easement

Derived from the Old French aisement, 'convenience or accommodation'. A right or privilege that the owner of one area of land enjoys over the land of another in order to enjoy a benefit for the former'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; (25 Am.Jur.2d., Easements and Licenses (Rochester, NY), § 1). 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 person's land does not grant a right to retain possession, or a right to take any profit from the land. 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 general use of the land over which the right is exercised. 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 tenement that is benefited and a servient tenement over which the right is exercised (a public right of way is not an easement because it does not benefit a particular property—there is no dominant 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 simply benefit the owner of that land as a personal right) (Bailey v Stephens (1862) 12 CBNS 91, 142 ER 1077; Pugh v Savage [1970] 2 QB 373—there can be intervening land between the dominant and servient tenements); (iii) the owners or occupiers of the dominant and servient tenements must be different parties (an easement is a right in alieno solo—'against another's land'); and (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 (Re Ellenborough Park [1956] Ch 131 (CA); Riley v Pentilla [1974] VR 547, 557 (Aus); Canadian Pacific Ltd v Paul (1988) 53 DLR (4th) 487 (Can); 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); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex 1963); 28A C.J.S. Easements § 6). (Technically the right is said to lie in grant, i.e. it can form the subject matter of a deed or is capable of being spelt out in such a document, even if it is not actually created in that way.)

    The dominant and servient lands need not be contiguous, although they frequently are, but they must be sufficiently proximate in order 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 or permitted use of that land (Copeland v Greenhalf [1952] 1 All ER 809; Batchelor v Marlow, supra; The American Law Institute, Restatement of Property (Servitudes) (St. Paul, MN: 1944), § 450; Howard v. County of Amador, 220 Cal App.2d 962, 269 Cal Rptr 807 (1990)). A 'substantial interference' with the use of the servient land by the beneficiary of the right, or a use in such a way as to leave the owner with little semblance of ownership or possession, would preclude the right from being an easement (London & Blenheim Estates Ltd v Ladbroke Retail Parkes Ltd, supra; Mercantile General Life Reassurance Co of Australia Ltd v Permanent Trustee Australia Ltd (1988) 4 BPR 9534 (Aus)). Thus, a right to park a car is not normally capable of being an easement as it likely to exclude the rights of the owner for most of the time (or at least whenever the user wishes to park the car) (Batchelor v Marlow, supra). However, if the parking area is well defined, but does not preclude use by the servient owner, as with a right of passage to the rear of a retail store or use for limited times of the day, that may well constitute an easement and as such be capable of being acquired by prescription (Safestore v RSN Property Ltd [2009] PLSCS 292; Leon Asper Amusements Ltd v Northmain Carwash Enterprises Ltd (1966) 56 DLR (2d) 173, 176–9 (Can)). A right of passage does not normally imply a right to park, unless such a right has been expressly granted or it might be implied, as where parking on a short-term basis does not interfere with the reasonable enjoyment of the easement, especially if the right includes a right to "use" the passageway (Missionary Society of Salesian Congregation v. Evrotas, 229 AD.2d 392, 242 NYS.2d 122 (1930); Bulstrode v Lambert [1953] 1 WLR 1064, 1069, 1071; Robmet Investments Pty Limited v Don Chen Pty Limited (1997) 8 BPR 97649 (Aus)—accepting that a right to pass and repass included a right to stop to unload; Cf. London & Suburban Land and Building Co. (Holdings) Ltd v Carey (1991) 62 P & CR 480—no implied right to load and unload from a right of way, especially as there was adequate space to park elsewhere.

    At common law, the right must be clear and prescribed; 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) (Harris v De Pinna (1886) 33 Ch D 238, 249–50) (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 (Rohde v. Beztak of Arizona, Inc., 164 Ariz 383, 793 P.2d 140 (App Ct Ariz 1990)).    As a rule, an easement does not impose a positive duty on the owner of the servient tenement, such as to construct or maintain a right of way, but the easement may be granted with express obligations such as an obligation to maintain a right of way, a gate or a fence and in some cases there may be an implied obligation to repair the servient land, especially to prevent possible injury to third parties (Jones v Price [1965] 2 QB 618, 631 (CA); Holden v White [1982] 2 QB 679, 683 (CA); Carter v Cole [2006] EWCA Civ 398 (CA); The American Law Institute, Restatement Third, Property (Servitudes) (St. Paul, MN: 2000), § 4.13).    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.

    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. An easement does not grant a right that is intended to exclude use of land by the owner of the servient tenement, unless that use is incompatible with the easement (Batchelor v Marlow [2003] 1 WLR 764, [2003] 4 All ER 78 (CA); London & Blenheim Estates Ltd v Ladbroke Retail Parkes Ltd [1992] 1 WLR 1278). 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.

    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. Chicago: 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). Similarly, in New Zealand, the requirement of a dominant tenement is not essential (Property Law Act 1952, s. 122; Faloon and Piesse v District Land Registrar [1997] 3 NZLR 498). In Australia, several jurisdictions have laws that recognise easements in gross in favour of a public or local authority and in many cases the courts have accepted an easement need not expressly identify the dominant tenement, provided surrounding circumstances indicate that there is a dominant tenement (e.g. Gas & Fuel Corporation v Barba [1976] VR 755 (Aus Vic)).

    An easement, once acquired, cannot be substantially or radically changed in nature or purpose without a further grant. Thus, for example, the dominant owner of a private right of passage does not automatically have the right to lay pipes under that right of way (Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 374; Anno: 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 to serve property other than the dominant land, unless the terms of the original grant provide otherwise or there is a further grant (Crimmins v. Gould, 149 Cal App.2d 383, 308 P.2d 786 (1957); Mancini v. Bard, 396 NYS.2d 621, 364 NE.2d 1313 (1977); Cf. Bateman v. Board of Appeals of Georgetown, 46 Mass App Ct 236, 775 NE.2d 1276 (2002); Harris v Flower (1904) 74 LJ Ch 127; Bracewell v Appleby [1975] Ch 408; Peacock v Custins [2001] 13 EG 152, [2001] 2 All ER 827 (CA)). In the event that the easement throws a substantially increased burden on the servient tenement, it may even lead to the extinguishment of the right (Ray v Fairway Motors (Barnstable) Ltd (1968) P & CR 261; Cf. Attwood v Bovis Homes Ltd [2001] Ch 379, [2000] 4 All ER 948—a useful review of the English cases and holding that a change in the extent of a right of drainage did not extinguish the right). However, the right may be intensified or improved to a reasonable degree if that is required to better facilitate the permitted user of the dominant tenement (British Railways Board v Glass [1965] Ch 538, 568 [1964] 3 All ER 418 (CA)—increase in the membership of a golf club; White v Grand Hotel Eastbourne Ltd [1913] 1 Ch 113 (CA)—house converted to a hotel; McAdam Homes Ltd v Robinson [2004] EGLR 93, [2005] 1 P & CR 30 (CA)—bakery converted to two houses; Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 73 P.3d 369 (2003)—increased use of access to clear irrigation ditches; Anno: 20 ALR3d 1026: Easements of Way—Improvements—Repairs; Anno: 111 ALR5th 313: Misuse of Easement). 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". Similarly, a change in the use of the benefited land (for example, from a house to a hotel) may be permissible if that does not unreasonably increase the burden on servient land (Ray v Fairway Motors (Barnstable) Ltd, supra; Gaither v. Gaither (1958) 165 Cal App.2d 782, 332 P.2d 436, 438). What is important is the actual words of the grant of the easement and the factual background (South Eastern Railway v Cooper [1924] 1 Ch 211—easement granted "for all purposes" was usable to access a sand mine that had been established on land that was formerly part of a farm; Davill v Pull [2009] EWCA Civ 1309, [2009] NPC 142 (CA)—easement granted to be used "for all reasonable and usual purposes" does not preclude building a house even though dominant land described as "garden ground"; Florida Power Corp. v. Hicks, 156 So.2d 177 (Fla 1964)—easements once granted and fixed are not subject to the whims of the dominant or servient owner and can only be changed by the mutual consent of the parties).

    As to whether a right of way can be realigned, in English law it has been held that a right cannot be altered, unless there is an express or implied right to permit the realignment (Deacon v South-Eastern Railway Co. (1889) 61 LT 377; Heslop v Bishton [2009] EWHC 607 (Ch)). However, the court has refused to grant an injunction that would have prevented such an alignment when the servient owner had been given notice and had not objected to the proposal, especially as the realignment was considered to be of substantial public importance (Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749, 1754). Also, the existence of an alternative right of way does not necessarily extinguish an established right and, even though an injunction may be refused, compensation may be paid for any loss or inconvenience (Heslop v Bishton, supra).    In the US, in the majority of jurisdictions, the rule is that if the right of way is clearly defined, or its route has been definitely determined, unless there is a provision in the agreement that created the right of way, the location cannot be changed without the express or implied agreement of both parties (Sakansky v. Wein, 86 NH 337, 169 A 1 (1933); Consolidated Amusement Co. v. Waikiki Bus. Plaza, Inc., 719 P.2d 1119, 1123 (Haw App 1986); Youngstown Steel Products Co. v. City of Los Angeles, 38 Cal.2d 407, 240 P.2d 977 (1952); Herren v. Pettengill, 273 Ga 122, 123, 538 SE.2d 735, 736 (2000); Carrollsburg v. Anderson, 791 A.2d 54, 61 (DC 2002); Alligood v LaSaracina, 122 Conn App 479, A.2d _ (2010)). A minority of states accept the view of The American Law Institute, Restatement Third, Property (Servitudes) (St. Paul, MN: 2000), § 4.8(3), which proposes that the burdened landowner should be permitted to relocate the easement at his own expense as long as the new location does not "significantly lessen the utility of the easement"; "increase the burdens on the owner of the easement," or "frustrate the purpose for which the easement was created". This rule "is designed to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder", supra § 4.8, comment (f) (J.W. Bruce & J.W. Ely. The Law of Easements and Licenses in Land (St. Paul, MN: Loose-leaf) § 7.05; M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 91, 809 N.E.2d 1053 (2004)—court may still need to consider what would be a "reasonable change in the location"; Lewis v. Young, 92 NY.2d 443, 451–52, 682 NYS.2d 657, 705 NE.2d 649, 652 (1998)—"in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired … so long as the landowner bears the cost of the relocation [endorsing the Restatement Third, Property (Servitudes), § 4.8(3)]"). Also, in some jurisdictions, even though the grant does not specify an alternative location, it may be possible to relocate the easement along another line, as long as the new location is reasonable (Lewis v. Young, 705 NE.2d 649 (NY 1998); MaCammon v Meredith, 830 SW.2d 577, 581 (Tenn App 1991); 7 Thompson on Real Property (2nd ed. Charlottesville, VA: 1994) § 60.0 (c)(1)(ii)).

    In the US, 'easement' is more generally used to refer to a right of way (or an analogous rights such as a drainage or utility easement), or a right to light or air.    In English law, a broad number of other rights have been classified as 'easements' (A-G of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599, 617 (PC)—a right to store casks and trade products on neighbour's land; Dowty Boulton Paul Ltd v Wolverhampton Corpn (No 2) [1976] Ch 13—right to use an airfield; William Hill (Southern) Ltd v Cabras Ltd [1987] 1 EGLR 37—right to fix a signboard to the wall of an another's house; Gale on Easements (18th ed. London: 2008), §§ 1-64—1-68).

    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 (Rochester, NY), § 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).    An easement may be distinguished from a licence as the latter does not create any interest in land, but is merely a privilege that is personal to the parties and may not be assigned and is of limited duration (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) Zotos v. Marketspan Corp., 729 NYS.2d 705, 709, 186 Misc.2d 795 (2001), app. den.). An easement, like a profit à prendre is a 'right', whereas a licence is a mere 'privilege'. Unless tied to some other right, a licence may be terminable at will, whereas an easement exists for a determinable period or in 'perpetuity'. 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 as the latter may be used by a specific 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, in a few cases, by implied reservation; by implied grant based on the intention of the parties, especially when it arises out of the existence of a quasi-easement; by 'presumed grant' or prescription; or even by estoppel when it would be unconscionable to deny that such a right exists. However, like any other proprietary right it cannot normally be created or transferred orally (Cottrell v. Nurnberger, 131 W Va 391, 47 SE.2d 454 (1948)). 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 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. Examples of positive easements are: a right of way; a right of support; a right to share a party wall; a right to water, i.e. a right to enter land 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 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, for example not to build above a given height and thereby obstruct the access of light to a house on the dominant tenement, and not to restrict the passage of air to a building on the dominant tenement (Shelf Holdings Ltd v Huskey Oil Operations (1987) 38 DLR (4th) 441, 448–55 (SCC Can); Sanborn v. McLean, 233 Mich 227, 206 NW 496, 60 ALR 1212 (1925); The American Law Institute, Restatement of Property (St. Paul, MN: 1944), § 452).

    As a rule, English law does not recognise a negative easement, because such a privilege is 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 recognized only in the form of a restrictive covenant (Phipps v Pears, supra at 82G–83A, at 37).

    An action may be brought for an interference with the use of an easement, even if no damage has resulted as such. The primary remedy for the breach of an easement is an injunction, which may be granted if there is a substantial interference with the enjoyment of the right. Damages may be awarded in addition to, or in place of, an injunction for the financial loss incurred. An injunction will not be granted if that would be oppressive to the defendant or when the injury is small and capable of being quantified in monetary terms (Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287; Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15, [2009] 18 EG 86 (CA); 28A C.J.S., Easements, § 186).

    An easement does not lapse, but it may be extinguished by (i) express release, usually by deed (but not by unilateral revocation); (ii) implied release when the nature or intensity of the use has so changed that it no longer corresponds to the terms or basis of the original grant; (iii) implied and clear intention on the part of the dominant owner not to resume the right, i.e. abandonment; (iv) merger of the dominant and servient tenements into common ownership and possession (called 'unity of seisin') (an easement may be temporarily suspended if there is merely unity of possession between the holders of the dominant and servient tenements); (v) 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; (vi) losing it to another by prescription (although English law prefers to look on this as an abandonment of the right and the Limitation Act 1980 expressly excludes an "incorporeal hereditament", which includes an easement, from the definition of land in this respect); or (vii) by statute, as when a statutory authority uses its powers to extinguish a right of way (effectively by expropriation).

    In English law, an authority that acquires land by compulsory purchase may extinguish "all private rights of way and rights of laying down, erecting, continuing or maintaining any apparatus on, under or over the land", Town and Country Planning Act 1990, s. 236. Also, a local authority, or any other perty "deriving title under them", may build or carryout work on land acquired for "planning purposes", even though it involves "interference with an interest or right … or a breach of a restriction as to user of land arising by virtue of a contract". The "interference" may apply to "any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support", TCPA 1990, s. 237(1). These rights do not apply to the rights of statutory undertakings or telecommunication works. (Similar provisions are contained in other statutes.) Such an extinguishment only applies to work carried out in accordance with the planning permission (or an extension thereof) for which the land was acquired or appropriated and is subject to the payment of compensation as for any loss resulting from the interference on the same terms as for any other compulsory purchase (R v Mayor and Commonality and the Citizens of London v Royal London Mutual Insurance Company, ex p Barbers of London [1996] 2 EGLR 128). (An easement that is extinguished in this way is sometimes called an 'overidding easement', although that term is confusing as the easement is 'overidden'.
   In Australia, most jurisdictions have statutory provisions that enable an easement to be removed from the public records if it is considered to have been abandoned. In some States, the power extends to extinguishing or modifying an easement.

Cf. servitude. See also apparent easement, conservation easement^(US), conveyance, easement appurtenant^(AmE), easement by estoppel, equitable easement, general words, implied easement, jus spatiandi, legal easement^(Eng), natural rights, overburdening^(US), riparian rights, scenic easement^(US), secondary easement^(US), servitude^(F), water rights, wayleave^(Eng), writing.

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