Easements

• Pages: 375-458

EASEMENTS

DEFINITION

An easement is a property right enjoyed by an owner of a property over or

in respect of the property of another, whereby the latter is obliged to suffer

the former to do or himself refrain from doing something on his property

for the benefit of the former’s property. It is a right exercised over the

property of another person, i.e., a right in alieno solo, a right in the land

of another person. Aright of way across another’s land is a classic example

of an easement.

In St. Lucia and Guyana easements take the form of servitudes, and are

governed by the civil law. The definition of servitude is not different from

that of the common law.

Aservitude is a charge upon real property, which imposes upon the owner

or occupant of the property an obligation towards another, either to pre-

vent its condition from affecting such other,or to use or forbear from using

it in a particular manner, or to permit it to be used in a manner definite and

circumscribed which is short of occupation.

When this obligation exists for the benefit of the owner or occupant of

adjoining land, in his quality as such owner or occupant, the charge is

called a real servitude.1

THE ESSENTIAL FEATURES OF AN EASEMENT

1. There must be a dominant and a servient tenement;

2. An easement must “accommodate” the dominant tenement;

3. Dominant and servient owners must be different persons; and

4. The right claimed as an easement must be capable of forming the sub-

ject-matter of a grant (“grantable”).2

1Civil Code, Article 449.

2In re Ellenborough Park [1956] 1 Ch. 131,163.

CHAPTER 10

375

Adominant and a servient tenement

By definition a right claimed as an easement is dependent on the existence

of a property over which it can be exercised, the servient tenement, that is,

the property which is burdened by the easement. In addition, the law

requires that the right claimed as an easement should be appurtenant to

land owned by the person claiming the easement. The claimant’s property

is described as dominant tenement, the land benefited by the easement. If

access to the public highway from property Ais gained by using a path

over property B, property Ais the dominant tenement and property B is

the servient tenement.

The effect of this is that the law does not recognise an easement in

gross, that is, one which is not connected with the use of a specified

property. The claimant should therefore have a property to which the

easement is appurtenant. In Ackroyd v. Smith,3the conveyance conferred

the right to use the road to “all persons having occasion to resort” to

the premises. This was wide enough to entitle those who did not have

property to which the covenant was appurtenant to avail themselves of it.

That was a right in gross. It was held that “no one can have such a way but

he who has the land to which it is appendant”.4

Where there is a contract to grant an easement for the benefit of land

which is to be acquired within an agreed period in the future, no interest

in land would arise unless and until the particular land is acquired and

designated as the dominant land. If the property to which the intended

easement is to be attached as a servient tenement is disposed of before the

land nominated as the dominant tenement is identified, there can be no

easement. Where the dominant tenement is not identified, the burden to be

imposed on the servient tenement cannot be ascertained.5The reason lies

in the policy against encumbering land with burdens of uncertain extent.6

Guyana and St. Lucia

The civil law and the Roman–Dutch law in St. Lucia and Guyana respect-

ively is the same. According to Boland J., the owner of the right to servi-

tude under the Roman–Dutch law has two distinct pieces of immovable

property, i.e.,

(a) the immovable property – the land which enjoys the servitude, that is

the dominant tenement; and

3(1850) 138 E.R. 68.

4Ibid.

5Ibid.

6Ibid.

Commonwealth Caribbean Land Law

376

(b) immovable property which is the praedial or real servitude over the

contiguous land – an extraction, which is itself immovable property,

from the full right of ownership on the contiguous servient tenement.7

Accommodate the dominant tenement

The test is whether the right claimed has some intimate connection with

the beneficial enjoyment of the dominant tenement. The fact that the right

claimed enhances the value of the property is not decisive. There should be

a direct nexus between the dominant land and the right claimed. Such a

right will necessarily have to subserve the dominant land. It is therefore

necessary to examine the right claimed and the nature of the property for

whose benefit the right is asserted, and determine whether the right

claimed is essential to the use or enjoyment of the land or property con-

veyed. The right to mount and keep a signboard on the property of another

person is a licence, if the signboard has no connection with the use of the

dominant property; if the signboard is related to the use of the dominant

property, an easement is created. There was a sufficient connection

between the right to hang a signboard by the owner of a public house

on the adjoining house and the use of the property as a public house in

Moody v. Steggles,8for it promoted the trade or the business of public house

carried on in the property.

The Court of Appeal in In re Ellenborough Park9observed that a right

granted to the purchaser of a house to use the Zoological Gardens free

of charge or to attend Lord’s Cricket Ground without payment would

probably not constitute an easement,

for it would be wholly extraneous to, or independent of, the use of a house

as a house, namely, as a place in which the householder and his family live

and make their home.

On the other hand, an easement is created if, as it happened in Re

Ellenborough Park, the purchaser is granted the right to

the full enjoyment of the pleasure ground set out and made in front of the

said plot of land.

In such a case, according to Evershed M.R.:

the test of connexion, or accommodation, would be amply satisfied; for

just as the use of a garden undoubtedly enhances, and is connected with,

the normal enjoyment of the house to which it belongs, so also would the

7Rose v. Hanoman [1951] L.R.B.G. 135, 145–46.

8(1879) 12 Ch. D. 261, at p. 266.

9[1956] ch. 131, at p. 176.

Chapter 10: Easements

377