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See also:EASEMENT (Fr. aise; O. Fr. aisement; Anglo-See also:Lat. aisiamentum, a See also:privilege or convenience)
, in See also:English See also:law, a See also:species of " See also:servitude " or limited right of use over See also:land belonging to another
.
It is distinguished from profits d prendre—another species of servitude which involves a right to participate in the profits of the See also:soil of another—since an See also: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 See also:common is a profit
.
An easement is distinguishable also from a See also:licence, which, unless it is coupled with a See also: 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 See also: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 See also:person (Innes, Law of Easements, 7th ed. p. ro) . For example, a man builds two houses, each of which by the See also: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 See also:necessity." Easements are acquired by prescription at common law by See also:proof of " immemorial user " by the dominant owner and those through whom he claims . At one See also:time it was thought that such proof must date back to the first See also:year (1189) of See also:Richard I . (see See also: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." See also:Long enjoyment of the right pointed to its having had a legal origin in a grant from the servient owner, and so any See also: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 See also: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 See also:character that the owner of the tenement said to be servient has a reasonable opportunity of becoming aware of the adverse claim (See also:Union Lighterage Co. v . See also:London Graving See also:Dock Co., 1902, 2 Ch . 557); and it must be enjoyed as of right (See also:Gardner v . See also:Hodgson's See also:Kingston Brewery Co., 1903, A.C . 229) as against the owner of the tenement affected (Kilgour v . Gaddes, 1904, I K.B . 457) . The periods of prescription are to be reckoned backwards from the time when some suit or See also: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 See also:release—here an See also:instrument under See also:seal is necessary; (ii.) by " See also:merger," i.e. where both tenements become the property of the same owner; (iii.) by See also:abandonment through non-user .
In the case of discontinuous easements, the shortest period of non-user may suffice if there is See also:direct See also:evidence of an intention to abandon
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A word may be added here as to the right to See also:air
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It is an actionable See also:nuisance to cause pollution of the air entering a dwelling-See also: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 See also: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)
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In Scots Law the term " easement " is unknown
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Both the name " servitude " and the See also:main species of servitudes existing in See also:Roman law (q.v.) have been adopted
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The See also:classification of servitudes into positive and negative, &c., and the modes of their creation and extinction, are similar to those of English law
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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 See also:title duly recorded in the appropriate See also:register of sasines (See also:Conveyancing [See also:Scotland] Act 1874)
.
There are
certain servitudes See also:special to Scots law, e.g
.
" thirlage," by which lands are " thirled " or See also:bound to a particular See also:
Statutory See also:provision has been made for the See also:commutation of these duties (Thirlage Act 1799), and they have now almost disappeared
.
The See also:French See also:Code See also:Civil (Arts
.
637 et seq.) and the other See also:European codes (e.g
.
See also:Belgium, arts
.
637 et seq.; See also: The term " easements," however, in India includes profits a prendre . In the See also:South See also: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 . See also:Victoria (Water Act 1890, No . 1156, s . 3), See also:Ontario (Real Property See also:Limitation Act, Revised Stats . Ontario, 1897; c . 133, s . 36, light) . In the See also:United States the law of easements is founded upon, and substantially identical with, English law .
The English See also:doctrine, however, as to acquisition of right of light and air by prescription is not accepted in most of the States
.
AuTHORITIES.—English Law: Gale, Law of Easements (8th ed., London, 19o8); Goddard, Law of Easements (6th ed., London, 1904) ; Innes, See also:Digest of the Law of Easements (7th ed., London, 1903)
.
See also:Indian Law: See also:Peacock, Easements in See also:British India (See also:Calcutta, 1904); See also:Hudson and See also:Inman, Law of Light and Air (2nd ed., London, 1905)
.
Scots Law: See also:Erskine, Principles of the Law of Scotland (loth ed., See also:Edinburgh, 1903)
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See also:American Law : See also: |
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The article ought to have touched upon what is known as"natural rights" also.
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