CPO s.16: continuous and apparent easements

There is no need for prior diversity of ownership or occupation for CPO s.16 to apply when the easement in question was continuous and apparent at the time of the grant.

Long v Gowlett ([1923] 2 Ch 177) concerned a claim by the owner of part of a riverbank and of a mill driven by water that he was entitled to easements along the banks and river of the upstream owner to allow him to clear away plants and so on that might disturb the flow of water. Among other grounds, the downstream owner based his claim on the forerunner of the modern English equivalent to CPO s.16 (Conveyancing Act 1881, s.6). The claim failed. The land had been in common ownership and occupation at the time of the relevant grant. The important point to emerge, however, was that the result would have been different if the claimed easement had been ”continuous and apparent’. It was not enough that the common owner had in fact found it useful to keep the upstream river and bank clear for the benefit of the downstream section. Otherwise, there would be no end to the enquiries that would have to be made whenever an owner sold off part of his land.

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