UKPC Case Law Clarifies Burden of Proof for Easements of Necessity

Citation: [2024] UKPC 4
Judgment on


The recent judgment in the case of Joseph W Horsford (as Administrator of the Estate of William Horsford, deceased) v Geoffrey Croft [2024] UKPC 4 provides a comprehensive analysis of the law relating to easements of necessity and the burden of proof required for such claims. The Privy Council was tasked with determining whether an implied right of way existed over two parcels of land in Antigua and Barbuda.

Key Facts

The appellant, Geoffrey Croft, sought to establish an easement of necessity over an adjacent private road owned by the respondent, Joseph W Horsford, who administered the estate of William Horsford, deceased. No express right of way was granted, prompting Croft to base his claim on the grounds that the easement should exist by necessity, as his land had no other practicable access to the public road. Initially, the claim succeeded at first instance but was overturned on appeal.

The judgment elucidates several legal principles regarding easements of necessity:

  1. Common Ownership: A critical requirement for an easement of necessity is that there must have been a common owner of the dominant and servient tenements at one point in time.

  2. Inaccessibility without Easement: It must be shown that access from one plot to the public highway can only be attained through the other plot owned by the common owner.

  3. No Express Grant or Reservation: An easement of necessity may be implied when land is transferred without any specified right of access.

  4. Implication over Prescription: An easement of necessity is based on an implication from facts, not merely public policy. It is implied because the parties intended it at the time of the grant, as predicted by the case Manjang v Drammeh and affirmed by Nickerson v Barraclough.

  5. Burden of Proof: The case identifies that the burden of proof lies with the party asserting the existence of an alternative route that would negate the necessity of the claimed easement.


The Board identified two potential routes for access to Croft’s parcels: the upper eastern road and the lower western route. It was not disputed that the upper eastern road met the factual and legal conditions necessary for an easement of necessity. However, the ownership of the lower western route’s track connecting it to the public road was not established, hence, failing the legal condition for a right of way of necessity.

Additionally, the Board considered and dismissed the respondent’s claim for encroachment, finding that there was no dispute as to the boundary. It concluded that an easement of necessity existed along the upper eastern road for Croft’s parcels and the appeal regarding encroachment was dismissed with an order for the assessment of damages.


The judgment of [2024] UKPC 4 illustrates the rigid criteria that must be met for the establishment of an easement of necessity. It reinforces that when a right of way is claimed by necessity, clear evidence must demonstrate the unavailability of any other practicable route. Furthermore, the case upholds that the burden of proof in such cases falls on the party challenging the necessity of the easement. The outcome of the case emphasizes the importance of meticulous examination of historical land ownership and usage patterns when determining the existence of such easements.

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