-An easement is a right which the owner or occupier of
certain land possesses, as such, for the beneficial
enjoyment of that land, to do and continue to do
something, or to prevent and continue to prevent
something being done, in or upon, or in respect of
certain other land not his own,
DOMINANT The land for the beneficial enjoyment of
which the right exists is called the dominant heritage,
SERVIENT the land on which the liability is imposed is
called the servient heritage, and the owner or occupier
thereof the servient owner.
CHARACTERISTICS OF EASEMENT
A, as the owner of a certain house, has a right of way
thither over his neighbour B’s land for purposes
connected with the beneficial enjoyment of the house.
This is an easement.
(b) A, as the owner of a certain house, has the right to go
on his neighbour B’s land and to take water for the
purposes of his household, out of a spring therein. This is
c) A, as the owner of a certain house, has the right to
conduct water from B’s stream to supply the fountain in
the garden attached to the house. This is an easement.
(d) A, as the owner of a certain house and farm, has the
right to graze a certain number of his own cattle on B’s
field, or to take, for the purpose of being used in the
house, by himself. his family, guests, lodgers and servants,
water or fish out of C’s tank, or timber out of
D’s wood. or to use, for the purpose of manuring his
land, the leaves which have fallen from the trees in E’s
land. These are casements.
Continuous and discontinuous,
Easements are either continuous or
discontinuous, apparent or non-apparent.
A continuous easement is one whose enjoyment is or
may be continual without the act of man.
A discontinuous easement is one that needs the act of
man for its enjoyment.
METHOD OF ACQUIRING EASEMENTS
There are 3 methods of acquiring easements as:
1. BY GRANT An easement may be implied or express.
An express easement may be "granted" or "reserved"
in a deed or other legal instrument. Alternatively, it
may be incorporated by reference to a subdivision
plan by "dedication", or in a restrictive covenant in
the agreement of an owners association.
2. BY NECESSITY- necessity alone is an insufficient claim
to create any easement. A court order is necessary to
determine the existence of an easement by necessity.
To obtain this generally the party who claims the
easement files a lawsuit and the judge weighs the relative
damage caused by enforcing an easement against the
servient estate against the damage to the dominant estate
if the easement is found not to exist and thus landlocked.
3. BY PRESCRIPTION- are implied easements granted
after the dominant estate has used the property in a
hostile, continuous and open manner for a statutorily
prescribed number of years. Prescriptive easements differ
from adverse possession by not requiring exclusivity.
This can be acquired by long use, without interpretation
and for 20 years.
4. BY PRIOR USE- An easement may also be created by
prior use. Easements by prior use are based on the idea
that land owners can intend to create an easement, but
forget to include it in the deed.
There are five elements to establish an easement by prior
•Common ownership of both properties at one time
•Followed by a severance
•Use occurs before the severance and afterward
Not simply visibility, but apparent or discoverable by
reasonable inspection (e.g. the hidden existence of a
sewer line that a plumber could identify may be
•Necessary and beneficial
Not the "strict necessity" required by an easement by
A party claiming termination should show one or more
of the following factors:
1. Release: agreement to terminate by the grantor and
the grantee of the easement
2. Expiration: the easement reaches a formal expiration
3. Abandonment: the holder demonstrates intent to
discontinue the easement
4. Merger: When one owner gains title to both
dominant and servient tenement
Mortgaged properties with merged easements that
then go into foreclosure can cause the easement to
revive when the bank takes possession of part of the
5. Necessity: If the easement was created by necessity
and the necessity no longer exists
6. Estoppel: The easement is unused and the servient
estate takes some action in reliance on the
7. Prescription: The servient estate reclaims the
easement with actual, open, hostile and continuous
use of the easement
8. Condemnation: The government exercises eminent
domain or the land is officially condemned
9. Death: The owner of an easement in gross
The following rights are recognized of an easement:
1. Right to light, also called solar easement. The right
to receive a minimum quantity of light in favour of
a window or other aperture in a building which is
primarily designed to admit light.
2. Aviation easement. The right to use the airspace
above a specified altitude for aviation purposes.
Also known as avigation easement, where needed
for low-altitude spraying of adjacent agricultural
3. Railroad easement.
4. Utility easement including:
Storm drain or storm water easement. An easement
to carry rainwater to a river, wetland, detention
pond, or other body of water.
Sanitary sewer easement. An easement to carry used
water to a sewage treatment plant.
Electrical power line easement.
Telephone line easement.
Fuel gas pipe easement.
5. Sidewalk easement. Usually sidewalks are in the
public right-of-way, but sometimes they are on the
6. View easement. Prevents someone from blocking
the view of the easement owner, or permits the
owner to cut the blocking vegetation on the land of
7. Driveway easement, also known as easement of
access. Some lots do not border a road, so an
easement through another lot must be provided for
access. Sometimes adjacent lots have "mutual"
driveways that both lot owners share to access
garages in the backyard. The houses are so close
together that there can only be a single driveway to
8. Dead end easement. Sets aside a path for pedestrians
on a dead-end street to access the next public way.
Could be contained in covenants of a homeowner
association, notes in a subdivision plan, or directly
in the deeds of the affected properties.
9. Communications easement. This easement can be
used for wireless communications towers, cable lines,
and other communications services. This is a private
easement and the rights granted by the property owner
are for the specific use of communications.
10. Ingress/Egress easement. This easement can be used
for entering and exiting a property through or over the
easement area. This might be used for a person's
driveway, going over another person's property.