Published: Fri, 12 Oct 2018
Reilly v Booth (1890) 44 Ch D 12, CA
The limits of rights conferred by an easement
This case concerned a dispute as to the full extent of the rights conferred through an easement. The holder of an easement had claimed that the rights conferred through that easement were broad enough so as to grant him exclusive possession and control over the land in question. This was disputed.
The issue in the case was how much rights could possibly be conferred through an easement and specifically whether it was possible for anyone to receive the right of exclusive possession and control by way of an easement.
It was held that it is not possible for an easement to confer rights of complete possession or control. A grant of a right over land which would effectively allow the dominant tenement use the land to the complete exclusion of the servient tenement, thus fully barring the servient owner from possession of the land, cannot property be called an easement in law as this is not how easements function. Instead, such a grant of rights would be property called a grant of fee simple.
“The exclusive or unrestricted use of a piece of land, I take it, beyond all question passes the property or ownership in that land, – 8 – and there is no easement known to law which gives exclusive and unrestricted use of a piece of land. It is not an easement in such a case, it is property that passes” (Lopes LJ)
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