Odger's English Common Law

568 DISTURBANCE OF EASEMENTS, &C.
In the case of Wheeldon v. Burrows, 1 Thesiger, L. J., laid down two
general propositions :
—
" On the grant by the owner of a tenement of part of that tenement as
it is then used and enjoyed, there will pass to the grantee all those con-
tinuous and apparent easements or, in other words, all those easements
which are necessary to the reasonable enjoyment of the property granted,
and which have been and are at the time of the grant used by the owners
of the entirety for the benefit of the part granted."
" If the grantor intends to reserve any right over the tenement granted,
it is his duty to reserve it expressly in the grant."' 2
This last proposition is, however, subject to certain exceptions, the best
known of which is the rule as to " ways of necessity."
The most common form of easements of necessity is that of the right of
way across the land of another. " Where a man, having a close surrounded
with his own land, grants the close to another in fee, for life or years, the
grantee shall have a way to the close over the grantor's land, as incident
to the grant, for without it he cannot derive any benefit from the
grant. So it is where he grants the land and reserves the close to
himself." 3
Again, when the two tenements are granted to different purchasers at
the same time, they will pass with the reciprocal burden and benefit of
their continuous and apparent easements, so that the purchaser of one will
not be entitled to block the lights of the other as against his fellowpurchaser,
though he might have done so as against the vendor. " The
sales to the plaintiff and defendant being sales by the same vendor and
taking place at one and the same time, the rights of the parties are brought
within the application of the general rule of law " that a grantor shall not
derogate from his own grant. 4
(c) When the easement claimed has not been acquired by
grant express or implied, the claim must be founded upon
prescription, that is to say, upon an enjoyment of the benefit
" during time whereof the memory of man runneth not to
the contrary." Our lawyers in the days of the Plantagenets
fixed this time as commencing in 1189, the first year of the
reign of King Eichard I., a date to which succeeding
generations have slavishly and absurdly adhered. But it was
long ago decided that it was not necessary for the plaintiff to
produce affirmative evidence that his predecessors in title had
1 (1879), 12 Ch. D. at p. 49 ; and see Muvdy v. Duke of Rutland (1883), 23
Ch. D. 81, 97 ; Russell v. Watts (1886), 10 App. Cas. 590.
2 See Midland Ry. Co. v. Miles (1886), 33 Ch. B. 632,644 ; Brown v. Alabaster
(1887), 37 Ch. D. 490 ; Schwann v. Cotton, [1916] 2~Ch. 459.
3
1 Wms. Saund. 323, n. ; Pinnington v. Galland (1853), 9 Exch. I, 12 ; Goodhart
v. Uyett (1883), 25 Ch. D. 182.
* Per Tindal, C. J., in Swansborough v. Coventry (1832), 9 Bing. at p. 309 ;
cited with approval by Jessel, M. E., in Allen v. Taylof (1880), 16 Ch. D. at p. 358.