Crow v Wood

The question is, therefore, whether a right to have a fence or wall kept in repair is a right which is capable of being granted by law. I think it is because it is in the nature of an easement. It is not an easement strictly so called because it involves the servient owner in the expenditure of money. It was described by Gale [ Easements, 11th ed. (1932), p. 432] as a "spurious kind of easement." But it has been treated in practice by the courts as being an easement. Professor Glanville Williams on Liability for Animals (1939), says, at p. 209: "If we put aside these questions of theory and turn to the practice of the courts, there seems to be little doubt that fencing is an easement." In Jones v Price [1965] 2 QB 618, 633, Willmer LJ said: "It is clear that a right to require the owner of adjoining land to keep the boundary fence in repair is a right which the law will recognise as a quasi-easement." Diplock L.J., at p. 639, points out that it is a right of such a nature that it can be acquired by prescription which imports that it lies in grant, for prescription rests on a presumed grant.

It seems to me that it is now sufficiently established - or at any rate, if not established hitherto, we should now declare - that a right to have your neighbour keep up the fences is a right in the nature of an easement which is capable of being granted by law so as to run with the land and to be binding on successors. It is a right which lies in grant and is of such a nature that it can pass under section 62 of the Law of Property Act 1925.