Some of the essential requirements of easements are the presence of a dominant and a servient tenement. In general, dominant tenements are estates that are either fee simple or leasehold; moreover, easements cannot exist in gross or in the absence of a dominant tenement. Further, it is essential for an easement to bestow on the dominant tenement either a benefit or some form of accommodation. This makes it mandatory for the accrual of a tangible benefit to the dominant tenement.
Consequently, the easement should make it possible for the dominant owner to utilize the dominant tenement to a greater extent and the benefit conferred must pertain to land. In addition, the dominant and servient tenements should be sufficiently proximate to each other. Moreover, the owner or occupant of the dominant and servient tenements should be different persons. Furthermore, such easement should be eligible to be made the subject matter of a grant by deed. Such a requirement further entails that the granted right is unambiguous, capable of adequately precise definition.
In addition, such subject matter should be in concord with the nature of the easement, which in other words, connotes that the easement does not permit exclusive and unrestricted use of the land . Furthermore, the grantee must be competent, and not some indefinite entity. Such a grantee should possess an interest in the dominant tenement at the time of the grant. Moreover, a grantor who is competent to grant such a right should exist and while making the grant, the servient owner should possess an interest in the concerned tenement that is equal to or greater than the interest that devolves from the tenement.
There are a few interests that exist in respect of the land bestowed on a land owner, which are conceded by the courts. In one important case, Hill v. Tupper , Pollack C B stated that “A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property; but he must be content to accept the estate and the right to dispose of it subject to the law as settled by decisions or controlled by Act of Parliament” . Moreover, an easement should accommodate the dominant tenement.
The right of easement provides a personal advantage; that is related to the land owned by that party. This right enhances the advantage of its enjoyment . There are four components that govern easement in order to accommodate dominant tenement. First, the right to easement requires an improvement in the position of the dominant tenement into an enhanced and convenient property instead of converting it into a personal advantage of the dominant owner. Second, the dominant and servient tenements need to be located proximally so that the easement provides a potential benefit to the dominant tenement.
For instance, a track used for carts, which caters to the needs of the farmer and accommodates the farming activities of the farmer, could be located far away from the farm. Third, the users should be disconnected and fourth, there should not be any personal advantage. This had been established in the aforementioned case of Hill v Tupper, in which the owner of a canal leased the banks of the canal and the right to operate boats on the canal to the defendants. In this case the court held that the claimant had a personal interest and thus was precluded from defending against third party actions .
Not every right that is granted in respect of land constitutes an easement. For instance, if one person gives another the right to cross his land, which is located at an appreciable distance from the other person’s land, then such a right is not an easement. This was clearly established in the Hill v. Tupper case, wherein the Basingstoke Canal owners extended exclusive rights to the plaintiff to hire boats that would be used for recreational purposes. This business of the plaintiff was jeopardized by the defendant who commenced to compete with him .
Instead of filing a breach of contract against the owners of the Basingstoke Canal, the plaintiff, filed a case against the defendant pleading that the defendant was liable in nuisance to him. The Court of the Exchequer, which was hearing this case, expressed its lack of competency to generate, rights that were unrelated to the enjoyment of land and appropriate them to the land with the objective of forming a property in the grantee. However, the plaintiff did possess property that adjoined it .
The reason for such a decision can be construed to be that the court was disinclined to permit a commercial benefit to be construed as an easement. This tendency of the courts is clearly established in the case of Moody v. Steggles. In this case an advertisement of a public house was displayed in the defendant’s adjoining land. The court held that the right under dispute pertained to the plaintiff’s business and therefore was unconnected to the right of easement. Thus the easement and the manner in which the land had been occupied were intimately connected .
The court decided in the case of London and Blenheim Estates V Ladbrokeretail Parks that a tenement that was dominant had to be adequately identified as such and that it must be sufficiently described so as to render the easement binding on the servient tenement. The appellate court held that it was inadequate to merely grant the right to nominate unspecified land as constituting a dominant tenement in respect of an easement, in order to generate an interest in the land that would serve to bind successors in title to the servient tenement .
It is essential for different persons to possess dominant and servient tenements, because an easement constitutes a right over somebody else’s property. Pollock CB, made the distinction between proprietary and personal rights, crystal clear when he opined that ‘A grantor may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a new incident, so as to enable the grantee to sue in his own name for an infringement of such a limited right as that now claimed.
The sum and substance of this statement is that a number of rights can be created that are governed by contract. Further, it is permissible for a leasehold tenant or a fee simple owner to grant easements. However, a tenant can do so only during the pendency of the lease. If these requirements are not fulfilled, then there is no easement, despite the possible existence of a restrictive covenant, license or lease. With the case of Hill v. Tupper it became evident that an easement must accommodate the dominant tenement.
For an easement to be valid, it has to necessarily bestow some benefit on the land, rather than on the owner. In the Hill case the servient tenement was a waterway and lease granted to the claimant was in respect of some land that adjoined this canal. In addition, the claimant was exclusively permitted to make available pleasure luxury boats on this canal. The court however, held that the conduct of business on the servient tenement was insufficient to bestow an easement on the claimant and that it constituted nothing more than a license.
Moreover, the court held that the claimant was making a blatant claim to ensure a commercial monopoly. Furthermore, the court decided that no easement could specify the exclusive use of a servient tenement in order to exclude other reasonable users . In Dyce v. Hay there was a claim that all the Queen’s subjects had the right “to go at all times upon the…appellant’s property…for the purpose of recreation”.
It was held that “There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected” . As per Lord St. Leonards, the class of servitudes and easements should change and widen in their applicability in accordance with the changes in society and the human condition . This opinion has to be interpreted, while bearing in the mind the maxim that English law does accord, with the exception of statute, recognition to an easement in its entirety.
In other words easement should be restrictive. The judgment in the Dyce case makes it very clear that the judiciary was not disposed to expanding the category of easement in order to include rights that had not been recognized by the extant statute. In general some rights are not recognized by the courts as easements. These are a right to a view; a general right to loiter on some other person’s property and a right to shelter oneself from the elements with the help of neighbouring buildings.
However, it was clearly demonstrated in the Dyce case that such a list of rights is not conclusive and could be expanded if so required. Although, the list of rights that could be construed to be easements cannot be enumerated, nevertheless, such rights should be similar to those rights that have been accorded the status of easements by law. However, the courts have been reluctant to permit new rights to be accorded the status of easements.