• In Borman v Griffith [1930] the High Court held that there was an easement, despite the fact no express provision or granting by the court had been made. This is an example of an implied easement. In this case, the easement was implied because it was necessary to the reasonable enjoyment of the property.

Facts of the Case

  • In Borman v Griffith [1930], C leased a garden on a long term basis, though the lease agreement did not reserve a right of way to C.
  • The gardens in  which C leased were landlocked in a large park, and were accessible via one road. C inevitably accessed the premises through this road, which belonged to D.
  • D argued that C, in using this road, was obstructing D’s driveway, and sought to prevent him from doing so.

Issues in Borman v Griffith [1930]

  • The issue in this case was whether C had an implied right over D’s driveway.

High Court Held in this Case

  • The HC held that the rule established in Wheeldon v Burrows [1879] 12 Ch. 31 applied, meaning that there was an implied easement to C for the use the driveway to access the property through the lease agreement.
  • The implied easement was necessary in this case to the reasonable enjoyment of the property granted. Without the easement, D would not have been able to have access to the property.

Maugham J

  • “’where, as in the present case, two properties belonging to a single owner and about to be granted are separated by a common road, or where a plainly visible road exists over the one for the apparent use of the other, and that road is necessary for the reasonable enjoyment of the property, a right to use the road will pass with the quasi-dominant tenement, unless by the terms of the contract that right is excluded’.”

Editor’s Notes

  • From the dicta by Maugham J, it is apparent that where there is no express provision made in an agreement relating to an easement or a right of way, if a right of way is necessary for the reasonable enjoyment of the property, then an easement can be implied. It must be noted that it is rare for there to be an implied easement, and it can be contracted out of. Note, Maugham J states ‘unless by the terms of the contract that right is excluded’.