Nevis Sixth Form College| CAPE LAW Unit 2 1

Course Notes

Concept XVI: Easements

Text Book Reading Material
 Chapter 16 CAPELAW – Veronica Bailey

Statute – St. Christopher and Nevis

 Conveyancing and Law of Property Act
 Prescription Act

Case Law
 Re Ellenborough Park [1955] EWCA Civ 4
 Hill v Tupper [1861-1873] All ER Rep 696
 Wheeldon v Burrows (1879) LR 12 Ch D 31

5.1 Definition
An easement is a nonpossessory property interest in the property of another whereby the
owner of land grants the easement holder permission to use his/her land. An easement is a
right enjoyed and exercised over the land of another (it’s in alieno solo)

There are two types of easements: affirmative and negative.

An affirmative easement gives the easement holder the right to do something on the
grantor of the easement's land, such as travel on a road through the grantor's land.

A negative easement, on the other hand, allows the easement holder to prevent the grantor
of the easement from doing something on his land that is lawful for him to do, such as
building a structure that obscures light or a scenic view.

The land which benefits from an easement is called the “dominant tenement” or “dominant
land” and the land which is subject to the easement is the “servient tenement” or “servient
land”.
 Nevis Sixth Form College| CAPE LAW Unit 2 2
Course Notes

5.2Legal and Equitable Easements

A legal easement is an exclusive right granted by law (through prescription) or Deed, and
exercisable by the grantee over the land or property of another person. A legal easement is
enforceable against 'the whole world.' This means it is exercisable against any owner of the
servient land regardless of whether they are put on notice of it. It is also binding on all
successors-in-title to the servient tenement. It can only come to an end by express release,
or by abandonment.

Equitable easements are implied easements created by equity. An easement that is

granted without the proper formalities may take effect as an equitable easement under the
Walsh v Lonsdale principle (for instance, where a right of way is granted by a written
agreement not under seal). An equitable easement on the other hand will only bind a
purchaser of the servient land if he has notice of its existence. A purchaser is treated as
having notice if notice of the easement is registered at the Land Registry, he is told of the
existence of the easement prior to his purchase or it is apparent from inspection, such as if
there is a clear, well worn track running across the land.

Essential Characteristics of an Easement

The classic case of Re: Ellenborough Park1 sets out the four essential characteristics of an
easement which are as follows:

1. There must be a dominant and servient tenement;

2. The easement must accommodate the dominant tenement;
3. The dominant and servient owners must be different people;
4. The right must be capable of forming the subject matter of a grant.

There must be a dominant and servient tenement

The dominant land is the land owned by the owner of the right to the easement. A
dominant tenement is land that benefits from the easement. The easement is described as

1 [1956] Ch. 131

 Nevis Sixth Form College| CAPE LAW Unit 2 3
Course Notes

“appurtenant” to the dominant land. The “holder” of an easement right, or the party that is
benefiting from the easement, is referred to as the “dominant tenant”.

The servient land is the land which bears the burden of the easement. A servient tenement
is the land that is subject to the burden of an easement existing for another parcel of land.
The party “burdened” by the easement is referred to as the “servient tenant”.

The easement must accommodate the dominant tenement

This means that the right must be capable of benefiting any owner of the land and not just
the occupier for the time being. A good test is whether the loss of the right would affect the
value of the property. A right of way which was the only access to the property would
clearly be capable of being an easement however a right to erect a sign advertising a
business, where the dominant land is a residential property, would benefit a small
percentage of potential owners and could not therefore be an easement.

In the case of Hill v Tupper2 it was held that the easement must accommodate the
dominant land. The court rejected Hill's claim to exclusive rights to put pleasure boats on
the canal because said right was a business right of personal benefit. It did not
accommodate the dominant tenement therefore a licence and not an easement existed.

The dominant and servient owners must be different people

There must be separate ownership, in other words the dominant and servient lands must
be owned by different people, as a person cannot have (and of course does not need) an
easement over his own land.

Easement under the Wheeldon v Burrows3

Where X owns two adjoining tenements, Greenacre and Blueacre, and he is in the
habit of walking or driving across Blueacre as an alternative means of access from
Greenacre to the outside world, one cannot speak of X enjoying an easement over
the Blueacre itself. However, if X sells Greenacre to Y, X’s enjoyment of access across

2 [1861-1873] All ER Rep 696

3 (1879) LR 12 Ch D 31
 Nevis Sixth Form College| CAPE LAW Unit 2 4
Course Notes

Blueacre may conveniently be called a quasi-easement, which, on sale of Greenacre,

ripens into a full legal easement. This principle was establish in Wheeldon v
Burrows, in which it was held that, upon grant of part of the grantor’s land, there
would pass to the grantee, as easements, all quasi-easements over the land retained
that:

i. Were continuous and apparent; and

ii. Were necessary to the reasonable enjoyment of the land granted; and
iii. Had been, and were at the time of the grant, used by the grantor for the
benefit of the part granted.

The right must be capable of forming the subject matter of a grant.

The right has to be capable of being expressed as a written document (whether or not it is
actually in writing), has to be similar to existing easements (this means it has to be similar
to something that is generally considered an easement, such as a right of way or a right to
use services. It must not require any expenditure on the part of the servient tenement and
it must be sufficiently definite, which is to say it must be exercisable within a defined area.
A common example of a right which would fail the test of an easement is a general right to a
view, but a right of way over large country estate which was not confined to a particular
road or path may also fail.

***See pages 183-185 of Bailey V, CAPELAW – Easement***

An Easement Runs with the Land

An easement runs with the land which enjoys the benefit, therefore, when the land is
transferred the new owner acquires the benefit. Such easement is a legal estate in the land
unlike a licence which is purely equitable. “Running with the land” is a phrase that means
that, no matter who owns the real estate, the easement (or other covenant) benefits or
burdens the successor owner of the property. In other words, a beneficial easement that
runs with the land will benefit future owners, while a burdensome easement that runs with
the land will burden future owners.
 Nevis Sixth Form College| CAPE LAW Unit 2 5
Course Notes

EXAMPLES OF AN EASEMENT
 Right of way for pedestrians or motor vehicles;
 Right to take water from a well or spring;
 Right of light;
 Right of air (example along a defined channel);
 Right to maintain and service utilities;
 Rights of support of land eg duplex housing;
 Use of a letterbox, lavatory, kitchen

This is not a closed list, it is possible for new easements to be created.

Creation of an Easement
Requirements for creating an easement is generally the same as the formalities required
for a deed formalities. The formalities are:

a. A written instrument;
b. signed by the grantor;
c. delivered to the grantee; and
d. Easements are also typically recorded, which provides notice to third parties.

An easement can be created by:

i. Statute;
ii. Prescription;
iii. Express grant;
iv. Implied grant; and
v. Express reservation.

A. Statute:
Section 16 of the St. Christopher and Nevis Conveyancing and Law of Property Act
states:
 Nevis Sixth Form College| CAPE LAW Unit 2 6
Course Notes

(1) A conveyance of land shall be deemed to include and shall by virtue of this Act
operate to convey, with the land, all buildings, erections, fixtures, hedges, ditches,
fences ways, waters, watercourses, liberties, privileges, easements, rights, and
advantages whatsoever, appertaining or reputed to appertain to the land, or part
thereof, or, at the time of conveyance, demised, occupied or enjoyed with, or reputed or
known as part or parcel of or appurtenant to the land or any part thereof.

Purpose of the provision

The object of the provision is to ensure that a purchaser of the land will automatically
acquire the benefit not only of easements appurtenant to the land, but also of other rights
and privileges that have previously been enjoyed by the owner and occupier of the land.
Thus, the purchaser will acquire all such rights without the need for express words in the
conveyance. The significance of the provisions is that the wording is so wide the purchaser
will acquire even those privileges that were previously enjoyed only by way of permission
of the vendor- that is, the provisions have the effect of converting mere licenses into
easements.

Limitations on the application of the provision:

i. The right claimed under the provisions must be capable of being an easement -
that is it must be recognised by the law as an easement. If the right claimed
under the provision is not capable of being an easement, such as a right to
protection from the weather or a right to privacy, the claim will fail.
ii. There must be a conveyance - St. Christopher and Nevis Conveyancing and
Law of Property Act interpretation Section 2 defines conveyance to include:

...a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer,
release and every other assurance of property or of an interest therein by any
instrument, except a will; and “convey” has a corresponding meaning; and
“disposition” includes a conveyance and also a devise, bequest, or an appointment of
property contained in a will; and “dispose of” has a corresponding meaning;
 Nevis Sixth Form College| CAPE LAW Unit 2 7
Course Notes

iii. Section 16 may be excluded by express exception in conveyance - It is always

open to the vendor or lessor to expressly exclude the operation of Section 16 in
the conveyance or the lease. The best way to do this is to insert a clause in the
conveyance or lease expressly excepting from it any advantages, privileges or
licenses hitherto enjoyed in respect of the land sold.

B. Prescription:
Under this method of acquisition, the law presumes that a person who has, in fact enjoyed
the right for a considerable period of time was, at some point in the past, granted an
easement by Deed. This concept of acquisition by long enjoyment is called prescription.

The doctrine of presumed grant is of course, a legal fiction, designed on one hand, to uphold
a right that has continuously been enjoyed and, on the other, to pay lip service to the
principle that every easement must originate in a grant.

Basis of prescription

The doctrine of prescription is based on acquiescence by the servient owner in allowing

somebody to exercise what amounts to an easement over his land for a long time without
doing anything to stop him. Fry J, in Dalton v Angus, explained the elements of prescriptive
acquisition:

In my opinion, the whole law of prescription ...rest upon acquiescence... it then becomes
of the highest importance to consider what ingredients acquiescence consists. I cannot
imagine any case of acquiescence in which there is not shown to be in the servient
owner:

(i) knowledge of acts done;

(ii) a power in him to stop the acts or to sue in respect of them; and

(iii) an abstinence on his part from exercising of such powers.

 Nevis Sixth Form College| CAPE LAW Unit 2 8
Course Notes

Requirements for prescription

The long enjoyment must be:

I. As of right - This requirement means that the enjoyment must not have been by
force (nec vi), in secret (nec clam) or by permission (nec precario).
 Nec vi: user by force includes not only physical violence, but also where the
claimant continues his user despite the servient owner continual protests.
 Nec clam: where the user was secret- that is, without the knowledge of the
servient owner- there can be no prescription.
 Nec precario: User that has been enjoyed with the permission of the servient
owner cannot become an easement by prescription. User at permission can
be at most, a licence.

II. Continuous - This requirement does not necessarily demand that the user be non-
stop or on a 24-hour basis; rather the degree of continuity needed depends on the
type of easement claimed (Hollins v Verney).

III. In fee simple - The user cannot ripen into an easement unless it is by or on behalf of
a fee simple owner against another fee simple owner.

Methods of prescription

These methods are cumulative and it is common for claimants to rely upon all three
simultaneously.

1. Prescription at common law

In order to acquire an easement by prescription at common law, the claimant must show
that he has enjoyed the user since time immemorial- that is, from the time at which legal
memory is taken to have begun. The date from which legal memory begins was fixed at
 Nevis Sixth Form College| CAPE LAW Unit 2 9
Course Notes

1189 by the Statute of Westminster 1275. The claimant must, therefore, show enjoyment
since 1189. In order to relieve the claimant from discharging this impossible burden of
proof, the courts are willing to presume that enjoyment has lasted from 1189, if proof is
given for an actual enjoyment for twenty (20) years. However, the presumption that the
user has been since time immemorial can be rebutted by proof that the easement could not
possibly have existed since 1189. Example, if easement of light to a building is claimed, the
servient owner can rebut the presumption of user from 1189 by proving that the building
was constructed in 1975. For this reason claimed to prescription at common law rarely
succeed, and claimants prefer to rely on the other two methods. However, it seems that in
the Commonwealth Caribbean jurisdiction there could never be a presumption of user
since 1189.

2. Prescription under the doctrine of the lost modern grant

In order to avoid the difficulty that a claim to prescription at common law could be
defected by proof that the easement could not have been enjoyed since 1189, the courts
have developed the doctrine of lost modern grant. Under this doctrine, if the claimant can
show actual enjoyment of an easement for at least 20 years, the court will presume that
actual grant was made at the time when the enjoyment began, but that the deed had been
lost.

In Tehidy Minerals Ltd v Norman, it was held the presumption of lost modern grant
cannot be rebutted by evidence, that no such grant, was in fact, made. The doctrine is a
pure legal fiction.

3. Prescription under the Prescription Acts

Section 3 of the St Christopher and Nevis Prescription Act states:

No claim which may be lawfully made at the common law, by custom, prescription, or
grant, to any way or other easement, or to any watercourse, or the use of any water, to
be enjoyed or derived upon, over, or from any land or water of the Crown, or being the
property of any ecclesiastical or lay person or body corporate, when such way, or other
 Nevis Sixth Form College| CAPE LAW Unit 2 10
Course Notes

matter as herein last before mentioned, shall have been actually enjoyed by any person
claiming right thereto, without interruption, for the full period of twenty years, shall
be defeated or destroyed by showing only that such way, or other matter, was first
enjoyed at any time prior to such period of twenty years; but, nevertheless, such claim
may be defeated in any other way by which the same is now liable to be defeated; and,
where such way, or other matter as herein last before mentioned, shall have been so
enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed
absolute and indefeasible, unless it shall appear that the same was enjoyed by some
consent or agreement expressly given or made for that purpose by deed or writing.

Section 3 lays down two prescription periods: one of 20 years and the other 40 years.

 The effect of the section concerning 20 years is that a claim of an easement under
prescription will not be defeated by showing that the right cannot have been
enjoyed since time immemorial, but that it can be defeated by proof that it was
enjoyed by force, or secretly or by permission or that there was no capable grantor.

 As it concerns the 40 year period, it seems that the only distinction is that an oral
permission may defeat the 20 year period claim but not one under the 40 year
period.

Express Grant:
No special form of words is required for the express grant of an easement, provided that
the extent of the easement and the description of the dominant and servient tenements are
reasonably clear. Usually, the dominant tenement will be described in the deed but if it is
not, the court may consider all of the surrounding circumstances in ascertaining whether
there is a dominant tenement.

Implied Grant:
There are three categories of easement that may be implied in favour of the purchaser:

a. Easement of necessity;
 Nevis Sixth Form College| CAPE LAW Unit 2 11
Course Notes

b. Intended easements; and

c. Easement within the rule in Wheeldon v Burrows.

Easement of Necessity
An easement of necessity most often arises where the land sold is surrounded by the land
retained by the vendor or by land in possession of a third party, and unless a right of way is
implied over the surrounding land, the purchaser of the landlocked plot will have no access
to and from his land. In such cases, and easement of way can be implied over the quasi-
servient tenement (Lush v Duprey).

Meaning of ‘necessity’

It is well established that an easement of necessity will be implied in a conveyance only

where, without such an easement, the property could not be used at all. It will not be
implied merely on the ground that it would be necessary for the reasonable enjoyment of
the property.

In the Trinidadian case of Boisson v Letrean, Hamel-Smith J refused to imply an easement

of necessity where there was a means of access, albeit over mountainous and difficult
terrain. He said, ‘The law is clear. The right only arises by way of necessity, not
convenience.’

Intended easements
In Pwllbach Colliery Co Ltd v Woodman, Lord Parker stated:

The law will readily imply the grant or reservation of easements as may be necessary
to give effect to the common intention of the parties to a grant of real property, with
reference to the manner or purpose in and for which the land was granted… is to be
used. But it is essential for this purpose that the parties should intend that the subject
of the grant… should be used in some definite and particular manner.

Easement under the Wheeldon v Burrows

As discussed on pages 3-4 of the Course Notes.
 Nevis Sixth Form College| CAPE LAW Unit 2 12
Course Notes

Express Reservation:
The question of reservation arises where the owner of land sells part and retains the rest
and wishes to reserve the easement over the land sold in favour of the land retained by
him. At common law a vendor cannot directly reserve for himself any easements over the
land sold. He can only do so indirectly by getting the purchaser to regrant the easement
back to him.

***See pages 185-186 of Bailey V, CAPELAW – Acquisition of an Easement***

Extinguishing or Ending an Easement

An easement may be extinguished by:

1. Express release by registration of a transfer releasing the easement - At common

law, a deed is required for an express release of an easement. However, in equity, an
informal release is effective if, in the circumstance, it would be inequitable for the
dominant owner to claim the easement still exists: for example, where he has given
verbal consent to his light being obstructed, and the servient owner has expended
money in building construction;
2. By a order of the court which has the power to modify or extinguish an easement;
3. Unity of ownership - If the fee simple becomes vested in the same person, and that
person is in actual possession of both, then any easement of way across the servient
tenement is extinguished;
4. Alteration of the dominant tenement in such a manner that the easement is no
longer necessary;
5. Implied release such as abandonment of an easement - If the dominant owner, by
his conduct, shows an intention to abandonment the easement, then it will be
extinguished by implied release. Whether there was an intention to abandon is a
question of the fact of the fact in each case; and
 Nevis Sixth Form College| CAPE LAW Unit 2 13
Course Notes

6. Agreed event or time - An easement may be varied by both registered owners of the
dominant and servient tenements, the terms of the variation must be expressly
stated in the instrument.
***See pages 187 of Bailey V, CAPELAW – Extinguishing Easements***

Enforcement
An easement is a property right, and the benefited party has the right to enforce it just as
they would have the right to enforce a deed conveyance or another type of land grant. An
action may be commenced in the court to establish, enforce or protect rights under an
easement. Causes of actions commonly used are:

1) Injunction;
2) Declaratory Relief;
3) Breach of Contract;
4) Trespass; and
5) Ejectment.

One may also claim damages in lieu of injunction or breach of contract

Compilation Sources

Kodilinye G et al. (2014) ‘Commonwealth Caribbean Contract Law’. New York City, United States of
America: Routledge