Easements

By what methods can easements be created? Is there any significant difference between legal and equitable easements? Easements are essentially a species of right that one landowner enjoys over the land of another. They are proprietary in the sense that they attach to the land rather than to the owners of the land. Like restrictive covenants, easements have a dual effect. They both confer a benefit and impose a burden. The ability of easements to bind third parties makes it necessary to have clear rules governing both the creation and conditions which must be filled before an easement can be regarded as legal or equitable. Is there any consistent policy evident in the rights that the courts have recognized easements? An easement is a right in alieno solo. It is a privilege without a profit. Easements comprise those rights which one landowner may exercise over the land of their neighbour, e.g. the right of way, the right of light and the right of support. Every easement has two aspects, i.e. a negative and positive aspect: one landowner (the dominant tenement) will enjoy the benefit of an easement, and another (the servient tenement) will be subject to its burden. The traditional starting point for a discussion about the essential characteristics of an easement is the judgment in Re Ellenborough Park. This case establishes four requirements for a valid easement. First, there must be a dominant and servient tenement. Secondly, an easement must accommodate the dominant tenement. Thirdly, the dominant and servient owners must be different persons, and fourthly, the easement must be capable of forming the subject matter of the grant. The essential duality of an easement is evident from the first requirement. It is crucial that for an easement to exist there must be two parcels of land concerned, i.e. a dominant and servient tenement. The easement must burden the land but it must also benefit the land and it cannot exist in gross. In London & Blenheim Estates v. Ladbroke Retail Parks, no easement existed where the servient tenement was sold before the dominant tenement, which was to be benefited, was bought. In Boodhoo v. Jammuna, HamelSmith J emphasized that one who claims to be entitled to an easement must show that he owns the fee simple or is a lessee of the dominant tenement. In this case, the El Socorro Sanatan Dharma Sudhar Sabha, being an unincorporated association, was incapable of owning land, unless trustees were appointed in whom the land could be vested. Under the second requirement established by Re Ellenborough Park the easement must benefit the dominant tenement. The land must be close enough to be capable of benefiting from the easement (Bailey v. Stevens). It need not be adjoining but it must be adjacent. For example, the right to use the garden of an adjoining property as in Re Ellenborough Park; or the right to cross the adjoining land to reach the beach as in Hart v. Pierce. However, there may be intervening land between the dominant and servient

tenement. An unusual example of a servient tenement being held to be sufficiently close to the dominant tenement to accommodate it was in Phillips v. Halliday, where a pew in a church was held to be sufficiently close to a house in the parish, so that the owners of the house acquired an easement to use the pew. Other cases such as Pugh v. Savage and Todrick v. Western National Omnibus Co. Ltd. illustrate that a right of way, in order to rank as an easement, need not lead right up to the dominant tenement, but it must have some natural connection with it. Easements are proprietary rights and therefore confer benefits on the land, not persons (Manson v. Shrewsbury Rlwy). According to Megarry and Wade, it must serve to make the dominant tenement a better and more convenient property. For example, in Hill v. Tupper it was held that sole and exclusive rights of a waterway granted to Hill was not an easement but a mere licence, since it was acquired so that Hill could further his boat business enterprise rather than to accommodate the land. However, a contrasting view was illustrated in Moody v. Steggles where the owner of a public house successfully claimed an easement to hang a sign pointing towards the establishment on the adjoining land. This holding was rationalized on the basis of the long established nature of the business. An easement is essentially a right in another mans land. For that reason, the third Re Ellenborough principle is that the dominant and servient tenements must not be owned and occupied by the same person, i.e. a person cannot have an easement over his own land. If such were to occur the easement will be extinguished. For example, if X owns Blackacre and Whiteacre, and he is in the habit of driving across Whiteacre to get to the main road, he is simply exercising his right of ownership, i.e. a quasi-easement. Although due to the operation of the rule in Wheeldon v. Burrows an easement may be created in a situation when part of the land is sold off. The rule is that the dominant and servient tenement must not be both owned and occupied by the same person. Therefore, according to Wright v. Macadam there is nothing to stop a tenant from having an easement against their landlord. In this case it was held that the right to use the coal shed passed to the Wrights as an easement under s.62 LPA 1925 on the grant of the tenancy. Similarly, where X lets Blackacre to T and Whiteacre to S, T can acquire an easement over Whiteacre by implied or express grant. In the Trinidadian case of Majid v. Beepath, Edoo J pointed out that a tenant may acquire an easement against another tenant of the same landlord by grant, but for a period not exceeding the length of the latter tenants lease. Finally, no right may amount to an easement unless it is capable of forming the subjectmatter of the grant.