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Characteristics of Easements
Characteristics of Easements
Characteristics of Easements
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.
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.
ACQUISITION OF EASEMENTS.
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.