D leased building to P for 3 years then 21 years, in the second lease for hairdressing business. At same time, D leased wall of building for advertising space and got revenue. There was no provision in the lease about the outer wall.
Is mere knowledge of circumstance sufficient to ground common intention for purpose of reservation?
Reservations must be made expressly and mere awareness of facts consistent with reservation does not equate common intention sufficient to grant reservation.
(Step 1) Cannot reserve easement in part granted for benefit of part retained without specifying (Wheelden v Burrows).
(Step 2) There are exceptions such as mutual easement, common intention
-You cannot invoke exception of "legal act on my own property" in defence of any act contrary to the good faith of a particular contract (Wheeldon v Burrows)
--It cannot be argued that the ads were a necessary part of the business that he did expressly reserve a right to.
(Step 3) Mere knowledge of use is insufficient to relieve grantor of onus to expressly state reservation (Suffield v Brown)
-The reservation must be the only explanation consistent with the facts.
--* The fact that the posters were left up for 10 years does not in itself show an intention to reserve a right. That fact is consistent with a reservation but equally consistent with simply not noticing.
To ground an easement, not only must there be a prior use when the two lands were under one owner, but that use must be apparent to the grantee at the time of grant.