Easements

• Pages: 146-187

DOI: 10.4324/9781003186946-9

DEFINITION

An easement is a right in alieno solo (over the land of another). Circumstances can

arise in which a landowner may wish to grant certain rights over his/her land to

another person that fall short of a grant of possession. For example, he/she may

wish to grant to an adjoining landowner a right to pass and repass over his land on

foot or with vehicles (an easement of way), or a right to lay pipes under his land to

convey water or sewage; or he/she may agree to curtail his own rights in favour of

another, for example, to agree not to build on a defined portion of his land so as to

ensure that light continues to reach his neighbour’s windows (an easement of light),

or he/she may agree not to pull down his own portion of a duplex house so as to

withdraw support from his neighbour’s portion (an easement of support).1 Interfer-

ence with an easement may give rise to an action for damages in nuisance, and for

an injunction2 to restrain further interference.

Some of these rights may be granted not only by way of easement, but also

by means of restrictive covenant3 or licence.4 Restrictive covenants are particularly

appropriate where the right granted is a ‘negative’ one– that is, one under which

the grantor agrees not to use his land in a particular way (for example, not to erect a

building on his land). Licences are more appropriate where the right granted is ‘posi-

tive’ – that is, one that allows the grantee to use the grantor’s land in a particular way

(for example, to use a footpath on the grantor’s land). Both types of right, positive

and negative, can be created by easement. It should be noted, however,that there

is another sense in which the words ‘positive’ and ‘negative’ are used. The other

meaning is that a right is positive if it requires expenditure of money by thegrantor;

it is negative if it does not require expenditure. The general rule is that the law does

not recognise positive easements in this sense– in other words, a right will not be

held to be an easement if it requires expenditure of money by the grantor. The one

exception to this is the easement of fencing, which requires the grantor to maintain

a fence for the benefit of the grantee; this easement is well accepted, but it is anom-

alous, and has been called a ‘spurious easement’.5

Of these three rights– easements, restrictive covenants and licences– the fullest

in law is the easement, since a legal easement is a right in rem, binding on the whole

world, whereas a restrictive covenant is binding only in equity and may be defeated

by a bona fide purchaser for value of the legal estate without notice of the covenant

or, where title to the burdened land is registered, it may be void against a subsequent

purchaser unless protected by an entry on the register.

A licence is a much less valuable right than an easement, since it is a right in

personam, and, if contractual, is generally binding only on the original parties to the

1 See, generally, Jackson, Law of Easements and Profits, 1978, London: Butterworths.

2 Lush v Duprey (1966) 10 WIR 389, Court of Appeal, Trinidad and Tobago.

3 See Chapter8, above.

4 See Chapter3, above.

5 See p155, below.

CHAPTER 9

EASEMENTS

Easements 147

agreement and is not binding on successors-in-title to the original parties;6 an estop-

pel licence, on the other hand, is binding only on successors-in-title having notice

of its existence.7 If the licence is neither contractual nor arising by estoppel – for

example, an oral permission unsupported by consideration to use a footpath on the

licensor’s land– then the rights of the grantee can be revoked at any time by the

licensor and cannot be legally enforced at all, even against the licensor.

An easement must also be distinguished from a customary or public right. As

will be seen, the essence of an easement is that it is a right ‘appurtenant’ to a partic-

ular parcel of land– that is, a right that is exercisable by the owner for the time being

of the land for the benefit of which the easement exists. Aright that is exercisable

by the general public may take eect as a local customary right or a public right,

but it is not an easement, because it is not appurtenant to any land. For example, at

common law, the right of the inhabitants of a village to walk across another’s land

to reach the local church, or the right of fishermen to dry their nets on another’s

land, may be valid customary rights, but they are not easements; the rights of the

general public to pass along a highway, to fish in the sea, or to bathe on a beach, are

not easements, but public rights.8

REQUIREMENTS FOR AVALID EASEMENT

Easement are based on the concept of ‘dominant’ and ‘servient’ tenements. An

easement may be defined broadly as a right attached to land (the dominant ten-

ement) that gives the owner of that land a right to use the land of another (the

servient tenement) in a particular way (for example, to walk or drive across it), or

to prevent the servient owner from using the servient tenement in a particular way

(for example, to prevent the servient owner from building so as to obstruct the light

coming to the windows of the dominant tenement). Such a right is enforceable by

all successors-in-title to the dominant tenement against all successors-in-title to the

servient tenement, irrespective of whether the successors to the servient tenement

had notice of the existence of the easement.

For such rights to exist as easements, certain requirements must be satisfied, as

follows.9

There must be a dominant and a servient tenement

It is essential that the right must be appurtenant to land– that is, that there must be

a dominant tenement to which the right is attached. If X, the owner of Whiteacre,

6 Ashburn Anstalt v Arnold [1988] 2 All ER 147, at 164, per Fox LJ, disapproving earlier authorities,

such as Errington v Errington [1952] 1 All ER 149 and Binions v Evans [1972] 2 All ER 70. See

pp29, 30, above.

7 See Ives (ER) Investments Ltd v High [1967] 1 All ER 504; Denson v Bush [1980–83] CILR 141,

Grand Court, Cayman Islands.

8 See Megarry and Wade, Law of Real Property, 6th edn, 2000, London: Stevens, pp1086, 1087,

1096. Under s3A(1) of the Prescription Act ( Jamaica), a right to use a beach for fishing, bath-

ing or recreation may be acquired by prescription in the same way as an easement of light. See

Beach Control Authority v Price (1961) 3 WIR 115, pp 178, 179, below.

9 See Re Ellenborough Park [1953] 3 All ER 667; Majid v Beepath (1981) High Court, Trinidad and

Tobago, No 882 of 1976.

148 Easements

grants to Y, who does not own any neighbouring land, the right to use a pathway

running across Whiteacre, Y’s right cannot be an easement. It is a privilege that

is personal to Y, as there is no dominant land to which the right can be said to be

attached. Y’s right will be, at most, a mere licence. But if Y is the owner10 of adjoin-

ing land, Blackacre, then the right will be an easement (assuming that the other

requirements of an easement are satisfied), since X has granted the right not to Y

personally, but to Y in his capacity as owner of Blackacre, and the right may be said

to have been granted for the benefit of Blackacre. Thus, not only Y, but also all Y’s

successors-in-title will be entitled to exercise the right of way.

A technical expression that is often used to describe the rule is that ‘there cannot

be an easement in gross’ – that is, an easement that is independent of the ownership

of land by the claimant. It should be noted that ‘ownership’ here includes not only

the fee simple owners of the dominant tenement, but also those who own lesser

estates in the land: for example, a lessee of the dominant tenement is entitled to

enjoy all easements that exist for the benefit of that tenement.

As well as a dominant tenement, there must be a servient tenement over which

the easement is to be exercised. The servient tenement must be defined suciently

clearly in the grant. That is normally done by means of a plan of the servient

tenement, as in Keefe v Amor,11 in which land was conveyed ‘together also with a

right of way on foot or with vehicles over the land shown and coloured brown on

the plan hereto annexed’. It should be noted that, where an easement is acquired

by prescription– that is, by virtue of long usage and without any express grant–

there will be no documents to define the dominant and servient tenements. Oral

evidence will thus be required to establish what those tenements are.

An easement must accommodate the dominant tenement

This requirement means that the right claimed must be suciently connected with the

enjoyment of the dominant tenement and must be for its benefit.12 The easement must

not merely confer some personal benefit on the grantee, but must serve to make the

dominant tenement ‘a better and more convenient property’.13 In deciding whether an

alleged easement benefits the dominant tenement, regard must be had to the purposes

for which the dominant tenement is used. For example, if the dominant tenement is

a dwelling house, a right to use a garden on adjoining property14 or to cross adjoining

land to reach a beach15 will accommodate the tenement, since it enhances its use and

enjoyment. If the dominant tenement is an apartment used for business purposes,

the right to use a washroom in the apartment immediately above will accommodate

10 In Boodhoo v Jammuna (1989) High Court, Trinidad and Tobago, No 438 of 1987, Hamel-Smith

J emphasised that one who claims to be entitled to an easement must show that he owns the

fee simple or is 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. In the absence of appointment

of trustees, there could be no claim to an easement. See also Kuarsingh v Stephens (1996) High

Court, Trinidad and Tobago, No 1497 of 1991.

11 [1964] 2 All ER 517.

12 Gale, Easements, 15th edn, 1986, London: Sweet& Maxwell, pp 17–20.

13 Op cit, Megarry and Wade, fn8, p1080.

14 Re Ellenborough Park [1955] 3 All ER 667.

15 Hart v Pierce (1967) 11 WIR 179, High Court, Barbados.