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2013년 5월 9일 목요일


Kinship

From Wikipedia, the free encyclopedia
Kinship is a term with various meanings depending upon the context. This article reflects the long-standing use of the term in anthropology, which is usually considered to refer to the web of social relationships that form an important part of the lives of most humans in most societies, although its exact meanings even within this discipline are often debated (see below).
In other disciplines, kinship may have a different meaning. In biology, it typically refers to the degree of genetic relatedness or coefficient of relationship between individual members of a species.[citation needed] It may also be used in this specific sense when applied to human relationships, in which case its meaning is closer to consanguinity or genealogy.
In a more general sense, kinship may refer to a similarity or affinity between entities on the basis of some or all of their characteristics that are under focus. This may be due to a shared ontological origin, a shared historical or cultural connection, or some other perceived shared features that connect the two entities. For example, a person studying the ontological roots of human languages (etymology) might ask whether there is kinship between the English word seven and the German word sieben. It can be used in a more diffuse sense as in, for example, the news headline "Madonna feels kinship with vilified Wallis Simpson", to imply a felt similarity or empathy between two or more entities.
This article is focused on the anthropological sense of the word kinship, its referents and how these have been studied, theorized about and understood within the discipline. Within anthropology, kinship can refer both to the study of the patterns of social relationships in one or more human cultures, or it can refer to the patterns of social relationships themselves. Further, even within these two broad usages of the term, there are different approaches, which are covered below. Over its history, anthropology has developed a number of related concepts and terms, such as descentdescent groupslineagesaffinescognates and even fictive kinship and these are treated in their own subsections here, or in linked articles.
Broadly, kinship patterns may be considered to include people related both by descent (one's social relations during development), and also relatives by marriage. Human kinship relations through marriage are commonly called "affinity" in contrast to the relationships that arise in one's group of origin, which may be called one's "descent group". In some cultures, kinship relationships may be considered to extend out to people an individual has economic relationships with, or other forms of social connections. Within a culture, the descent groups may be considered to lead back to gods[1] (see mythologyreligion), or animal ancestors totems. This may be conceived of on a more or less literal basis.
Kinship can also refer to a perceived universal principle or category of humans, by which we or our societies organize individuals or groups of individuals into social groups, roles, categories, and genealogyFamily relations can be represented concretely (mother, brother, grandfather) or abstractly after degrees of relationship. A relationship may have relative purchase (e.g., father is one regarding a child), or reflect an absolute (e.g., status difference between a mother and a childless woman). Degrees of relationship are not identical to heirship or legal succession. Many codes of ethics consider the bond of kinship as creating obligations between the related persons stronger than those between strangers, as in Confucian filial piety.

Contents

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History of kinship studies [edit]

One of the foundational works in the anthropological study of kinship was Morgan's Systems of Consanguinity and Affinity of the Human Family (1871)[full citation needed]. As is the case with other social sciences, Anthropology and kinship studies emerged at a time when the understanding of the Human species' comparative place in the world was somewhat different than today. Evidence that life in stable social groups is not just a feature of humans, but also of many other primates, was yet to emerge andsociety was considered to a be uniquely human affair. As a result, early kinship theorists saw an apparent need to explain not only the details of how human social groups are constructed, their patterns, meanings and obligations, but also why they are constructed at all. The why explanations thus typically presented the fact of life in social groups (which appeared to be unique to humans) as being largely a result of human ideas and values.

Morgan's early influence [edit]

A broad comparison of (left, top-to-bottom) HawaiianSudaneseEskimo, (right, top-to-bottom) IroquoisCrow and Omaha kinship systems.
Morgan's explanation was largely based on the notion that all humans have an inherent natural valuation of genealogical ties (an unexamined assumption that would remain at the heart of kinship studies for another century, see below), and therefore also a inherent desire to construct social groups around these ties. Even so, Morgan found that members of a society who are not close genealogical relatives may nevertheless use what he called kinship terms (which he considered to be originally based on genealogical ties). This fact was already evident in his use of the term affinity within his concept of the system of kinship. The most lasting of Morgan's contributions was his discovery of the difference between descriptive and classificatory kinship terms, which situated broad kinship classes on the basis of imputing abstract social patterns of relationships having little or no overall relation to genetic closeness but instead cognition about kinship, social distinctions as they affect linguistic usages in kinship terminology, and strongly relate, if only by approximation, to patterns of marriage.[2] The major patterns of kinship systems which Lewis Henry Morgan identified through kinship terminology in his 1871 work Systems of Consanguinity and Affinity of the Human Family are:
There is a seventh type of system only identified as distinct later:
The six types (Crow, Eskimo, Hawaiian, Iroquois, Omaha, Sudanese) that are not fully classificatory (Dravidian, Australian) are those identified by Murdock (1949) prior to Lounsbury's (1964) rediscovery of the linguistic principles of classificatory kin terms.

"Kinship system" as systemic pattern [edit]

The concept of “system of kinship” tended to dominate anthropological studies of kinship in the early 20th century. Kinship systems as defined in anthropological texts and ethnographies were seen as constituted by patterns of behavior and attitudes in relation to the differences in terminology, listed above, for referring to relationships as well as for addressing others. Many anthropologists went so far as to see, in these patterns of kinship, strong relations between kinship categories and patterns of marriage, including forms of marriage, restrictions on marriage, and cultural concepts of the boundaries of incest. A great deal of inference was necessarily involved in such constructions as to “systems” of kinship, and attempts to construct systemic patterns and reconstruct kinship evolutionary histories on these bases were largely invalidated in later work. However, anthropologist Dwight Read later argued that the way in which kinship categories are defined by individual researchers are substantially inconsistent.[3] This occurs when working within a systemic cultural model that can be elicited in fieldwork, but also allowing considerable individual variability in details, such as when they are recorded through relative products.[4]

Conflicting theories of the mid 20th century[5] [edit]

In trying to resolve the problems of dubious inferences about kinship "systems", George P. Murdock (1949, Social Structure) compiled kinship data to test a theory about universals in human kinship in the way that terminologies were influenced by the behavioral similarities or social differences among pairs of kin, proceeding on the view that the psychological ordering of kinship systems radiates out from ego and the nuclear family to different forms of extended familyLévi-Strauss (1949, Les Structures Elementaires), on the other hand, also looked for global patterns to kinship, but viewed the “elementary” forms of kinship as lying in the ways that families were connected by marriage in different fundamental forms resembling those of modes of exchange: symmetric and direct, reciprocal delay, or generalized exchange.

Kinship networks and social process[6] [edit]

A more flexible view of kinship was formulated in British social anthropology. Among the attempts to break out of universalizing assumptions and theories about kinship, Radcliffe-Brown (1922, The Andaman Islands; 1930, The social organization of Australian tribes) was the first to assert that kinship relations are best thought of as concrete networks of relationships among individuals. He then described these relationships, however, as typified by interlocking interpersonal roles. Malinowski (1922, Argonauts of the Western Pacific) described patterns of events with concrete individuals as participants stressing the relative stability of institutions and communities, but without insisting on abstract systems or models of kinship. Gluckman (1955, The judicial process among the Barotse of Northern Rhodesia) balanced the emphasis on stability of institutions against processes of change and conflict, inferred through detailed analysis of instances of social interaction to infer rules and assumptions.John BarnesVictor Turner, and others, affiliated with Gluckman’s Manchester school of anthropology, described patterns of actual network relations in communities and fluid situations in urban or migratory context, as with the work of J. Clyde Mitchell (1965, Social Networks in Urban Situations). Yet, all these approaches clung to a view of stable functionalism, with kinship as one of the central stable institutions.

Contemporary kinship studies [edit]

Recognition of fluidity in kinship meanings and relations[2] [edit]

Building on Lévi-Strauss’s (1949) notions of kinship as caught up with the fluid languages of exchange, Edmund Leach (1961, Pul Eliya) argued that kinship was a flexible idiom that had something of the grammar of a language, both in the uses of terms for kin but also in the fluidities of language, meaning, and networks. His field studies criticized the ideas of structural-functional stability of kinship groups as corporations with charters that lasted long beyond the lifetimes of individuals, which had been the orthodoxy of British Social Anthropology. This sparked debates over whether kinship could be resolved into specific organized sets of rules and components of meaning, or whether kinship meanings were more fluid, symbolic, and independent of grounding in supposedly determinate relations among individuals or groups, such as those of descent or prescriptions for marriage. Work on symbolic kinship by David M. Schneider in his (1984, A Critique of The Study of Kinship) reinforced this view. In response to Schneider's 1984 work on Symbolic Kinship, Janet Carsten re-developed the idea of "relatedness" from her initial ideas, looking at what was socialized and biological, from her studies with the Malays (1995, The substance of kinship and the heat of the hearth; feeding, personhood and relatedness among the Malays in Pulau Langkawi, American Ethnologist). She uses the idea of relatedness to move away from a pre-constructed analytic opposition which exists in anthropological thought between the biological and the social. Carsten argued that relatedness should be described in terms of indigenous statements and practices, some of which fall outside what anthropologists have conventionally understood as kinship (Cultures of Relatedness, 2000). This kind of approach – recognizing relatedness in its concrete and variable cultural forms – exemplifies the ways that anthropologists have grappled with the fundamental importance of kinship in human society without imprisoning the fluidity in behavior, beliefs, and meanings in assumptions about fixed patterns and systems.

Beyond biological relationships [edit]

Ideas about kinship do not necessarily assume any biological relationship between individuals, rather just close associations. Malinowski, in his ethnographic study of sexual behaviour on the Trobriand Islands noted that the Trobrianders did not believe pregnancy to be the result of sexual intercourse between the man and the woman, and they denied that there was any physiological relationship between father and child.[7] Nevertheless, while paternity was unknown in the "full biological sense", for a woman to have a child without having a husband was considered socially undesirable. Fatherhood was therefore recognised as a social role; the woman's husband is the "man whose role and duty it is to take the child in his arms and to help her in nursing and bringing it up";[8] "Thus, though the natives are ignorant of any physiological need for a male in the constitution of the family, they regard him as indispensable socially".[9]
As social and biological concepts of parenthood are not necessarily coterminous, the terms "pater" and "genitor" have been used in anthropology to distinguish between the man who is socially recognised as father (pater) and the man who is believed to be the physiological parent (genitor); similarly the terms "mater" and "genitrix" have been used to distinguish between the woman socially recognised as mother (mater) and the woman believed to be the physiological parent (genitrix).[10] Such a distinction is useful when the individual who is considered the legal parent of the child is not the individual who is believed to be the child's biological parent. For example, in his ethnography of the NuerEvans-Pritchard notes that if a widow, following the death of her husband, chooses to live with a lover outside of her deceased husband's kin group, that lover is only considered genitor of any subsequent children the widow has, and her deceased husband continues to be considered the pater. As a result, the lover has no legal control over the children, who may be taken away from him by the kin of the pater when they choose.[11] The terms "pater" and "genitor" have also been used to help describe the relationship between children and their parents in the context of divorce in Britain. Following the divorce and remarriage of their parents, children find themselves using the term "mother" or "father" in relation to more than one individual, and the pater or mater who is legally responsible for the child's care, and whose family name the child uses, may not be the genitor or genitrix of the child, with whom a separate parent-child relationship may be maintained through arrangements such as visitation rights or joint custody.[12]
It is important to note that the terms "genitor" or "genetrix" do not necessarily imply actual biological relationships based on consanguinity, but rather refer to the socially held belief that the individual is physically related to the child, derived from culturally held ideas about how biology works. So, for example, the Ifugao may believe that an illegitimate child might have more than one physical father, and so nominate more than one genitor.[13] J.A. Barnes therefore argued that it was necessary to make a further distinction between genitor and genitrix (the supposed biological mother and father of the child), and the actual genetic father and mother of the child.

Descent [edit]

Descent rules [edit]

In many societies where kinship connections are important, there are rules, though they may be expressed or be taken for granted. There are four main heading Anthropologists categorize rules of descent. They are bilateral, unilineal, ambilineal and double descent.[14]
  • Bilateral descent or two sided descent affiliates an individual more or less equally with relatives on his father's and mother's sides. A good example is the Yako of the Crossriver state of Nigeria.
  • Unilineal rules affiliates an individual through the descent of one sex only, that is, either males or through females. They are subdivided into two: patrilineal (male) and matrilineal (female). Most societies are often patrilineal. Example of a matrilineal system of descency are the Nyakyusa of Tanzania and the Nayar of Kerala, India. Albeit many societies that practices matrilineal system often have a patrilocal residence. Men still exercise a lot of authority.
  • Ambilineal (or Cognatic) rule affiliates an individual with kinsmen through the father's or mother's line. Some people in societies practice this system affiliate with a group of relatives through their fathers and others through their mothers. The individual has the option as to which side he wants to affiliate. The Samoans of the South Pacific are an excellent example of an ambilineal society. The core members of the Samoan descent group can live together in the same compound.
  • Double Descent are societies in which both the patrilineal and matrilineal descent group are recognized. In these societies an individual affiliates for some purpose with a group of patrilineal kinsmen and for other purposes with a group of matrilineal kinsmen. The most widely known case of double descent is the Afikpo of Imo state in Nigeria. Although patrilineage is considered an important method of organization, the Afikpo considers matrilineal ties to be more important.

Descent and the family [edit]

Descent, like family systems, is one of the major concepts of anthropology. Cultures worldwide possess a wide range of systems of tracing kinship and descent. Anthropologists break these down into simple concepts about what is thought to be common among many different cultures.

Descent groups [edit]

A descent group is a social group whose members talk about common ancestry. A unilineal society is one in which the descent of an individual is reckoned either from the mother's or the father's line of descent. With matrilineal descent individuals belong to their mother's descent group. Matrilineal descent includes the mother's brother, who in some societies may pass along inheritance to the sister's children or succession to a sister's son. With patrilineal descent, individuals belong to their father's descent group. Societies with the Iroquois kinship system, are typically uniliineal, while the Iroquois proper are specifically matrilineal.
In a society which reckons descent bilaterally (bilineal), descent is reckoned through both father and mother, without unilineal descent groups. Societies with the Eskimo kinship system, like the Eskimo proper, are typically bilateral. The egocentrid kindred group is also typical of bilateral societies.
Some societies reckon descent patrilineally for some purposes, and matrilineally for others. This arrangement is sometimes called double descent. For instance, certain property and titles may be inherited through the male line, and others through the female line.
Societies can also consider descent to be ambilineal (such as Hawaiian kinship) where offspring determine their lineage through the matrilineal line or the patrilineal line.

Lineages, clans, phratries, moieties, and matrimonial sides [edit]

A lineage is a unilineal descent group that can demonstrate their common descent from a known apical ancestor. Unilineal lineages can be matrilineal or patrilineal, depending on whether they are traced through mothers or fathers, respectively. Whether matrilineal or patrilineal descent is considered most significant differs from culture to culture.
clan is generally a descent group claiming common descent from an apical ancestor. Often, the details of parentage are not important elements of the clan tradition. Non-human apical ancestors are called totems. Examples of clans are found in ChechenChineseIrishJapanesePolish,ScottishTlingit, and Somali societies.
phratry is a descent group composed of two or more clans each of whose apical ancestors are descended from a further common ancestor.
If a society is divided into exactly two descent groups, each is called a moiety, after the French word for half. If the two halves are each obliged to marry out, and into the other, these are called matrimonial moieties. Houseman and White (1998b, bibliography) have discovered numerous societies where kinship network analysis shows that two halves marry one another, similar to matrimonial moieties, except that the two halves—which they call matrimonial sides[15] – are neither named nor descent groups, although the egocentric kinship terms may be consistent with the pattern of sidedness, whereas the sidedness is culturally evident but imperfect.[2]
The word deme refers to an endogamous local population that does not have unilineal descent.[16] Thus, a deme is a local endogamous community without internal segmentation into clans.

Nuclear family [edit]

The Western model of a nuclear family consists of a couple and its children. The nuclear family is ego-centered and impermanent, while descent groups are permanent (lasting beyond the lifespans of individual constituents) and reckoned according to a single ancestor.[citation needed]
Kinship calculation is any systemic method for reckoning kin relations. Kinship terminologies are native taxonomies, not developed by anthropologists.
Beanpole family is the expansions of the number of living generations within a family unit, but each generation has relatively few members in it.

Legal ramifications [edit]

Kinship and descent have a number of legal ramifications, which vary widely between legal and social structures.
Next of Kin traditionally and in common usage refers to the person closest related to you by blood, such as a parent or your children.
In legal terms, for example in intestacy, it has come to mean the person closest to you, which is generally the spouse if married, followed by the natural children of the deceased.
Whilst someone is alive they may nominate any person close to them to be their next of kin. The next of kin is usually asked for as a contact in case of accident, emergency or sudden death. It does not involve completing any forms or registration in the UK, and may be a friend or carer unrelated to you by blood or marriage.
Most human groups share a taboo against incest; relatives are forbidden from marriage but the rules tend to vary widely when one moves beyond the nuclear family. At common law, the prohibitions are typically phrased in terms of "degrees of consanguinity."
More importantly, kinship and descent enters the legal system by virtue of intestacy, the laws that at common law determine who inherits the estates of the dead in the absence of a will. In civil law countries, the doctrine of legitime plays a similar role, and makes the lineal descendants of the dead person forced heirs. Rules of kinship and descent have important public aspects, especially under monarchies, where they determine the order of succession, the heir apparent and the heir presumptive.

Compatibility with other sciences [edit]

Within the biological sciences, there are theoretical approaches to understanding under what conditions some species live in groups (typically due to the distribution of key food resources and patterns of predation), and in particular, under what conditions significant social behaviors can evolve to become a typical feature of a species (Kin selection theory). Because these characteristics are common to most primates, including humans, biologists maintain that these theories should in principle be generally applicable. The question arises as to how these ideas can be applied to the human species whilst fully taking account of the extensive ethnographic evidence that has emerged from anthropological research on kinship patterns.
Early derivations of Kin selection theory and the related field of Sociobiology, encouraged some biologists such as Darwinian anthropologists and evolutionary psychologists to approach human kinship with the assumption that kin selection theory predicts that kinship relations in humans are indeed expected to depend on genetic relatedness, which they readily connected with the genealogy approach of early anthropologists such as Morgan (see above sections).
This biological position, coming at a time (the 1970s) when anthropologists were starting to reject the genealogical basis of human kinship patterns provoked criticism from ethnographers including notably, Marshall Sahlins who falsified the approach through reviews of ethnographies in his 1976 The Use and Abuse of Biology.[full citation needed] Such counter evidence and critiques did not dissuade the program however, and fundamental and heated disagreements between the two sides continued. These early disagreements over the nature of human kinship and cooperative behaviour have formed an important core of the continuing controversies related to evolutionary psychology and sociobiology ever since.[citation needed]
There have since been two approaches that seek to reconcile the anthropological and biological perspectives. Holland in a 2004 thesis argued that biologists themselves have not sufficiently recognised that kin selection theory does not in fact require that genetic relatedness per se is the condition that mediates social bonding and social cooperation in any species. In ancestral environments, social cooperation mediated through ties of familiarity and attachments would typically have increased the inclusive fitness of genes (the key criterion in kin selection theory) without any form of detection of actual genetic relationships. Kin selection theory in this view is seen as specifying an ultimate cause rather than a proximate cause (See Tinbergen's four questions) of social bonding and cooperation. Holland thus argues that properly understood, the findings of cultural anthropologists and the theories of evolutionary biologists are compatible.[17]
Fitting with this approach, Nurture kinship[17][18] emphasizes that social relationships, and the cooperation that accompanies them, are commonly built upon emotional bonds and attachments. This perspective re-unites current ethnographic findings both with the work of earlier anthropologists such as Audrey Richards, and also with John Bowlby and colleagues' foundational work on emotional attachment theory. In this perspective, biological theories are indeed compatible with ethnographic data on human kinship, though their explanatory scope is much narrower than the approaches of sociobiology and evolutionary psychology had typically assumed. Biology's relevant application is limited to theorizing the ultimate causes of the (non-deterministic) proximate mechanisms of cooperation such as emotional attachments. Bowlby himself emphasized the compatibility of his own work with kin selection theory.[19] Anthropological kinship data is also thus considered compatible with current psychological theory of social bonding and relationships. In this perspective, whilst theoretical approaches are unified across biology, psychology and anthropology, for a full account of specific kinship patterns in any particular human society, ethnographic methods, including the analysis of historical contingencies, symbolic systems, economic and other influences, remain central.
The other approach, that of Evolutionary psychology, continues to take the view that genetic relatedness (or genealogy) is key to understanding human kinship patterns. A current view is that humans have an inborn but culturally affected system for detecting certain forms of genetic relatedness. One important factor for sibling detection, especially relevant for older siblings, is that if an infant and one's mother are seen to care for the infant, then the infant and oneself are assumed to be related. Another factor, especially important for younger siblings who cannot use the first method, is that persons who grew up together see one another as related. Yet another may be genetic detection based on the major histocompatibility complex (See Major Histocompatibility Complex and Sexual Selection). This kinship detection system in turn affects other genetic predispositions such as the incest taboo and a tendency for altruism towards relatives.[20]
One issue within this approach is why many societies organize according to descent (see below) and not exclusively according to kinship. An explanation is that kinship does not form clear boundaries and is centered differently for each individual. In contrast, descent groups usually do form clear boundaries and provide an easy way to create cooperative groups of various sizes.[21]
According to an evolutionary psychology hypothesis that assumes that descent systems are optimized to assure genetic high genetic probability of relatedness between lineage members, males should prefer a patrilineal system if paternal certainty is high; males should prefer a matrilineal system if paternal certainty is low. Some research supports this association with one study finding no patrilineal society with low paternity confidence and no matrilineal society with high paternal certainty. Another association is that pastoral societies are relatively more often patrilineal compared to horticultural societies. This may be because wealth in pastoral societies in the form of mobile cattle can easily be used to pay bride price which favor concentrating resources on sons so they can marry.[21]

See also [edit]

2013년 5월 8일 수요일


This is a transcript of a Stubb Legal CPD training course.
What follows is the full text of the script used to produce the audio recording. This script has been read verbatim, and lasts approximately one hour. Once you have listened to the audio recording, you should be able to answer the Multiple Choice Test at the end of this page.


STUBB LEGAL AUDIO RECORDING SCRIPT
Subscription Area: Property
Month of Production: February 2012

This audio recording will concentrate on Easements.
Quotations from judgments of the House of Lords are the copyright of the United Kingdom Parliament and from other judgments are Crown copyright. Quotations from statutory legislation are Crown copyright.


PART ONE - RIGHTS OF WAY

1 Llewellyn v Lorey {[2011] EWCA Civ 37}

CREATION OF AN EASEMENT
The normal method of creating an easement is by deed. However, a legal easement can arise in a number of other ways. For example, an easement can arise by reservation. Where access to a property retained is only available over the property granted, then the law implies an easement by reservation. Other circumstances where easements may be implied are where they are necessary for the enjoyment of land. Where a plot of land is fully land locked from a public highway, an easement for a right of way will likely be implied, through necessity. Likewise, where access to a property retained is only available by the destruction of a physical barrier, the continued existence of which is obviously contemplated by the parties, it is consistent with the doctrine of implied way of necessity to say that a way over the property granted is impliedly reserved as a matter of necessity {Sweet v Sommer, [2004] EWHC 1504 (Ch)}. The issue of whether a particular way is necessary is a question of fact to be determined by a consideration of all the surrounding circumstances.

LOST MODERN GRANT
Some practitioners may see the doctrine of lost modern grant as something for law students to puzzle over, but of little practical relevance. It is, however, a mistake to dismiss or overlook the doctrine, which can be a very practical remedy. The doctrine is a judge-made fiction which avoids the problems inherent in proving the acquisition of a right by common law or statutory prescription.
Common law prescription is based on a presumed grant made before 1189. The Prescription Act 1832 was passed to avoid the problem of proving user since 1189. However, the claimant must show a period of uninterrupted use for the 20 years immediately preceding the claim. With lost modern grant, the claimant must also show 20 years use, but the period need not immediately precede the claim. It can have expired at an earlier time. The doctrine of lost modern grant is useful in situations where the servient owner has recently taken steps to defeat a claim.
Enjoyment of the right must still have the necessary qualities to fulfil the requirements of prescription. The user must be "as of right" and not as a result of force; secrecy; permission of the servient owner; or a mistaken view of the right by the dominant and servient owner.
In the recent case of Tara Hotel v Kensington Close Hotel {[2010] EWHC 2749 (Ch)}, the High Court held that the Kensington Court Hotel had acquired a right of way over a road owned by the Tara Hotel by a lost modern grant. It did not matter that there was a question mark over whether there had been permission for the most recent use. 20 years use since 1980 could be proved.
In 1973 the then owner of Tara Hotel had granted the then owner of Kensington Court Hotel a licence to use the road for certain purposes. Ownership of both hotels subsequently changed. The licence was personal to the company who owned Kensington Court Hotel at the time and it expired at the latest in 1980 when it sold the site. Kensington Court Hotel continued to use the road. This use was by coaches and commercial vehicles, including small vans. It was partly outside the terms of the expired licence which permitted use only by large service vehicles which were unable to use another access and small vans over part of the road only. Tara Hotel asserted that continued use of the road was with their permission and was in effect a continuation of that under the 1973 licence, even though it no longer governed the position. The court disagreed. For use to be with the permission of the servient owner there had to be an unequivocal overt act. For an implied licence to arise following termination of the express licence there had to be a positive act by the owner of Tara Hotel. The fact that a carefully drafted personal licence was granted to a particular licensee in 1973 could not be regarded as a positive act evidencing an implied licence from a different servient owner in 1980 for use by a party not within the terms of the earlier licence. The user was, therefore, not with permission.
The acquiescence of the servient owner is key. A grant cannot be presumed from long use without him having had knowledge or at least the means of knowledge. Actual ignorance does not always defeat a claim. Where an ordinary owner of land, diligent in the protection of his interests, would have a reasonable opportunity of becoming aware of the enjoyment of another person over his land, he cannot allege that it was secret. The freehold owner of the land must: know, or be taken to know, of the use; and be in a position to prevent it if he wished to do so.
The latest case on lost modern grant is Llewellyn v Lorey {[2011] EWCA Civ 37}. The Court of Appeal held that the High Court had been wrong to find that the Llewellyns had sufficient user to establish a vehicular right of way, for commercial purposes, over a lane on land owned by Mrs Lorey. There had been no acquiescence in the use of the right of way during periods when a life tenancy and subsequently a tenancy existed. This meant there was insufficient continuous use on which to base a claim for a prescriptive right. The use must have been continuous in the sense that the claimant has exercised the right he asserts whenever he wished and that there are no intervals of such length to show the alleged use really amounts to no more than isolated acts. The use need not be constant, but where it has not been, this should not be due to the interference of the owner of the servient tenement.

SECTION 62
Where land is transferred, subject to contrary intention, existing easements are automatically conveyed under Section 62 of the Law of Property Act 1925. Additionally, licenses may be transformed into legal easements. A limitation of Section 62 is that it does not act to imply reservation easements; for example, a land owner in common ownership of two plots of land could not claim that, after selling one plot, his remaining plot should have an easement for right of light implied.
In Mulvaney v Jackson {[2002] EWCA Civ 1078}, the claimant was the owner of one of a group of cottages which, together with adjacent land, belonged to the defendants' predecessor in title before they were sold off. Since 1970, the claimant had used the land with the other cottage owners as a communal garden. In 1996, the defendants removed a flower bed tended by the claimant on part of the land abutting her wall. The Court of Appeal held that, even though the defendants had not themselves created or maintained the garden, the land had been used as such ever since the sale of the cottages; and that, accordingly, the claimant was entitled to a right to use the land as a communal garden along with the other dominant owners. 
The Court of Appeal would only grant a declaration that Mrs Jackson had the right to use the land in common with others as a garden. Mr Mulvaney could carry out work on the land, as long as he did not prevent its use as a garden. All the owners of the cottages had a right to the use of the land as a garden amounting to an easement. There is a difference between a case in which the easement claimed was the subject matter of an express grant and one which is said to have arisen by prescription or under section 62. Where the vendor owned the entire width of an adjoining road the common law highway presumption applied so that the owner was deemed to have conveyed the whole of his interest in the road {Commission for New Towns v JJ Gallagher Ltd {[2002] EWHC 2668}. There is a presumption of law that a conveyance of land next to a highway carries with it that part of the highway which adjoins the land, and is owned by the vendor.
In the case of P&S Platt Limited v Crouch {[2003] EWCA Civ 1110}, the defendants were the vendors of a hotel. The land on which the hotel stood was close to the river but not next to it. Between the hotel and the river was an island also owned by the defendants. On the riverside of this island were three moorings. For many years the defendants and their predecessors in title had used these moorings for the benefit of hotel customers. There were indeed signs - not only on the riverbank, but also on the path leading from the hotel to the riverbank advertising the moorings as being "Strictly for hotel customers". The claimant company contracted to purchase the hotel and its business. It also took an option to purchase the island owned by the defendants. The contract for the purchase of the hotel was completed. Although the claimant wanted to exercise the option to purchase the island it missed the date for its exercise. The defendants contended that not only had the claimant lost the right to buy the island but in addition had lost the right to use the moorings. The contract was silent so far as use of the moorings was concerned. It did, however, incorporate a standard clause which in turn had the effect of applying section 62 of the Law of Property Act 1925 to the contract of sale. Whether an easement to use the river moorings had arisen as a result of the sale of the hotel became the central issue in the case. The Court of Appeal rejected the notion that it was appropriate to look at the course of negotiations between the parties prior to the contract of sale in order to seek to discover what the parties common intention may have been. The Court of Appeal emphasised that, save in cases where rectification was raised, it was not legitimate to go into the negotiations. What is said in the course of negotiations provides too uncertain a guide as to what is the position between contracting parties when later they commit themselves finally by their contract. If the law were otherwise, then whenever an argument might arise as to the existence or otherwise of a possible section 62 right, the parties would be prompted to trawl through all the pre-contract negotiations. Platt should put an end to this. The result of P and S Platt Ltd v Crouch, was that section 62 operated to convert the mooring rights previously used in connection with the hotel purchased by the claimants into full easements.
The latest important case on section 62 is Wall v Collins {[2007] EWCA Civ 444}. Mr Wall appealed against a decision that he did not have a right of way over a passageway running between his property and that of the defendants. 
Mr Wall was the freehold owner of a house and the defendants were the owners of an adjoining property. Mr Wall was also the owner of a leasehold interest in a plot of land to the rear of the house on which he had built a garage. The original leasehold of both the house and the defendants’ property had been granted for a term of 999 years in 1910. Mr Wall bought the house in 1999 and the freehold interest was transferred to him but the leasehold interest was not separately registered and the reference to the 1910 lease in the charges register was removed. Mr Wall claimed a right of way over a passageway running between the house and the defendants’ property on the basis that it had been granted by way of an assignment made in 1911. 
The judge held that the right of way granted by the 1911 assignment could only attach to the leasehold interest in the house, which was what was being assigned, and that if a leasehold estate was merged with a freehold estate, any easements or covenants attached to the leasehold interest were extinguished. The judge further found that the leasehold interest in the house had ceased to exist by way of a merger and that, in any event, the leasehold interest was surrendered by operation of law in 1999 when Mr Wall acquired the freehold.
The Court of Appeal allowed the appeal. It held that the premise of the judge's reasoning was that the right of way was attached to the 1910 lease and that therefore when the lease was extinguished by merger, the right was lost. That approach was wrong. An easement had to be appurtenant to a dominant tenement, but not necessarily to any particular interest for the time being. All that mattered was that the grantee had an interest at least co-extensive with the period of the easement. It followed that the merger of the lease into a larger interest in the dominant tenement was not in itself fatal to the continued existence of the easement for the period for which it was granted. The dominant tenement remained unchanged and there was no legal impediment to the continued enjoyment of the easement by the occupier for the time being of that tenement. The merger of the lease in 1999 did not destroy the easement, at least to the extent of the 1911 grant, and the 999-year right was amply sufficient for Mr Wall to benefit from the right of way. 
In relation to the question as to whether an equivalent right of way passed with the conveyance of the freehold of the house, section 62 provided direct support for the argument that Mr Wall’s right of way was not limited by the extent of his former leasehold interest. In the absence of any indication of contrary intention, the right of way, should in principle be treated as having passed with the freehold. The disappearance by merger of the lease of the house in 1999 did not affect the continuation of the right for the benefit of the freehold.
Even where the original dominant tenement was extended, the enjoyment of the easement could continue for the benefit of the enlarged property if the additional use was merely ancillary. In the present case, there was no reason for holding that the use of the garage on the plot of land was anything other than ancillary to the ordinary residential use of the house and the right of way could therefore be used to benefit the use of the garage. The appropriate declaration was that Mr Wall, as owner of the house and of the plot of land, enjoyed a right of way over the passageway to the extent that it was reasonably required for the convenient enjoyment of the house.

DEROGATION FROM GRANT
Derogation from grant is a common law concept that is usually met in the context of landlord and tenant. However, it applies just as much where there is a grant of a freehold easement.
The grantor cannot take away with one hand, eg by act or omission on its own land, what it has granted with the other. In the recent case of Carter v Cole {[2009] EWCA Civ 410}, the Court of Appeal considered derogation from grant.
The Coles bought land from the Carters, and the Carters granted the Coles a right of way over the Carters' retained land. The Carters were applying for planning permission for a bottling plant, and one of the conditions was that there would be a visibility splay at the edge of the Coles' servient land. The Coles knew, at the time they bought their land and granted the access right, of the requirements of the planning consent for the bottling plant, including that for adequate visibility splays. The tenant of the bottling plant left, in part because permanent planning consent had been refused on grounds that the sight lines at the junction between the access road and the main highway were obstructed and dangerous. The planning inspector did not believe this was a problem the Carters could solve since they did not own or control the splay land. The Carters sought permanent planning consent for use of the retained land as offices, which was refused on the same grounds. Faced with their retained land being effectively sterilised, this time it was the Carters who sought help from the Court of Appeal. They argued, successfully, that, by putting in fencing and allowing the vegetation to grow up high on the visibility splay land, the Coles were derogating from their grant to the Carters of the right of access in the original transfer.
The Court of Appeal held that there was a derogation from grant. Since the owner of the servient tenement knew at the time of the grant of the right of way that a visibility splay was required in order for the easement owner to be able to make use of the easement owner's land in accordance with the existing planning permission, the right of way included a right to a visibility splay. It must have been obvious to the owner of the servient tenement at the time the right of way was created that it could not interfere with the visibility splay without severely impacting the easement owner's ability to use the right of way.
In May 2009 the Court of Appeal granted the following remedies for such derogation from grant: firstly, a mandatory injunction forcing the Coles to remove the obstructions and reinstate the visibility splay; and secondly, damages to compensate the Carters for being unable to use their retained land for any commercial purpose in the period until such planning consent was obtained.
Derogation from grant was also at the heart of the claim in William Old International Limited v Arya {[2009] EWHC 599 (Ch)}. The High Court held that an easement is negative in character and, save in limited circumstances, cannot carry an obligation to take positive steps. Likewise, the principle of derogation from grant does not extend to the imposition of positive obligations.
The decision accords with a long line of authority to the effect that both easements and the principle of non-derogation ire negative in character. In this, as in other contexts, the principle that positive obligations do not run with the land is in evidence. The court concluded that it would not have been the intention of the original parties to the grant that the owner of the servient tenement should be required to enter into any further deed of grant with a utilities company. Would the decision have been any different if the court had found that the original parties to the grant had held such an intention? Probably not, as the principle that easements and the duty not to derogate from grant impose only negative obligations would still have been fatal to the claim.

FUNCTION
A right of way must have a specific function. Usually the function is to get from A to B. Disagreements can arise if a landowner exercises a right of way in order to gain access to land other than that for which the way has been granted.
The general rule is that a right of way enures for the benefit of dominant tenement alone and cannot be exercised in order to gain access to other land in common ownership with the dominant tenement. The leading case is the well-known decision of the Court of Appeal in Harris v Flower {(1904) 74 U Ch 127}.
Even at the time of the decision it was recognised that it might be permissible to exercise a right of way in order to gain access to a non-dominant tenement if that access was in reality for the benefit of the dominant tenement. Thus, in the case of Williams v James {(1867) LR 2 CP 577}, it was held that the exercise of a right of way to gain access to land adjoining the dominant tenement was permissible where the way was exercised in good faith for the purposes of removing crops grown on the dominant tenement but stored upon the adjoining land.
This principle, as developed in subsequent case law, has come to be referred to as the doctrine of ancillary use within the authorities. The first reported case upon the doctrine is the decision in National Trust v White {[1987] 1 WLR 907}. The point at issue in that case was whether visitors to an ancient monument were entitled to pass across a right of way granted for the benefit of the monument in order to gain access to a public car park sited a short distance away. The court accepted that the rule formulated in Harris was subject to an exception in those cases where the exercise of the right of way for access to the non-dominant tenement was subsidiary and its principal user had been for the purpose of gaining access to the dominant tenement. On this basis, the court held that it was permissible for visitors to the monument to use the right of way to gain access to the car park because that use was no more than ancillary to the enjoyment of the monument itself. In more recent times, there have been conflicting judgments from the Court of Appeal {contrast Das v Linden Mews Ltd {[2002] EWCA Civ 590} and Massey v Boulden {[2002] EWCA 1634}}. In Macepark (Whittlebury) Limited v Sargeant {[2003] EWHC 427 (Ch)}, the High Court extracted the following principles from the caselaw.
• An easement must be for the benefit of the dominant land.
• It must not in substance be used for the benefit of the non-dominant land.
• Under the doctrine of ancillary use, use is not in substance for the benefit of the non-dominant land if the extent of the use for the benefit of the non-dominant land is insubstantial.
• Benefit in this context includes use of an access in such a way that a profit may be made out of the use of the non-dominant land, for example as a result of an arrangement with the owner of the dominant land.
• Whether the doctrine of ancillary use applies in any given case will ultimately be one of fact and degree.
• One significant factor is whether the benefit to the non-dominant land is likely to have its own commercial value.
Often, an easement is granted for access to adjoining property for the purposes of rebuilding or renewal. The Court of Appeal has recently provided guidance on this in the case of Risegold Ltd v Escala Ltd {[2008] EWCA Civ 1180}. It concerned neighbouring freehold premises at Quaker Court, London, consisting of industrial units, and the extent of an easement granted to the owner of one of those premises, giving it the right to enter into part of the adjoining premises. The issue in dispute was whether the wording of the easement entitled Risegold to use its right of way over the adjoining property for the purposes of constructing the development. The total period of construction was anticipated to be in the region of 65 weeks. Risegold sought a declaration from the High Court that the wording of the easement entitled it to enter the adjoining property for this purpose. At first instance, this declaration was refused. The Court of Appeal allowed the appeal. In reaching its decision, the Court of Appeal attached particular significance to the combined use of the words "rebuilding" and "renewal".
The redevelopment of a property constituted "rebuilding or renewal" within the meaning of the grant and the right of entry invoked by Risegold covered its redevelopment to the property as either rebuilding or renewal. So, in good news for developers with unclear easements of entry, the Court of Appeal's decision may prove useful and may open up development possibilities that may otherwise not have been contemplated.
However, a note of caution must also be sounded.
Context is everything is the key message to be taken from the Court of Appeal's ruling. Developers should not therefore automatically assume that all easements granting access to adjoining property for the purpose of "rebuilding" or "renewal" will give them an automatic right to access the land for the purpose of redevelopment.



MULTIPLE CHOICE TEST
Subscription Area: Property
Title of Recording: Easements (Feb 2012)

NAME OF LAWYER...............................................................................................
RING THE CORRECT ANSWER
PART ONE - RIGHTS OF WAY
Question 1: Audrey has a farm. Her neighbour is William. There are two routes from Audrey's farm to the main road: a long one; and a short one. However, she only has a legal right of way over the long one. William granted her predecessor a license to use the short road. Does the benefit of that permission pass to successors in title like Audrey?
A no
B only if registered
C yes
Question 2: Which statutory provision might assist Audrey?
A section 22 of the Commons Act 2006
B section 62 of the Law of Property Act 1925
C section 103 of the Countryside and Rights of Way Act 2000
Question 3: Does it make any difference if Audrey is a tenant?
A no
B only if her lease is less than 7 years
C yes, her rights would be extinguished when the tenancy ends
PART TWO - OTHER EASEMENTS
Question 4: If it were established that Audrey does have a right of way over the short route, which of the following uses might exceed the right?
A driving cattle
B riding on horseback
C walking by foot
Question 5: Audrey proposes to build a new shed. Which of the following rights of William must she respect?
A right to roam
B right to a view
C right to light
Question 6: If William finds one of his easements infringed, and the infringement is substantial and continuing, what is the normal remedy?
A damages
B injunction
C fine
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