THE MASTER OF THE ROLLS: The Judgment I am about to read is the Judgment of the Court.
The substantial question raised in this appeal is whether the Respondent, or those whom he has been appointed to represent, being the owners of certain houses fronting upon, or, in some few cases, adjacent to, the garden or park known as Ellenborough Park in Weston-super-Mare, have any right known to the law, and now enforceable by them against the owners of the park, to the use and enjoyment of the park to the extent and in the manner later more precisely defined. Both the premises now belonging to the Respondent, or to the owners for whom he acts as champion, and also the park itself, were originally part of an Estate known as the White Cross Estate. The houses in question were built and the park laid out in the middle of the last century. None of the owners of the houses is an original grantee from the proprietors of the White Cross Estate. Similarly, the present owners of the park are the successors in title of the original grantors of the premises of the house owners.
A second question is also raised in the appeal. It is, on the basis that the house owners have an enforceable right in law against the park owners, in what proportions between the house owners on the one side, and the owners of the park on the other, should certain sums of money be divided, which have been paid to the latter by the War Office, in respect of the occupation of the park under requisition by the Military Authorities during the War? Mr Justice Danckwerts, who came to a conclusion on the main question in favour of the Respondent, also made an Order as to part of these compensation moneys: but as to the rest directed an enquiry of a somewhat complicated character, for the purpose of ascertaining how the remainder of such moneys should be divided between the owners of the park, on the one hand, and the house owners, on the other.
Although the payment of the compensation moneys was the circumstance which gave rise, in fact, to the present substantial question in the case, this Court has been absolved from any determination of the question of their division: for, with a view to avoiding the considerable costs of the enquiry which has been directed, the parties before us have agreed upon a compromise of that question which the Court is prepared to approves and the compromise also extends to the application of those moneys in the alternative event of this Court arriving at a different view from that of Mr Justice Danckwerts upon the main question.
It is the Plaintiffs in the action who are the present owners of the garden or park; but they hold the property as trustees upon certain trusts under which the first Defendant, Mrs Maddison, is one of the beneficiaries. She has accordingly been the Appellant in this Court. The second Defendant, Fred Allen, who is the Respondent to this appeal, was appointed by Mr Justice Danekwerts to represent for the purposes of the proceedings "all persons claiming to have any rights of user of the ... property known as Ellenborough Park as a private open space." In the course of the hearing before us it appeared that Mr Allen is in fact not the owner of any of the relevant premises, but is a tenant of one of the houses which belongs to a Limited Company. It was agreed by learned Counsel before us that the Limited Company should be added as a Defendant to the proceedings, and its name added to the Brief of Mr Goff, who appeared for the Respondent and who informed us that he had been sufficiently instructed by the Company. The appeal proceeded before us accordingly on the basis that the house owner was before the Court, and the Order which will be drawn up must provide for the necessary amendment of the proceedings.
The substantial question in the case which we have briefly indicated, is one of considerable interest and importance. It is clear from our brief recital of the facts that if the house owners are now entitled to an enforceable right in respect of the use and enjoyment of Ellenborough Park, that right must have the character and quality of an casement as understood by, and known to, our law. It has therefore been necessary for us to consider carefully the qualities and characteristics of easements, and for such purpose to look back into the history of that category of incorporeal rights in the development of English real property law. It may be fairly assumed that in the case of Duncan v. Louch (6 Queen's Bench, page 904) the Court of Queen's Bench in the year 1845, and particularly Lord Penman, Chief Justice, who delivered the first Judgment in the Court, was of opinion that such a right as the Respondent claims was capable of fulfilling the qualifying conditions of an easement. And Mr Justice Buckley in the case in 1904 of Keith v. Twentieth Century Club Limited (90 Law Times, page 775) answered certain questions which Mr Justice Byrne had ordered to be set down to be argued before the Court, themselves depending upon the assumption that such a right could exist in law. On the other hand, Sir George Farwell, a Judge peculiarly experienced and learned in real property law, on two occasions, namely, in 1903 in the case of International Tea Stores v. Hobbs (1903, 2 Chancery, page 165) and in 1905 in Attorney-General v. Antrobus (1905, 2 Chancery, page 188) used language appearing to treat as axiomatic the proposition, that a right which should properly be described as a jus spatiandi was a right excluded by English law, as by Roman law, from the company of servitudes.
The four cases which we have mentioned must be considered hereafter at greater length. But it can be said at once that, with the possible exception of the first, none of them constitutes or involves a direct decision upon the question now before us: and although the existence of gardens surrounded by houses, the owners or occupiers of which enjoy in practice the amenities of the gardens, is a well-known feature of town development throughout the country, no other case appears to have come before the Courts in which the validity of the rights in fact enjoyed in the gardens has ever been tested.
A full statement of the facts of the present case was contained in the Judgment of Mr Justice Danckwerts. That Judgment is reported in the Law Reports � see 1955, 3 Weekly Law Reports, page 91 � and a statement of the facts is set out at the beginning of the Report. Save in two respects, therefore, we do not think it useful or necessary to set the facts out again in this Judgment. But having regard particularly to certain of the arguments by way of analogy put before us by Mr Cross, it is necessary to decide what precisely was the nature of the rights which, under the original conveyances, the owners of the Estate purported to grant to the purchasers of the relevant plots of land; and what corresponding obligations the vendors undertook. We shall therefore have to examine closely the exact form of the conveyances, one of which has been before the Court, and has been accepted by Counsel as typical of all the relevant conveyances.
And, second, by reason of Mr Cross's more general argument, based on the alleged absence of the required connection between the rights to enjoy the garden and the premises themselves (as distinct from the persons of their owners), which are said to constitute the dominant tenements, we must also state precisely, by reference to further evidence filed before us and by our leave, where these premises are situated.
But, before we proceed to those matters of fact, it will be proper as a foundation for all that follows in this Judgment to attempt a brief account of the emergence in the course of the history of our law, of the rights known to us as "easements", and thereafter, so far as relevant for present purposes, to formulate what can now be taken to be the essential qualities of those rights. For the former purpose we cannot do better than cite a considerable passage from the late Sir William Holdsworth's Historical Introduction to the Land Law (Clarendon Press 1927). At page 265 of that book the learned author states:
"Both the term 'easement' and the thing itself were known to the mediaeval common law. At the latter part of the sixteenth century it was described in Kitchin's book on courts, and defined in the later editions of the 'Termes de la Ley'."
After stating the definition and observing its obvious defects from the point of view of modern law Sir William proceeds:
"But these defects in the definition are instructive because they indicate that the law as to easements was as yet rudimentary.
"It was still rudimentary when Blackstone wrote. In fact, right down to the beginning of the nineteenth century there was but little authority on many parts of this subject. Gale, writing in 1839, said; 'The difficulties which arise from the abstruseness and refinements incident to the subject have been increased by the comparatively small number of decided cases affording matter for defining and systematising this branch of the law. Upon some points, indeed, there is no authority at all in English law.'
"The industrial revolution which caused the growth of large towns and manufacturing industries naturally brought into prominence such easements as ways, watercourses, light and support; and so Gale's book became the starting point of the modern law which rests largely upon comparatively recent decisions.
"But, though the law of easements is comparatively modern, some of its rules have ancient roots. There is a basis of Roman rules introduced into English law by Bracton and acclimatized by Coke. The law, as thus developed, sufficed for the needs of the country in the eighteenth century. But, as it was no longer sufficient for the new economic needs of the nineteenth century, an expansion and an elaboration of this branch of the law became necessary. It was expanded and elaborated, partly on the basis of the old Rules which had been evolved by the working of the assize of nuisance and its successor, the action on the case; partly by the help of Bracton's Roman rules; and partly, as Gale's book shows, by the help of the Roman rules taken from the Digest, which he frequently and continuously uses to illustrate and to supplement the existing rules of law."
The reference to Lord Coke we take to be a reference to Coke upon Littleton, citations from which and criticisms of which will be found, for example, at page 305 of the 12th edition of Gale.
The passage which we have read from Sir William Holdsworth sufficiently serves to explain the appearance and the prominence of Roman dicta in the English law of easements, commonly called, indeed, by the Latin name of "servitudes": and it may well be possible that Sir George Farwell's rejection of the jus spatiandi as a legal right by English law, was derived in part from its similar rejection by the law of Rome. Thus, according to the Roman Jurist, Paulus (quoted by Gale at page 19), "ut spatiari, et ut coenare in alieno possumus,. servitus imponi non potest": nevertheless, apart from the opinion of Mr Justice Farwell, there has been, as we have already observed, no judicial authority for adopting the Roman view in this respect into the English law. Moreover, the exact characteristics of the jus spatiandi mentioned by the Roman lawyers has to be considered. It by no means follows that the kind of right which is here in question, arising out of a method of urban development that would not have been known to Roman lawyers, can in any case be said to fall within its scope. And, in any event, its validity must depend, in our judgment, upon a consideration of the qualities which must now be attributed to all easements by the law relating to easements as it has now developed in England.
For the purposes of the argument before us Mr Cross and Mr Goff were content to adopt, as correct, the four characteristics formulated in Dr Cheshire's "Modern Real Property", 7th Edition, at pages 456 and following. They are (1) There must be a dominant and a servient tenement: (2) an easement must "accommodate" the dominant tenement: (3) dominant and servient owners must be different persons and (4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
The four characteristics stated by Dr Cheshire correspond with the qualities discussed by Gale in his second chapter, Sections 2, 5, 3, and 6 and 8 respectively. Two of the four may be disregarded for present purposes, namely, the first and the third.
If the garden or park is, as it is alleged to be, the servient tenement in the present case, then it is undoubtedly distinct from the alleged dominant tenements, namely, the freeholds of the several houses whose owners claim to exercise the rights. It is equally clear that if these lands respectively constitute the servient and dominant tenements then they are owned by different persons. The argument in the case is found accordingly to turn upon the meaning and application to the circumstances of the present case of the second and fourth conditions; that is, first, whether the alleged easement can be said in truth to "accommodate" the dominant tenement - in other words, whether there exists the required "connection" between the one and the others and, second, whether the right alleged is "capable of forming the subject matter of a grant". The exact significance of this fourth and last condition is, at first sight perhaps, not entirely clear. As between the original parties to the "grant" it is not in doubt that rights of this kind would be capable of taking effect by way of contract or license. But for the purposes of the present case, as the arguments made clear, the cognate questions involved under this condition are: whether the rights purported to be given are expressed in terms of too wide and vague a character; whether, if and so far as effective, such rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession; whether, if and so far as effective, such rights constitute mere rights of recreation, possessing no quality of utility or benefit; and on such grounds cannot qualify as easements.
It will now be convenient for us to state the terms of the Conveyance dated 23rd December, 1864, and made between Henry Davies and Joseph Whereat of the one part and John Porter of the other part which, as we have said, has been taken for the purposes of the case as typical of all the Conveyances.
After a recital of their title to the land to be conveyed, being "part of a certain estate called 'The White Cross Estate'", the vendors granted and conveyed unto John Porter and his heirs "All that plot ... of land part of the said White Cross Estate and situate in the Parish of Weston-super-Mare". There followed an exact description of the land with precise measurements. The description showed that the land fronted on a road called "Crescent Road" and backed upon another road, and that it adjoined another plot belonging to the purchaser, being No. 20 Ellenborough Crescent. The parcels continued:
"Together with the messuage or dwelling-house outbuildings and premises which are now in course of erection by the said John Porter on the said plot of land ... which are intended ... to form No, 21 of the said row called Ellenborough Crescent ... Together with all ways paths passages easements rights and appurtenances to the said plot of land ... belonging or appertaining. And particularly the use and enjoyment at all times hereafter in common with the other persons to whom such easements may be granted of the roads sailed the 'Crescent Road' and the 'Walliscote Road' and of all other roads ways and footpaths and of all drains ... which shall be made on the said White Cross Estate ... And also the full enjoyment ... at all times hereafter in common with the other persons to whom such easements may be granted of the pleasure ground set out and made in front of the said plot of land ... in the centre of the Square called Ellenborough Park which said pleasure ground is divided by the said Walliscote Road but subject to the payment of a fair and just proportion of the costs charges and expenses of keeping in good order and condition the said pleasure ground. And all the estate right title" etc.
After the habendum and certain immaterial provisions the said John Porter covenanted with the vendors to complete the building of the messuage on the plot conveyed and to do so in accordance with certain specifications and plans "similar in every respect externally and in a uniform manner with the messuage or dwellinghouse numbered 1 in the same Crescent." The covenant in that respect condescended to considerable detail as regards materials and as regards a dwarf wall and iron palisading and was followed by covenants against alteration of the external elevation or structure and against user for trade or commercial purposes (with certain very limited exceptions) without the consent of the vendors or their successors in title. The purchaser further covenanted to pay a fair proportion of the expense of maintaining the said roads "And also will jointly with all other persons to whom the right of enjoyment of the pleasure ground ... may be granted pay a fair proportion of the expenses of making and at all times keeping in good order and condition and well stocked with plants and shrubs the pleasure ground...".
Finally, each of the vendors for himself and his successors in title covenanted with the purchaser and his successors in title "and all other persons to whom the right of enjoyment of the pleasure ground ... may be granted at all times hereafter (to) keep as an ornamental pleasure ground the plot of ground hereinbefore referred to and situate in front of and partly encircled by the said Ellenborough Crescent", and also that they would not at any time thereafter "erect or permit to be erected any dwelling-house and other building (except any grotto bower summer-house flower-stand fountain music-stand or other ornamental erection) within or on any part of the said pleasure ground ... but that the same shall at all times remain as an ornamental garden or pleasure ground."
Before we state our view of the meaning and effect of the Deed, we will deal with the second matter of fact which we have mentioned, namely, the position of the houses to the grantees of which, according to the fresh evidence filed, the right of user of the pleasure ground or park was given. The exact area of "the White Cross Estate" was not proved: but Ellenborough Park (that is the pleasure ground) and the road round it (Ellenborough Crescent or Crescent Road) is a rectangular area measuring about 350 yards from east to west and about 100 yards from north to south, its western boundary facing the sea. The right was granted to the purchasers of each of the plots of land the houses on which face inwards round the Crescent Road into the park; but it was also granted in respect of some 9 or 10 other plots not actually facing into the park but separated from the Crescent Road only by houses so fronting. There appear to be no private ways from the houses built on these other plots direct to the Crescent Road and the park. Access in these cases to the park has to be obtained by the short distance over the ordinary roads in no case more than about 150 or 200 yards. It does not appear what, if any, special obligations were imposed upon the original purchasers of these last few houses as regards the character of the houses and the like.
Omitting, for the moment, these last-mentioned few houses, it is clear from the Deed from which we have quoted, and from the other Deeds in like form made (as must be assumed), in respect of the remaining premises in Ellenborough Crescent, that the original common vendors were engaged upon a scheme of development of this part of the White Cross Estate designed to produce a result of common experience; namely a row of uniform houses facing inwards upon a park or garden which was intended to form, and formed in fact, an essential characteristic belonging, and properly speaking "appurtenant", to all and each of them. In substance, instead of each house being confined to its own small or moderate garden, each was to enjoy in common, but in common exclusively with the other houses in the Crescent, a single large "private" garden. In our judgment, the substance of the matter is not in this respect affected by the fact that some few houses in the immediate proximity of, but not actually fronting upon, the park were also entitled to share the privilege. This extension of the privilege may no doubt be unusual and (at first sight at any rate) out of line with the conception of the Square and its surrounding houses as a symmetrical unit. It has therefore a bearing upon the question of the "connection" between the right enjoyed and the premises of the relevant house owners; and must be discussed under the head of Dr Cheshire's first condition. But, in our judgment, the language of the Deed of 1864 is clear to the effect that the right of enjoyment of the garden was intended to be annexed to the premises sold, rather than given as a privilege personal to their purchaser. The enjoyment was not exclusive to those premises alone; it was to be held in common with the like rights annexed to the other houses in (and in some few cases in close proximity to) the Square or Crescent. But it was not contemplated that like rights should be otherwise extended so as to belong in any sense to premises not forming part of (or at least closely connected with) the Square or their owners. The position of the grant in the Deed and its language show that in the respects we have mentioned, the right granted was intended and treated as in pari materia with the rights of way and drainage similarly conferred. The relevant part of the Deed opens with the general formula "Together with all ways ... easements rights and appurtenances to the said plot of land ... appertaining." The rights of way (admittedly easements properly so called) follow immediately the general formula- being linked to it by the words "and particularly". The next two words are "And also", which, in turn, introduce the garden rights now in question in language which repeats the phrase used in relation to the rights of way -"in common with the other persons to whom such easements may be granted."
In our judgment, if the construction of this part of the Deed docs not tend to the conclusion that the garden rights, like the rights of way, were particular examples of the general grant of easements and rights appurtenant to the plot conveyed, it is at least made clear that the garden rights were (so far of course as they properly could be) of the same character quoad the land conveyed as the rights of way and drainage. It was conceded that the rights, if effectual and enforceable, were conditional, that is upon the house owners making their appropriate contributions to the cost of upkeep. In this respect, again, they wore analogous, by the terms of the Deed, to the rights of way over Crescent and Walliscote Roads. As a complement to the rights of enjoyment of the garden, subject to the condition of contribution, was the covenant by the vendors against building on the park and to the effect that the park should at all times remain as an ornamental garden. Mr Cross did not seriously challenge Mr Goff's contention that in their context the words of the covenant to which we have last referred could fairly be construed as implying a negative covenant on the vendors' part against any user by them of the park otherwise than as a garden. There is clear authority that, if such be the substantial effect of the covenant, its benefit and burden will run with the land. The last consideration appreciably reinforces the view which we take of the meaning and intention of the Deed, to attach the garden rights in all respects like the rights of way and drainage to the land conveyed.
It remains to interpret the actual terms of the grant itself - "the full enjoyment of the pleasure ground set out and made" etc. Mr Cross fastened upon the presence of the word "full", and the absence of any indication of the way in which the pleasure ground was to be used - or of any limitations upon its use - and contended that the right or privilege given was a jus spatiandi in its strict sense, that is a right to go or wander upon the park and every part of it and enjoy its amenities (and even its produce) without stint. We do not so construe the words in their context. Although we are now anticipating to some extent the question which arises under the fourth of Dr Cheshire's conditions, it seems to us, as a matter of construction, that the use contemplated and granted was the use of the park as a garden, the proprietorship of which (and of the produce of which) remained vested in the vendors and their successors. The enjoyment contemplated was the enjoyment of the vendors' ornamental garden in its physical state as such - the right, that is to say, of walking on or over those parts provided for such purpose, that is, pathways and (subject to restrictions in the ordinary course in the interest of the grass) the lawns; to rest in or upon the seats or other places provided; and, if certain parts were set apart for particular recreations such as tennis or bowls, to use those parts for those purposes, subject again, in the ordinary course, to the provisions made for their regulation; but not to trample at will all over the park, to cut or pluck the flowers or shrubs, or to interfere in the laying out or upkeep of the park. Such use or enjoyment is, we think, a common and clearly understood conception, analogous to the use and enjoyment conferred upon members of the public, when they are open to the public, of parks or gardens such as St. James's Park, Kew Gardens or the Gardens of Lincoln's Inn Fields. In our judgment, the use of the word "full" does not import some wider, less well understood or definable privilege. The adjective does not in fact again appear when the enjoyment of the garden is later referred to. It means no more than that to each plot was annexed the right of enjoyment of the park as a whole - notwithstanding that it was divided by Walliscote Road. Nor does any difficulty arise out of the condition as to contribution, and Mr Cross did not, indeed, so suggest. The obligation being a condition of the enjoyment, each house would be bound to contribute its due (that is, proportionate) share of the reasonable cost of upkeep.
We do not forget that, as was proved in the evidence, an arrangement was made in the year 1924 between the then owners of the park and the householders concerned for regulating, in a mutually convenient way, the future management and upkeep of the garden, and for meeting its cost. Whether such arrangement had or still has any, and, if so, what legal effect, is a question that has not been considered before us, and upon which we express no view. We have been concerned with the proper interpretation of the original Deeds of Grant. If these were effective upon their true construction (as must now be considered) to confer legal and enforceable rights capable of passing to the hands of the Respondent or those he represents, and being available against the Plaintiffs, it is not suggested that these rights have since been varied or lost by any virtue of the 1924 arrangement or any other act of the persons at any time interested in such rights.
We pass accordingly to a consideration of the first of Dr Cheshire's conditions - that of the accommodation of the alleged dominant tenements by the rights as we have interpreted them. For it was one of the main submissions by Mr Cross on behalf of the Appellant that the right of full enjoyment of the park, granted to the purchaser by the Conveyance of the 23rd December, 1864, was insufficiently connected with the enjoyment of the property conveyed in that it did not sub-serve some use which was to be made of that property; and that such a right accordingly could not exist in law as an easement. In this part of his argument Mr Cross was invoking a principle which is, in our judgment, of unchallengeable authority, expounded, in somewhat varying language, in many judicial utterances, of which the Judgments in Ackroyd v. Smith (10 Common Bench, page 164) are, perhaps, most commonly cited. We think it unnecessary to review the authorities in which the principle has been applied; for the effect of the decisions is stated with accuracy in Dr Cheshire's book at page 457. After pointing out that "one of the fundamental principles concerning easements is that they must be not only appurtenant to a dominant tenement, but also connected with the normal enjoyment of the dominant tenement" and referring to certain citations in support of that proposition the learned author proceeded:
"We may expand the statement of the principle thus: a right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment of that tenement, for if it has 'no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all, but a mere contractual right personal to and only enforceable between the two contracting parties."
In the course of the argument before us it was suggested that the principle thus formulated lacked completeness having regard to the Judgment of Mr Justice Willes in Bailey v. Stephens (12 Common Bench (New Series) page 91). The effect of the decision of the Court of Common Pleas in that case is sufficiently stated in the side-note, which is as follows:
"A claim of a prescriptive right in the owners or occupiers of Close A to enter Close B (belonging to a third person) and to cut down and carry away and convert to their own use all the trees and wood growing and being thereon 'as to the said Close A appertaining' is void, as being too large."
In the course of his Judgment Mr Justice Willes, after referring to Muskett v. Hill (5 Bingham's New Cases, page 694), said that a grant to a man to carry away for his own use trees on another's land, which he had been licensed to cut down, constituted an interest which was assignable but that such a grant could only be made in gross. The learned Judge then proceeded as follows:
"They" (that is, such grants) "convey an interest to the grantees, which grantees, if they wish to convey, must convey by the ordinary conveyances known to the law: and it is not because the grantee may happen to be the owner of the Close at the time at which the grant is made to him that such a conveyance may be dispensed with in favour of the person who may from time to time thereafter become the owner of the freehold of the Close, or take the licence of the owner of the freehold in the Close. And the reason is a simple one, and it will be found in that class of cases now not often referred to, because the law depends principally on the Statute of Henry the Eighth. I mean the case of a conveyance by which a certain incident is granted which, though beneficial to the grantee of the land so long as he remains the owner of it, and beneficial in respect of his ownership of the land, can be of no benefit to any other person. And the authorities are to this effect, that at Common Law a benefit of that description went into whosoever hands the land might pass ...But in order to enable the assignee of the land to take advantage of such a benefit it must be a benefit falling within the definition I have given - a definition frequently given with reference to the question whether a covenant runs with a reversion in cases arising under the Statute of Henry the Eighth, whether it was beneficial to the land and beneficial in respect of the ownership of the land, and not beneficial to any other person."
It will be observed that in this Judgment Mr Justice Willes twice incorporated, in his definition of incidents which run with the land, that they were not (or could not be) of benefit to persons other than the grantees thereof; and Mr Cross submitted that the learned Judge was intending to indicate that this isolation of benefit constitutes an essential ingredient of every right granted to a purchaser over the vendor's land, if it is to qualify as an easement which the law will recognise. If Mr Justice Willes did in fact intend to introduce this qualification, and if he were right in doing so, the Appellant would be much assisted in the present case; for it is clear that a right to use and enjoy the amenities of Ellenborough Park would be appreciated and could benefit many inhabitants of Weston-super-Mare besides the persons to whom in fact the right was granted. We do not think, however, that Mr Justice Willes was intending to say that the right of a man to use another person's property for the purposes of his own estate cannot amount to an easement unless it is incapable of being in fact enjoyed by anyone other than the grantee of the right. He began his Judgment by expressing his concurrence in the Judgment which Chief Justice Erle had just delivered and the Chief Justice had made no reference to this element at all. The Chief Justice had however drawn a distinction between, on the one hand, a claim appurtenant to land to go upon another's estate and take the produce without reference to the needs and requirements of the claimant's own land and, on the other hand, the claim by an owner of an estate to go upon adjoining land and take certain of the profits to be used at the house and in the tenement of the claimant; and the Chief Justice had said that the first of these claims would not be sustained in law as an easement whereas the second of them would be. In our judgment Mr Justice Willes, in expressing himself as he did, had a similar distinction in mind and was merely emphasising that an easement must be appurtenant to an estate for the benefit of that estate and its owner and that it cannot at the same time lawfully be enjoyed by any other person. If, however, the learned Judge was intimating that, if a right be of such a character that it can factually (as distinct from lawfully) be of benefit to persons other than the owner of the estate to whom the right is granted, it is incapable of legal recognition as an easement, the learned Judge was enunciating a principle which, so far as we are aware, has no other authority to support it. It is true that the observations of Mr Justice Willes were quoted without disapproval by Lord Justice Hamilton (as he then was) in Attorney-General v. Horner (1913, 2 Chancery, page 140, at page 196) but there is no reason to suppose that the particular point which we are now considering received his attention, for the point was as unnecessary for the determination of the case which was before him as it was, in fact, for the determination of Bailey v. Stephens itself. Mr Justice Willes' Judgment was also briefly referred to by Lord Hanworth, Master of the Rolls, in Todrick v. Western National Omnibus Co. Ltd. (1934 Chancery, page 561 at page 573); but as to this it is to be observed that if he or Lords Justices Romer and Maugham, who sat with him, had regarded the language of Mr Justice Willes as establishing the principle now in question, it is difficult to imagine why they expressed no view upon it; for it would have been directly relevant to the decision of the Court. The effect of that decision, so far as material to present purposes, was that a right to use a way as appurtenant to land can exist as an easement even though the dominant tenement is not one of the termini of the way. It is clear that such a way is capable of benefiting any passer-by, wholly unconnected with the dominant tenement, who chooses to use it as a short cut; nevertheless this Court held that a way of this kind could constitute an easement. In our judgment, accordingly, the statement of the law in Dr Cheshire's book, to which we have referred, is unaffected by the Judgment of Mr Justice Willes in Bailey v. Stephens.
Can it be said, then, of the right of full enjoyment of the park in question which was granted by the Conveyance of the 23rd December, 1864, and which, for reasons already given, was, in our view, intended to be annexed to the property conveyed to Mr Porter, that it accommodated and served that property? It is clear that the right did, in some degree, enhance the value of the property and this consideration cannot be dismissed as wholly irrelevant. It is, of course, a point to be noted; but we agree with Mr Cross's submission that it is in no way decisive of the problem; it is not sufficient to show that the right increased the value of the property conveyed unless it is also shown that it was connected with the normal enjoyment of that property. It appears to us that the question whether or not this connection exists is primarily one of fact, and depends largely on the nature of the alleged dominant tenement and the nature of the right granted. As to the former, it was in the contemplation of the parties to the 1864 Conveyance that the property conveyed should be used for residential and not commercial purposes. That appears from the Conveyance itself, and the covenant by the purchaser already quoted, that the dwelling-house etc. which he bound himself to build should not "be occupied or used as an open or exposed shop or for any purpose of trade or commerce other than a lodging house or private school or seminary" without the vendor's written consent. Since it is stated in paragraph 4 of Mr Rendell's affidavit in support of the Summons and has been conceded that all the conveyances of plots for building purposes fronting or near Ellenborough Park were as regards (inter alia) user substantially the same as the 1864 Conveyance, the inevitable inference is that the houses which, were to be built upon the plots were to constitute a residential estate. As appears from the map which is Exhibit "G" to Mr Rendell's further affidavit of the 13th October, 1955, the houses which were built upon the plots around and near to Ellenborough Park varied in size, some being large detached houses and others smaller and either semi-detached or in a row. We have already stated that the purchasers of all the plots which actually abutted on the Park were granted the right to enjoy the use of it as were also the purchasers of some of the plots which, although not fronting upon the Park, were only a short distance away from it. As to the nature of the right granted, the 1864 Conveyance shows that the Park was to be kept and maintained as a pleasure ground or ornamental garden and that it was contemplated that it should at all times be kept in good order and condition and well stocked with plants and shrubs; and the vendors covenanted that they would not at any time thereafter erect or permit to be erected any dwelling-house or other building (except a grotto, bower, summer-house, flower-stand, fountain, music-stand or other ornamental erection) within or on any part of the pleasure ground. On these facts Mr Cross submitted that the requisite connection between the right to use the Park and the normal enjoyment of the houses which were built around it or near it had not been established. He likened the position to a right granted to the purchaser of a house to use the Zoological Gardens free of charge or to attend Lord's Cricket Ground without payment. Such a right would undoubtedly, he said, increase the value of the property conveyed but could not run with it at law as an easement, because there was no sufficient nexus between the enjoyment of the right and the use of the house. It is probably true, we think, that in neither of Mr Cross's illustrations would the supposed right constitute an easement, for it would be wholly extraneous to, and independent of, the use of a house as a house, namely, as a place in which the householder and his family live and make their home; and it is for this reason that the analogy which Mr Cross sought to establish between his illustrations and the present case cannot, in our opinion, be supported. A much closer analogy, as it seems to us, is the case of a man selling the freehold of part of his house and granting to the purchaser, his heirs and assigns, the right, appurtenant to such part, to use the garden in common with the vendor and his assigns. In such a case the test of connection, or accommodation, would be amply satisfied; for just as the use of a garden undoubtedly enhances, and is connected with, the normal enjoyment of the house to which it belongs, so also would the right granted, in the case supposed, be closely connected with the use and enjoyment of the part of the premises sold. Such, we think, is in substance the position in the present case. The park became a communal garden for the benefit and enjoyment of those whose houses adjoined it or were in its close proximity. Its flower beds, lawns and walks were calculated to afford all the amenities which it is the purpose of the garden of a house to provide; and apart from the fact that these amenities extended to a number of householders instead of being confined to one (which on this aspect of the case is immaterial) we can see no difference in principle between Ellenborough Park and a garden in the ordinary signification of that word. It is the collective garden of the neighbouring houses to whose use it was dedicated by the owners of the estate and as such amply satisfied, in our judgment, the requirement of connection with the dominant tenements to which it is appurtenant. The result is not affected by the circumstance that the right to the park is in this case enjoyed by some few houses which are not immediately fronting on the park. The test for present purposes, no doubt, is that the park should constitute in a real and intelligible sense the garden (albeit the communal garden) of the houses to which its enjoyment is annexed. But we think that the test is satisfied as regards these few neighbouring, thought not adjacent, houses. We think that the extension of the right of enjoyment to these few houses does not negative the presence of the necessary "nexus" between the subject-matter enjoyed and the premises to which the enjoyment is expressed to belong.
Mr Cross referred us to, and to some extent relied upon, the case of Hill v. Tupper (2 Hurlstone & Coltman, page 121), but in our opinion there is nothing in that case contrary to the view which we have expressed. In that case the owner of land adjoining a canal was granted the exclusive right to let boats out for hire on the canal. He did so and then sought to restrain a similar activity by a neighbouring landowner. He sought to establish that his grant constituted an easement but failed. As Chief Baron Pollock said in his Judgments
"It is not competent to create rights unconnected with the use and enjoyment of land and annex them to it so as to constitute a property in the grantee."
It is clear that what the Plaintiff was trying to do was to set up, under the guise of an easement, a monopoly which had no normal connection with the ordinary use of his land, but which was merely an independent business enterprise. So far from the right claimed sub-serving or accommodating the land, the land was but a convenient incident to the exercise of the right.
For the reasons which we have stated we are unable to accept the contention that the right to the full enjoyment of Ellenborough Park fails in limine to qualify as a legal easement, for want of the necessary connection between its enjoyment and the use of the properties comprised in the Conveyance of 1864, and in the other relevant conveyances.
We turn next to Dr Cheshire's fourth condition for an easement - that the right must be capable of forming the subject-matter of a grant. As we have earlier stated, satisfaction of the condition in the present case depends on a consideration of the questions whether the right conferred is too wide and vague, whether it is inconsistent with the proprietorship or possession of the alleged servient owners and whether it is a mere right of recreation without utility or benefit.
To the first of these questions the interpretation which we have given to the typical Deed provides, in our judgment, the answer; for we have construed the right conferred as being both well defined and commonly understood. In these essential respects the right may be said to be distinct from the indefinite and unregulated privilege which, we think, would ordinarily be understood by the Latin term "jus spatiandi", a privilege of wandering at will over all and every part of another's field or park, and which, though easily intelligible as the subject-matter of a personal licence, is something substantially different from the subject-matter of the grant in question, namely, the provision for a limited number of houses in a uniform Crescent of one single large but private garden.
Our interpretation of the Deed also provides, we think, the answer to the second question; for the right conferred no more amounts to a joint occupation of the park with its owners, no more excludes the proprietorship or possession of the latter, than a right of way granted through a passage or than the use by the public of the gardens of Lincoln's Inn Fields (to take one of our former examples) amount to joint occupation of that garden with the London County Council or involve an inconsistency with the possession or proprietorship of the Council as lessees. It is conceded that in any event the Plaintiff owners of the park are entitled to cut the timber growing on the park and to retain its proceeds. We have said that in our judgment, under the Deed, the flowers and shrubs grown in the garden are equally the park owners' property. We see nothing repugnant to a man's proprietorship or possession of a piece of land that he should decide to make of it and maintain it as an ornamental garden, and should grant rights to a limited number of other persons to come into it for the enjoyment of its amenities.
Mr Cross relied, upon this part of his case, on the recent decision of Copeland v. Greenhalf (1952 Chancery, page 488) and the ratio of Mr Justice Upjohn's Judgment. The relevant facts were that a claim was made to a prescriptive right to deposit and leave for an indefinite time, vehicles upon an undefined part of a strip of land which was subject to a right of way. It appeared that the claimant was by trade a wagon repairer and that the vehicles were deposited by him on the land in the course of his business and while awaiting repairs. It further appeared that wagons were commonly repaired while remaining so deposited. On these facts the learned Judge - very justifiably (if we may say so) - found that the claimant was occupying and seeking the right to occupy an unspecified part of the land for the purpose of his business, and carrying on such business upon the land so occupied.
"I think", said the learned Judge, "that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the track there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement. It seems to me that to succeed, this claim must amount to a successful claim of possession by reason of long adverse possession. I say nothing, of course, as to the creation of such rights by deeds or by covenant; I am dealing solely with the question of a right arising by prescription."
We do not think that the facts of Copeland v. Greenhalf bear any real relation to the present case, and Mr Justice Upjohn's Judgment constitutes no authority relevant to our decision.
The third of the questions embraced in Dr. Cheshire's fourth condition rests primarily on a proposition stated in Theobald's ''The Law of Land" (1929) at page 263, where it is said that an easement "must be a right of utility and benefit and not one of mere recreation and amusement." It does not appear that a proposition in similar terms is stated by Gale. The passage in Theobald is justified by reference to two cases: Mounsey v. Ismay, 3 Hurlstone & Coltman, pages 486, 498, and Solomon v. Vintners Co., 4 Hurlstone & Norman, pages 585, 593. The second of these cases was concerned with a right of support, and appears only to be relevant for present purposes on account of an intervention in the course of the argument on the part of Chief Baron Pollock and Baron Bramwell at page 593 of the Report, in which it was suggested that one who had for a long period played rackets against the wall of a neighbour would have a right not to have the wall pulled down. We were also referred in argument to the Scottish case in the House of Lords of Dyce v. Hay, 1 MacQueen, page 305, and to the earlier case before Lord Eldon therein referred to of Dempster v. Cleghorn, 2 Dow, page 40. The former of these two cases was concerned with a claim on the part of the inhabitants of Aberdeen to roam at will over a piece of land bordering upon the River Don, and for such purpose to use every part of the land to the practical exclusion of any right of user on the part of the owner. The case was therefore one involving what could strictly be called a claim by a large and ill-defined number of people to a jus spatiandi. In Lord Eldon's case (in which the only decision was to refer the matter back to the Court of Session) the dispute was between certain persons, inhabitants of the City of St. Andrews and others, claiming the right of playing golf on the St. Andrews' Golf Links, and a tenant whose rabbits were said to be interfering with the proper maintenance of the Golf Course. Lord Eldon observed that the case had excited great warmth of feeling - which indeed may sufficiently appear from the allegation that some of the rabbits on the Course were English rabbits. Neither that case nor the case of Dyce v. Hay appear to us to lend real support to the proposition stated by Theobald, at least in its application to such a ease as the present.
But the observations of Baron Martin, who delivered the Judgment of the Court in Mounsey v. Ismay (the first case mentioned in Theobald) are much more to the point. The case concerned a claim under the Prescription Act for the Freemen and Citizens of a Town on a certain day to enter upon a Close for the purpose of holding horse races thereon. The opinion of the Court was that the right claimed failed in any event to qualify as an easement by reason of the absence of a dominant tenement. Baron Martin considered, without deciding, the question whether an easement of the kind claimed could in any case exist as an easement in gross: and proceeded as follows:
"But, however this may be, we are of opinion that to bring the right within the term 'easement' in the second section (of the Prescription Act) it must be one analogous to that of a right of way which precedes it and a right of watercourse which follows it, and must be a right of utility and benefit and not one of mere recreation and amusement".
The words which we have quoted were used in reference to a claim for a right to conduct horse races and, in our judgment, the formula adopted by Theobald should be read in the light of that circumstance. In any case, if the proposition be well-founded, we do not think that the right to use a garden of the character with which we are concerned in this case can be called one of mere recreation and amusement, as those words were used by Baron Martin.
No doubt a garden is a pleasure - on high authority, it is the purest of pleasures; but, in our judgment, it is not a right having no quality either of utility or benefit as those words should be understood. The right here in suit is, for reasons already given, one appurtenant to the surrounding houses as such, and constitutes a beneficial attribute of residence in a house as ordinarily understood. Its use for the purposes, not only of exercise and rest but also for such normal domestic purposes as were suggested in argument - for example, for taking out small children in prams or otherwise - is not fairly to be described as one of mere recreation or amusement, and is clearly beneficial to the premises to which it is attached. If Baron Martin's test is applied, the right in suit is, in point of utility, fairly analogous to a right of way passing over fields to, say, the railway station, which would be none the less a good right, even though it provided a longer route to the objective. We think therefore that the statement of Baron Martin must at least be confined to the exclusion of rights to indulge in such recreations as were in question in the case before him, horse racing or perhaps playing games, and has no application to the facts of the present case.
As appears from what has been stated earlier the right to the full enjoyment of Ellenborough Park, which was granted by the 1864 and other relevant Conveyances, was in substance no more than a right to use the Park as a garden in the way in which gardens are commonly used. In a sense, no doubt, such a right includes something of a jus spatiandi inasmuch as it involves the principle of wandering at will round each and every part of the garden except, of course, such parts as comprise flower beds, or are laid out for some other purpose, which renders walking impossible or unsuitable. We doubt, nevertheless, whether the right to use and enjoy a garden in this manner can with accuracy be said to constitute a mere jus spatiandi. Wandering at large is of the essence of such a right and constitutes the main purpose for which it exists. A private garden, on the other hand, is an attribute of the ordinary enjoyment of the residence to which it is attached, and the right of wandering in it is but one method of enjoying it. On the assumption, however, that the right now in question does constitute a jus spatiandi, or that it is analogous thereto, it becomes necessary to consider whether the right which is in question in these proceedings is, for that reason, incapable of ranking in law as an easement.
Mr Justice Farwell twice indicated that in his opinion the jus spatiandi is an interest which is not known to our law; and we think it is true to say that this principle has been widely accepted in the profession without sufficient regard being had, perhaps, to the exact language in which Mr Justice Farwell expressed himself or the circumstances in which his view of the matter was propounded. The first of the two cases in which he intimated that a jus spatiandi is not known to the law was International Tea Stores Co. v. Hobbs (1903, 2 Chancery, page 165). The actual decision in that case had nothing to do with a jus spatiandi nor did the facts which were before the learned Judge require of themselves any pronouncement by him upon that subject. The question which was in issue was whether the right or privilege of using a way by a lessee over the land of his lessor passed under section 6 of the Conveyancing Act, 1881, upon a subsequent conveyance to the lessee of the demised property, notwithstanding that the enjoyment of the way had been wholly permissive and precarious. That being the issue it is not surprising that the arguments of Counsel on both sides, as reported in the Law Reports, did not travel outside it. It appears, however, from Sir George Farwell's Judgment that in the course of Lord Coleridge's submission on behalf of the Defendant that the user by the lessees of the way had been merely permissive and precarious and was therefore outside the scope of section 6 he had introduced a right of user of a park and gardens as an illustration of the argument which he was presenting.
Mr Justice Farwell in his Judgment described and dealt with the illustration as follows:
"But then Lord Coleridge says that such use was wholly permissive ... In all these cases the right of way must be either licensed or unlicensed. If it is unlicensed it would be at least as cogent an argument to say 'True you went there, but it was precarious, because I could have sent a man to stop you or stopped you myself any day'. If it is by licence, it is precarious of course in the sense that the lieence, being ex hypothesi revocable, might be revoked at any time; but if there be degrees of precariousness, the latter is less precarious than the former. But, in my opinion, precariousness has nothing to do with this sort of case, where a privilege which is by its nature known to the law - namely, a right of way - has been in fact enjoyed. Lord Coleridge's argument was founded upon a misconception of a judgment of mine in Burrows v. Lang, where I was using the argument of precariousness to shew that the right which was desired to be enjoyed there was one which was unknown to the law - namely, to take water if and whenever the defendant chose to put water into a particular pond; such a right does not exist at law; but a right of way is well known to the law. The instance suggested by Lord Coleridge in his argument illustrates my meaning; he puts the case of a man living in a house at his landlord's park gates, and having leave to use and using the drive as a means of access to church or town, and to use and using the gardens and park for his enjoyment, and asked, Would such a man on buying the house with the rights given by section 6 of the Conveyancing Act acquire a right of way over the drive, and a right to use the gardens and park? My answer is 'Yes' to the first, and 'No' to the second question, because the first is a right the existence of which is known to the law, and the latter, being a mere jus spatiandi, is not so known."
Sir George Farwell was a Judge of great learning and all his judicial utterances merit and are accorded more than ordinary respect; but in his, as in all, Judgments more weight should be attached to that which was necessary for the decision of the case than to that which was merely obiter. It is plain that Mr Justice Farwell's reference, in the passage quoted, to the jus spatiandi formed no necessary part of his Judgment and it is to be noted that he did not refer to any authority in support of it. It must nevertheless be conceded that in the view of a very learned Judge the right of a man to use, as appurtenant to his own property, the gardens and park of another is a right the existence of which is not known to the law, even though that right be expressly granted.
The second of the two cases in which the jus spatiandi was considered by Mr Justice Farwell was Attorney-General v. Antrobus (1905, 2 Chancery, page 188). That was an action which was brought by the Attorney-General at the relation of the Chairman of the local Parish Council and certain gentlemen interested in the preservation of public rights in open spaces and footpaths against the then owner of the land upon which Stonehenge stands, for an order for the removal of certain fences which the Defendant had erected round Stonehenge. It will be seen accordingly that the object of the action was to establish public, as distinct from private, rights; and the public rights, as so asserted, were to have free access to Stonehenge by means of roads running up and through the same such rights being founded upon an alleged trust, created by a lost grant or declaration or by lost statute, for the free user by the public of Stonehenge as a place of resort and for the free access of the public thereto by means of the said roads. At the trial, as appears from the Judgment of Mr Justice Farwell, the Plaintiffs produced no evidence that Stonehenge was subject to a trust for its free user by the public but asked the Court to presume a lost grant or statute because for many years past the public had been in the habit of visiting the place. This the learned Judge declined to do. He found as a fact (page 201) that there had, for many years past, been a large amount of traffic to Stonehenge as the end and object of the journey; that the journeys had been made for the purpose of visiting the stones and of staying there for such period as each visitor might find pleasant for the purposes of inspection, instruction and general enjoyment. In refusing to presume a lost grant or statute conferring on the public the right of free user of Stonehenge the learned Judge said:
"It is impossible for the Court ... to make any such presumption as is suggested. The public as such cannot prescribe, nor is jus spatiandi known to our law as a possible subject-matter of grant or prescription: 'and for such things as can have no lawful beginning, nor be created at this day by any manner of grant, or reservation, or deed that can be supposed, no prescription is good'".
At page 199 he said:
"the right of walking around and inspecting the stones is not one which could be the subject-matter of a grant".
Later in his Judgment, when considering whether certain of the tracks which led to Stonehenge were public highways, he said (page 205):
"The whole object of the journeys was to see the stones, and as there can be no legal right of visiting, walking about and inspecting the stones in the public these visits must be deemed to have been by the permission of the owner";
and (page 206):
"Further, the tracks which lead in to the circle cease there and do not cross and the public have no jus spatiandi or manendi within the circle. The claim, therefore, is to use tracks which in fact lead nowhere".
Now it is quite true that in this Judgment Mr Justice Farwell said that the jus spatiandi is not "known to our law as a possible subject-matter of grant or prescription" and that this formula is on its face wide enough to exclude the purported grant in express terms of such a right to a purchaser as appurtenant to his property. But no such grant was in question in the case, which was solely concerned with the alleged rights of the public as a whole; and in our judgment the learned Judge was addressing his mind to those rights and to those alone, and he held that as they could not be the subject-matter of a grant he was unable to presume a lost grant which purported to create them. He held also that a jus spatiandi cannot be acquired by public user as an easement and this is clearly so if only for the reason that there can be no dominant tenement to which the easement could be said to be appurtenant. It does not necessarily follow from this, however, that no such jus could be acquired by individuals by prescription and still less does it follow (which is the material point for present purposes) that no such jus could be created in favour of an individual for the better enjoyment of his property by a grant which was express in its terms. As in the International Tea Stores case so in Attorney-General v. Antrobus Mr Justice Farwell refrained from citing authority in support of his observations with regard to the jus spatiandi.
It will be noted that in both of these cases the learned Judge said that a jus spatiandi is "not known to our law" and the question arises as to what precisely he meant by using that phrase. He may have meant (a) that it was unknown to our law because it found no place in the Roman law of servitudes; (b) that it was repugnant to the ownership of land that other persons should have rights of user over the whole of it; (c) that the law will not recognise rights to use a servient tenement for the purposes of mere recreation and pleasure or (d) that such rights are too vague and uncertain to be capable of definition. Which of these meanings the learned Judge had in mind it is difficult to know; and indeed he may have had some other meaning. If, however, one attributes to the phrase "not known to the law" its ordinary signification, namely, that it was a right which our law had refused to recognise, it is clear, we think, that he would at least have expressed himself in less general terms had his attention been drawn to Duncan v. Louch. That case was not, however, cited to him in either the International Tea Stores case or in Attorney-General v. Antrobus for the sufficient reason that it was not relevant to any issue that was before the learned Judge upon the questions which arose for decision. There is no doubt, in our judgment, but that Attorney-General v. Antrobus was rightly decided; for no right can be granted (otherwise than by Statute) to the public at large to wander at will over an undefined open space nor can the public acquire such a right by prescription. We doubt very much whether Mr Justice Farwell had in mind, notwithstanding the apparent generality of his language, a so-called jus spatiandi granted as properly appurtenant to an estate; for the whole of his Judgment was devoted to a consideration of public rights; and although this cannot be said of his observations as to the gardens and park in the International Tea Stores case the view which he there expressed was entirely obiter upon a point which was irrelevant to the case and had not been argued. Inasmuch, therefore, as this observation is unsupported by any principle or any authority that are binding upon us, and is in conflict with the decision in Duncan v. Louch we are unable to accept its accuracy as an exhaustive statement of the law and, in reference, at least, to a case such as that now before the Court, it cannot, in our judgment, be regarded hereafter as authoritative.
Duncan v. Louch, on the other hand, decided more than 100 years ago but not, as we have observed, quoted to Mr Justice Farwell in either of the two cases which we have cited, is authoritative in favour of the recognition by our law as an easement of a right closely comparable to that now in question which, if it involves in some sense a "jus spatiandi", is nevertheless properly annexed and appurtenant to a defined hereditament.
Duncan v. Louch was an action brought by the Plaintiff as owner of premises No. 15 Buckingham Gate, Adelphi, London, on account of obstruction by the Defendant of what the Plaintiff alleged to be a right of way from Buckingham Gate over or across Terrace Walk to a watergate on the Thames River. On the trial before Mr Justice Wightman it was objected on the Defendant's part that, though the Plaintiff had alleged a right of way from terminus to terminus, the right which he had in fact proved under his documents of title was a right to use Terrace Walk for the purposes of pleasure, that is, to pass and repass over every part of the Close. The objection was overruled by the trial Judge. The Plaintiff showed cause before the Queen's Bench why the Rule Nisi obtained by the Defendant for a verdict in his favour should be discharged; and the matter, as so often was the case in like circumstances, strictly turned upon the narrow question whether the alleged variance between the allegation and the proof was fatal to the Plaintiff's case. The decision in the Plaintiff's favour was to the effect that, although the right proved exceeded the allegation, nevertheless the former necessarily embraced the latter.
The argument on the Defendant's part thus appears from the Report at page 909s "If this be a right of way, it is a right only of using the way for the purpose of passing from terminus to terminus, and not of walking for pleasure between the intermediate points. But the right is in fact one of a kind altogether different. It is like the privilege which the builder of a square, who reserves the centre for a garden common to all the houses, grants to the owners and tenants of the houses of walking about the garden, on condition of keeping it in order." Whether Mr Peacock's argument assumed that such a right as he had cited by way of analogy was one recognised by the law, Lord Denman, Chief Justice, in his judgment, in terms, so held.
"I think", he said, "there is no doubt in this case. Taking the right, as Mr Peacock suggests, to be like the right of the inhabitants of a square to walk in the square for their pleasure ... I cannot doubt that if a stranger were to put a padlock on the gate and exclude one of the inhabitants he might complain of the obstruction."
Similarly, Mr Justice Patteson:
"I do not understand the distinction that has been contended for between a right to walk, pass and repass forwards and backwards over every part of a close, and a right of way from one part of the close to another. What is a right of way but a right to go forwards and backwards from one place to another?".
And Mr Justice Coleridge, in his Judgment, described the right proved as an ''easement".
The reasoning of the decision and the circumstances of the case, no less than the language used, particularly by Lord Denman, involve acceptance as an easement of a right such as that with which, according to our interpretation of the effect of the relevant Deeds, we are here concerned.
The remaining one of the four cases mentioned at the beginning of this Judgment, Keith v. Twentieth Century Club, is, however, in our view, of much less assistance. There, the Plaintiffs were owners and occupiers of two rows of houses in London and claimed the right to use the garden between these rows. The Plaintiffs sought in the action an injunction to restrain the Defendants (who were owners of certain other houses in one of the rows and carried on the business there of a Proprietary Ladies' Club) from authorising members of the Club to use the garden: and the questions formulated by Mr Justice Byrne in an Order made by consent were (briefly) whether certain classes of the Club members were, during membership, and having regard to the terms of the Defendants' title Deeds, entitled as of right to use the garden or could be authorised by the Defendants so to do.
The original grant to the Defendants' predecessor in title purported to grant to the purchaser "his heirs, executors, administrators and assigns, and his or their lessees and sublessees or tenants (being occupiers for the time being) of the" premises in question the use of the garden or pleasure ground.
The argument before Mr Justice Buckley turned, according to the Report 9 upon the question whether the members or particular categories of the members were "tenants" or mere licensees for the purposes of the Deed, and the learned Judge decided in favour of the latter view.
As Mr Justice Buckley observed at the beginning of the Judgment, the freehold owner of the garden, that is of the alleged servient tenement, was never before the Court at all.
"The garden ground", he said, "in question belongs to the freeholder who is the common grantor of both the Plaintiffs and Defendants, but he is not a party to this action. The Plaintiffs are asking for an injunction to restrain the Defendants from going behind what the Plaintiffs say is a grant which is made to them; and they are doing that in the absence of the common grantor who might have granted, so far as I see, rights to people other than those who are here before me. But I am not trying this action; and the question whether it is complete as to parties is not necessary for my determination, for this reason, that I am only proceeding under by an Order made by Mr Justice Byrne by which/consent it was ordered that certain points of law raised by the Pleadings be set down to be argued."
The whole of the rest of the Judgment was devoted to consideration of the question whether the members were tenants or licensees.
It is no doubt true, as Mr Goff contended, that if any right of the nature of a jus spatiandi is incapable of being an 'easement under our law, the questions submitted to and determined by Mr Justice Buckley were open to a simple and conclusive answer - or were, at best, questions of merely academic interest. On the other hand, as Mr Cross observed, the questions had been formulated by another Judge of the Chancery Division, Mr Justice Byrne, under the Rules of the Supreme Court for the Court to answers and they had moreover been submitted in an action to which the owner of the "servient tenement" was not a party. The International Tea Stores case had been before the Chancery Court in the immediately preceding year, and it seems at the least unlikely that Mr Justice Buckley (and all the experienced Counsel before him) were wholly unaware of Mr Justice Farwell's views. It appears more reasonable to us to assume that Mr Justice Buckley felt it his duty to determine the questions which had been properly submitted to him under the Rules without questioning the basis on which they had been or might have been formulated. In the circumstances, therefore, we cannot regard Keith's case as having authoritative force. On the other hand, we agree with Mr Justice Danckwerts in regarding Duncan v. Louch as being a direct authority in the Respondents' favour.
It has never, so far as we are aware, been since questioned, and we think it should, in the present case, be followed.
For the reasons which we have stated, Mr Justice Danckwerts came, in our judgment, to a right conclusion in this case and accordingly the appeal must be dismissed.
(Order: Question 1: Appeal dismissed.
Question 3: Compromise approved; Order below discharged; Order in agreed terms substituted ((B) of Schedule).
Costs party and party unless agreed as solicitor and client costs.
Proceedings to be amended by adding necessary party.
Plaintiffs' costs to include proper costs of attendance in Court of Appeal of Mr Rendell).
MR GOFF: My Lord, the appeal is in two parts, as your Lordship knows: firstly, the question your Lordship has decided and, secondly, the Notice of Appeal asks that the decision below as to Question 3, on the compensation matter, may be varied. Would your Lordship therefore, so far as Question 1 is concerned, dismiss the appeal, as your Lordship has intimated, and so far as the appeal relates to Question 3 approve the compromise, discharge the Order below, and substitute an Order in the agreed terms?
THE MASTER OF THE ROLLS: Yes. We did express our approval before, did we not?
MR GOFF: Yes, my Lord.
THE MASTER OF THE ROLLS: I take it you will have a Schedule prepared?
MR GOFF: I think your Lordships did have a note of the terms, in the two alternatives.
THE MASTER OF THE ROLLS: We did. We need not bother about the one, need we?
MR GOFF: No, my Lord. Alternative (B) is now the one which applies: that is, "Costs of all parties here and below to be paid out of the rental compensation moneys so far as they will extend" � and I apprehend that they will be costs as between solicitor and client.
THE MASTER OF THE ROLLS: I do not know. We will have to hear you about that.
,MR GOFF: "(ii) Any balance of costs to be paid out of the Testator's estate. (iii) Balance of capital compensation moneys to be applied in restoring the Park. (iv) Any balance of rental compensation moneys after payment of costs to be applied as to one half thereof in restoring the Park and as to the other one half thereof to go to the Testator's estate".
THE MASTER OF THE ROLLS: Why do you assume that you get solicitor and client costs?
MR GOFF: Because it has been treated as in substance a construction Summons.
THE MASTER OF THE ROLLS: The Appellant has failed, and it ought to be: Appeal dismissed with costs.
MR GOFF: It is only that this is a matter of compromise. I rather thought that that was the intention of the parties.
THE MASTER OF THE ROLLS: It did not say so.
MR GOFF: I appreciate that it did not, but I rather thought that was the intention of the parties.
LORD JUSTICE BIRKETT: I have always understood, since we had a case in this Court, that there is not very much difference between party and party and solicitor and client costs. We were told so in a case where the point arose in this Court; but I know nothing about it.
MR GOFF: I have heard that said. On the other hand, I had always supposed that there was.
LORD JUSTICE BIRKETT: I know nothing about it, but when we had the case debated Counsel asserted that there was very little difference between party and party and solicitor and client costs.
MR GOFF: Would your Lordships deal with it in this way, that it will be party and party unless the parties are agreed that it should be otherwise before the Order is drawn up?
THE MASTER OF THE ROLLS: If you agree that costs as referred to in these paragraphs are intended to mean solicitor and client costs, I express a mild disapproval, but I will not say anything more.
MR GOFF: If your Lordship pleases. There are two other matters that I am asked to bring to your Lordships' notice.
LORD JUSTICE ROMER: Sometimes you used to get solicitor and client costs, but I agree with my Lord that it is not normal. The Trustees get their costs on an indemnity basis.
MR GOFF: My client is a representative too; so it is not quite the ordinary case of hostile litigation. Both parties are in a fiduciary capacity.
THE MASTER OF THE ROLLS: If the Appellant had won, in some Chancery appeals different considerations might arise, but when the Appellant fails it is not usual to put upon him the burden of paying more than party and party costs.
MR GOFF: No, my Lord, but your Lordship appreciates that except as to the surplus the burden is not being put upon him. The agreement is to pay it out of the moneys, in dispute: it is coming out of the fund.
THE MASTER OF THE ROLLS: We will not pursue it. I think there would not be much difference. If it were solicitor and own client it would give rise to very different considerations.
MR GOFF: Yes, my Lord. Then your Lordships say that it is party and party unless the parties have agreed on it?
THE MASTER OF THE ROLLS: Party and party unless that is done before taxing the costs, if you are agreed. It will be as between party and party or, alternatively, as between solicitor and client. In the course of the Judgment we stated that there was going to be an added party. Has that all been done?
MR GOFF: I do not think it has actually been done, my Lord.
THE MASTER OF THE ROLLS: It ought to be, ought it not?
MR GOFF: It has not been done, but it can be done.
THE MASTER OF THE ROLLS: And it should be, should it not?
MR GOFF: It should be done.
THE MASTER OF THE ROLLS: You really have not got a party with the right interest, have you?
MR GOFF: I think it is possible to argue that the Court could appoint a person not actually interested, but I do not desire to take up your Lordships' time.
THE MASTER OF THE ROLLS: It would be simple to add someone.
LORD JUSTICE ROMER: It was a Company, was it not?
MR GOFF: Yes, my Lord. I control the Company. There is no difficulty. I would not waste time by arguing that the matter was not all right as it stood.
THE MASTER OF THE ROLLS: The proceedings will be amended by so doing.
The Registrar thinks that it may be necessary that a pro forma Summons should be taken out. Will you find out and take whatever steps are necessary?
MR GOFF: Whatever is necessary to put the proceedings in order will be done.
THE MASTER OF THE ROLLS: I think it will be desirable, in a case of this sort.
MR GOFF: The other two matters that I have to bring to your Lordships' notice are these. Your Lordship probably knows that a Shorthand Writer has been instructed to take a shorthand note of the Judgment and he has been instructed to supply a transcript and two copies thereof, one for the use of each party.
THE MASTER OF THE ROLLS: You can buy a copy of the All England Law Reports.
MR GOFF: There is that, my Lord. 1 am instructed that the parties have agreed to share the cost thereof equally, and it is felt by all parties that it is reasonable in those circumstances that those costs should be included in that part of the costs of the action which are being dealt with under the terms of the compromise.
THE MASTER OF THE ROLLS: If you are agreed, I have nothing further to say.
MR WARREN: I have not had the suggestion put up to me. I do not want to say anything.
THE MASTER OF THE ROLLS: If you do not agree, you need not say anything about it.
MR WARREN: The Judgment could be read in the Law Reports.
THE MASTER OF THE ROLLS: It is possible that it may be worth reporting! Mr Goff, I have got what you did agree signed by Mr Warren in his own hand.
MR GOFF: I was instructed that this matter had been subsequently agreed. If it is not, it does place the matter in a different position.
MR WARREN: I have not had instructions. It may be that it has been agreed without my knowing about it.
THE MASTER OF THE ROLLS: If you can agree, well and good; otherwise it is quite unnecessary.
MR GOFF: If it has been agreed, well and good; if it has not, I will not press it. There is another matter which I think really is a matter for my learned friend, Mr Burgess, and that is the question of certain costs of Mr Rendell,
MR BURGESS: I was going to make a special application in this case, that the costs of the attendance of Mr Rendell, my country solicitor, should be included in the costs, charges and expenses. The difficulty always has been to know, at any particular moment while exploring the case, what facts the Court would require. I submit that his attendance was very helpful.
THE MASTER OF THE ROLLS: Mr Rendell made another affidavit, did he not? What you want to do is to throw the costs of Mr Rendell's attendance on this fund. You get them in any event out of the Trust property?
MR BURGESS: That is so, my Lord. I am a Trustee of the fund and I can call for my costs and expenses; but in the ordinary way it might be objected that the cost of the attendance of a country solicitor would not be proper "costs, charges and expenses" unless your Lordship intimated it.
THE MASTER OF THE ROLLS: Surely it is a matter of agreement again. Mr Warren and Mr Goff in effect are paying. If they think they should pay Mr Rendell's costs of attendance, well and good; you can put it in the Order.
MR WARREN: I am instructed to agree to those costs, my Lord.
MR GOFF: My instructions are to raise no objection to this application.
THE MASTER OF THE ROLLS: Then the Schedule when formulated will provide for including in the Plaintiffs' costs the proper costs of Mr Rendell's attending the hearing in the Court of Appeal.
MR GOFF: If your Lordship pleases.
THE MASTER OF THE ROLLS: Does that cover everything?
MR GOFF: Yes, my Lord, I think that covers everything.
LORD JUSTICE ROMER: Mr Burgess will get his costs as between solicitor and client.
MR BURGESS: Yes, my Lord. I shall get them under the normal Order for taxation.
LORD JUSTICE ROMER: Does this new idea about Trustees' costs operate in the Court of Appeal?
MR BURGESS: I should imagine there could not be any increase. It would probably not operate. That is why I asked for a special direction. There cannot be substantially any extra costs, charges and expenses.
THE MASTER OF THE ROLLS: We are much obliged to learned Counsel for the arguments in the case.
