Does an easement include a right to make a roadway?

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Anonymous
Does an easement include a right to make a roadway?

Is it a rule of law that, where land has the benefit of a right of way, the dominant owner enjoys implied right to construct a useable road over the servient land?

Alan_Riley
Right to make a road?

The question is one of construction. Where a right of way is granted without any express limitations, “the grant of a right of way is to be taken to carry with it such ancillary and incidental rights as are necessary to make the grant fully effective”. (See Nationwide Building Society v James Beauchamp [2001] EWCA Civ 275). A court will try to find “what obligations, if any, on the part of the grantor can fairly be regarded as necessarily implicit, having regard to the particular purpose of the transaction when considered in the light of the circumstances subsisting at the time the transaction was entered into.” (See Platt v London Underground Ltd [2001] 2 EGLR 121). So, a right of drainage ought to carry with it a right of entry to allow the drains to be cleared, and for repair and maintenance. And in Nationwide Building Society v James Beauchamp, the rights held to be ancillary to an ordinary right of way allowed for a dominant owner to enter onto the servient land in order to make up a road, in this case to full adoption standards. But that was a case where the right of way was granted until adoption – implying that such an ancillary right should exist. As stated above, in each case, the question is one of construction of the grant.

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