Easement

Easement (Fr. aise; O. Fr. aisement; Anglo-Lat. aisiamentum, a privilege or convenience), in English law, a species of “servitude” or limited right of use over land belonging to another. It is distinguished from profits à prendre—another species of servitude which involves a right to participate in the profits of the soil of another—since an easement confers merely a convenience (aisiamentum) to be exercised over the land of another (without any participation in the profits of it), i.e. a right to use the soil or produce of the soil in a way tending to the more convenient enjoyment of another piece of land. Thus a right of way is an easement, a right of common is a profit. An easement is distinguishable also from a licence, which, unless it is coupled with a grant, is personal to both grantor and grantee and is neither binding on the licensor, nor, in general, assignable by the licensee; while both the benefit and the burden of an easement are annexed to land (Gale on Easements, 8th ed. p. 2). With easements are sometimes classed certain closely allied “natural rights,” such as a landowner’s right to lateral support for his soil in its natural state, and a riparian owner’s right to the natural flow of a stream.

The essential features of an easement, in the strict sense of the term, are therefore these: (i.) It is an incorporeal right; a right to the use and enjoyment of land—not to the land itself; (ii.) it is imposed upon corporeal property; (iii.) it is a right without profit; (iv.) it requires for its constitution two distinct tenements—the “dominant tenement” which enjoys the right, and the “servient tenement” which submits to it. This last characteristic excludes from the category of easements the so-called “easements in gross,” such as a right of way conferred by grant independently of the possession of any tenement by the grantee. The true easement is an “appendant” or “appurtenant” right, not a “right in gross.”

Further classifications of easements must be noted. They are divided into (a) affirmative or positive, those which authorize the commission of an act by the dominant owner, e.g. rights of way, a right to draw water from a spring, rights of aqueduct, and negative, when the easement restricts the rights of the servient owner over his own property, e.g. prevents him from building on land so as to obstruct ancient lights (cf. also the right to the support of neighbouring soil); (b) continuous, of which the enjoyment may be continual without the interference of man, e.g. access to light, and discontinuous, where there must be a fresh act on each occasion of the exercise of the right, e.g. a right of way, or right to draw water; (c) apparent, where there are visible external signs of the exercise of the right, e.g. a right to dam up a watercourse, and non-apparent, where such signs are absent, e.g. a right to lateral support from land, a prohibition to build above a certain height.

Acquisition of Easements.—Easements may be acquired (a) by express grant, either by statute, or by deed inter vivos, or by will; (b) by an implied grant; (c) by express or implied reservation, e.g. by the owner of land in selling the fee (as to implied reservation, see Gale on Easements, 8th ed. pp. 137 et seq.); (d) by prescription, either at common law or under the Prescription Act 1832. An express grant, or express reservation, of an easement cannot be effected except by deed. An easement arises by implied grant where a man makes one part of his tenement dependent on another, or makes the parts mutually interdependent, and grants any such part with the dependence attaching to it to another person (Innes, Law of Easements, 7th ed. p. 10). For example, a man builds two houses, each of which by the plan of construction receives support from the other; this mutual right of support is a quasi-easement, of which on severance of the tenements the grantee of one will have the benefit; where the enjoyment of the severed tenement could not be had at all without such a right, it is said to be an “easement of necessity.”

Easements are acquired by prescription at common law by proof of “immemorial user” by the dominant owner and those through whom he claims. At one time it was thought that such proof must date back to the first year (1189) of Richard I. (see preamble to Prescription Act 1832). The ground, however, on which prescription was admitted as a means of acquiring easements was the fiction of a “lost grant.” Long enjoyment of the right pointed to its having had a legal origin in a grant from the servient owner, and so any period of reasonably long use came to be accepted. A “lost grant” may be presumed to have been made (the question is one of fact) if 20 years’ uninterrupted enjoyment is shown. To avoid the difficulties of proof of prescriptive right at common law, the Prescription Act 1832 established shorter periods of user. In the case of easements, other than light, the periods of prescription are 20 years for a claim that may be defeated, and 40 years for an indefeasible claim (s. 2). The right of access of light is dealt with under s. 3 (see Ancient Lights). The enjoyment to become prescriptive must be open, i.e. of such a character that the owner of the tenement said to be servient has a reasonable opportunity of becoming aware of the adverse claim (Union Lighterage Co. v. London Graving Dock Co., 1902, 2 Ch. 557); and it must be enjoyed as of right (Gardner v. Hodgson’s Kingston Brewery Co., 1903, A.C. 229) as against the owner of the tenement affected (Kilgour v. Gaddes, 1904, 1 K.B. 457). The periods of prescription are to be reckoned backwards from the time when some suit or matter involving the claim of the dominant owner has arisen (s. 4). Nothing is to be deemed an interruption unless the act of interruption has been submitted to, or acquiesced in, for a year (s. 4).

Easements may be extinguished (i.) by express release—here an instrument under seal is necessary; (ii.) by “merger,” i.e. where both tenements become the property of the same owner; (iii.) by abandonment through non-user. In the case of discontinuous easements, the shortest period of non-user may suffice if there is direct evidence of an intention to abandon.

A word may be added here as to the right to air. It is an actionable nuisance to cause pollution of the air entering a dwelling-house. The owner of a dwelling-house may by prescription acquire a right to the passage of air through it by a defined channel; and the enjoyment without interruption of ventilation by means of air flowing in a definite channel, with the knowledge of the owner and occupier of the adjoining premises, creates a presumption of the grant of such an easement (see Gale on Easements, 8th ed. p. 338).

In Scots Law the term “easement” is unknown. Both the name “servitude” and the main species of servitudes existing in Roman law (q.v.) have been adopted. The classification of servitudes into positive and negative, &c., and the modes of their creation and extinction, are similar to those of English law. The statutory period of prescription is 40 years (Scots Acts 1617, c. 12), or 20 years in the case of enjoyment under any ex facie valid irredeemable title duly recorded in the appropriate register of sasines (Conveyancing [Scotland] Act 1874). There are certain servitudes special to Scots law, e.g. “thirlage,” by which lands are “thirled” or bound to a particular mill, and the possessors obliged to grind their grain there, for payment of certain multures (quantities of grain or meal, payable to the mill-owner) and sequels (small quantities given to the mill servants) as the customary price of grinding. Statutory provision has been made for the commutation of these duties (Thirlage Act 1799), and they have now almost disappeared.

The French Code Civil (Arts. 637 et seq.) and the other European codes (e.g. Belgium, arts. 637 et seq.; Holland, arts. 721 et seq.; Italy, arts. 531 et seq.; Spain, arts. 530 et seq.; Germany, arts. 1018 et seq.) closely follow Roman law. French law is in force in Mauritius, and has been followed in Quebec (Civil Code, arts. 499 et seq.) and St Lucia (Civil Code, arts. 449 et seq.). In India the law is regulated, on English lines, by the Easements Act 1882 (Act v. of 1882). The term “easements,” however, in India includes profits à prendre. In the South African colonies the law of easements is based on the Roman Dutch law (see Maasdorp, Institutes of Cape Law, 1904; Bk. ii. p. 166 et seq.). In most of the other colonies the law of easements is similar to English law. In some, however, it has been provided by statute that rights to the access and use of light or water cannot be acquired by prescription: e.g. Victoria (Water Act 1890, No. 1156, s. 3), Ontario (Real Property Limitation Act, Revised Stats. Ontario, 1897; c. 133, s. 36, light).

In the United States the law of easements is founded upon, and substantially identical with, English law. The English doctrine, however, as to acquisition of right of light and air by prescription is not accepted in most of the States.

---