p 134 land law activity 8.3

Standard

read moncrieff v jamieson . from this and your reading so far answer the following question. if a person owns a garage but no car exists and grants his neighbour the right to park in the garage can such a right exist as an easement?

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The case was an appeal against an earlier case which had ruled that where one had a right of vehicular access from a public road, this also meant that they had a right to park on the servient tenement, although that right was limited to parking vehicles which were reasonably incidental to having access to the dominant tenement. The respondents in the case owned a property in a location which made it impossible for it to be reached by vehicle.  The property had been owned by someone who also owned the land between it and the public road. A disposition of the property therefore had also included a right to access the property from the public road through the land of the original owner. A conveyance under dispute had provided a servitude right to access the appellant’s property for vehicles and pedestrians, as well as the right to temporarily stop there in order to load or unload goods or to take on or drop off passengers. The respondent had argued that his rights under the conveyance also included a right to park on the appellant’s land. He was successful with this argument in the lower courts.

Issue

The issue in this case was whether the right of way granted to the respondent to stop and drive on the appellant’s land also translated into a right to park there.

Decision / Outcome

The appeal was dismissed. The court held that the right to park could be ancillary to the easement otherwise provided where it was necessary for the enjoyment of the land which benefits from the easement, especially where this could have been in the contemplation of the parties at the time of the making of the easement (for which a deciding court must consider the full context and details of the case).

About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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