• In Copeland v Greenhalf [1952] the High Court held that the defendant enjoyed no legal right of way simply because his family had been accessing a strip of land for generations, and thus no easement was present. The court found that parking a car on another’s property went wholly outside any ordinary definition of an easement.

Facts of the case

  • The claimant owned a piece of land, on which there was an orchard and a house. In order to reach the orchard, one needed to travel across a piece of land, approximately 50 yards long.
  • C brought an action against D (Greenhalf) who owned the property on the road, and who parked on the strip of land. The defendant argued that he had an easement to park there, through a lost grant.

Issues in Copeland v Greenhalf [1952]:

  • It was for the High Court to decide whether the defendant did indeed enjoy an easement which entitled him to park his car on the strip of land.

The High Court held:

  • The defendant enjoyed no such easement. The substantial basis for defendant’s claim was the his family had used the strip for multiple generations, however the High Court asserted that this did not constitute a legal right of way.
  • Moreover, the parking of a car on the land was not an easement because it was a use of land deemed ‘too excessive’ to constitute an easement, as the car blocked access to the orchard. Thereby rendering the defendant’s claim as a de facto claim to possession, which is unjustified. A right to wide and undefined cannot therefore be an easement.

Upjohn J:

  • “The defendant’s claim is wholly uncertain. There is nothing to show what width of the strip has been occupied, or what vehicles the defendant can place on it, or how long he can keep them there, or whether his customers also can put them there. It is clear that his activities go far beyond those of an ordinary wheelwright, which is an additional factor of uncertainty.” [494]
  • “I think 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”

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