• The Court of Appeal in Re Ellenborough Park formulated a four pronged test for the determination of an easement:
  1. There is a dominant and servient tenement,
  2. The easement must accommodate the dominant tenement
  3. The dominant and servient tenements must be different persons
  4. The right must be capable of being the subject matter of a grant

Facts of the case:

  • The beneficiaries of the trust of the original owners of Ellenborough park were therefore the landowners of Ellenborough park.
  • In this case, the landowners challenged the assertion that there was easement over the land from the immediate neighbours enjoying the expressed right to use the park in their deeds, which they enjoyed in practice.
  • Their argument was that the neighbouring owner-occupiers and their tenants only had a personal licence with no proprietary rights, to use the land, and that this did not constitute an easement.

Issue in Re Ellenborough Park [1956]:

  • The issue in this case was whether the occupiers of the neighbouring properties had an easement of Ellenborough park, or whether they only had a ‘personal licence’.

Court of Appeal held:

  • It was held in this case that the occupiers of the neighbouring properties did indeed have an easement over the land. Lord Evershed MR outlined a four part test in establishing an easement: (1) there must be a dominant and servient tenement, (2) the easement must accommodate the dominant tenement, (3) the dominant and servient owners must be different persons and (4) a right over land cannot be an easement unless it is capable of being the subject of a grant.
  • The occupiers in the present case had an easement because they satisfied each limb of this test. (1) The dominant tenements were the occupiers, and the servient tenements were the owners of Ellenborough Park. The (2) easement accommodated the dominant tenement, because the right was well defined, conferred a right of possession or occupation no more than a right of way, and it cannot be called a right of ‘mere amusement’: it can be used for a number of purposes including exercise and rest. The (3) dominant and servient tenements are different persons. (4) The subject of the easement can be the subject of a grant, because inter alia, it was specific and not vague.

Lord Evershed MR:

  • [163] “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.”
  • [163] “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”.
  • [164] “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 ” connexion ” between the one and the other”
  • [164] “And, secondly, whether the right alleged is ” capable of forming the subject-matter of a grant.”
  • (2) [132] “Ellenborough Park was the collective garden of the neighbouring houses to the use of which it had been dedicated by the original vendors, and that the right to the full enjoyment of the park did not fail to qualify as a legal easement for want of the necessary connexion between its enjoyment and the premises to which that enjoyment was expressed to belong; the right of enjoyment of the park accommodated and served the premises entitled to the right.”
  • (4) [132] “That a right appurtenant to houses to use a garden for normal domestic purposes was beneficial to the houses to which the right was annexed and did not fail as being a right merely of recreation and amusement.”

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