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Negative easements — a crumb of analysis*1

Published online by Cambridge University Press:  02 January 2018

Ian Dawson  and
Alison Dunn
Ian Dawson
Affiliation:
University of Newcastle upon Tyne
Alison Dunn
Affiliation:
University of Newcastle upon Tyne
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Extract

History, as much as logic, has shaped the English real property law of today. The richness of that history is one of its strengths, but is also a potential source of weakness, as where the boundaries between similar, but distinct rights are neither theoretically nor logically distinguished. Whilst this may often not be of practical concern, none the less a lack of logic may lead to inconsistency or uncertainty in the law (or indeed both). Particularly is this so where social pressures require protection for new situations, as for example where a flat owner requires the certainty that his right to park his car is a proprietary right.

That provides one justification for seeking a strong and consistent theoretical framework. Another is that as we integrate more closely with our European partners, we may be compelled to accept into our thinking concepts which are at present alien to us.

Type
Research Article
Information
Legal Studies , Volume 18 , Issue 4 , December 1998 , pp. 510 - 533
Copyright
Copyright © Society of Legal Scholars 1998

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Footnotes

*

The authors are grateful to Professors John Alder, John Bell and Mark Thompson for their helpful comments on an earlier draft of this article, and to Sarah Waters for her research assistance.

1

See Hunter v Canary Wharf Ltd [1997] 2 All ER 426 at 440, per Lord Goff.

References

2. A point appearing to be acknowledged by Blackstone in his Commentaries on the Laws of England that’… there are very few that will give themselves the trouble to consider the origin and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title‘, quoted in Seipp, D J ‘The Concept of Property in the Early Common Law’ (1994) 12 Law and History Rev 29.Google Scholar

3. An obvious example may be found in milk quotas which attach to ‘holdings’ as defined, see below n 118.

4. (1848) 2 Ph 774.

5. In modern law negative property rights are protected in a number of ways, most particularly through the ambit of natural rights, negative easements and restrictive covenants. In addition to these ‘mainstream’ weapons, property law's armoury also includes the benefit/burden principle, non-derogation from grant and estoppel.

6. Termed ‘servitudes imposed upon a man's land by law’ by Bracton, folio 232. For a discussion of natural rights see Gaunt, J. and Morgan, P. Gale on Easements London: (Sweet & Maxwell, 16th edn, 1997)Google Scholar.

7. A negative right preventing adjoining landowners from removing support for the dominant land but not any buildings thereon. See generally Bonomi v Backhouse (1858) EB & E 622; Humphries v Brogden (1850) 12 QB 739.

8. Which allows the riparian owner the reasonable use and enjoyment of the flow of water through a natural defined channel. Other rights with regard to water may be acquired expressly through grant or prescription: see Wood v Waud (1849) 3 Exch 748 at 772; Sury v Pigot (1625) Poph 166 at 169; Mason v Hill (1833) 3 B & Ad 306.Google Scholar

9. There are dicta in some early cases which imply that light and air were originally classed as natural rights, see eg Parke B in Waud v Wood (1849) 3 Exch 748 at 775; Rowbotham v Wilson(1857) 8 E & B 123, affd (1860) 8 HLC 348; Bonomi v Backhouse (1858) EB & E 622 at 654–655; Chastey v Ackland [1895] 2 Ch 389 at 396.Google Scholar

10. As noted later in this article, the legacies of those developments ‘still disturb the modem law’: Fifoot, C History and Sources of the Common Law: Tort and Contract (London: Stevens, 1949) p 8 Google Scholar.

11. Natural rights were first protected by the assize of novel disseisin, the assize of nuisance, and then action on the case: see Holdsworth, W S The History of the Laws of England (London: Methuen, 1923) vol 3, pp 11 and 154Google Scholar, where he states that it was through the development of the action for nuisance that ‘the law arrived at assured conclusions both as to what were the natural rights incident to ownership, and as to what were the respective rights of the dominant and servient owners where an easement existed’.

12. Brazier, M (ed) Street on Torts (London: Butterworths, 9th edn, 1993) p 349 Google Scholar.

13. See Holdsworth above n I1 at vol 7, pp 328–330.

14. Simpson, A W B An Introduction to the History of Land Law (Oxford: Oxford University Press, 1961) pp 107–108 Google Scholar. See in particular Sun/ v Pigot (1625) Poph 166, 169–170, a case cited by Holdsworth, in which, when considering the natural right to the flow of water, Whitelocke J, though clearly indicating that in contradiction to an easement the natural right was not lost through unity of possession, nevertheless associated this natural right with the right to light, a right which had been established could only be acquired by express grant or prescription see Aldred's case (1610) 9 Co Rep 57b; Bowry and Pope's case (1588) Cro Eliz 118; Holdsworth above n 11 at vol 7, pp 328–330.

15. The fact that land could be transferred by feoffment with livery of seisin without the need for evidence in writing until the Statute of Frauds 1677, s 1 came into force, meant that there was not necessarily a document relating to the servient land upon which could be endorsed the right of the dominant tenement owner.

16. For a useful, brief, account see Megarry, R and Wade, W The Law of Real Property (London: Stevens, 5th edn, 1984) p 1169ffGoogle Scholar.

17. (1583) 5 Co Rep 16a. Such statements were still passing unchallenged as late as 1857: see Rowbotham v Wilson (1857) 8 E & B 123, discussed below.

18. This point is illustrated late into the nineteenth century by the traditional form of order drawn up by the court in the case of mandatory injunctions: R Griffith ‘Tulk v Moxhay Reclarified’ (1983) Conv 29.

19. See eg Rowbotham v Wilson (1860) 8 HLC 348 at 361–362 (Lord Wensleydale) and at 367 (Lord Chelmsford).Google Scholar

20. Always excluding such matters as contracts contrary to public policy etc.

21. See per Lord Brougham in Keppel v Bailey (1833) 2 My & K 517 at 535.Google Scholar

22. In argument in Kepprl v Builry (1833) 2 M & K 517 at 525 Google ScholarPubMed it was suggested that the reason is connected to the rule against perpetuities and free alienability. The free alienability point was picked up by Simpson, who supported Lord Brougham's decision in Keppel v Bailey, a case pre-Tulk v Moxhay (1848) 2 Ph 774, in which the burden of a restrictive covenant was said not to run with the land. Simpson emphasised the public interest issue which is connected with free alienability: ‘The effect of restrictive covenants [or negative rights more generally] is to sterilise the use of a parcel of land permanently; in principle it is not at all clear that a private landowner ought to be allowed to do this without public control of his activities. Whatever their merits, restrictive covenants can have a very detrimental effect on the free development of land, which is not in all cases in the public interest.’ ( Simpson, A W B An Introduction to the History of Land Law (Oxford: Oxford University Press, 1961) pp 239–240)Google Scholar.

23. Harris, J W Property and Justice (Oxford: Clarendon Press, 1996) p 5.Google Scholar

24. Ibid, at p 90ff.

25. (1879) 4 CPD 172 at 175–176, per Bramwell LJ.

26. Or, at least, inconsistently applied, as demonstrated by the acceptance of seemingly uncertain rights by prescription or custom. See the argument of counsel in Webb v Bird (1861) 10 CB (NS) 268 at 277 Google Scholar: ‘The law has always favoured prescriptions for things of necessity and public utility. In Abbott v Weekly, 1 Levinz 176 a prescription for all the inhabitants of a ville to dance in another man's ground at all times of the year at their free will, for their recreation, was held good, - the court saying “This is a good custom, and it is necessary for inhabitants to have their recreation.

27. Cf for example the view of Megarry V-C that the juridical basis of easements of necessity was public policy, a view which was reversed on appeal: Nickerson v Barraclough [1981] Ch 426.

28. So in regard to a current of air in Harris v De Pinna (1886) 23 Ch D 238 at 259–260 Google Scholar Cotton LJ said of the claim there made: ‘it is a claim… to prevent the Plaintiffs’ neighbour from doing anything which will prevent the current of air over his open yard from coming to the whole face of the Plaintiffs ‘buildings as freely as it originally came when he did not choose, and it was not necessary for him, to apply the land for the purpose for which he is now intending to apply it’ (our emphasis). But the remedy for an alleged interference with an easement is akin to an action for nuisance, so no question would arise of the plaintiffs in Harris being entitled to the precise current of air as hitherto enjoyed, any more than the owner of a right of way over a defined road is entitled to exercise his right over each and every square inch of the road. His right is only that his passage shall not be unreasonably interfered with. So, had the plaintiffs in Harris been entitled to an easement of a current of air, they would have been entitled only to prevent the obstruction of such flow of air as was unreasonable.

29. See Aldin v Latimer-Clark, Muirhead & Co [1894] 2 Ch 437.

30. As to the latter, Fry Lj in Harris v De Pinna (1886) 23 Ch D 238 at 263 Google Scholar, certainly implied that such was so: ‘the claim at common law … would be a claim to a covenant not to interfere with the access of air to the Plaintiffs’ premises … the circumstances are not such as … to justify us in making a presumption of the existence of such a contract’, as did Cotton LJ at 258: ‘Now the circumstances here are not such as will justify us in holding that there was any covenant by the owner of the alleged servient tenement to interfere in any way with the access of air to the Plaintiffs’ premises’.

31. (1881) 6 App Cas 740 at 824.

32. The dicta were stated as summarising the effect of Lord Hardwicke in A-G v Doughry (1788) 2 Ves Sen 453, but Lord Blackbum gives no hint of disapproval of his summary of the ratio of that case.Google Scholar

33. Per Littledale J in Moore v Rawson (1824) 3 B & C 332.Google Scholar

34. See eg Bland v Mosely, referred to in Aldred's case (1610) 9 Co Rep 57b at 58a-57b.Google Scholar

35. For the history of prescription and its development from the Statute of Westminster I 1275, see Coke, The first part of the Institutes of the Laws of England, or a Commentary upon Littleton (London: Clarke, Hunter, Brooks, 17th edn, 1817)Google Scholar; First Report of the Real Property Commissioners (1829) pp 39–56; Cockburn CJ in Bryant v Foot (1867) LR 2 QB 161 at 179; Law Reform Committee Fourteenth Report (London: HMSO, 1966) Cmnd 3100.

36. (1865) 11 HLC 290 at 304, cfLord Chelmsford(at 318): ‘the courts of law, upon the principle of quieting possession, formerly held that where there had been an uninterrupted use of lights for 20 years, it was to be presumed that there was some grant of them by the neighbouring owner, or, in other words, that he had by some agreement restricted himself in the otherwise lawful employment of his own land. The Prescription Act. turned this presumption into an absolute right, founded upon use on one side and acquiescence on the other.’ (our emphasis.).

37. Also in Tapling v Jones (1865) 11 HLC 290 Google Scholar: Lord Westbury (and Lord Cranworth) (at 314–315) and Lord Chelmsford (at 316–321) overruled Renshaw v Bean (1852) 18 QB Rep 112 and Hutchinson v Copestake (1861) 8 Com Ben NS 102, in so far as they asserted that if a window, being an ancient light, was altered the ancient light was lost. In Lord Westbury's opinion, the ancient light remained, there was nothing wrongful in enlarging the window, and hence if the ‘new’ window could only be interrupted by infringing the ancient light, then no interruption was lawful. Lord Cranworth may be interpreted (at 310) as laying the claim for infringement of the right to light in trespass: see his reference to ‘for there is no difference in principle between a trespass on the soil and any other trespass’. One may also notice here the dicta of Farwell J in Higgins v Betts [1905] 2 Ch 210 at 215: ‘so much so that many expressions can be found that lend support to the argument that the right to light was a right of property for which trespass would lie.’.

38. (1871) 6 Ch App 809 at 813.

39. Above n 4.

40. Eg under the doctrine of non-derogation from grant as in Palmer v Fletcher (1663) 1 Lev 122.Google Scholar

41. The first edition of Gale on Easements was published in 1839.

42. Although in early times the complaints of interference with light and interference with air often went together, see eg Lord Chelmsford in Tapling v Jones (1865) 11 HLC 290 at 319 Google Scholar, subsequently the court protested against the automatic joining of the two: see, eg Lord Selborne LC in City of London Brewery Co v Tennant (1873) 43 LJ Rep Ch 457 at 459.

43. See generally Gray, K Property in Thin Air’ (1991) 50 CLJ 252–307 at 253.CrossRefGoogle Scholar

44. The actual rights of a landowner to the air above his land are not as extensive as the maxim would suggest. In Corbert v Hill (1870) LR 9 Eq 671 it was said that the right to the air above one's land is merely a rebuttable presumption. Moreover, the right is to the air space rather than the air itself. Berstein v Skyviews & General Ltd [1978] 1 QB 479 limited the right to the height necessary for the ordinary use and enjoyment of the land and its structures.

45. (1610) 9 Co Rep 57b.

46. As also smoke and vapours from the burning of sea-coles in a brew house as in Jones v Powell (Mich 4 Car) Hutt 136 or the burning of a tallow furnace next to an inn as in Morley v Pragnel (l4 Car 1) Cro Car 510. but the nuisance so caused must result in the plaintiffs property becoming uninhabitable, and the noxious air must be created by the defendant: see Best Cj in Back v Stacey (1826) 2 C & P 466; Dent v Auction Mart Company (1866) LR 2 Eq 238 at 245; Chastey v Ackland [1895] 2 Ch 389 at 396.Google Scholar

47. See an anonymous undated case cited in Wase v Pretty (1716) Winch 4. See also Traherne's case (1614) Godb 233 and Goodman v Gore (1613) Godb 189, though it appears in the latter that the action was dismissed for being in the wrong form.

48. A note of caution was placed upon reading too much into these cases by Willes J in Webb v Bird (1861) 10 CB(NS) 268 at 285, who thought that such rights could be accounted for by custom or right of the Lord of a Manor.Google Scholar

49. (1832) 1 M & Rob 228 at 232. The defendant had entered the plaintiff s land in order to break down a wall claiming (unsuccessfully) a right to the flow of air to his saw-pit and timber-yard through long user which the plaintiff's wall obstructed.

50. Surprisingly, whilst Patteson J felt that to allow such a claim of long user to restrict an adjoining landowner from building on his land would ‘be very inconvenient and very unjust’, he was, nevertheless, prepared in principle to leave the question of whether a right had been created to the jury. The jury rejected the claim.

51. Webb v Sird (1863) 13 CB(NS) 841, affg (1861) 10 CB(NS) 268.Google Scholar

52. See Moore v Rawson above n 33.

53. Above n 51 at 843–844.

54. (1859) 7 HL 349, a case concerning rights over the flow of underground water.

55. (1861) 10 CB(NS) 268 at 284.

56. For an interesting account of the development of economic history and the effect of social trends on law, see Cornish, W and Clark, G Law and Society in England 1750–1950 (London: Sweet & Maxwell, 1989)Google Scholar.

57. (1879) 4 CPD 172. See also Harris v De Pinna above n 28.

58. Why a chimney pot was not an aperture was not discussed.

59. Per Bramwell, LJ (1879) 4 CPD 172 at 178 Google Scholar. It is curious why the access of air to a chimney pot (which, to all intents and purposes, is a defined aperture) was asserted as being too vague and difficult to interrupt, whereas a flow of air to the chimney flue, or any other such ventilation shaft, may exist as an easement. In each case air flows to a specific point, and is thereby both capable of definition and capable of interruption.

60. Above n 28. See particularly Chitty J at 249–250, where he stated that the right to the free flow of air was too vague and indefinite.

61. See eg Buss v Gregory (1890) 25 QBD 481 Google ScholarPubMed, in which the plaintiffs owned a public house with a cellar. The right upheld was one by virtue of uninterrupted user and enjoyment to have their cellar ventilated by a shaft cut from the cellar through rock into a well in adjoining property occupied by the defendant. See also Gale v Abbot (1862) 8 Jur (NS) 987; Dent v Auction Mart Company (1866) LR 2 Eq 238; and the comments of Stirling J in Aldin v Latimer Clark, Muirhead & Co [1894] 2 Ch 437 at 466.

62. (1880) 49 LJ Ch 655.

63. Above n 33.

64. (1880) 49 LJ Ch 655 at 656. This view was repeated by Fry J in his advice to the House of Lords in Dalton v Angus (1881) 6 App Cas 740 at 823, but was not accepted. For discussion see the section on support, below.

65. This implied covenant is not the same as the covenant for quiet enjoyment: see Malins V-C in Potts v Smith (1868) LR 6 Eq 311; Robinson v Kilvert (1889) 41 Ch D 88.

66. Chastey v Ackland [1895] 2 Ch 389.

67. [1895] 2 Ch 389 at 397.

68. The nature of the former has been set out above.

69. (1881) 6 App Cas 740. For comment see S Anderson ‘Easement and Prescription – Changing Perspectives in Classification’ (1975) 38 MLR 641.

70. Expressly surmounting’ the difficulty which pressed so strongly on Littledale, J in Moore v. Rawson [above n 33], and which leads Fry, J, in his very able opinion, to declare that this right does not lie in grant’: (1881) 6 App Cas 740 at 823.Google Scholar

71. Above n 69 at 798: ‘… the view which I take of the nature of the right of support, that it is an easement, not purely negative’; and at 799: ‘To those who considered that the right of support was not an easement, or that it was of so purely negative a character as to be incapable of being granted [I have already set out my reasons for dissenting].’.

72. Ibid at 822.

73. Ibid at 827.

74. Per Lord Macnaghten in Butterknowle Colliery Company v Bishop Auckland Industrial Co-operarive Company [1906] AC 305 at 313, citing Davis v Treharne (1881) 6 App Cas 469; Dixon v White (1883) 8 App Cas 833; Lowe v Bell (1884) 9 App Cas 286; New Sharlston Collieries v Earl of Westmorland [1904] 2 Ch 443n.

75. (1857) 8 123 (Exchequer Chamber); (1860) 8 HLC 348 (HL).

76. Above n 4.

77. Above n 75 at 142 and 144.

78. Above n 75 at 148: ‘But it seems to me that, whether Pears’ estate was rightfully or wrongfully created, [a reference to the possibility that the Commissioners had exceeded their powers in making the precise award which they did] if he takes it he takes it on the terms of its creation.’.

79. Above n 75 at 150.

80. Above n 75 at 151.

81. (1860) 8 HLC 348 at 361–362.

82. Twenty years was the relevant period under the Real Property Limitation Act 1833, s2.

83. Above n 81 at 364.

84. Of the other two Lords present, Lord Kingsdown merely said: ‘I quite concur in the judgment which has been given’ - meaning either that of Lord Chelmsford, or both that and Lord Wensleydale's. Lord Campbell LC did not hear the argument and so gave no opinion, merely ‘observ[ing] that the judgment now given being in accordance with that of the Court over which I formerly presided, I entirely concur in it’.

85. Above n 4.

86. Above n 75 at 137.

87. Above n 75 at 142.

88. Would that right be capable of existing as an easement, a kind of ‘reverse easement of support’ - an easement not to overload the ground? In principle there seems little difference between the right to support what is above, and the right not to overload what is below.

89. Not an entirely theoretical point. Suppose new machinery makes underground extraction commercially possible if a constant drift is driven in of a size bigger than the largest cross-section of the coal in the seam being extracted, so that in all places some surrounding rock was removed, and in some cases vast amounts thereof were removed.

90. [1965] 1 QB 76. Apparently in a similar vein was the Irish case Cochrane v Verner (1895) 29 ILT 57I, in which an unsuccessful claim was put forward for an easement of shade and shelter for the plaintiffs cattle. The report of the decision, however, is not sufficiently full to discern the reasoning of the court. The English decision of Phipps v Pears has been applied in Weatherly v Upward & Rich Ltd (1972) 222 EG 1403 and Marchant v Capital & Counties Property Co Ltd (1982) 263 EG 661. See also M Peel ‘What is an Easement?’ (1964) 28 Conv 450.

91. An interesting comparison is Sedgwick Forbes Bland Payne Group Ltd v Regional Properties Ltd (1981) 257 EG 64 Google Scholar, which concerned, inter aha, a claim for an easement for ‘the right to be protected against the fall of natural water from the skies’. In contrast to Phipps v Pears, the dominant and servient tenement formed part of an office block thus separated horizontally rather than vertically. Although not deciding the issue. Oliver J thought (at 70) that there were ‘serious arguments’ capable of being put as to whether protection from the rain was capable of amounting to an easement.

92. Sir Douglas Frank Qc sitting in the Queen's Bench Division in Marchant v Capital & Counties Property Co Ltd (1982) 263 EG 661 Google Scholar did state that’ it has been spelt out by Lord Denning in crystal-clear terms in Phipps v Pears, that the law does not recognise a right to the protection from weather as such’. This is not, however, the same as spelling out why the law does not so recognise.

93. Above n 90 at 82–83. But it is submitted that it would no more prevent the demolition of property than would the easement of support afforded by such building.

94. Above n 69 at 824.

95. Above n 90 at 83–84. See also the argument of counsel for the defendant (at 80) that ‘Negative rights are not the proper subject matter of a grant but of covenant’.

96. Re Megany takes up the point of certainty with regard to the easement of protection from the weather in a note on Phipps v Pears. He argues ((1964) 80 LQR 318 at 320–321)Google Scholar: ‘If… a right of protection from the weather is granted, there is at once the question how much protection and what weather … If it is answered that the test is one of reasonableness, perhaps by analogy with the rule that an easement of light confers the right to a reasonable amount of light for reasonable purposes, the not altogether flippant rejoinder may be made that the English weather is an unsuitable subject matter for testing by any standards of reasonableness. There is even authority on the point: Scott LJ once said: ‘neither ‘reasonable’ nor ‘fair’ can apply to the elements as a cause of wear and tear‘: Taylor v Webb [1937] 2 KB 283 at 303’. With respect, such comment surely misses the point.

97. Denning MR (at 84) further opined that because protection from the weather was not a right known to the law it could not be upgraded as ‘an advantage’ under s 62 of the Law of Property Act 1925.

98. See, eg Lord Chelmsford in Tapling v Jones, above n 36 at 318.

99. Anderson makes the valid point that in the nineteenth century the approach of the judiciary was simply to ask whether an easement had been acquired in the appropriate manner, and that it was only later that their approach changed so that they considered primarily whether the right was capable of existing at law, and only secondly whether the right had been properly acquired. He comments that ‘although the transition was fairly smooth, scars remain, in that cases which the judges deciding thought were only about the mode of acquisition are now treated as deciding something about the nature of easements in general’: see S Anderson ‘Easement and Prescription - Changing Perspectives in Classification’ (1975) 38 MLR 641 at 642.Google Scholar

100. As recently as 1997, the House of Lords reiterated the need for certainty in the area of negative easements see Hunter v Canary Wharf Ltd [1997] 2 All ER 426 at 470, per Lord Hope, but this was, typically we suggest, after he had already concluded that the law ought not to allow a remedy.Google Scholar

101. See generally Elliott, D W On-Derogation from Grant’ (1964) 80 LQR 244, esp at 264ff.Google Scholar

102. See eg Halsall v Brizell [1957] Ch 169; ER Ives Investment Ltd v High [1967] 2 QB 379.Google Scholar

103. Hunter v Canary Wharf Ltd [1997] 2 All ER 426 at 456.Google Scholar

104. Ibid.

105. Ibid at 469–70. The use of the reasoning of freedom of occupation and use, certainty and, more broadly, alienability of land is neither new nor decisive. It was used (consequently to little effect), for example, in the early nineteenth century to refute arguments that the burden of covenants should run with the land: see Third Report of the Real Property Commissioners (1832) pp 53–56.

106. In contrast to some earlier dicta: see Farwell J in Higgins v Betts [1905] 2 Ch 210 at 215.Google Scholar

107. And hence only unreasonable interferences are actionable.

108. See Megany and Wade above n 16 at p 909.

109. There is a requirement under s 1 of the Wireless Telegraphy Act 1949 for a licence to transmit. As that is the case it is submitted that there must be a means of acquiring this knowledge on behalf of a developer.

110. As too must the law be aware of - and accommodate - social changes: see Dyce v Hay (1852) 1 Macq 315.Google Scholar

111. Section 10 of the Wireless Telegraphy Act 1949 (as amended by the Telecommunications Act 1984) gives the Secretary of State the power to make regulations with regard to preventing interference with wireless telegraphy. See eg the Wireless Telegraphy (Control of Interference from Household Appliances, Portable Tools etc.) Regulation 1978, SI 1978/1267 (as amended); Wireless Telegraphy (Control of Interference from Ignition Apparatus) Regulation 1952, SI 1952/2023.

112. Above n 23 at p 71.

113. 1st edn, vol 11, para 499.

114. Later editions of Halsbury, whilst maintaining that there is a difference between covenant and easement, nevertheless fudge the confusion in the issue by summarizing that ‘the distinction is a fine one’, and in any event is ‘blurred in the case of negative easements such as access of light and air’: see 4th edn, vol 14, para 35.

115. Above n 4. Megarry and Wade above n 16 at p 771 refer to two precursors to Tulk v Moxhay, namely Whatman v Gibson (1838) 9 Sim 196 and Mann v Stephens (1846) 15 Sim 377; but, since neither of these predates the Prescription Act 1832, they do not affect the validity of the point being made in the text, above.Google Scholar

116. What the areas of light, air, support, surface letting down and weather have shown is that some concepts are in practice incapable of sensible application. The division of easements into negative and positive, is difficult and, as the right to let down the surface demonstrates, not sufficient. (Witness the divergence of opinion in Dalton v Angus, above n 69, as to whether the right of support, even if it could exist as an easement, was positive or negative, or ‘not wholly negative’.) If one asks why the division is necessary, perhaps the only answer is that the division is not necessary, merely historical - that it was inevitable in order to enable certain obligations to endure through successive ownerships before the enduring nature of restrictive covenants was accepted.

117. Jessel Mr regarded a negative covenant as being analogous either to a covenant running with the land or an easement: see London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 583. See also Re Nisbet and Ports' Contract [1906] 1 Ch 386.Google Scholar

118. This becomes all the more important when we consider that the law cannot now remain insular. Europe sends us concepts with which we are bound to accommodate. One such is the concept of milk quota attaching to a ‘holding’ in the context of the milk quota legislation. the holding comprises land owned, tenanted or merely occupied by the producer, so that the quota, as it were hovers above the land, attaching to it, rather like a floating charge upon crystallisation. Whether the milk quota attaches to land is a matter of some controversy: see Fuulks v Faulks [1992] 1 EGLR 9 (where the matter arose incidentally in a partnership dispute); Cottle v Coldicott Google Scholar [1995] STC (SCD) 239 (a decision of a Special Commissioner for Income Tax). For a discussion of milk quotas, see Trotman, C The Development of Milk Quotas in the U.K. (London: Sweet & Maxwell, 1996)Google Scholar; Cardwell, M Milk Quotas (Oxford: Oxford University Press 1996)Google Scholar.

119. As to which, see Megarry and Wade above n 16 at p 908, nn 50–52, and compare Crump v Lambert (1867) LR 3 Eq 409, Sturges v Bridgman (1879) 11 Ch D 852.

120. Above n 33.

121. Above n 4. and that is what Neville J recognised in Cable v Bryant [1908] 1 Ch 259.Google Scholar

122. Of Land Charges or under the Land Registration Act 1925 as appropriate.

123. That would also fit well with proprietary estoppel in as much as the law there allows legitimate expectations to be enforced, which is what would could be made to follow from the application of the doctrine of implied covenant.

124. Law Com No 127 Transfer of Land: The Law of Positive and Restrictive Covenants, (London: HMSO, 1984).

125. On the historical anomalies of restrictive covenants, see Law Com No 127 above n 124 at para 4.22.

126. Section 70(1)(a) of the Land Registration Act 1925. For the view that easements should be retained as overriding interests in order to maintain the status quo between neighbours, see Law Corn No 158 Third Report on Land Registration (London: HMSO, 1987) paras 2.25–2.37, particularly para 2.30.

127. Unless Parliament also addresses the issue of a substitute for prescribing for the right to light.