Mulvaney v Jackson & Ors [2002] EWCA Civ 1078 (24 July 2002)

Mulvaney v Jackson & Ors [2002] EWCA Civ 1078 (24 July 2002)

The right to use the blue land as a communal garden for recreational and amenity purposes is capable of existing as an easement, acquired by prescription or implied grant, provided it does not exclude the servient owner from reasonable use. The facts established a communal use that did not amount to exclusive...

Source-derived case information.

Citation
[2002] EWCA Civ 1078
Parties
Claimant/respondent: Elizabeth Carole Rachel Mulvaney (nee Scott); Defendant/appellant: Colin Gough; Defendant/appellant: Bryan Holmes; Defendant/appellant: Thomas Holmes; Defendant/appellant: Emily Jackson
Jurisdiction
England and Wales
Judgment Date
24 July 2002
Procedural Posture
Civil Appeal / Appeal From County Court to Court of Appeal
Outcome
Appeal allowed in part.
Legal Topics
Easements, Prescription, Implied Grant, Communal Gardens, Right of Way
Property Law Easements Prescription Implied Grant Communal Gardens Right of Way

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Parties

Elizabeth Carole Rachel Mulvaney (nee Scott)

Claimant/respondent

Colin Gough

Defendant/appellant

Bryan Holmes

Defendant/appellant

Thomas Holmes

Defendant/appellant

Emily Jackson

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From County Court to Court of Appeal

Legal Issues

  1. 1 Whether a right to use land as a communal garden is capable of existing as an easement and/or can be acquired by prescription or implied grant.

Ratio Decidendi

The right to use the blue land as a communal garden for recreational and amenity purposes is capable of existing as an easement, acquired by prescription or implied grant, provided it does not exclude the servient owner from reasonable use. The facts established a communal use that did not amount to exclusive possession, and the respondent is entitled to such an easement.

Court Disposition

Appeal allowed in part.

Orders

  • Declaration that the claimant is entitled to a right to use the blue land as a communal garden for recreational and amenity purposes.
  • Appellants to pay the respondent £200 in damages for destruction of the flower bed.