Walby & Anor v Walby & Anor

An implied reservation of an easement is not readily inferred from a transfer of land. The transferor should reserve the right expressly, because an implied reservation may derogate from the grant. An easement of necessity requires proof that the retained land cannot be used at all without it, rather than merely that the easement would secure reasonable enjoyment. Reciprocal easements may be implied where the transfer necessarily involves mutual rights. An easement may also be implied to give effect to a definite and particular intended use, but the facts must make that intention necessary and not merely consistent with it. On the facts, no drainage easement was implied. Mutual rights of support were implied because they were plainly beneficial to both parts of the divided building.

The claim concerned a 1989 transfer of part of Upton Farm by Richard Walby to his son Malcolm Walby. The transfer divided a farmyard, part of a building and part of a yard, while the land remained subject to a protected agricultural tenancy. The claimants, who owned the retained land, sought to establish that the transfer impliedly reserved easements of drainage and support.

The drainage claim was advanced on three bases: necessity, reciprocal easements, and the parties’ common intention concerning the use of the retained land. The defendants accepted that reciprocal rights of support should be implied. The central issues were whether the unilateral transfer could create an implied reservation and whether the facts satisfied any recognised exception to the prima facie rule against implying reservations.

1. Implied reservations. Section 65(1) of the Law of Property Act 1925, read with sections 1(2) and 1(4), permits a legal easement to be reserved expressly or by implication even though the transferee did not execute the transfer. The unilateral nature of the gift therefore did not prevent an implied reservation.
2. The law distinguishes between implied grants and implied reservations. A grantor should not derogate from his grant, and a transferor who wishes to retain an easement should ordinarily reserve it expressly. The established distinction remained applicable notwithstanding the Law Commission’s proposals for reform.
3. Necessity. The test is strict. The retained land must be incapable of use at all without the easement. It is insufficient that the easement would be useful or necessary for reasonable enjoyment. The retained agricultural land and the divided building and yard could be adapted and used without a drainage easement. The necessity exception therefore failed.
4. Reciprocal easements. Mutual rights may be implied where the transaction necessarily involves corresponding rights over each parcel. The present drainage system did not establish an implied grant for the transferred land which required a reciprocal reservation. It was uncertain whether the transferred land could use the system without entering the retained land and spraying effluent from hydrants. That would impose a substantial burden, and the receipt of effluent was more naturally a burden than a benefit. The reciprocal-easement exception therefore did not apply.
5. Intended use. An easement may be implied to give effect to a common intention that the retained land be used in a definite and particular manner. Here, however, the tenancy made a freehold drainage right practically unimportant at the date of transfer. On termination of the tenancy, the retained parts would be non-self-contained and would require adaptation. It was not sufficiently clear that they would be used for keeping stock. The intended-use exception therefore failed.
6. The claim for an implied drainage reservation was dismissed. Mutual rights of support between the divided parts of the building were implied because they were of obvious benefit to both the transferred and retained land.