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Wheeldon v Burrows (1879)

Facts

  • A workshop and adjacent piece of land in Derby were both owner and occupied by one person, Mr Allen
  • The workshop was sold to Mr Burrows
  • The adjacent land was then sold to Mr Wheeldon
  • Mr Wheeldon died, and his widow (Mrs Wheeldon) started building on the land
  • Mr Burrows dismantled the widow’s building, claiming that it was in violation of his right to light passing through Mrs Wheeldon’s land

Issue

  • Was there an easement granted over Mrs Wheeldon’s land in favour of Mr Burrows; could this prevent an action for trespass?

Decision

  • No easement was impliedly granted, successful trespass action

Reasoning

  • It is a general rule that when land is divided and sold, any rights over the land sold should be expressly reserved
  • Under what is now known as the rule in Wheeldon v Burrows (1879), whenever part of land with no previous diversity of occupation is sold: all easements which are continuous and apparent, necessary for the reasonable enjoyment of sold land and in actual use will pass with that (now dominant land)
  • This test was not satisfied, so the general rule was held to apply and Mrs Wheeldon was entitled to build upon her land
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