See also:law, a
See also:species of " 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 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 licence, which, unless it is coupled with a
See also:grant, is
See also: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
See also: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
See also: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
See also: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
See also: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
See also:positive, those which authorize the commission of an
See also:act by the dominant owner, e.g. rights of way, a right to draw
See also:water from a
See also: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
See also:building on land so as to obstruct
See also: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.
See also:access to
See also: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
See also:external signs of the exercise of the right, e.g. a right to
See also: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
See also:express grant, either by
See also: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
See also:fee (as to implied reservation, see Gale on Easements, 8th. ed. pp . 137 et seq.); (d) by
See also: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
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 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 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
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 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 acharacter 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 .
See also:London Graving
See also:Dock Co., 1902, 2 Ch . 557); and it must be enjoyed as of right (Gardner v .
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 release—here an instrument under 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 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-
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 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
See also:main species of servitudes existing in
See also:Roman law (q.v.) have been adopted . 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 . 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
See also:register of sasines (
See also:Conveyancing [Scotland] Act 1874) . There are certain servitudes
See also:special to Scots law, e.g . " thirlage," by which lands are " thirled " or bound to a particular
See also:mill, and the possessors obliged to grind their
See also:grain there, for payment of certain multures (quantities of grain or
See also:meal, payable to the mill-owner) and sequels (small quantities given to the mill servants) as the customary price of grinding .
See also:provision has been made for the commutation of these duties (Thirlage Act 1799), and they have now almost disappeared . The French
See also:Civil (Arts . 637 et seq.) and the other
See also:European codes (e.g . Belgium, arts . 637 et seq.;
See also:Holland, arts . 721 et seq.; Italy, arts . 531 et seq.; Spain, arts . 530 et seq.; Germany, arts. roi8 et seq.) closely follow Roman law . French law is in force in
See also:Mauritius, and has been followed in
See also:Quebec (Civil Code, arts . 499 et seq.) and St
See also: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 a prendre . In theSouth
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), 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 .
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); 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) .
See also:American Law :
See also:Jones, Law of Easements (New
See also:York, 1898);
See also:Bouvier, Law Dict . (Boston and London, 1897); Ruling Cases, London and Boston, 1894–1901, tit . Easement (American Notes) . (A . W .
The article ought to have touched upon what is known as"natural rights" also.
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