Defendant H built house on plot of land.
Soon after, neighbour built block of flats such that
foundations encroached by about 1 foot onto H’s land.
Agreed foundations could remain if H could have right
of way for his car across neighbour’s yard.
Agreement for right of way never registered.
Neighbour sold block of flats to Wrights.
Wrights knew of agreement and knew H had erected
garage that could only be reached by crossing yard.
H later contributed to cost of resurfacing yard.
Wrights then sold flats to plaintiffs, expressly
subject to right of way.
Plaintiffs sued H for trespass.
Court of Appeal held H entitled to right of way.
Lord Denning MR stated equity arose in two ways:
benefit and burden – when adjoining owners of land make agreement to secure continuing
benefits for each of them over land of the other, neither of them can take the
benefit and throw over the burden.
This applies not just to original parties but to their
arising out of acquiescence – expense incurred by H in building garage –
Wrights acquiesced – this created in H’s mind reasonable expectation that his
access would not be disturbed.
Equity available not only against Wrights but also
their successors in title.
Finally, the right did not require registration in
this particular case, as it arose in equity.