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Easements Implied in a Grant — Away with ‘Continuous and Apparent’

Monash University Law Review, Vol. 38, No. 2, 2012

14 Pages Posted: 11 Sep 2013  

Greg Taylor

University of Adelaide - School of Law; University of Marburg; RMIT University - Graduate School of Business and Law

Date Written: 2012

Abstract

In Wheeldon v. Burrows, the law on implied grants of easements was pronounced to be that a grant would be recognised if the easement was 'continuous and apparent' or reasonably necessary for the enjoyment of the land, and used at the time of the grant for the benefit of the land granted. Ever since, there has been a controversy about whether the word highlighted actually means "and." But there has been no in-depth consideration of the purpose which the 'continuous and apparent' requirement is supposed to serve. This article concludes that it serves no purpose at all, is often ignored by the courts, is not justified for historical or any other reasons, is not binding as part of the ratio decidendi of Wheeldon nor part of the broader contribution of that case to the development of the common law, and accordingly should be deleted from the discussion.

Suggested Citation

Taylor, Greg, Easements Implied in a Grant — Away with ‘Continuous and Apparent’ (2012). Monash University Law Review, Vol. 38, No. 2, 2012. Available at SSRN: https://ssrn.com/abstract=2323245

Greg Taylor (Contact Author)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

University of Marburg ( email )

Universitätsstrasse 24
Marburg, D-35032
Germany

RMIT University - Graduate School of Business and Law ( email )

Melbourne
Australia

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