The Rights and Incidents of an Easement

In one line

The dominant owner may do what is needed to enjoy his easement and must pay for it, and the servient owner need do nothing for him but must not make the easement harder to use.

In exam wording: section 24 entitles the dominant owner to do all acts necessary to secure the full enjoyment of the easement, causing the servient owner as little inconvenience as possible and repairing damage; section 25 puts the expenses on the dominant owner; and section 27 provides that the servient owner is not bound to do anything for the dominant heritage but must not restrict the easement or render its exercise less convenient.

Sections 22 and 23: how the easement is exercised

Section 22: exercise, and confinement of exercise. The dominant owner must exercise his right in the mode least onerous to the servient owner, and where the easement has been exercised in a particular place, he must confine himself to that place, unless the servient owner otherwise directs.

Section 23: right to alter the mode of enjoyment. The dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided he does not thereby impose any additional burden on the servient heritage.

The two sections work together. Change is permitted, but only within the burden the servient owner already bears. That is why the illustrations to section 23 allow a mill owner with a prescriptive right to pollute a stream to change the process by which he makes paper, provided he does not substantially increase the amount, or injuriously change the nature, of the pollution, but do not allow him to move from sawdust to poisonous liquor.

Section 24: accessory rights

The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but those acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage caused by the act to the servient heritage.

Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.

The idea is that a right without the means of using it is worthless. A right to lay a pipe is useless if the pipe cannot be mended.

The Act's illustrations, which are the whole of the doctrine in seven short cases:

(a) A has an easement to lay pipes in B's land. A may enter and dig to mend the pipes, but must restore the surface.