Easement - Definition - Law Dictionary Home Dictionary Definition easement

Definition :

Easement, An easement is a right which the owner or occupier of certain land possesses, a such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. [Easement Act, 1882 (5 of 1882), s. 4]

Easement, a privilege without profit which the owner of one neighbouring tenement hath of another, existing in respect of their several tenements, by which the owner of the one (called the servient) tenement is obliged to suffer, or not to do something on his own land, for the advantage of the owner of the other (called the dominant) tenement, e.g., a right of way, a right of passage of water. It is the servitus of the Civil Law. An easement being a mere right without profit must be distinguished from a profit a prendre (q.v.), which confers a right to take something from the servient tenement. Instances of easements are rights of way, light, support, or flow of water. Easements have been classified as positive, such as a right of way, or for advertisement, a pew or grave, or negative, such as light, water, or the submission to a nuisance; continuous, such as a path or road; discontinuous, for intermittent use; apparent or patent; non-apparent, where there is no external indication that it exists, and easements of necessity or not of necessity. Easements of necessity arise by implied grant upon a severance of property without which the property granted, or retained, as the case may be, would be useless, but except for easements strictly of necessity there is no implication that the grantor has reserved any easement, however useful to his property it may be. Such easements must be expressly provided for either in the conveyance or by a regrant by the grantee of the land, see Wheeldon v. Burrows, (1879) 12 Ch D 31. An easement is an incorporeal hereditament, which from its nature can only be created by grant: hence the origin of all easements may be referred to a grant by the owner of the servient tenement either expressed or implied. In the majority of cases the right is founded upon the implication of a grant, the terms of which can only be ascertained from the actual enjoyment of the easement.

(1) Where a right of way had been enjoyed longer than living memory and the land had been settled for longer than living memory so that there was never any person during that period who could have dedicated the way absolutely, it was held that there was no evidence that the way had not been dedicated before living memory and the grant was presumed, Williams & Ellis v. Cobb, (1935) 1 KB 310.

(2) by severance of one tenement in two parts.

By s. 62, sub-ss. (1), (2) of the (English) Law of Property Act, 1925, replacing s. 6(1), (2) of the (English) C. Act, 1881, easements are included in a conveyance of land by implication, and see s. 205(1) (xxiii.) of the (English) L.P. Act, 1925, and by the same Act, s. 1(2), an easement in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute is capable of subsisting and being conveyed or created at law. All other easements are equitable'by s. 187, ibid., easements over or in relation to land may be enjoyed in common with any other person. equitable easements created after 1925 must be registered before completion of purchase of a legal estate under s. 10, Class D (iii.) of the (English) Land Charges Act, 1925, or they will be void against a purchaser of a legal estate for money or money's worth even though he may have notice aliunde. In all other cases notice [see ss. 197-199 of the (English) L.P. Act, 1925] will affect a purchaser or grantee. Equitable easements affecting land within any of the three Ridings in Yorkshire must be registered locally, see (English) L.P. (Amendment) Act, 1926, amending the (English) Land Charges Act, 1925, s. 10. Upon a reservation by a grantor of any easement in a conveyance to the grantee of a legal estate in an easement, the grantee need not execute the conveyance. [(English) L.P. Act, 1925, s. 65]

(3) By prescription. Easements are extinguished pro tem by the union of the dominant and servient tenements in one owner and revive upon severance in favour of the grantee or both or more of the grantees. They are also extinguished by release, by the disappearance of the dominant or servient property, by lapse of time or disuse. See EXTINGUISHMENT. See Gale on Easements; Goddard on Easements; and the title PRESCRIPTION.

Easement includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything's growing in, or attached to, or subsisting upon, the land of another. [Limitation Act, 1963 (36 of 1963), s. 2(f)]

Easement, See [Easements Act, 1882 (5 of 1882), s. (4)]