In Re Ellenborough Park (In Re Davies, Decd, Powell v Maddison)

A right granted for the use of a private communal garden may be an easement. It must be annexed to identifiable dominant land, accommodate that land, exist between different owners, and be capable of grant.

A garden right satisfies the requirement of accommodation where it forms, in a real and intelligible sense, the communal garden of neighbouring residential houses. The right must also be sufficiently defined and must not confer joint possession or substantially exclude the servient owner. Ordinary enjoyment of an ornamental garden is a beneficial attribute of residence, not a right of mere recreation. A properly annexed garden right is not invalid merely because it includes walking about the garden.

The owners of houses adjoining, or close to, Ellenborough Park claimed a right under mid-nineteenth-century conveyances to enjoy the park as a private open space. The park owners disputed that the right was an easement capable of binding successors in title.

Danckwerts J held that the house owners had an enforceable right. His decision was reported at [1955] 3 WLR 91. The park beneficiary appealed. The parties compromised the separate issue concerning compensation paid for wartime requisition of the park.

The central issue was whether the grant of enjoyment of the park was sufficiently connected with the houses and sufficiently definite to constitute an easement.

1. Appeal dismissed. The Court of Appeal, in a judgment delivered by the Master of the Rolls, upheld Danckwerts J’s conclusion that the house owners possessed enforceable easements over the park.

2. The 1864 conveyance annexed the garden right to each plot conveyed. Read in context with the grants of ways and drainage, the grant was appurtenant to the land and not a personal privilege. The right was conditional on the relevant house owner contributing a fair proportion of the cost of upkeep.

3. The right accommodated the dominant tenements. The park was the communal garden of the surrounding or closely neighbouring houses in a residential development. Its amenities were connected with the normal enjoyment of those houses. The fact that some entitled houses did not directly front the park did not defeat that connection.

4. The right was capable of forming the subject matter of a grant. Properly construed, “full enjoyment” meant ordinary enjoyment of the ornamental garden: using its walks, lawns, seats and any facilities provided, subject to ordinary regulation. It did not permit unrestricted wandering over every part, taking flowers or shrubs, or interfering with the park owners’ management and possession.

5. The right was beneficial and useful to the houses. It was not invalid as a right of mere recreation. The Court followed Duncan v Louch 6 QB 904 and rejected the broad suggestion in International Tea Stores Co v Hobbs [1903] 2 Ch 165 that a right comparable to a jus spatiandi could never be an easement. The earlier observations were not authoritative for a properly annexed private garden right.

6. The compensation issue was resolved by compromise. The order below on that issue was discharged and replaced by agreed terms. The proceedings were to be amended to add the company owning the relevant house, and the appeal was dismissed with costs.

• Court of Appeal: Appeal dismissed. The court upheld the existence of easements permitting the relevant house owners to enjoy the park.
• High Court: Danckwerts J held that the claimed garden rights were enforceable easements: [1955] 3 WLR 91.