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Easement is a right which the owner or occupier of certain land posssesses, 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.
Easementary right can be obtained by implied or express grant.
Easement is also called Servitude. The term first originated in Roman Law and then entered into British Common Law.
Easements are always attached with Immovable property.
A privilege which the owner of one adjacent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists.
- 1 Definitions
- 2 Dominant Heritage / Dominant Owner
- 3 Servient Heritage / Servient Owner
- 4 Affirmative Easement
- 5 Apparent Easement
- 6 Appurtenant Easement
- 7 Continuing Easement
- 8 Discontinuing Easement
- 9 Easement by Prescription
- 10 Easement in Gross
- 11 Easement of Access
- 12 Easement of Convenience
- 13 Easement of Necessity
- 14 Equitable Easements
- 15 Implied Easement
- 16 Intermittent Easement
- 17 Negative Easement
- 18 Private or Public Easements
- 19 Quasi Easement
- 20 Reciprocal Negative Easement
- 21 Secondary Easement
- 22 Related Cases / Recent Cases / Case Laws
- 23 Related Topics
- 24 Related Legislation
- Gale defined Easement as: An easement to be e aprivilege without profit, which the owner of one neighbhouring tenementh hath of another, existing in respect of their several, by the servient owner is obliged to suffer or not to do something on his own land for the advantage of the dominant owners.
- Peacock defined Easement as: An easement is a privilege without profit, acquired in respect of one tenement by the owner thereof, whereby the owner of the tenement is restricted in te full enjoyment of the right thereof to the extent of being obliged to suffer, or not to do something thereon, of the advantage or benefit of the former tenenment.
- Halsbury's Law of England defined Easement as: An easement is a right annexed to land to utilize other than of different ownership in a particular manner (not involving the taking of any part of the natural produce of that land or any part of its soil) or to prevent teh owner of the other land for utilizing his land in particular manner.
Dominant Heritage / Dominant Owner
The land for the beneficial enjoyment which the right exists is called Dominant heritage. The owner or occupier thereof is called dominant owner.
Servient Heritage / Servient Owner
The land on which liability is imposed is called Servient Heritage. The owner or occupier thereof is called the Servient owner.
One where the servient estate must permit something to be done thereon, as to pass over it, or to discharge water on it. Miller v. Babb, Tex. Com.App., 263 S.W. 253, 254.
One the existence of which appears from the construction or condition of one of the tenements, so as to be capable of being seen or known on inspection. Miller v. Skaggs, 79 W.Va. 645, 91 S.E. 536, 537, Ann.Cas.1918D, 929.
An "incorporeal right" which is attached to and belongs with some greater and superior right or something annexed to another thing more worthy and which passes as incident to it and is incapable of existence separate and apart from the particular land to which it is annexed. Union Falls Power Co. v. Marinette County, 238 Wis. 134, 298 N.W. 598, 600, 601, 134 A.L.R. 958. One which is attached to and passes with the dominant tenement as an appurtenance thereof. Cadwalader v. Bailey, 17 R.I. 495, 23 A. 20, 14 L.R.A. 300; Waller v. Hildebrecht, 295 Ill. 116, 128 N.E. 807, 809. Safety Building & Loan v. Lyles, 131 S.C. 540, 128 S.E. 724, 725.
One that is self-perpetuating, independent of human intervention, as, the flow of a stream, or one which may be enjoyed without any act on the part of the person entitled thereto, such as a spout which discharges the water whenever it rains, a drain by which surface water is carried off, windows which admit light and air, and the like. Starrett v. Baudler, 181 Iowa, 965, 165 N.W. 216, 219, L.R.A.1918B, 528. Also, it is sometimes termed an "apparent" easement, and defined as one depending on some artificial structure upon, or natural conformation of, the servient tenement, obvious and permanent, which constitutes. the easement or is the means of enjoying it. Fetters v. Humphreys, 18 N.J.Eq. 260; Larsen v. Peterson, 53 N.J.Eq. 88, 30 A. 1094.
Discontinuous, non-continuous, or non-apparent easements are those the enjoyment of which can be had only by the interference of man, as, a right of way or a right to draw water. Outerbridge v. Phelps, 45 N.Y.Super.Ct. 570.
Easement by Prescription
A mode of acquiring title to property by Immemorial or long-continued enjoyment, and refers to personal usage restricted to claimant and his ancestors or grantors. J. C. Vereen & Sons, Inc. v. Houser, 123 Fla. 641, 167 So. 45.
Easement in Gross
Easement in gross is not appurtenant to any estate in land (or not belonging to any person by virtue of his ownership of an estate in land) but a mere personal interest in, or right to use, the land of another. Weigold v. Bates, 258 N.Y.S. 695, 144 Misc. 395; Joachim v. Belfus, 108 N.J.Eq. 622, 156 A. 121, 122.
Easement of Access
Right of ingress and egress to and from the premises of a lot owner to a street appurtenant to the land of the lot owner. Lang v. Smith, 113 Pa. Super. 559, 173 A. 682, 683.
Easement of Convenience
One which increases the facility, comfort, or convenience of the enjoyment of the dominant estate, or of some right connected with it.
Easement of Necessity
One in which the easement is indispensable to the enjoyment of the dominant estate. Richards v. Trezvant, 185 S.C. 489, 194 S.E. 326, 329.
The special easements created by derivation of ownership of adjacent proprietors from a common source, with specific intentions as to buildings for certain purposes, or with implied privileges in regard to certain uses, are sometimes so called. A name frequently applied to building restrictions in a deed. Werner v. Graham, 181 Cal. 174, 183 P. 945, 947.
An easement resting upon the principle that, where the owner of two or more adjacent lots sells a part thereof, he grants by implication to the grantee all those apparent and visible easements which are necessary for the reasonable use of the property granted, which at the time of the grant are used by the owner of the entirety for the benefit of the part granted. Farley v. Howard, 68 N. Y.S. 159, 33 Misc. 57.
One which is usable or used only at times, and not continuously. Eaton v. Railroad Co., 51 N.H. 504, 12 Am.Rep. 147.
Those where the owner of the servient estate is prohibited from doing something otherwise lawful upon his estate, because it will affect the dominant estate, (as interrupting the light and air from the latter by building on the former.) South Buffalo Stores v. W. T. Grant Co., 274 N.Y.S. 549, 153 Misc. 76; Pierce v. Keator, 70 N.Y. 447, 26 Am. Rep. 612; Miller v. Babb, Tex.Com.App., 263 S.W. 253, 254. As to "reciprocal negative easement,"
Private or Public Easements
A private easement is one in which the enjoy. ment is restricted to one or a few individuals, while a public easement is one the right to the enjoyment of which is vested in the public generally or in an entire community; such as an easement of passage on the public streets and highways or of navigation on a stream. Kennelly v. Jersey City, 57 N.J.Law, 293, 30 A. 531, 26 L.R.A. 281.
An "easement," in the proper sense of the word, can only exist in respect of two adjoining pieces of land occupied by different persons, and can only impose a negative duty on the owner of the servient tenement. Hence an obligation on the owner of land to repair the fence between his and his neighbor's land is not a true easement, but is sometimes called a "quasi easement." Gale, Easem. 516; Sweet.
Reciprocal Negative Easement
If the owner of two or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold; this being known as the doctrine of "reciprocal negative easement." Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496, 497.
One which is appurtenant to the primary or actual easement; every easement includes such "secondary easements," that is, the right to do such things as are necessary for the full enjoyment of the easement itself. Toothe v. Bryce, 50 N.J.Eq. 589, 25 A. 182.
Related Cases / Recent Cases / Case Laws
- Hollomon v. Board of Education of Stewart County, 168 Ga. 359, 147 S.E. 882, 884; Frye v. Sebbitt, 145 Neb. 600, 17 N.W.2d 617, 621.
- A liberty, privilege, or advantage without profit, which the owner of one parcel of land may have in the lands of another. Magnolia Petroleum Co. v. Caswell, Tex., 1 S.W.2d 597, 600; Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 873, 93 A. L.R. 1170.
- A privilege, service, or convenience which one neighbor has of another, by prescription, grant, or necessary implication, and without profit; as a way over his land, a gate-way, water-course, and the like. Kitch. 105; 3 Cruise, Dig. 484. And see Harrison v. Boring, 44 Tex. 267.
- The land against which the easement or privilege exists is called the "servient" tenement, and the estate to which it is annexed the "dominant" tenement; and their owners are called respectively the "servient" and "dominant" owner. These terms are taken from the civil law. Saratoga State Waters Corporation v. Pratt, 227 N.Y. 429, 125 N.E. 834, 838; Joachim v. Belfus, 108 N.J.Eq. 622, 156 A. 121, 122; Brasengton v. Williams, 143 S.C. 223, 141 S.E. 375, 382.
- Distinguished from "servitude", Stephenson v. St. Louis Southwestern Ry. Co. of Texas, Tex.Civ.App., 181 S.W. 568, 572; "profit it prendre", Richfield Oil Co. of California v. Hercules Gasoline Co., 112 Cal. App. 437, 297 P. 73, 75; "covenant", Lingle Water Users' Ass'n v. Occidental Building & Loan Ass'n, 43 Wyo. 41, 297 P. 385, 387; "franchise", City of Fort Worth v. Southwestern Bell Telephone Co., C.C.A.Tex., 80 F.2d 972, 974; "restriction", Kutschinski v. Thompson, 101 N.J.Eq. 649, 138 A. 569, -573; Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 45 P.2d 846, 848; Morrison v. Fellman, 271 N.Y.S. 436, 150 Misc. 772; "prescription", Black v. Whitacre, 206 Iowa 1084, 221 N.W. 825.