Problems Postponed: The Rule In Wheeldon v Burrows and Wheeler v Saunders

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You are here: BAILII >> Databases >> United Kingdom Journals >> Problems Postponed: The Rule In <I>Wheeldon v Burrows</I> and <I>Wheeler</I> v <I>Saunders </I> URL: http://www.bailii.org/uk/other/journals/WebJCLI/1996/issue3/ferris3.html Cite as: Problems Postponed: The Rule In <I>Wheeldon v Burrows</I> and <I>Wheeler</I> v <I>Saunders </I>

Problems Postponed: The Rule In Wheeldon v Burrows and Wheeler v Saunders

Graham J. Ferris LLB Solicitor of the Supreme Court,

Copyright © 1996 Graham J. Ferris.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

In Wheeler and another v J J Saunders Ltd. and others (1995) 2 All ER 697 the Court of Appeal considered the application of the 'rule in Wheeldon v Burrows' (see Thesiger LJ, Wheeldon v Burrows, (1879) 12 Ch D 31) upon a transfer of land. Staughton LJ and Gibson LJ delivered conflicting judgments on the point. Two questions taxed the court. Firstly, whether the rule requires a quasi- easement to satisfy one or two tests, before a grant will be implied. Secondly, whether the requirement that a quasi-easement be "necessary to the reasonable enjoyment" of the land benefited was met. The court failed to provide a clear answer to the first question, and Staughton LJ held the quasi-easement unnecessary to the reasonable enjoyment of the plaintiffs land. In so answering the second question the court gave weight to a test that has always caused difficulty in application. The facts, judgments, and relevant law is reviewed and an alternative approach to the problems highlighted by the case is offered.

The Facts.

The plaintiffs had bought their house (a farmhouse) and attached land from the defendants. The defendants retained the rest of the farm, which lay in the corner of a cross-roads formed by a major and a minor road intersecting, two sides thus having a public highway as a boundary. Before severance of the farmhouse, access to it could be, and was, obtained from both roads. The farmhouse faced the major road, and had a gate that allowed access to the house from that road along a visible track. This track lay over land retained by the defendants, and the action was for an injunction to clear an obstruction caused by the defendants' bricking-up the gate. Access could still be had from the minor road, so no question of an easement of necessity was raised. There had been no express grant of a right of way over the track and Law of Property Act 1925 s62 was not discussed. It may have been conceded that there had been unity of occupation prior to severance and that therefore s.62 did not apply, or the section may have been expressly excluded from the transfer, as the point is not mentioned in the judgments it is impossible to know why s62 did not apply. The only question before the court was whether there had been an implied grant of the right of way under the Rule. The question caused the court some difficulty. Staughton LJ with whom Sir John May concurred held that the law would not imply an easement in the circumstances. Gibson LJ considered that an easement would have been impliedly granted by the Rule but for evidence of the parties' contrary intention in the Transfer.

The Rule In Wheeldon v Burrows.

A quasi-easement exists where if not for the land being owned by a single person an easement would exist. The second dictum which follows a review of preceding cases is at pp 58-59:

There is an obvious semantic problem with these passages. It is clear that use prior to severance is required, but there is ambiguity as to what else is required. There are two tests described, the "continuous and apparent" test (the First Test) and the "necessary to reasonable enjoyment" test (the Second Test). It is the relationship between these two tests that is ambiguous, and this ambiguity has been discussed inconclusively both judicially and in the academic literature. Despite the court's awareness of this controversy both Staughton LJ and Gibson LJ treated the matter as if it were de novo. Neither judge referred to the case law or academic comment beyond a reference to Megarry and Wade (Megarry and Wade 1984) by Gibson LJ and the only cases cited in argument were Wheeldon v Burrows and Sovmots v Secretary of State for the Environment, Brompton Securities Ltd v Secretary of State for the Environment, [1979] AC 144 HL.

The majority judgment in Wheeler v Saunders is important because it is the first English decision since Goldberg v Edwards [1950] 1 Ch 247 in which the Second Test has operated independently to prevent the implication of a right of way.(1) There have been few cases in which the courts have felt that the application of the two tests produced different results, and the ambiguity in Thesiger LJ's dicta only becomes vital when the two tests do not produce the same result. This aspect of the judgment also gives emphasis to the Second Test whenever the Rule is applied, and the Second Test has always posed problems, both as to its meaning and its application.

The Law Before Wheeler v Saunders

The Three Possible Readings

Firstly, the most natural reading of the dicta, particularly the first statement of the Rule at p 49 with its copula "in other words", suggests that the two tests are synonymous. However, the two tests do not require the same qualities from a quasi-easement. The First Test requires some physical sign of the existence of a quasi-easement, and that the enjoyment should not have been of a transient nature, see Ward v Kirkland [1967] 1 Ch 194. The Second Test requires some level of benefit to be conferred by the quasi-easement, it does not require any physical feature to be present (the difficulty in offering a definition of what the Second Test does require is discussed below). To overcome this problem the meaning of the two tests must be reconciled if a synonymous reading is to be adopted. Ungoed-Thomas J, for the purposes of his judgment in Ward v Kirkland at pp 224-226 accepted that the First Test might be applied to the grant of positive easements, and the Second Test might be applied to the grant of negative easements. Thus the two tests were treated as not truly synonymous, but having the same function in different circumstances. A historical reconciliation has been explored by Simpson (Simpson, 1967).

Secondly, to avoid the need for reconciling the two tests, it is possible to read the "or" in the second statement of the Rule at pp 58-59 disjunctively, producing an alternative reading that requires one of two tests be satisfied. There is judicial support for such an approach, usually giving pre-eminence to the First Test. Sir George Jessel MR in Allen v Taylor (1880) 16 Ch D 355, dealing with the implied grant of a right to light, stated that the law will imply a grant of "..apparent easements or quasi- easements". Kay J seemed to reject any requirement for a quasi-easement to pass the Second Test in Brown v Alabaster (1887) 37 ChD 490 at 505. There are obiter dicta by Parker J which suggested that only the First Test need be considered in Brown v Flower [1911] 1 Ch 219 at 225 (which dicta were adopted by Warrington LJ in Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 at 221), and as Lord Parker of Waddington in Pwllbach Colliery Co Ltd v Woodman, [1915] AC 634 at 645. In Hansford v Jago [1921] 1 Ch 322, Russell J cited Thesiger LJ, but in holding a right of way implied he said "Now what is required in the case of a quasi-easement is the quality of being apparent" (at p 338). Megarry and Wade (Megarry and Wade, 1984, pp 862-863) conclude that the two tests are probably alternatives.

Thirdly, a cumulative reading is possible if "or" is read conjunctively the dicta can be read as laying down two separate tests, both of which must be satisfied. Maugham J in Borman v Griffith [1930] 1 Ch 493 at 499 formulated a new statement of the Rule applicable to rights of way, linking his version of the two tests with an 'and'. Evershed MR, in Goldberg v Edwards at 254, adopted Maugham J's formulation of the Rule, without reference back to Wheeldon v Burrows (he "assumed" that either Maugham J's formulation, or the statement of the Rule in Gale on Easements (Glover 1932) was correct). Goulding J in Horn v Hiscock also adopted a cumulative construction, based upon the formulation of the Rule by Maugham J. There is academic support for a cumulative reading (Harpum 1977, 1979; Thompson 1995).

Finally, there are cases that can be explained as compatible with different readings and authority to the effect that the question is open. An example of the first is Sovmots, the only recent consideration of the area by the House of Lords. The question of whether the Rule implied a grant of quasi-easements was raised in the context of the compulsory purchase of previously unused accommodation. The House of Lords held that no implied grant took place, either because there had been no use of the quasi- easements before severance, or because the Rule rested upon the doctrine of non- derogation from grant, which had no application to compulsory purchase. In Squarey v Harris-Smith, P& CR (1981) 42 118, Oliver LJ at 124, expressly left open the question of which reading of the dicta should be preferred. The precise ambit of the Rule is widely recognised as being unresolved (see for eg: Burn 1988, p 540; Gray 1987, pp 1099-1100; Megarry and Thompson 1993, p 384; Jackson 1978, p 79-80).

The Second Test

In considering the meaning of the Second Test judges since Wheeldon v Burrows have often found Thesiger LJ's formulation unclear, and its application difficult. Goulding J remarked in Horn v Hiscock [1972] EGD 663, at 667: "[it is]...always a question of difficulty whether a right of way that was not absolutely necessary and yet afforded more convenience was necessary for reasonable or reasonable and convenient enjoyment". As a result the Second Test has often, as in Horn v Hiscock, been glossed. One influential gloss is that coined by Lord Campbell in Ewart v Cochrane (1861) 7 Jur NS 925, 4 Macq 117, 10 WR 3 and adopted by Cozens-Hardy MR in Schwann v Cotton [1916] 2 Ch 459. This requires a quasi-easement to provide "convenient and comfortable enjoyment of the property".

The Second Test has not normally been stressed in cases involving rights of way. The cases in which it was established that the implied grant of a right of way can fall within the operation of the Rule are Brown v Alabaster and Hansford v Jago. Both these cases concerned domestic houses with back gardens, or yards, and outhouses. Access to the rear of the house in each case depended on a right of way that was not expressly granted. Neither house was landlocked, and there existed a quasi-easement that had a physical manifestation that was visible prior to severance of the plots. Having established that the First Test was satisfied the court held that there had been an implied grant of an easement. It can be argued that the Second Test was not discussed in these cases because it was clearly satisfied on the facts. Maugham J in Borman v Griffith held that a right of way over a made-up road that allowed vehicular access satisfied the Second Test. The only alternative route was not suitable for vehicles, and was not even a formed footpath but a proposed route at the time of the conveyance.

Until Wheeler v Saunders, Goldberg v Edwards was the sole English authority for the Second Test having an independent invalidating effect. The most interesting feature of the judgment in Goldberg v Edwards is the crucial weight given to the burden on the servient land in considering the application of the Second Test. As the easement claimed passed through occupied business premises, Evershed MR required "strong evidence" that the quasi-easement passed the second test, and held that because a different (longer and unsurfaced) route existed the claim failed. In Costaliola v English [1969] EGD 593 Megarry J held the Second Test satisfied by a right of way that provided an alternative route to the dominant land. The report does not make clear what advantage the quasi-easement had over the alternative access, but there is reference (at p 598) to: "the condition of that access at the time [of the grant]". Goulding J in Horn v Hiscock held that it could be at least 'strongly argued' that a quasi-easement that allowed access to the dominant land by large vehicles in inclement weather satisfied the Second Test, despite the existence of access suitable for all vehicles in normal weather conditions.

The Judgments.

Gibson LJ differed in his treatment of the dicta. He expressly addressed the problem of ambiguity in the relationship of the two tests, and referred to Megarry and Wade (Megarry and Wade 1984) on the point. He treated the problem as a simple question of construction and chose the most natural reading, the synonymous one. However, it is not clear how the two tests were reconciled. Gibson LJ did not consider any need for reconciliation, but passed on to the application of the Second Test. This may be suggestive of a cumulative reading of Thesiger LJ's dicta, but a truly synonymous reading would be consistent with his decision that the quasi-easement satisfied both tests.

The court was divided upon the application of the Second Test in Wheeler v Saunders as on the construction point, and once again Staughton LJ gave the majority judgment, in which he made no reference to any previous applications of the Second Test. The decision was made on the basis that there was no substantial difference between using the claimed route or the alternative route. In so deciding Staughton LJ overruled the judge at first instance. At trial it was found that the entrance via the major road was the "front door", and that via the minor road the "back door". The trial judge held, on these facts, that the quasi-easement satisfied the Second Test. Staughton LJ rejected the judge's suggestion that the claimed easement allowed access to the "front door". Rather he emphasised the fact that the gate was usually kept shut which he felt indicated the track could not be the main entrance, and was probably little used. Staughton LJ did not consider whether the parties' desire to prevent livestock from passing from one plot to another (evidenced in the transfer by a covenant to erect a stockproof fence along the boundary) might not have sufficed to explain the practice of keeping the gate shut. Staughton LJ concluded that the quasi-easement did not satisfy the Second Test.

Gibson LJ declined to overrule the judge and thus decided that the Rule would imply the easement, subject to any contrary intention of the parties. In reaching this decision Gibson LJ adopted a gloss of the second test, which he took from a textbook (Burn 1988, p 540 fn 4). The glossed test required a quasi-easement that "conduces to the reasonable enjoyment of the property". Gibson LJ did not consider any earlier applications of the Second Test. The actual decision of the court was unanimous as Gibson LJ found contrary intention in a covenant to erect a stockproof fence along the common boundary, which he held inconsistent with a gateway, and therefore with a right of way. On the facts this was a questionable construction, as at the time of the transfer the parties intended the plaintiffs to manage the farm. Presumably they would gain access to the farm through the gateway, and along the track. With this factor in mind, Gibson LJ's reasoning seems unconvincing.

Analysis and Conclusion.

In giving emphasis to the Second Test, the court followed, apparently unknowingly, Goldberg v Edwards. However, the emphasis that Goldberg v Edwards puts upon the impact on the servient tenement raises doubts about the exclusive focus of all the judges in Wheeler v Saunders upon the utility afforded to the dominant tenement. If Goldberg v Edwards is correct in its approach then the Second Test balances the burden on the servient land with the benefit to the dominant land. Thus the impact of the claim upon use of the servient land should be considered when applying the Second Test. On the facts of Wheeler v Saunders the impact on the servient (defendants') land was small, as the defendants used the track themselves. However, Evershed MR stressed that in reaching his decision he had not heard argument on all the cases, and the emphasis in Goldberg v Edwards upon the burden imposed on the servient land has not been reflected in later cases. But all the other cases concerned with the application of the Rule to rights of way consider the First Test to be of fundamental importance, and Staughton LJ at least prima facie was applying an alternative reading of the Rule which only applied the Second Test.

Gibson LJ did not apply the Second Test, as he merely declined to overrule the trial judge. The report gives little indication of the approach of the trial judge, beyond the fact that weight was given to the quasi-easement being the front or main entrance to the House. It is not possible from the report to know if this conclusion was reached after a consideration of the authorities. However it seems to be in sympathy with Costaliola v English and Horn v Hiscock, and possibly Goldberg v Edwards. The challenge seems to be to reconcile the approach in Goldberg v Edwards with the other cases.

The Rule rests upon the intention of the parties to the conveyance, as Lord Wilberforce recognises in Sovmots at p 168. The law starts from a presumption that the parties' intentions are reasonable and honest, this presumption generates the doctrine of non-derogation from grant, which was given perhaps its most famous expression by Bowen LJ in Birmingham, Dudley and District Banking Co v Ross, (1888) 38 Ch D 295 at p 313: "A grantor having given a thing with one hand is not to take away the means of enjoying it with the other". In applying the Rule the English courts have stressed the need for a right of way to satisfy the First Test. It is Goldberg v Edwards, in which Evershed MR refused to impose what he saw as an onerous burden on the servient land that seems incongruous. However, if we accept that the basis of the Rule is the intention of the parties, Evershed MR's judgment is defensible. An extreme example would be a easement that effectively sterilised the servient land, for a negligible benefit to the dominant land. The intention to grant such an easement would surely be unreasonable, and the law should not impute an unreasonable intention without compelling evidence.

It seems the law has developed in a way that, if Goldberg v Edwards is accepted as a correct application of the Second Test, allows a principled resolution of the ambiguity generated by Thesiger LJ's' dicta. Two propositions can be extracted from the cases. First, 'the usual presumption of the law is that a grantor of land intends to convey it together with all the easements that it apparently enjoys, and has in fact enjoyed prior to severance'. This proposition is derived from the emphasis on, and treatment of, the First Test in the cases, and the explanation of the doctrine of non-derogation given by Bowen LJ as cited above. Secondly, 'this presumption is rebutted when it would be unreasonable to apply it, as it would either confer no real benefit upon the dominant land, or it would impose an unreasonable burden upon the servient land, for the benefit it does confer'. This statement is derived from the treatment of the Second Test in the cases, giving recognition to the efforts of judges to stress that the test is not one of necessity in any ordinary meaning of the word, and by generalising the approach of Evershed MR in Goldberg v Edwards. By going behind the form of the Rule, to its roots in the presumed intention of the parties, as suggested by the previous cases that have applied the Rule one can resolve the semantic problem that Thesiger LJ's dicta pose. It is unfortunate that the Court of Appeal in Wheeler v Saunders did not use the opportunity offered to clarify the ambiguity inherent in Thesiger LJ's statement of the Rule, or to give a more informed consideration of the ambit of the Second Test.

Burn, E H (1988) Cheshire & Burn's, Modern Law of Real Property' 15th ed. (London: Butterworths).

Harpum, C (1977) 'Easements and Centre Point: Old Problems Resolved in a Novel Setting' 41 The Conveyancer and Property Lawyer 415.

Harpum, C (1979) 'Long v Gowlett: A Strong Fortress' 43 The Conveyancer and Property Lawyer 113.

Megarry, R and Thompson, MP (1993) A Manual of the Law of Real Property, 7th ed.(London: Sweet & Maxwell).

Megarry, R and Wade, HWR (1984) The Law of Real Property, 5th ed (London: Stevens & Sons Ltd.).

Simpson AWB (1967) 'The Rule in Wheeldon v Burrows and the Code Civile' 83 Law Quarterly Review 240.

(1) There are cases that give failure to satisfy both tests as the reason for refusal to find an implied grant, and there are cases that ascribe the implication of an easement to satisfying both tests. A case that may be seen as an example of the Second Test operating independently of the First Test, to validate the implication of an easement, is Rudd v Bowles [1912] 2 Ch 60, which allowed the implied grant of an easement to occur when the Second Test (or some other test not met with elsewhere in English law) was satisfied. Although the case may be more appropriately considered as an example of an implied grant arising from the common intention of the parties, and not an application of the Rule. Back to text

(2) The factual relationship between the two tests is rarely explored in the cases or the literature, the problem is typically treated as one of construction of the Rule, or ignored altogether. If a quasi-easement is necessary to the reasonable enjoyment of a plot of land then it is likely, at least for positive easements, that usage will be heavy enough to leave physical indications of the use, or that the land will be altered to facilitate the quasi- easement. Thus, if the Second Test is satisfied then there are likely to be physical features, and a history of use, that will satisfy the First Test. The usual relationship is thus causal. This analysis suggests a 'synonymous' reading is possible, as the Rule should only operate when the benefit to the quasi-dominant land is so great that the land is physically altered, either by the use of the quasi-easement, or to allow the quasi-easement to be enjoyed. The evidence for having passed the Second Test is the passage of the First Test, and the level of benefit demanded by the Second Test is such benefit that the First Test will be passed. Back to text

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