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
