|
EASEMENT (Fr. aise; O. Fr. aisement; Anglo- See also: English 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 See also: 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 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: ancient 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 See also: 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 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 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 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 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 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 .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 release—here an 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 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 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
.
Statutory 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: Code 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.;
See also: Italy, arts
.
531 et seq.; See also: Spain, arts
.
530 et seq.; See also: 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 See also: 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 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); 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
.
(See also: Boston and London, 1897); Ruling Cases, London and Boston, 1894–1901, tit
.
Easement (American Notes)
.
(A
.
W
.
|
|
|
[back] EARWIG |
[next] EAST |
The article ought to have touched upon what is known as"natural rights" also.
Do not copy, download, transfer, or otherwise replicate the site content in whole or in part.
Links to articles and home page are encouraged.