Easements Implied in a Grant — Away with 'Continuous and Apparent'

In Wheeldon v Burrows, the law on implied grants of easements was pronounced to be that a grant would be recognised if the easement was ‘continuous and apparent’ or reasonably necessary for the enjoyment of the land, and used at the time of the grant for the benefit of the land granted. Ever since, there has been a controversy about whether the word highlighted actually means “and”. But there has been no in-depth consideration of the purpose which the ‘continuous and apparent’ requirement is supposed to serve. This article concludes that it serves no purpose at all, is often ignored by the courts, is not justified for historical or any other reasons, is not binding as part of the ratio decidendi of Wheeldon nor part of the broader contribution of that case to the development of the common law, and accordingly should be deleted from the discussion.