The rule in Wheeldon v Burrows

When a landowner sells off part of his land and retains part, the conveyance will impliedly grant all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold. There will be no retained reservation of easements over the land sold for the benefit of the retained land (save in exceptional cases such as easements of necessity).

In Wheeldon v Burrows ((1879) L.R. 12 Ch. D. 31 CA (Eng)) T sold part of his land to W and retained part on which a workshop stood. T later sold the retained land with the workshop to B. The workshop received its light through windows that opened onto the land sold to W. W erected boards at the boundary between the two plots of land to stop the flow of light to B’s workshop and B knocked them down claiming he had an easement of light over W’s land.

Thesiger LJ (at 49)  laid down two propositions, the first of which has come to be known as the rule in Wheeldon v Burrows. First, when a landowner sells off part of his land and retains part, the conveyance will impliedly grant all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold. Second, there will be no retained reservation of easements over the land sold for the benefit of the retained land (save in exceptional cases such as easements of necessity). Both propositions, he said, rested on the maxim of non-derogation from grant.

Thus, the timing of the two sales was important. There could be an implied grant in favour of W (the first to buy) but not in favour of B (who bought later). W succeeded. There was no implied reservation of an easement of light in favour of B.

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