Kinds of Easements

In one line

Easements divide into continuous and discontinuous, and into apparent and non-apparent; and a person can grant an easement only as far as he could transfer the land itself.

In exam wording: section 5 provides that easements are either continuous or discontinuous, apparent or non-apparent; and section 8 provides that an easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.

Section 5: the two classifications

The Act cuts easements two ways, and the two cuts are independent. Any easement is one of each pair.

Continuous. An easement whose enjoyment is, or may be, continual without the act of man. Nobody has to do anything for it to be enjoyed; it simply continues.

Discontinuous. An easement that needs the act of man for its enjoyment. Somebody must do something each time.

Apparent. An easement the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him. Note the three elements: a permanent sign, careful inspection, and a competent person. A drain buried underground may still be apparent, because a person conversant with such matters would find it.

Non-apparent. An easement that has no such sign.

The Act's illustrations:

(a) A right annexed to B's house to receive light by the windows without obstruction by his neighbour A. Continuous, because light arrives without anyone doing anything.

(b) A right of way annexed to A's house over B's land. Discontinuous, because it is enjoyed only when someone walks or drives along it.

(c) Rights annexed to A's land to lead water there across B's land by an aqueduct and to draw off water by a drain. The drain would be discovered on careful inspection by a person conversant with such matters. Apparent easements.

(d) A right annexed to A's house to prevent B from building on his own land. Non-apparent, because nothing on the ground shows it.

The classification is not academic. Section 13, taught in the next chapter, gives a quasi-easement on severance only where the right is continuous and apparent, so the labels decide whether an easement arises at all when land is divided.

Section 8: who may impose an easement

An easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the servient heritage.

The rule is the easement version of "nobody can give what he does not have". A person's power to burden land is measured by his power to dispose of it.