question of fact depending on the nature of the alleged dominant tenement and the nature of the right granted
    • In the current case, the houses were for residential purposes
    • Nature of the right: the part was to be kept as a pleasure ground and kept in good condition
  • An analogy was proposed by Ds comparing current case to right to visit the Zoo for free
  • The more appropriate analogy is right to use garden of seller, which enhances the enjoyment of the house sold
  • The extension of the easement to houses not directly adjacent to the part does not negative it

Does the right accommodate the land?

  • The right was well defined, it is distinct from the indefinite and unregulated privilege, jus spatiandi (i.e., the right to wander upon the party and every part of it and enjoy its amenities and its produce without stint)
  • In this case ‘full enjoyment’ means to use the park as a garden in its physical state as such, to use the benches and the pathways but not to trample all over the park, to cut flowers or shrubs or interfere with the upkeep of the park
  • The deed also confers a right to possession or occupation no more than a right of way
  • The use of a garden in the current case cannot be called one of mere recreation and amusement, it can be used for exercise, rest and bringing children and thus has utility analogous to a right of way