Bailey v Stephens (1862) 12 CBNS 91

Proximity as a condition for the creation of an easement


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).


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.


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)