Bailey v Stephens (1862) 12 CBNS 91
Proximity as a condition for the creation of an easement
Facts
This case dealt with the issue of proximity in the law on easements in England & Wales. In particular, it was disputed whether it is possible for a valid easement to exist where a landowner has been granted a right of way over a piece of land which is not adjacent to his land but is further away and specifically where the land over which he was granted a land of way was significantly far away (for instance, another county).
Issue
The issue in the case was the role which proximity plays in the granting of an easement and whether an easement can exist over adjacent or proximate land or whether it could be granted over land which is not at all proximate to the servient tenement. Essentially the question before the court was whether significant distance between the dominant and servient tenaments is destructive of an easement.
Decision/Outcome
It was held that the dominant and servient tenaments must be proximate to one another and that claiming an easement over land in another county is, in the words of the court, ridiculous. In order for the servient tenement to genuinely be able to accommodate the dominant tenement, there must be significant proximity between the two, although they need not be right next to one another.
“‘you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland” (Byles J)
Updated 21 March 2026
This case note remains legally accurate. Bailey v Stephens (1862) 12 CBNS 91 is an established authority in the law of easements in England and Wales, and the proximity requirement it illustrates — that the dominant and servient tenements must be sufficiently proximate for the servient land genuinely to accommodate and benefit the dominant land — continues to be recognised as part of the requirements for a valid easement, alongside the four conditions set out in Re Ellenborough Park [1956] Ch 131. There have been no subsequent statutory changes or appellate decisions that have displaced or materially altered this principle. The article is therefore a reliable starting point for understanding this aspect of easements law, though students should read it alongside Re Ellenborough Park and standard land law texts for a fuller account of the requirements for a valid easement.
