QUESTION: What is easement?

Easement is a right attached to land which allows the owner of that land (dominant owner) to use the
land of another person (servient owner) in a particular manner (positive easement) or restrict its user
by that person to a particular extent (negative easement) but does not allow him to take any part of its
natural produce or its soil-Mannign V Walshdale, Okunzua V Amosun. The use should be inclusive as
the dominant owner
cannot claim an exclusive or
restrictive right to use the servient land.

CHARACTERISTICS OF EASEMENTS.
In Re Ellenborough Park's case, the court held that an easement must possess the following
characteristics:
1. There must exist an identifiable dominant tenement which benefits from another tenement
called the servient tenement.
2. The easement must accommodate the dominant tenement: rather than conferring personal
advantages... it should be beneficial to the land (i.e. it
should not personally benefit the owner per se but it should benefit the land). The law
requires that both tenements be sufficiently close so the dominant tenement benefits
from the servient tenement-Bailey V Stephens .In this case, the court held that the right to
cut trees for fuel does not qualify as an easement.
3. The two lands (dominant and servient tenement) must be vested in different persons-
Roe_V Siddons. This has been interpreted to mean that the two lands must be owned or
possessed by separate persons.
Not one person owning OR possessing both lands. A tenant can acquire an easement over his
landlord's land.
4. The right must be capable of forming the subject matter of a
grant:
o The landowners must have the capacity to grant and receive the easement... he must be a
definite person/corporation rather than a nonentity or vague like a community.

o The right must not be vague.

E.g. right to access light. In AG V Antrobus the court held that the right to wander on a park
is vague.
o The use must not be exclusive.
In Hill V Tupper where hill was to have ""sole and exclusive right" to let out pleasure boats on
the canal, the court held that there was no easement rather it was a license.

EASEMENT DISTINGUISHED FROM SIMILAR RIGHTS.

Profit: This does not mean selling price minus cost price. Here profit is referred to as the right to take
the natural produce of another's land or any part of the soil. Unlike
easement, in profit there is no need to own neighbouring land and profit may be enjoyed in common
with the servient owner. Look at this scenario: Tunde (Tayo's neighbour) usually goes to Tayo's land to
pluck mango fruits from Tayo's trees. This is NOT an easement but a profit. Why?
Because the mango is not benefiting Tunde's land but conferring a personal advantage on Tunde (the
sweet taste and nutrients).

Licences: easements are proprietary interest while licences confer mere personal priviledge or
permission to do an act which would otherwise have amounted to trespass-Hill V Tupper. A licence
can be granted exclusively while this cannot be done under an easement. Unlike easements, the
creation of licenses do not require formalities in law. License does not require dominant land to be
benefitted. Look at this scenario:
Ayo is allowed to park his car on Ade's land. This is not an easement because it does not confer
personal
advantage on the land.

Restrictive covenants: although like easement, negative restrictive covenant can retrict the servient
owner's use of his land. A rrestrictive covenant only exists in equity and cannot be acquired by
prescription but an easement can exist in law and can be acquired by prescription.

Public rights: These are rights enjoyed by the public in general like right of way, right to fish, and so
on-Amachree V Kallio. Why is public rights not an easement? Because it does not require a dominant
and servient tenement nor does it require the users to be adjoining landowners.
Customary right: the latter does not need grant by deed and are not appurtenant to land.

CLASSIFICATION OF EASEMENT.

 May be positive or negative:

The right to use servient land =Positive Easement, while the right to restrict its use by the
servient owner respectively = Negative Easement. Stopping a neighbour from blocking the
view has been held to be unknown to law-Webb_V _Bird. Except it is through defined
apertures

 Legal or Equitable: An easement created by deed=Legal Easement. Where oral or merely in

writing = Equitable. Also, an equitable easement can be created: -Where there is an
agreement an easement. -Where the grantor's interest in the land is equitable. -Where the
servient owner agreed or acquiesced in the enjoyment oof the right-Crabb_V Arun. Unlike a
legal easement, an equitable easement would not automatically pass with land. It should be
expressly assigned whenever the dominant land is transferred.

ACQUISITION OF EASEMENTS.

How may easements be acquired?

o Statutory Grant: to public utility bodies which supply water, gas, electricity and so on-AG
Southern Nigeria V John Holt.
o Express Grant: to the owner of the dominant tenement which must be by deed else it would
be an equitable one.
o Express reservation: where a vendor sells part of his land and expressly reserves an easement
over the land sold.
o Implied easement: Easement may be implied:
o By necessity: where the dominant property would be inaccessible or unusable without the
easement-
Clark V Clogg. Except the parties agreed to the contrary.
o Where both parties at the time of conveyance intend that an easement should be granted-
Wong V
Beaumount PropertyTrust Ltd.
o The rule in Wheeldon_V Burrows: if A (the grantor) owns two adjoining tenements and has
been using it in a particular way, if he conveys one of the tenements to B, B would be entitled
to the easement which A exercised. The quasi easement must be necessary for the reasonable
enjoyment of the property and must have been enjoyed by the grantor up to the date of the
grant-Re Clements Leigh on Sea. Except this rule is expressly excluded in the agreement.
o Presumed grant: (Right of prescription) Where the dominant owner has used the land over a
period of time, he may acquire legal easement by presumed grant.
o The use must have been without force, secrecy or permission.
o User must be as of right and continuous.
o The user must own neighboring land
o The right must have been enjoyed (uninterrupted-Jones V Pryce)) for more than 20 years-
Angus V Dalton, Bryan V Foot, Under Section 2 of the prescription Act 1832, if the right has
been enjoyed for more than 40 years, it becomes absolute and indefeasible.

EXTINGUISHMENT OF EASEMENT.

o By release: maybe express (by deed) or implied (where there is a clear evidence of
abandonment with the intention never to reassert the right-Moore VRawson).Where no deed,
it is an equitable release.
o Unity of seisin: If the dominant and servient tenement merge
together in the hands of one person. Unity of possession alone merely suspends the
easement-Huckvale V Aegean Hotel Ltd.
o Where the easement ceases to accommodate (dominant tenement no longer enjoys) dominant
tenement-Hucklave V Agean Hotels.
o By statutory provisions on grounds of public policy.