• In Hill v Tupper [1863], the CA held that easements were for the enjoyment of land, and were not therefore for business use. In this case, there was no easement, because the right to use the land was not for the enjoyment of the land, but was for business.

Facts of the case

  • 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.

Issues in Hill v Tupper [1863]:

  • The CA had to decide whether the contract between the C and the D created an easement giving C a right to exclusive possession.

The CA held:

  • There was no easement enjoyed by the claimant. In a commercial contractual agreement, the ‘exclusive right’ was held not to be relating to the ‘enjoyment of the land’, but was for commercial purposive so. It could not therefore be enforced directly against third parties competing.
  • If the C wanted to refrain D from using the land, he would have to compel the Canal Company to assert their property right over the canal against D.
  • The benefit of an easement must be for the use of land. Here, the right was for business, not for the enjoyment of land.

Pollock CB:

  • “This grant merely operates as a licence or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right.”
  • “A grantor may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a new incident, so as to enable the grantee to sue in his own name for an infringement of such a limited right as that now claimed.”

Exclusive Industry Scoop

  • This field is for validation purposes and should be left unchanged.