Key point

A right of way over a path which does not lead anywhere is unlikely to be an easement

Facts of Kennerley v Beech

The main issue in Kennerley v Beech was a boundary dispute, but the parties were also in contention over a right of way. The right of way, which was on foot only, had been reserved by a conveyance from 1954. On its face, it was not limited to a particular period of time, nor by reference to any stated purpose. However, the court found that its purpose was to allow the tenant of the owner of the benefited land at the time of the grant to access a kitchen garden.

The path over which the right of way was granted did not, in fact, give access directly to the garden. Instead, from the end of the path, the tenant then had to pass across another part of the burdened land. No right of way had been reserved over this part of the burdened land, and so the tenant's access across this area would have depended on a licence from the owner.

The right of way over the path therefore never enabled the seller or his tenant to access the kitchen garden and so achieve, by itself, the purpose for which it was granted. The most that the benefiting owner was entitled to do was walk to the end of the path and then return. In other words, the path terminated in a dead end. In these circumstances the court had to decide whether the right as granted constituted a valid easement.

The court focused on the requirement, if a right is to be an easement, that it "accommodates", or is of benefit to, the land which allegedly benefits from it. The starting point in this case was therefore whether the right reserved by the 1954 transfer created an easement which accommodated the retained land as at that date.

Decision

The court thought that the reservation of a right of way from the seller's retained land, across the land sold off, to the rest of the retained land would undoubtedly have qualified as a valid grant. This would have satisfied the test of the right existing for the better enjoyment of the benefiting land. However, the right granted did not do this. A right to travel to the end of the path but no further conferred no benefit on the retained land. On that basis there was no valid grant of a right of way along the path.

The reservation therefore merely had the effect of conferring a personal benefit, rather than a right which was capable of permanently enhancing the ownership of the retained land. The effect of this was that the right was contractual only and not enforceable against the successors in title to the burdened land.

Things to consider

The Court of Appeal thought that a grant to pass and repass over a specified area for the purposes of recreation may be capable of taking effect as an easement, regardless of whether it could exist as a right of way. A good example of this would be the seminal case on easements; Re Ellenborough Park, in which the right was granted to the owners of houses surrounding a park of full enjoyment of the park. In Kennerley v Beech however, the right granted was not of this nature but was a conventional right of way. It was exercisable over and along a defined path and was not a right to walk around the garden on the burdened land (whether for leisure or otherwise).

There may be situations - other than a right to wander at leisure - where it would accommodate the benefiting land to have a right of way to walk up and down a defined path. One example might be where it was only possible to inspect certain parts of the benefiting property from the path. Kennerley v Beech suggests that, where that is the case, it may be advisable to make the purpose of the right explicit on the face of the grant.

Developers putting together a site in stages should take care to ensure that they do not take "dead end" easements (e.g. because the parcel of land to which the access leads has not yet been acquired). An option to call for an easement to be granted in the future can be used instead.