• In the case of Ward v Kirkland [1967] Ch 194, the principle under Wheeldon v Burrows [1879] 12 ChD 31, stating that all “continuous and apparent easements” necessary for the enjoyment of land would be passed to the grantee, was examined
  • Wheeldon v Burrows established that a quasi-easement would be implied by grant if it was permanent and appropriate for exercise

Facts of the Case

  • A piece of land hosted a cottage (the Old Fields Cottage) to its northern boundary and this cottage was adjacent to the Old Fields Farm (the cottage fell towards the farm’s southern wall)
  • The Old Fields Cottage was conveyed to the previous purchaser before C in 1928, granting him the right to use the farmyard for unloading coal and use water supplies subject to ‘all rights of way water and other easements (if any) affecting the same’
  • The property with the cottage was conveyed to C (the plaintiff; the claimant) in 1954 on the same terms as stated above
  • D’s husband became a tenant of the Old Fields Farm in 1942
  • In 1955, C wanted to install a bathroom in his cottage and accordingly received permission by the rector to lay drains through the farmyard and connect these drains to a septic tank on his own premises
  • In 1958, D herself purchased the farm as a freehold property in a conveyance on C’s aforementioned rights
  • The rector gave permission for the drains to remain there without a time limit, though no mention was made of the effluent
  • The water coming onto C’s premises came through D’s land and in 1956, C disconnected the old drain; a year late, both drains were torn up by a cloudburst and were never replaced
  • As such, C could only maintain the cottage wall and clean the gutters and windows through entering D’s property
  • C went into D’s farmyard to do maintenance work between 1954-158, without D’s permission
  • In late-1958, D refused to allow C to enter his property, dismissing C’s such right
  • C maintained that his right to enter C’s farmyard was exercisable until 1960 when his cottage’s gutters got blocked; until then, C had not entered the property after D’s refusal in 1958; damp was seeping into C’s cottage

Issues in Ward v Kirkland [1967] Ch 194

  • D refused C’s entry, despite warnings by C’s solicitors that they could trigger proceedings against D’s disruption of C exercising their right
  • C sought an injunction to retrain D from interfering with their right of entry
  • D alleged that the drains laid under her farmyard constituted trespass; C argued that he was entitled to an easement of drainage through those exact drains

Held by the High Court (Chancery Division)

  • C’s right to enter D’s farmyard for maintenance purposes was capable of being an easement and it would not amount to a substantial interference with D’s land
  • C’s right was not implied under the principle of Wheeldon v Burrows, though under s.62 of the Law of Property Act 1925, it became an easement

Ungoed-Thomas J.

Considered C’s evidence more compelling and awarded an injunction to prevent D from interfering with C’s maintenance

  • ‘Therefore, it follows, in my view, from the cases that I have cited that an equity arises for the plaintiff to have those drains there for an indefinite time for the purpose of taking the bath water from his cottage down the drains and so from his own property. The right being indefinite, again in the circumstances, to my mind, is such as to constitute an equity of a permanent nature. So that the right to the equity to have the drains there is permanent.’ [at pp.242-243]
  • ‘It seems to me that in these circumstances, having regard to the nature of this claim to the passage of effluent through the drain, and to the circumstances in which the drains were laid with the defendant’s consent and with her knowledge, that I should not grant the defendant the equitable relief by way of injunction which she claims.’ [at p.244]
  • ‘Suffice it to say that my conclusion is that the plaintiff’s action in putting the pipe across the line of the old drain was not the cause of any damage resulting to the defendant’s property by flooding, as she alleges.’ [at p.246]