Hill v Tupper (1863) 2 H & C 121
Facts
The owner of a canal gave the claimant an exclusive contractual licence in his lease of a certain part of the canal, to hire boats out. C did indeed hire boats out regularly. The defendant also allowed his customers to sometimes use his boats to bathe or fish in the canal. C wished to stop the defendant from doing this, and he sued D, on the basis that his lease gave him an exclusive easement and therefore a direct right to enforce it against third parties.
Legal Issue
The CA had to decide whether the contract between the C and the D created an easement giving C a right to exclusive possession.
Held
The Court of Exchequer rejected the claimant’s attempt to sue the competing boat operator on the supposed easement. The grant created an exclusive commercial privilege enforceable against the canal company as a contractual matter, but it did not establish the required right benefiting the claimant’s land as land. A landowner cannot create a new proprietary incident binding third parties simply by promising exclusivity to a business operator. The decision therefore distinguished the claimant’s personal bargain from a recognised easement. It did not establish that easements cannot support businesses: access and other rights may benefit commercial land when the necessary connection and other requirements are present.
⭐ Legal Principle
A personal commercial monopoly does not become an easement merely because it is included in an agreement concerning land. The claimed right must accommodate the dominant land, rather than simply benefit its holder’s business independently of that land.
Significance
Hill is commonly used to explain the requirement that an easement accommodate dominant land. Its point is not a ban on commercial easements. A right of access to a shop can benefit the shop as land, while a trading monopoly may remain personal to the business operator. The inquiry is into the connection between the asserted right and the property, not whether money can be made from it. A student should identify the proposed dominant land before applying that distinction.
Common exam questions about this case
Why could the claimant not sue the competitor directly?
The exclusive trading promise was a personal right against the canal company, not the proprietary easement asserted against outsiders. The claimant could not acquire a direct action against every competing user simply because the company had promised not to permit competition under their contract.
Can an easement benefit a business property?
Yes. For example, access may benefit commercial premises as land. Hill rejects the particular personal monopoly, not the commercial use of land generally. The question is whether the right accommodates an identifiable dominant property rather than merely increasing the holder’s trading advantage.
Why did including the promise in a lease not settle its status?
An instrument may contain both proprietary grants and personal contractual promises. The document’s form does not make every clause an easement. Each asserted right must meet the relevant legal requirements, including connection with dominant land and capacity to exist as a proprietary right.