Classification of Easements

By: Austin F. Marshall, B. Comm, LL.B.

Part I.2.(a) - I.2.(f) Nature and Characteristics of Easements — Classification of Easements

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I.2.(a)

 
Absent any restrictions, a landowner has the right to use his or her land as he or she pleases, so long as such use does not cause a nuisance to other land. By this limitation, each landowner is given a measure of immunity from the actions of neighbouring landowners on their property. Each owner is also protected from invasion of his or her property by others.

The law of easements recognizes that a natural right incidental to the ownership of one piece of land (the servient tenement) may be curtailed in favour of other land (the dominant tenement), the rights of which are correspondingly increased. An easement may grant an owner the right to invade, or encroach on, the servient tenement. It may also curtail the servient tenement right to immunity by allowing an increase in the rights of user incidental to the dominant tenement. These two situations are described as positive easements.

An easement may also curtail the right of the servient tenement owner by increasing the dominant tenement owner's rights of immunity vis-à-vis activity on the servient tenement. This situation is described as a negative easement.

An agreement between the grantor and the grantee of land that neither the grantee nor his or her heirs, executors, administrators or assigns should open up any gravel pit or pits on the land conveyed is in the nature of a negative easement, and not a restrictive covenant running with the land, and requires for its creation and continuance a dominant and servient tenement, as in the case of ordinary easements.

There are easements which are difficult to classify as either positive or negative.

The distinction is significant because, while the category of servitudes and easements must alter and expand with the changes that take place in the circumstances of humankind, the category of negative easements is limited and must be viewed with caution. It is unlikely that any new negative easements will be recognized.

The distinction is also important because there is considerable judicial opinion to the effect that the creation of such rights of immunity is not by grant, but by covenant. In the latter case, the covenant would not be enforceable against a purchaser for value without notice, whereas an easement is valid against all comers.

I.2.(b)

 
A continuous easement is a right to do some act of a continuous and constant nature. This is in contrast to a non-continuous easement in which the enjoyment consists of the commission of some act or series of acts.

An apparent easement is one evidenced by some sign, either patent to everyone or perceptible on careful inspection by a person knowledgeable with the subject.

The words "continuous and apparent" have been considered to refer to features on the servient tenement which are visible on inspection and neither transitory nor intermittent.

This classification appears to have its importance in situations where a common landowner conveys a part of his or her holdings, or conveys all of his or her holdings, but divides it into separate parcels and conveys to separate owners, and does not expressly grant or reserve easements when the conveyances are made.

Where the owner grants part of the tenement, there passes to the grantee all those continuous and apparent easements, in other words, easements necessary for the reasonable enjoyment of the property granted, which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The doctrine of implied grant is based upon the principle that a person cannot derogate from his or her own grant.

If the grantor intends to reserve any right over the tenement granted, it is his or her duty to reserve it expressly in the grant, subject to certain exceptions, one being the case of ways of necessity.

I.2.(c)

 
This is an easement which, under particular circumstances, the law creates, by virtue of the doctrine of implied grant, to meet the necessity of a particular case. It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all.

I.2.(d)

 
This term appears to be applied in reference to those easements which are implied as being continuous or apparent.
The term is also applied in England to that class of rights which exist in particular localities under special local customs, whereby undefined and fluctuating bodies of people are entitled to use the land of another person in a particular manner and for a particular purpose.

Water issuing from a well or spring may be claimed by custom, as the right to it is an easement.

I.2.(e)

 
The rule against perpetuities applies to grants of easements. Where the grant is not immediate, but is of an easement to arise in the future, it would be void if it violated the rule. The "wait and see" rule would appear to apply to save a grant not expressly confined within the perpetuity period.

The rule against perpetuities does not apply where vested interests are created subject to a condition subsequent and there is no creation of a future interest outside the period permitted by the rule. The rule is concerned only with the creation and not the termination of estates or interests.

I.2.(f)

 
In the law of England, a legal easement is one created for an interest equivalent to a fee simple absolute in possession or a term of years absolute, and is created by statute, deed, or other form of assent.

The equitable right to an easement arises in many cases where there is no grant by deed or acquisition by prescription.