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Sandom v. Webb, [1951] 1 Ch. 808 (C.A.)

Facts:

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.

Issue(s):

Is mere knowledge of circumstance sufficient to ground common intention for purpose of reservation?

Ratio:

Reservations must be made expressly and mere awareness of facts consistent with reservation does not equate common intention sufficient to grant reservation.

Analysis:

(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.

Holding:

P won.

Comments:

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.


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