A critical evaluation of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 – Has it been a positive development for property law in England and Wales?

A critical evaluation of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 – Has it been a positive development for property law in England and Wales?

To answer the question set out above, it is this author’s view that the rule to have been derived from the decision in Wheeldon v. Burrows (1879) 12 Ch D 3 has proved beneficial with regard to the application of property law in England and Wales to the specific issue of the sale of part of a given individual’s land. The reason for this is that the rule to have been derived from this case served to mean that, regardless of whether it was legal or equitable, it was possible to change a quasi-easement into a full easement via a grant but not to reserve it as such. To illustrate, Justice Thesiger recognised in Wheeldon v. Burrows (1879) 12 Ch D 3, p.49 that “[i]f the grantor intends to reserve any right over the tenement granted, it is [their] duty to reserve it expressly in the grant”. This is considered to be a particularly important point because the easement in question has not been expressly granted: instead, it is considered to have been implied into the sale of the land based upon how the sale of property came into being because of the circumstances surrounding the sale.

For the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 to apply, three prerequisites need to be fulfilled in the circumstances of a given case: (a) there had to be a quasi-easement (i.e. a practice that would amount to an easement if part of a property was in either separate ownership or occupation) in place that was both enjoyed and used by the seller before the transfer of land for the benefit of the part transferred; (b) the quasi-easement had to be both ‘continuous and apparent’; and (c) the quasi-easement needed to be shown to be “necessary for the reasonable enjoyment of the [aforementioned] transferred part of the land”. However, an easement will not be implied by applying the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 if, when a conveyance takes place, its operation is excluded by the parties that are involved in a given instance.

Reflecting upon requirement (b) for the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 to apply, the need for a quasi-easement to be both “continuous and apparent” has actually been the subject of reinterpreted by the judiciary through the decisions of the courts. To illustrate, it was held by Justice Maugham in Borman v. Griffith [1930] 1 Ch. 493 that a quasi-easement did not actually have to be “continuous” for the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 to be applied but does need to be “apparent” by being either “obvious” or “visible” in the circumstances. As for the matter of requirement (c) for the aforementioned rule to apply, the easement in question does NOT need to be absolutely essential for land’s reasonable enjoyment: it just needs to be “necessary for reasonable enjoyment” (see Wheeler v. JJ Saunders [1994] EWCA Civ 3).

To determine whether the application of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 has proved to be beneficial with regard to the application of property law in England and Wales, it is also important to consider the application of the Law of Property Act 1925 (LPA 1925) at section 62(1) in such circumstances. This is because it is understood that this section of the Act specifically provides that a transfer of land in the circumstances of a given case will include AND operate so as to then also convey –

“all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof” (LPA 1925 at section 62).

On this basis, there is a need to consider when a benefit that is reiterated by section 62 of the LPA 1925 is found to have an easement’s specific content requirements in keeping with the decision of the court in Re Ellenborough Park [1955] 3 All ER 667. This is because the judgement of the then Master of the Rolls, Lord Evershed provides that –

“(1) There must be a dominant and a servient tenement [in the circumstances -see, by way of illustration, Ackroyd v. Smith (1850) 138 E.R. 68]; (2) an easement must ‘accommodate’ the domina