In Nickerson v Barraclough  Eveleigh LJ said:
“Section 62 [of the Law of Property Act 1925] says: ‘A conveyance of land shall be deemed to include…’ a number of things, all of which are clearly shown to be in actual existence either… as a right or as a factual advantage. It conveys that which is there to be conveyed, Where there has been no use at all within a reasonable period preceding the date of the conveyance (whether or not there had been use outside that period) it is clear that section 62 cannot operate to create an easement.”
“Section 62 is a conveyancing section; it passes only that which actually exists already, be it, for example, a right of easement, or be it an advantage actually enjoyed.”
So in Linvale Investments Ltd v Walker  to establish an easement by virtue of section 62 of the Law of Property Act, the claimant needed to establish that there was a use in a regular pattern and during a reasonable period of time before the land was partitioned by land transfers.
The High Court said it was not enough that the fire escape doors and gravel path over the transferor’s other land were obvious. It was fatal to both claims to an implied fire escape easement under:
= Section 62 and
– Wheeldon v Burrows
that the escape route over the transferor’s other land had not for a reasonable period before the partition been used as a fire escape or for fire drill.
So neither section 62 of the Law of Property Act or the rule in Wheeldon v Burrows assisted the claimant.
However in Pwllbach Colliery Co Ltd v Woodman  Lord Parker recognised:
“The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property”.
Here “the common intention … was clearly that the land be fully occupied and be fully occupied in order that the maximum profit could be realised from the property. In order for that to happen, there needed to be a right of way allowing the full extent of the building to be utilised with the operation of the existing fire escapes …The plain common intention of the parties was for the land to continue to enjoy the benefit of those fire exits and also the gravel pathway outside the property for the purpose of obtaining access out onto the concrete hard standing and the highway beyond.”
So though there had been no evidence of user of the fire egress and right of way, the claimant had satisfied the necessary test to establish that there was a right of way by reason of it being the intention of the parties to the transfers.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.