Re Ellenborough Park; Re Davies deceased; Powell v. Maddison

The land and the parties

The subject-matter of the case was a piece of open, unbuilt-upon land at Weston-super-Mare, in the county of Somerset, known as Ellenborough Park. It was surrounded on three sides by roads and houses fronting on them, known as Ellenborough Park North, Ellenborough Park South and Ellenborough Crescent; the fourth side, towards the sea front, was open. The park and the surrounding roads and houses had formerly been part of an estate known as the White Cross Estate. In 1855 the part of that estate forming Ellenborough Park and the surrounding property belonged to Henry Davies and Joseph Whereat in equal moieties. Those two gentlemen sold off the plots surrounding the park for building purposes and conveyed them by a number of conveyances in substantially similar form. The plaintiffs were the present trustees of the will of William Henry Davies and of the statutory trusts arising under the Law of Property Act, 1925, in respect of Ellenborough Park, and were the owners of the park. The defendants were Mrs. Maddison, a beneficiary under the will of William Henry Davies entitled to a four-sevenths share of the proceeds of sale of the park, and Fred Allen, who was appointed by Danckwerts J. to represent all persons claiming to have any rights of user of the property known as Ellenborough Park as a private open space. In the Court of Appeal it emerged that Fred Allen was not the owner of any of the relevant premises but a tenant of a house belonging to a limited company, and it was agreed that the company should be added as a defendant.

The conveyance of December 23, 1864

A conveyance of plot No. 21 in Ellenborough Crescent, dated December 23, 1864, and made between Henry Davies, Joseph Whereat and John Porter (a builder), was put in evidence as typical of all the relevant conveyances. In consideration of £180, Henry Davies and Joseph Whereat conveyed the plot to John Porter in fee simple together with easements (in common with other persons) over the roads and drains on the White Cross Estate, and also the full enjoyment at all times thereafter, in common with the other persons to whom such easements might be granted, of the pleasure ground set out and made in front of the plot in the centre of the square called Ellenborough Park, which pleasure ground was divided by Walliscote Road, subject to the payment of a fair and just proportion of the costs, charges and expenses of keeping the pleasure ground in good order and condition. John Porter covenanted to complete the dwelling-house in course of erection on the plot in a uniform manner with the other houses in the Crescent, not to use it for trade or commerce (other than a lodging-house or private school or seminary) without the vendors' consent, and, jointly with all other persons to whom the right of enjoyment of the pleasure ground might be granted, to pay a fair proportion of the expenses of making and keeping the pleasure ground in good order and condition and well stocked with plants and shrubs. The vendors for themselves and their successors in title covenanted with the purchaser and his successors and all other persons to whom the right of enjoyment might be granted to keep the plot as an ornamental pleasure ground, and not to erect or permit any dwelling-house or other building (except any grotto, bower, summer-house, flower-stand, fountain, music-stand or other ornamental erection) within or on any part of the pleasure ground, but that the same should at all times remain as an ornamental garden or pleasure ground. The right of enjoyment was granted to the purchasers of each of the plots facing inwards round the Crescent Road into the park, and also to some nine or ten plots not actually facing into the park but separated from Crescent Road only by houses so fronting, access from which was over the ordinary roads for a distance of not more than about 150 or 200 yards. Ellenborough Park and the road round it formed a rectangular area measuring about 350 yards from east to west and about 100 yards from north to south, its western boundary facing the sea.

Subsequent title and management of the park

By 1879 most of the plots fronting on the park had been sold and houses erected on them. William Henry Davies purchased Ellenborough Park and the unsold remainder of the White Cross Estate from the personal representatives of Henry Davies and Joseph Whereat (both then dead), and the land was conveyed to him in fee simple by a conveyance dated May 21, 1879, subject, as to the pleasure ground, to the rights still subsisting of all persons to whom its use and enjoyment had been granted; the vendors also appointed him their attorney to enforce the covenants. William Henry Davies died on May 11, 1880, having by his will dated January 16, 1868 made provisions which created undivided shares in the land he left. Ellenborough Park was the only part of his estate which had not been distributed. The administration and management of the park was in the hands of the trustees of the will until 1924, when a committee of those persons who contributed to the maintenance of the park (called "ratepayers") was formed; since then the committee administered the park and collected the contributions, except during the period from February, 1941, to May, 1946, when the park was requisitioned by the War Office. The War Office paid a compensation rental of £150 per annum, and after the cessation of military occupation the trustees received a further sum of £1,770 4s. 7d. on account of dilapidations, a considerable part of which was spent on rehabilitating the park. Timber had been cut on the park in the course of maintenance and sold, and the trustees had also received sums as consideration for consenting to variations of restrictive covenants or alterations to buildings, and had paid legal and other expenses and the cost of replanting timber. None of the original purchasers of plots was thought to remain in existence.

The dispute

A considerable balance remained in the hands of the trustees, and doubts arose as to the persons who could claim the benefit of the moneys, whether contributions could still be recovered from the "ratepayers", and generally as to the rights of persons in respect of the park. It was conceded on behalf of the representative "ratepayer" that if the successors in title of the purchasers retained enforceable rights in respect of the park, they remained subject to the burden of contributing to its upkeep. It was contended on behalf of the park owners that the rights conferred by the conveyances were no longer operative or enforceable against the owners of the park because they did not conform to the essential qualities of an easement, and amounted to a jus spatiandi or right of perambulation which was not a right legally capable of creation or known to English law. Before the Court of Appeal, Mr. Cross for the appellant argued that the right of full enjoyment of the park was a jus spatiandi in its strict sense, that it was insufficiently connected with the enjoyment of the houses (likening it to a right to use the Zoological Gardens free of charge or to attend Lord's Cricket Ground without payment), that it was too wide and vague, that it amounted to joint occupation of the park, and that it was a mere right of recreation without utility or benefit. Mr. Goff appeared for the respondent.

Procedural history

The matter came before Danckwerts J. on a summons by the trustees. On March 17 he delivered a reserved judgment holding that the right to use the pleasure ground was an easement, and answered the first question raised by the summons in the affirmative. In a further judgment he dealt with the moneys received by the trustees: the proceeds of the sale of timber were conceded to belong to the trustees; of the compensation rental (a gross sum of £839 8s. 11d., reduced after deducting £249 11s. of necessary payments to a net sum of £589 13s. 10d.), the owners of the easements were entitled to some portion, and he directed an inquiry as to the proper amount referable to their deprivation, who those persons were and the respective amounts payable to them; and the payment for dilapidations was to be applied by the trustees in reinstating the property as a pleasure ground, the trustees not being entitled to demand further contributions from the owners of the dominant tenements until that money was exhausted. An order was made accordingly. Mrs. Maddison appealed to the Court of Appeal. With a view to avoiding the costs of the inquiry, the parties agreed a compromise of the question of the division of the compensation moneys, extending to the alternative event of the Court of Appeal taking a different view on the main question, which the court was prepared to approve, so that the appeal was confined to the substantial question whether the house owners had any right known to the law and enforceable against the owners of the park. The judgment of the Court of Appeal was read by Evershed M.R. on November 15.

Outcome

Danckwerts J. held that the conveyances of parts of the White Cross Estate conferred on the purchasers and their successors in title legal and effective easements to use the pleasure ground known as Ellenborough Park in the manner intended by the conveyances, subject to the obligation to pay a fair and just proportion of the costs of keeping it in good order and condition. Adopting the four essential qualities of an easement stated in Cheshire's Modern Real Property, he reviewed the statements of Dr. Radcliffe and Theobald and the Roman law rule against a servitude ut spatiari, the dicta of Farwell J. in International Tea Stores Co. v. Hobbs and Attorney-General v. Antrobus that a jus spatiandi was not known to the law, and the cases of Mounsey v. Ismay and Dyce v. Lady James Hay, but considered himself bound by Duncan v. Louch and Keith v. Twentieth Century Club Ltd., which could not have been decided as they were unless the right to use a pleasure ground had been accepted as a valid easement. Neither the obiter dicta of Farwell J. nor the statement of the Roman jurist Paul could compel a conclusion inconsistent with those cases. For the expression "the ratepayers" he substituted "the property owners contributing to the maintenance of the pleasure ground".

The Court of Appeal (Evershed M.R. reading the judgment of the court) dismissed the appeal. The court adopted the four characteristics of an easement formulated in Cheshire's Modern Real Property, of which only the second (that the easement must accommodate the dominant tenement) and the fourth (that the right must be capable of forming the subject-matter of a grant) were in issue. On construction of the 1864 deed, the right of enjoyment of the garden was intended to be annexed to the premises sold rather than given as a personal privilege, being placed in pari materia with the rights of way and drainage, and the use contemplated was the use of the park as a garden—walking on the pathways and lawns, resting on the seats, and using any parts set apart for recreations such as tennis or bowls—but not trampling at will over the park, plucking flowers or interfering with its upkeep; the word "full" imported nothing wider. As to accommodation, the park became a communal garden for the benefit of the houses adjoining it or in close proximity, and the test of connexion with the dominant tenements was amply satisfied, including as to the few houses not immediately fronting on the park; the judgment of Willes J. in Bailey v. Stephens did not establish that a right which could factually benefit others could not be an easement, and Hill v. Tupper, which concerned a business monopoly unconnected with the use of land, was distinguishable. As to capability of grant, the right was well defined and commonly understood and not the indefinite privilege ordinarily understood by the term jus spatiandi; it did not amount to joint occupation or exclude the proprietorship of the park owners, Copeland v. Greenhalf bearing no real relation to the case; and the right to use a garden was not one of mere recreation and amusement in the sense used by Martin B. in Mounsey v. Ismay, being a beneficial attribute of residence in a house. The observations of Farwell J. in International Tea Stores Co. v. Hobbs were obiter, and Attorney-General v. Antrobus, though rightly decided, concerned only the rights of the public; neither could be regarded as authoritative for a case such as the present, whereas Duncan v. Louch was a direct authority in the defendants' favour which should be followed. Keith v. Twentieth Century Club was of much less assistance and could not be regarded as having authoritative force. Danckwerts J. had come to a right conclusion, and the appeal was dismissed.