Thompson v Bee [2009] EWCA Civ 1212 illustrates a neat point of property law and inheritance that could come up in a variety of circumstances but in this concerns an easement.

In Hamsterley stands Pear Tree House on the main village street. Round the side and to the back of the house runs the Track which leads ultimately to a plot of land known to locals as the Garth where there was at one time a piggery and slaughterhouse. Mr and Mrs Bee now live in the House and Mr Thompson owns the Garth. He wishes to build three houses on the Garth and has the planning permission to do so, but any access to the Garth must be via the Track and the Bees, as is the way in such cases, are adamant the the Track is to be used for no such purpose.

The Bees conceded that without the Track the Garth was landlocked so that there must be an easement of necessity running over the Track but, they said, it was limited to agricultural purposes.

Edith Thompson had owned both the House and the Garth. She disposed of her property by will as follows:

I GIVE to my said Grand-daughter Jane Hodgson my dwellinghouse known as Pear Tree House Hamsterley subject nevertheless to a right of way as existing at the date of my death to the garth at the rear thereof and to Croft Field ….

I GIVE the garth containing one acre together with the piggery and slaughterhouse erected thereon and together with the right of way from Hamsterley main street across the rear of Pear Tree House at all times and for all purposes connected with the said garth to my son George Thompson.

Jane Hodgson married Mr Bee and became Mrs Bee. George Thompson gave the Garth to Stephen Thompson. There might be an argument as to whether the mention of the piggery and slaughterhouse limited the right to agricultural purposes, but the Court of Appeal decided that “for all purposes” meant what it said. So the terms of the will would seem, read alone, to give Mr Thompson the easement he wanted.

Not so said counsel for the Bees, applying pure logic as follows: when Edith Thompson died, all her property was owned by her executors. No easements could have come into being at that time because you cannot own an easement over your own property. Then the executors made an assent to Mrs Bee of the house subject to “all rights of way and easements affecting the same.” but of course there was no easement over the Track at that stage, so Mrs Bee took the property absent any easement. The assent to Mr Thompson was also said to be “together with all rights of way and easements affecting the same.” but by then it was too late since no easement had been reserved in the assent to Mrs Bee. QED.

The Court of Appeal thought otherwise. They held that the will and the assents should be read together. Section 36(2) Administration of Estates Act 1925 provides that (unless there is a contrary intention expressed) assents take effect from the date of death, what is known as the “relation back” and so they should be read together with the terms of the will. The will and the assents are, in substance, one transaction. The unfortunate (if logical) conclusion that the order of assents could make a difference to the existence of easements was thus avoided.

Mr Thompson’s ambitions were ultimately thwarted. Although it was found that an easement over the Track to the Garth had been granted that was not limited as to the nature of its use, the Court of appeal found that access for 3 houses would be excessive and made a declaration to that effect.