Key points

  • A right of way granted for the benefit of land A cannot be used in order to get to land B (whether via land A or otherwise
  • The court will look at the substance of what is being done by the beneficiary of the easement in order to determine if there is a breach
  • The rule cannot be evaded by briefly leaving land A before moving on to land B

The rule in Harris v Flower

An easement granted for the benefit of piece of land A cannot be used in order to benefit piece of land B. So for example, in the diagram below, a right of way to land A cannot be used to go through land A to land B. This principle is known as the rule in Harris v Flower after an early 20th century case of that name.

Click here to view diagram

Facts of Giles v Tarry

In Giles v Tarry, the defendant, who was a farmer, came up with what he thought was an ingenious solution to the problem which Harris v Flower can sometimes pose. He had the benefit of a right of way over a lane adjoining some farmland. The land with the benefit of the right was a paddock in which the defendant grazed sheep. However, the defendant also rented some adjoining land, known as the Green Land. The Green Land did not have the benefit of the right of way.

There were two ways of getting in and out of the paddock. Access could be gained via the lane over which the defendant had a right of way. However, the paddock also had a gate which led directly onto a public highway. Since the Green Land had no direct access onto the public highway, the only lawful way the defendant could access the Green Land was via the gate in the paddock that fronted onto the public highway.  

The defendant however apparently needed to approach his land from the lane for the majority of the time. So what he did was drive his sheep into the paddock from the lane - which was permitted by the right of way. He then drove the sheep out of the paddock by the other gate, onto the public highway. He paused momentarily, before turning them around again and driving them back into the paddock, from where they could if they wanted graze on the Green Land as well as the paddock.


The Court of Appeal ruled that the defendant's actions were not lawful. It held that it was necessary to look at the substance and intention of what the defendant was doing. The defendant's objective was to graze sheep on both the paddock and the Green Land. The manoeuvres were "pointless and self-cancelling", and an artificial device. The whole thing was one continuous operation which fell foul of the rule in Harris v Flower.  

Things to consider

The court rejected the claimant's suggestion that using the right of way over the lane in order to enter the paddock and then go out the other side onto the highway was in itself a breach of the rule in Harris v Flower.  

The underlying reason for the rule in Harris v Flower is so that the burden of an easement is not increased. Using an easement for the benefit of a second or third parcel of land is likely to increase the burden. But this will not normally be the case where the land B is another means of access such as a highway.  

The rule in Harris v Flower was criticised by the Law Commission in their 2008 consultation paper on reform to easements and covenants. However, reform of the rule was opposed by consultees and the Commission's final report did not contain any recommendation in relation to it.