Hill v Tupper (1863) 2 H & C 12

Contractual rights and the creation of easements


The plaintiff Mr Hill entered into a contract with The Basingstoke Canal Company which conferred upon him the exclusive right to hire boats out on the relevant canal. The defendant, Mr Tupper, however also hired boats out on the same canal.  Mr Hill was minded to curtail the activities of Mr Tupper and thus started the action. It was based on the claim that his rights under the contract with the Basingstoke Canal Company constituted an easement, which gave him property rights which he could enforce against Mr Tupper.


The issue in this case was whether the contract granted to Mr Hill could be seen to have created a valid easement and therefore provided him with property rights.


The court held that a valid easement could not be created in this way and that Mr Hill did not receive any property rights under the contract. The Court observed that the benefit from an easement must be for the land, whereas in this case the benefit was solely for the business. Mr Hill therefore had no property rights which he could enforce against Mr Tupper and Mr Tupper could not be compelled, through this action at least, to cease hiring out boats on the canal. The Basingstoke Canal Company could, however, prevent Mr Tupper from hiring boats out on the canal by asserting its property rights and therefore Mr Hill’s proper course of action is to ask the Canal to do so.