EASEMENT

INTRODUCTION.

Easement is incapable of precise definition. It is a priviledge without a profit. It is a right attached to a particular piece of land which allows the owner of that land known as dominant owner either to use the land of another person known as the subservient owner in a particular manner. This includes walking over or depositing rubbish on, in or to restrict its user by that other person to a particular extent but which does not allow him to take any part of its natural produce or its soil.

OBJECTIVE

The objective of this unit is to introduce the students to various relationships relating to land and nature of restrictive user of land.

NATURE OF EASEMENT

An easement may either be positive or negative. A positive easement consists of a right to do something on the land e.g to  walk or to place erections like signboard on it. A negative easement on the other hand does not permit the execution of an act but imposes a restriction upon the use which another person may make of land e.g restricting a servient owner from erecting a building to obstruct the flow of light. An easement does not confer on the  owner a proprietary or possessory right in the land affected. It  is  an imposition of a particular restriction upon the proprietary right of the owner of the servient land.

An easement should be distinguished from a right which entitles one person to the unrestricted use of the land of another. It could be a right to owner ship or possession. Where Osaze acquires an easement over a land, he becomes the owner of a legal interest on the land which is enforceable against anybody who comes to the land whether by purchase, lease, gift or as a squatter with or without notice of the easement.

A conveyance of land is deemed to include and its operation is subject to existing easements

CHARACTERISTICS OF EASEMENT

To constitute an easement an interest must possess the following characteristics

• there must be a dominant and subservient tenement . There must be in existence a tenement for the benefit of which the easement exist

If Sele the owner of Ovia estate has acquired a right of way over Osama estate an adjoining property, his entitlement to the easement has arisen not because he is Sele but because he is the owner of Ovia estate. The easement exists because Ovia estate exists.

• an easement must not only be appurtenant to a dominant tenement but must be connected with the normal enjoyment of  that tenement. There must also be in existence a direct nexus between the enjoyment of the right and the user of the dominant tenement

According to Byles J in Bailey v Stephen (1862) 12 C.B (N.S)

an easement must be connected with the enjoyment of the dominant tenement and must be for its benefit the incident sought to be annexed so that the assignee of the land may take advantage of it, must be beneficial to the land in respect of the ownership.

Whether a nexus exists depends greatly on the nature of the dominant tenement and the right of use alleged. Where the right is connected with normal enjoyment of the property, it ranks as an easement. However the fact that the right enhances the value of  the dominant tenement is a relevant but not decisive consideration.

In Hill v Tupper (1863) 2 HXC 121 A canal company leased an adjoining land to the canal to Hill. He was given “Sole and the exclusive right” to let out pleasure boats on the canal. Tupper disregarded this priviledge by personally letting out boats for fishing purposes. Hill instituted an action against Tupper on the grounds that his easement to put boats on the canal had been disturbed. It was held that the right conferred upon Hill by the contract with the company was not an easement but a mere license personal to him since it was for the purpose of enjoying a business enterprise.

Similarly, the right to cut trees for fuel does not qualify as an easement as it is not necessarily related to ownership of land

In Bailey v Stephens (1862) 12 C. B (N.S) 91 A who was seised in fee of a piece of land called Bloody field claimed the right to enter  on adjoining close, carrying away and converting to his own use the trees and wood growing on it. It was held that since the wood was not employed for the beneficial enjoyment of Bloody Field it was not connected with it and was not a vilid profit

• The dominant and servient owners must be different persons where one person owns two adjoining propeities, which may be separate any rights exercised over one or the other does not qualify as an easement. According to Fry L. J. in Roe v Siddons (1888) 12QBD 224,

of course strictly speaking the owner of two tenements can have no easement over one of than in respect of the others, where the owner of white acre and Blackacre passesover the former to Black acre, he is not exercising a right of way in respect of Blackacre, he is merely making use of his own land to get from one part to another .

• a right over land cannot amount to an easement unles it is capable of forming the subject matter of a grant No right can have the status of an easement unless it has the following characteristics
• certainty of description: The nature and extent of the right must be capable of exact description. If it is vague or so indeterminate as to defy precise definition, it cannot rank as an easement
• capable grantee: a claimant to an easement must be a person capable of receiving a grant. He must be a definite person or definite body or corporation. A claim of easement by a  vague person such as the inhabitants of a village is unsustainable
• capable grantor: a subservient owner should be lawfully entitled to grant the right claimed to be an easement. A claim against an incorporated organization will fail on proof that the grant was ultra vires

CATEGORIES OF EASEMENTS

The categories of easement is not static but varies with modern societal requirement, trade and circumstances they include:

(1) Right of way.

• Right of light that the light flowing over adjoining land to a window should not be unreasonably obstructed
• Right to water connection include a right to divert the course of a stream for irrigation purposes of a right to discharge water to the land of another
• Right to fencing which includes right to have a fence maintained by an adjoining owner
• A right to the support of buildings by adjoining lands or buildings
• miscellaneous easement includes:
• right to hang dothes on a line passing over neighbouring soil
• right to run telephone lines over neighbouring land
• right to fix a signboard on the walls of another person’s house
• right to lay stones on adjoining land to regulate soil erosion
• right to use an airfield

DISTINCTION         BETWEEN  EASEMENT          AND  OTHER RIGHTS.

There is need to distinguish easement from other rights which have similar characterizes.

• Licences: A licence is permission granted to enter the land of another for an agreed purpose which otherwise would be a trespass. An easement is narrower than a licence. An easement must be created by actual, implied or presumed grant. A licence can be created informally. An easement is not a personal right but is as of necessity annexed to a dominant tenement and once established, there can never be any question of its unilateral revocation by the servient owner
• Customary right: fluctuating number of person inhabiting of a village may be entitled to exercise over another’s land rights which would properly be termed easement e.g. where the inhabitants of a village pass across another’s land on their way to the farm or where fishing inhabitants dry their nets on certain property. Such rights are not easements. An easement lies in a grant and a vague and fluctuating body of persons such as fishing inhabitants is not a legal person and is incapable of taking under a grant
• Natural rights: Natural rights differ from easement because it is not dependent on some form of grant and cannot be extinguished by unity of seisin
• Public rights: They are rights exercisable by members of the public e.g rights to pass along a public high way. They are legal rights not dependent on the general tenement

LEGAL AND EQUITABLE EASEMENTS

An easement is either legal or equitable, the nature of a legal and equitable easement constituents will subsequently be discussed.

LEGAL EASEMENT: An easement is held to be legal or statutory when it complies with the law of property Act 1925 and  the interest held is equitable to an estate in fee simple absolute in possession or a term of years absolute

EQUITABLE EASEMENT: An equitable easement is any easement liberty or priiviledge over or affecting land for the life of the grantee or created for value informally

 ACQUISITION OF EASEMENTS

The basic principles is that every easement must have its origin in a grant. Such a grant can be statutory or equitable. At common law, to be legal an easement must be granted by a deed.

A grant of an easement made orally is an equitable easement and operates on the maxim that equity regards as done that which ought to be done.

In Macmanus v Cooke

Between adjoining properties belonging to x and y there was a wide wall. It was mutually agreed by them that he wall should be pulled down by x and replaced with a lower and thinner wall at their joint expense. X complied but Y refused to comply and blocked X’s access to sky light. In an action for injunction to restrain Y, X’s contention was upheld on the basis that though oral the agreement was enforceable as an easement

EXTINGUISHMENT OF EASEMENTS

The mode of extinguishing easement include:

• By statute: Easement may be extinguished by statutory provisions. Where a right has been regulated by town and country planning laws or revoked on grounds of public policy, all private rights of way, rights of laying down, erecting, continuing to maintain any apparatus on, under or over the land is affected
• By release: the extinguishment may be effected by express or implied release. A dominant owner is free to execute a deed of release relieving the servient tenement from the burden of any easement to which it is subject. Release can be implied by the non user of an easement together with the surrounding circumstances

In Swan v Sinclair (1925) A C 227 the court held that although  mere non user is insufficient to extinguish an easement of right of way, the surrounding circumstance sufficiently show an intention on the owners to abandon the project.

• By Unity of Seisin : Easements are extinguished by unity of seisin. This occurs when both the dominant and the servient tenement become united in the same owner as the owner is at liberty to do what he likes with his property

 CONCLUSION.

In conclusion, easements could be created legally or equitable. It confers on the owner no proprietary or possession rights but is simply an entitlement to the unrestricted use of the land of another.

SUMMARY

• Easement is incapable of precise definition
• Easement is a priviledge without a profit
• There are two types of easement - legal easement and equitable
• A conveyance of land is deemed to be subject to existing easement.
• For an easement to exist there must be in existence a dominant and subservient tenement which must be vested in different
• An easement is distinguishable from other rights which have similar attributes
• Every easement must originate from a grant which could either be legal or equitable
• An easement can be extinguished either by statute, release and unity of seisin

 TUTOR MARKED ASSIGNMENT

• What is   the   meaning   of   easement  and   what   are   the characteristics of easement
• Discuss the methods of creating easement and distinguish from other rights relating to land
• Discuss the types of easement and the method of termination of easement

SUGGESTED FURTHER READING /REFERENCES

Burns   E.   H.     Modern   Law   of  Real   Property  (London: Butterworths 1982)

Elias T.O.   Nigerian Land Law (London: Sweet & Maxwell, 1971)