Real Estate Encyclopedia | Property Law Dictionary | Real Estate Terms | Meanings & Definitions |      Nov 12, 2019


Derived from the Old French aisement, 'convenience or accommodation'. A right or privilege that the owner of one parcel of land enjoys over another parcel of land by which that owner derives a particular benefit from the use of the other land, but does not have a right to take anything tangible from the other land. A limited right to use, or to prevent the use, of another's land which accommodates or improves the beneficiary's land, but grants no right to take possession of, or a profit from, the other's land. "A privilege without profit which the owner of one neighbouring tenement hath of another existing in respect of their several tenements." Termes de la Ley. The land that has the benefit of this right (the dominant tenement or 'dominant land') derives a particular benefit and the land that is subjected to the right or privilege is called the 'servient tenement'. The owner of the one parcel of land (the dominant tenement or 'dominant land') derives a particular benefit from the use of the other land (the servient tenement or 'servient land') and that benefit accommodates the dominant tenement. Easements include such rights as a right of way, right of light, right to air, or a right of support. The right to use the other persons land does not grant a right to retain possession, or a right to take any profit from the land, and should not be inconsistent with the general use of the land over which the right is being exercised. The owner of the servient tenement retains full dominion over his land, subject only to the limitation imposed by the easement. Normally an easement is enjoyed for a specific purpose, is a permanent interest over the land of the other, but is not inconsistent with the ownership of the servient tenement. It is not a right that is personal to the owner of the land, but is said to be appurtenant or incidental to the land affected.

In common law, the essential requirements of an easement may be summarised as follows: (i) there must be an identifiable dominant and servient tenement; (ii) the easement must accommodate or benefit the dominant tenement and there must be a nexus between the right enjoyed and the user of the dominant land (it must do more than benefit the owner of that land as a personal right); (iii) the owners or occupiers of the dominant and servient tenements must be different parties (an easement is a right in alieno solo, against the land of another); (iv) the easement must be capable of forming the subject matter of a grant, whether express, implied or presumed, i.e. it is a right that is sufficiently definite (both as to the parties and the subject land) that it is capable of being (although it need not be) set down in a deed (Kellett v. Ida Clayton & G. W. Wagon Road Co., 99 Cal 210, 33 P 885, 886 (1893); City of Hayward v. Mohr, 325 P.2d 209, 212 (Cal 1958); Re Ellenborough Park [1956] Ch 131 (CA); Canadian Pacific Ltd v Paul (1988) 53 DLR (4th) 487 (Can)). The dominant and servient lands need not be contiguous, although they frequently are; but they must be proximate so as to enable the dominant land to derive benefit from the easement. The right should not amount to the exclusive use or possession of the servient tenement (or a joint use with the owner of the servient tenement); the right to exclude others from the servient tenement extends only so far as to prevent their interference with the prescribed use of that land (Copeland v Greenhalf [1952] 1 All ER 809; The American Law Institute, Restatement of Property (Servitudes) § 450 (1944); Howard v. County of Amador, 220 Cal App.2d 962, 269 Cal Rptr 807 (1990)). On the other hand, at common law, an undefined or vague right (such as a right to view, or a right of privacy) cannot constitute the subject of an easement: "there is no such right known to law as a right to a prospect or view; see Bland v Moseley (1587), cited in Aldred's Case (1610) 9 Co Rep at p. 57b." Phipps v Pears [1965] 1 QB 76, 83, [1964] 2 All ER 35, 37 (CA) (although in the US, in some jurisdictions, a right to a view may be recognized as a valid easement where it has been enjoyed as a long, continuous, obvious, or manifest use (viz. Rohde v. Beztak of Arizona, Inc., 164 Ariz 383, 793 P.2d 140 (App Ct Ariz 1990)).

An easement may be classified as 'continuous' or 'discontinuous'. A continuous easement does not require the interference of man for its existence, as with a right of light; whereas a discontinuous easement requires the intervention of man, as by the exercise of a right of way. The former requires the adaptation of the dominant tenement (as by the creation of a window), whereas the latter does not require any permanent adaptation of the dominant tenement.

In the US, many jurisdictions do not consider that the existence of the dominant tenement is an essential element to an easement, and a similar irrevocable right, which does not benefit another parcel of land, is considered to be a valid easement and is called an easement in gross (Jolliff v. Hardin Cable Television Co., 22 Ohio App.2d 49, 258 NE.2d 244, 247 (1970); 3 Tiffany on Real Property (3rd ed. 1939), § 758, p. 204). Thus, an easement may be defined as "a right or advantage which one has in the land of another. … a liberty, privilege, or advantage in land without profit, existing distinct from the ownership of the soil. It is a right which one person has to use the land of another for a specific purpose" James v. Drye, 314 SW.2d 417, 420 (Tex Civ App 1958).

An easement is an incorporeal hereditament, i.e. it creates no estate in land because the dominant tenement does not derive any right of ownership over the servient tenement. It does not confer any right to possession, as with a lease, but is merely a right to impose proprietary restrictions. However, it is an interest in land and an easement may continue even if there is a change in the ownership of the land; it is said to 'run with the land'; although it is extinguished if both tenements come into the same hands.

An easement may be distinguished from a profit à prendre as the latter allows someone to take something physically from the land or benefit from the profits of the soil, whereas an easement does not (Alfred F Beckett v Lyons [1967] Ch 449, 482B; McDonald v. Board of Mississippi Levee Comm'rs, 646 F Supp 449, 463 (ND Miss 1986) ; 25 Am.Jur.2d., Easements and Licenses, § 4). Also, a profit à prendre may exist 'in gross', i.e. it need not benefit another parcel of land, whereas at common law (but not in most jurisdictions in the US) an easement cannot exist without a dominant and servient tenement (Boatman v. Lasley, 23 Ohio St 614 (1873); London & Blenheim Estates Ltd v Ladbroke Retail Parkes Ltd [1992] 1 WLR 1278). It may be distinguished from a license which as such does not create any interest in land, but is merely a privilege that is personal to the parties (IDC Group Ltd v Clark [1992] 1 EGLR 187 (CA); Lodestar Tower North Palm Beach, Inc. v. Pal Beach Television Broadcasting, Inc., 665 So.2d 368, 370 (Fla App 1996); Race v. Meyer, 219 AD.2d 67, 640 NYS.2d 664, 667 (1996)). On the other hand, a licensee may be granted a right to occupy land, or may be granted a right that is combined with an easement. A license, unlike an easement, may be created orally (although an easement may be created orally if supported by an act of part performance) and a license may be revoked unilaterally and, generally, at the will of the grantor. A license is temporary; need not be capable of forming the subject of a deed of grant; requires no dominant tenement; does not grant exclusive use of land; nor runs with the land; and is always an equitable right. An easement may be distinguished from a customary right which may be used by a class of persons and benefits no defined area of land.

An easement may be granted as an indefinite right, or it may be limited for a period of time, or even for a life. It can be created by statute (as by appropriation by a public authority); by an express grant, i.e. a written agreement (the most common way); by express reservation or by implied reservation; by implied grant based on the intention of the parties, especially as arises out of the existence of a quasi-easement; by 'presumed grant' (prescription) or even by estoppel when it would be unconscionable to deny that such a right exists. An easement may arise as 'of necessity' (an easement of necessity), as when a parcel of land is 'landlocked'. However, whether created expressly or by implication, an easement is always granted; it cannot arise purely as an amenity or privilege, enjoyed by virtue of an informal understanding or custom. An easement once acquired cannot be substantially changed in nature or purpose without a further grant. Thus, for example, the dominant owner of a private right of passage does not have the right to lay pipes under that right of way (Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 374; 3 ALR3d 1278: Easement-Private Way-Reasonable Use, § 8 Installing Utilities). Nor can the easement granted for the use of one parcel of land be used for the benefit of other land (Crimmins v. Gould, 149 Cal App.2d 383, 308 P.2d 786 (1957); Bracewell v Appleby [1975] Ch 408). However, the right may be intensified or improved to a reasonable degree if that is required better facilitate the permitted user of the dominant tenement (British Railways Board v Glass [1965] Ch 538, [1964] 3 All ER 418 (CA); White v Grand Hotel Eastbourne Ltd [1913] 1 Ch 113 (CA); Anno: 20 ALR3d 1026: Easements of Way-Improvements-Repairs). Thus, changes in the use of an easement may be permitted if they are merely adaptations to the circumstances, but not changes to the nature of the arrangement; they may be "evolutionary but not revolutionary".

An easement may be extinguished by an express release, usually by deed (but not by unilateral revocation); by an implied and clear intention on the part of the dominant owner not to resume his right, i.e. abandonment; by the merger of the dominant and servient tenements into common ownership and possession (called 'unity of seisin'); by expiration of a period of time, or purpose, stipulated in the original grant; by an alteration in the dominant tenement in such a way that the easement is unnecessary, as when the dominant tenement is a building that is destroyed; by losing it to another by prescription; or by statute, as when a statutory authority uses its powers to extinguish a right of way (effectively by expropriation). An easement may be temporarily suspended if there is merely unity of possession between the holders of the dominant and servient tenements.

An easement can be 'positive' or 'affirmative'; or it can be 'negative'. A positive easement is a right to do something positive on the servient land, but not a right to demand anything from the owner of that land. It is enjoyed for a specific purpose, e.g. a right of way; right of support; a right to share a party wall; a right to water, i.e. to extract it; a right of access for the purpose of facilitating repair to a building, a right to run utilities across land, or even a right to use an airfield or a letter box on another's land. A negative easement is a privilege by which the servient owner may be obligated to refrain from certain uses, or actions, on the servient tenement, for the benefit of the dominant owner, e.g. not to build above a given height so as to obstruct the access of light to a house on the dominant tenement or not to restrict the passage of air to a building on the dominant tenement (Sanborn v. McLean, 233 Mich 227, 206 NW 496, 60 ALR 1212 (1925); The American Law Institute, Restatement of Property § 452 (1944)).

In English law, it has been propositioned that a negative easement cannot exist, it being merely a right to insist that a person use his land in a certain, but limited, way (Moore v Rawson (1824) 3 B & C 332, 107 Eng Rep 756); a true right or privilege to prevent the use of land, for the benefit of other land, being a restrictive covenant. To give some support to that proposition, English law limits the recognition of negative easements to: (i) a right of light; (ii) a right to a free flow of air through a defined aperture; (iii) a right not to have support undermined; and (iv) a right to prevent the diversion of water running in an artificial channel. Any other right that restricts the use of one parcel of land for the benefit of another is only recognized in the form of a restrictive covenant. cf. servitude.

See also apparent easement, conservation easement(US), conveyance, easement appurtenant(US), equitable easement, general words, jus spatiandi, legal easement(Eng), natural rights, overburdening(US), right of light/right to light, right to air, right to view, riparian rights, scenic easement(US), servitude(F), water rights, wayleave(Eng), writing.

Anno: 42 ALR4th 462: Drainage Servitude-Extinguishment by Prescription.
J.P. Hand and J.C. Smith. Neighboring Property Owners (1988 with supplements to 1995), §§ 7.03-7.10.
G.J. Siedel and J.K. Cheezem. Real Estate Law (4th ed. 1999), pp. 92-133.
J.W. Singer. Property Law, Rules, Policies and Practices (2d ed. 1997), § 4.3. Easements.
R.J. Werner and R. Kratovil. Real Estate Law (10th ed. 1993), Ch. 4 "Easements".
R.A. Cunningham et al. The Law of Real Property (2d ed. 1993), Ch. 8 "Servitudes, Easements and Profits".
J.W. Bruce and J.W. Ely. The Law of Easements and Licenses in Land, Loose-leaf ed.
2 American Law of Property (1952), §§ 8.1-8.108.
3 Powell on Real Property, §§ 34.01-34.22.
3 Tiffany on Real Property (3rd ed. 1939), §§ 756-828.
7 Thompson on Real Property (2d ed. 1994), Ch. 60 "The Law of Easement".
25 Am.Jur.2d., Easements and Licenses, §§ 1-136.
28A Cor.Jur.Sec., Easements, §§ 1-211.

A.J. Bradbrook et al. Australian Real Property Law (2d ed. 1991), Ch. 17 "Easements, Profits and Rentcharges".
S. Hepburn. Principles of Property Law (Australia) (1998), pp. 265-296.
Anger and Honsberger: Law of Real Property (Canada) (2d ed. 1985), pp. 925-973.
G.W. Hinde and D.W. McMorland. Land Law in New Zealand (1997), pp. 605-649.

J. Pugh-Smith. Neighbours and the Law (2d ed. 1993), pp. 37-67.
R. Card, J. Murdoch and P. Schofield. Law for Land Management Students (5th ed. 1998), Ch. 37 "Easements".
N.P. Gravells. Land Law: Texts and Materials (1999), Ch. 7 "Easements".
Maudsley & Burn's Land Law: Cases and Materials (7th ed. 1998), Ch. 19 "Easements and Profits à Prendre".
Megarry's Manual of the Law of Real Property (7th ed. 1993), pp. 367-408.
Cheshire and Burn's Modern Law of Real Property (15th ed. 1994), pp. 517-584.
Megarry & Wade: The Law of Real Property (5th ed. 1984), p. 834 et seq.
14 Halsbury's Laws of England, Easements and Profits à Prendre (4th ed.), paras. 1-239.
C. Sara. Boundaries & Easements (2d ed. 1996), Part II "Easements".
Gale on Easements (16th ed. 1997)

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