Facts: Driveway was being used by both parties living in two lots which were previously owned by same person. Person sold one to son and daughter-in-law, D, then some years later sold other to P. During years, father used driveway as normal. D built fence in driveway making its use by P impossible.
Can a reservation be established without positive evidence of a common intention?
A reservation does not require positive evidence of a common intention where the circumstantial facts make a common intention the only reasonable interpretation.
(Wheeldon v Burrows) Reservations must be made explicit unless it's a way of necessity.
-Inconvenience no matter how severe is not the same as necessity.
-It is not enough to know that the land will probably continue to be used in the same way.
The existence of positive evidence of a common intention need not be an absolute requirement because it's simply too high a threshold with passage of time.
-It was clear from the facts that the son and wife knew that the driveway was going to continue to be sued in a similar way, as they saw it being used that for 10 years. Furthermore, it was being used by the father, so it is implausible to say he wasn't using it as of right.
P won. D was not allowed to build the fence.