LAND LAW 2.11 EASEMENTS

• Isochukwu
• 3
• Land Law II

EASEMENT.

Because this note is too summarised, readers may not fully understand by merely reading through. Readers are advised to get the facts of the cases to have a better grasp. Apologies.

Easement is a right attached to land which allows the owner of that land (dominant owner) to use the land of another person (servient owner) in a particular manner (positive easement) or restrict its user by that person to a particular extent (negative easement) but does not allow him to take any part of its natural produce or its soil-Mannign V Walshdale, Okunzua V Amosun. The use should be inclusive as the dominant owner cannot claim an exclusive or restrictive right to use the servient land.

CHARACTERISTICS OF EASEMENTS.

In Re Ellenborough Park’s case, the court held that an easement must possess the following characteristics:

1. There must exist an identifiable dominant tenement which benefits from another tenement called the servient tenement.
2. The easement must accommodate the dominant tenement: rather than conferring personal advantages… it should be beneficial to the land (i.e. it should not personally benefit the owner per se but it should benefit the land). The law requires that both tenements be sufficiently close so the dominant tenement benefits from the servient tenement-Bailey V Stephens. In this case, the court held that the right to cut trees for fuel does not qualify as an easement.
3. The two lands (dominant and servient tenement) must be vested in different persons-Roe V Siddons. This has been interpreted to mean that the two lands must be owned or possessed by separate persons. Not one person owning OR possessing both lands. A tenant can acquire an easement over his landlord’s land.
4. The right must be capable of forming the subject matter of a grant:

• The landowners must have the capacity to grant and receive the easement… he must be a definite person/corporation rather than a nonentity or vague like a community.
• The right must not be vague. E.g. right to access light. In AG V Antrobus the court held that the right to wander on a park is vague.
• The use must not be exclusive. In Hill V Tupper where hill was to have “”sole and exclusive right” to let out pleasure boats on the canal, the court held that there was no easement rather it was a license.

EASEMENT DISTINGUISHED FROM SIMILAR RIGHTS.

Profit: This does not mean selling price minus cost price. Here profit is referred to as the right to take the natural produce of another’s land or any part of the soil. Unlike easement, in profit there is no need to own neighbouring land and profit may be enjoyed in common with the servient owner. Look at this scenario: Tunde (Tayo’s neighbour) usually goes to Tayo’s land to pluck mango fruits from Tayo’s trees. This is NOT an easement but a profit. Why? Because the mango is not benefiting Tunde’s land but conferring a personal advantage on Tunde (the sweet taste and nutrients).

NB: Please look at the elements of easement highlighted above In Re Ellenborough Park’s case.

Licences: easements are proprietary interest while licences confer mere personal priviledge or permission to do an act which would otherwise have amounted to trespass-Hill V Tupper. A licence can be granted exclusively while this cannot be done under an easement. Unlike easements, the creation of licenses do not require formalities in law. License does not require dominant land to be benefitted. Look at this scenario: Ayo is allowed to park his car on Ade’s land. This is not an easement because it does not confer personal advantage on the land.

Restrictive covenants: although like easement, negative restrictive covenant can retrict the servient owner’s use of his land. A restrictive covenant only exists in equity and cannot be acquired by prescription but an easement can exist in law and can be acquired by prescription.

Public rights: These are rights enjoyed by the public in general like right of way, right to fish, and so on-Amachree V Kallio. Why is public rights not an easement? Because it does not require a dominant and servient tenement nor does it require the users to be adjoining landowners.

Customary right: the latter does not need grant by deed and are not appurtenant to land.

CLASSIFICATION OF EASEMENT.

• May be positive or negative: The right to use servient land = Positive Easement, while the right to restrict its use by the servient owner respectively = Negative Easement. Stopping a neighbour from blocking the view has been held to be unknown to law-Webb V Bird. Except it is through defined apertures.
• Legal or Equitable: An easement created by deed=Legal Easement. Where oral or merely in writing = Equitable. Also, an equitable easement can be created: -Where there is an agreement an easement. –Where the grantor’s interest in the land is equitable. -Where the servient owner agreed or acquiesced in the enjoyment of the right-Crabb V Arun. Unlike a legal easement, an equitable easement would not automatically pass with land. It should be expressly assigned whenever the dominant land is transferred.

ACQUISITION OF EASEMENTS.

How may easements be acquired?

• Statutory Grant: to public utility bodies which supply water, gas, electricity and so on-AG Southern Nigeria V John Holt.
• Express Grant: to the owner of the dominant tenement which must be by deed else it would be an equitable one.
• Express reservation: where a vendor sells part of his land and expressly reserves an easement over the land sold.
• Implied easement: Easement may be implied:
  • By necessity: where the dominant property would be inaccessible or unusable without the easement-Clark V Clogg. Except the parties agreed to the contrary.
  • Where both parties at the time of conveyance intend that an easement should be granted-Wong V Beaumount Property Trust Ltd.
  • The rule in Wheeldon V Burrows: if A (the grantor) owns two adjoining tenements and has been using it in a particular way, if he conveys one of the tenements to B, B would be entitled to the easement which A exercised. The quasi easement must be necessary for the reasonable enjoyment of the property and must have been enjoyed by the grantor up to the date of the grant-Re Clements Leigh on Sea. Except this rule is expressly excluded in the agreement.
• Presumed grant: (Right of prescription) Where the dominant owner has used the land over a period of time, he may acquire legal easement by presumed grant.
  • The use must have been without force, secrecy or permission.
  • User must be as of right and continuous.
  • The user must own neighboring land
  • The right must have been enjoyed (uninterrupted-Jones V Pryce)) for more than 20 years-Angus V Dalton, Bryan V Foot, Under Section 2 of the prescription Act 1832, if the right has been enjoyed for more than 40 years, it becomes absolute and indefeasible.

The burden of a legal easement automatically runs with the servient land. In equity, it would only run if the successor in title had notice of it.

EXTINGUISHMENT OF EASEMENT.

• By release: maybe express (by deed) or implied (where there is a clear evidence of abandonment with the intention never to reassert the right-Moore V Rawson). Where no deed, it is an equitable release.
• Unity of seisin: If the dominant and servient tenement merge together in the hands of one person. Unity of possession alone merely suspends the easement-Huckvale V Aegean Hotel Ltd.
• Where the easement ceases to accommodate (dominant tenement no longer enjoys) dominant tenement-Hucklave V Agean Hotels.
• By statutory provisions on grounds of public policy.