Wheeldon v Burrows (1879) 12 Ch D 31

Land and an adjoining workshop were originally held in common ownership. The workshop received light across another part of the property. Following separate conveyances, a dispute arose when building works on the neighbouring land interfered with the workshop windows. The party claiming for the workshop argued that a right of light should be implied from the arrangements that existed while both parts belonged to the same owner. The conveyances contained no express easement or reservation settling the point. The Court of Appeal had to determine whether the claimed right had arisen on the division of ownership and, more generally, when a use that was only a quasi-easement during common ownership becomes a legal easement by implication.

When a landowner transfers part of a property, which existing uses of the retained land will be impliedly granted for the benefit of the transferred part?

The Court of Appeal dismissed the appeal and rejected the claimed implied reservation. Thesiger LJ distinguished grants from reservations. Unless excluded by the conveyance, a transfer of part may carry rights over the transferor's retained land where the corresponding uses were continuous and apparent, necessary for the reasonable enjoyment of the part transferred, and used by the common owner for that part when ownership was divided. Before severance these uses are quasi-easements because one cannot hold an easement over one's own land. The rule operates generously in favour of a grantee, but the law is more reluctant to imply a reservation for land kept by the transferor, generally requiring strict necessity or common intention.

On a transfer of part, an easement may be implied for a pre-existing quasi-easement that was used by the common owner for the transferred land, was continuous and apparent, and was necessary for its reasonable enjoyment. The implication is subject to the express terms and circumstances of the conveyance.

The rule is one of the main routes by which easements arise on subdivision of land. It must be distinguished from easements of necessity, common intention and the statutory operation of section 62 of the Law of Property Act 1925. Cases such as Borman v Griffith and Wood v Waddington illustrate later application of implied rights, while Re Ellenborough Park concerns the separate characteristics required of any easement. The grant-reservation distinction matters in exams: rights benefiting the buyer are more readily implied than rights retained silently by the seller. Express drafting may exclude the rule.