One of the problems with easements is that their meaning may not always be obvious.
An easement is the right to use someone else’s land for a purpose. For example, an easement might allow a person access to their neighbour’s land in order to undertake repairs to their property.
In a recent case, the owners of a property in St Ives faced difficulties because of the nuisance caused by the behaviour of customers of a nearby beer garden. This could be reached via a rear entrance by way of a passageway across the property owner’s land. An easement over the passageway was contained in a 1921 conveyance and it provided that the passageway could be used to go to and from the property now being used as a beer garden, stipulating that the right existed ‘as now used by the vendor’.
The owner of the passageway sought to prevent drinkers from using it because of the nuisance they created. He relied on the terms of the easement, arguing that it was not applicable to the current use being made of the neighbouring property. In 1921, the premises had been a fishmonger’s shop - a very different use from running licensed premises.
The judge held that at the time the easement was created, the use of the passage would have been limited to suppliers, the fishmonger’s staff and trade customers. Accordingly, a ‘general’ right of access did not apply. This view was supported by the Court of Appeal.
In this case, the argument was successful because the use for which the easement was originally granted no longer prevailed. It is important to remember that where an easement exists that was granted many years ago, the right may or may not still exist. The easement has to be considered in context.