⇒ An easement is the right of one landowner to make use of another nearby piece of land for the benefit of his own land.

⇒ In the Court of Appeal decision in Re Ellenborough Park, Evershed M.R held that a right amounts to an easement only if it satisfies four requirements:

1. There is a dominant and a servient tenement (i.e. 2 plots of land);
2. The dominant and servient owners are different people;
3. The right "accommodates" the dominant tenement; and
4. The right is capable of forming the subject-matter of a grant.

⇒ Even if the 4 requirements are fulfilled, we do not necessarily have an easement → because, in addition, the parties must intend for it to exist as an easement.

• So even if the 4 requirements are fulfilled the parties could opt out of the right existing as an easement (acting in rem) and say it is merely a licence (acting in personam).

⇒ This means there must be two plots of land: one which is dominant, the other which is servient.

⇒ The dominant plot of land is the land that has the benefit of the easement.

⇒ The servient plot of land is the land that has the burden of the easement.

⇒ The two plots of land must be owned by different people i.e. the dominant and servient tenements must be owned by different people.

⇒ In order to exist as an easement, a right must accommodate the dominant land.

⇒ "Accomodation" demands that the right deliver a benefit to the dominant land rather than a mere personal benefit to the dominant owner.

⇒ Moody v Steggles (1879): The High Court held that the right to hang a sign bearing its name on adjoining premises accommodated the dominant tenement, a pub.

⇒ Re Ellenborough Park [1955]: The Court of Appeal held that the right to use a neighbouring garden accommodated the dominant tenement, a residential property.

⇒ Polo Woods Foundation v Shelton-Agar [2009]: The High Court held that a right to graze ten horses on neighbouring land accommodated the dominant tenement, a farm.

⇒ Hill v Tupper (1863): the owner of land on the bank of a canal (the dominant tenement) claimed that his right to operate boats on the canal (the servient tenement) amounted to an easement.

• The claim was rejected by the court on the basis that the claimant's contractual right to operate boats on the canal did not accommodate the dominant tenement but instead delivered a merely personal benefit to the claimant.

⇒ In Re Ellenborough Park, Evershed M.R. asserted that in order to “accommodate” the dominant tenement, a right must not only benefit the dominant land but must also be "connected with the normal enjoyment of the property".

• The meaning of this additional requirement is ambiguous, so it is perhaps unsurprising that it has been interpreted in various different ways in the case-law and academic commentary. So, this has obscured the exact meaning of "accommodation".

⇒ Interpretation one:

• The right must, in some sense, connect with the use to which the dominant land is normally (i.e. usually) put (i.e. my house is usually used for residential purposes, so I cannot get an easement over my neighbour's house to practice my Druidism on their henge).
• This seems to be the most authentic interpretation of what Evershed MR said.

⇒ Interpretation two:

• This interpretation demands not only that the right connects with the use to which the dominant land is usually put (interpretation one) but also that this use be normal (i.e. ordinary).
• For example, even if the dominant land is usually used as a base for Druidism (and has been for many centuries) and right connected with this use cannot accomodate the dominant land because this use is not ordinary.
• This isnt particularly intellectually appealing because why should it have an 'ordinary' use if its actual use has been Druidism for centuries?

⇒ Interpretation three:

• The right asserted, itself, must be normal → this requires that the right be one which it is usual for the dominant land to have the benefit of.
• For example, if you use the dominant land as ordinary residential accommodation, a right to use your neighbour's home cinema cannot accommodate the land for it is not usual for a residential home to benefit from a home cinema.

⇒ Furthermore, the two plots of land must be relatively close to each other otherwise there can be no benefit.

⇒ See the next topic notes on this point, here.