The Rights and Incidents of an Easement

(b) A has an easement of a drain through B's land, and the sewer it communicates with is altered. A may enter and alter the drain to adapt it, provided he imposes no additional burden.

(c) A has a right of way over B's land, which is out of repair, or a fallen tree blocks it. A may enter and repair the way or remove the tree.

(d) B renders the way impassable. A may deviate over B's adjoining land, provided the deviation is reasonable.

(e) A may remove rocks to make the way.

(f) A has an easement of support from B's wall, which gives way. A may enter and repair the wall.

(g) A has an easement to have his land flooded by a dam in B's stream, half swept away. A may enter and repair the dam.

Illustration (d) is worth marking: the right to deviate arises only because the servient owner made the way impassable, and even then only reasonably.

Sections 25 and 26: who pays

Section 25: expenses. The expenses of constructing works, making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant owner.

Section 26: damage from want of repair. Where an easement is enjoyed by means of an artificial work, the dominant owner is liable to make compensation for any damage to the servient heritage arising from the want of repair of that work.

The two together are the price of the easement. The dominant owner has the benefit, so he bears the cost, and if his neglected pipe or drain floods his neighbour's land, he pays for it.

Section 27: the servient owner's position

The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient.

Three propositions, and each has its illustration:

(a) A has a right to lead water and send sewage through B's land. B is not bound to clear the watercourse or scour the sewer. No positive duty.

(b) A grants B a right of way. A may feed his cattle on the grass growing on the way, provided B's right is not obstructed; but he must not build a wall at the end of his land so as to prevent B going beyond it, nor narrow the way so as to make the exercise of the right less easy than at the date of the grant. Consistent use is allowed; restriction is not.

(c) A is entitled to support from B's wall. B is not bound to keep the wall standing and in repair. But he must not pull down or weaken it so as to make it incapable of giving the necessary support.

Illustration (c) draws the line most sharply: the servient owner may let the wall fall down of itself, but he may not push it over.

Section 28: the extent of easements

Section 28 fixes how far an easement goes, and it distinguishes the ways an easement was acquired.

Easement of necessity: its extent is that which is necessary for the enjoyment of the dominant heritage.

Other easements, in the absence of evidence to the contrary, are measured as follows.

(a) A right of way: the extent is that which is necessary for the purpose for which it was granted or acquired.

(b) A right to light or air acquired by grant: the extent is that fixed by the grant.

(c) A prescriptive right to light or air: the extent is that quantity of light or air which has been accustomed to enter the openings during the prescriptive period, whatever the purpose for which it was used.

(d) A prescriptive right to pollute air or water: the extent is that of the pollution at the commencement of the period of prescription.

(e) Other prescriptive rights: the extent is that of the enjoyment during the prescriptive period.

The unifying principle is that an easement is measured by how it was acquired: by the necessity, by the grant, or by the enjoyment.

Sections 29 to 31: excess

Section 29: increase of easement. The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement. So building a larger house does not entitle the owner to more light than he prescribed for, and putting a heavier building on land does not entitle him to more support.

Section 30: partition of the dominant heritage. Where the dominant heritage is divided among several persons, they become entitled severally to the easement, provided no additional burden is imposed on the servient heritage.

Section 31: obstruction in case of excessive user. In the case of excessive user, the servient owner may obstruct the user, but only where the obstruction would not also obstruct the lawful user.

Section 31 is the practical remedy and it is carefully limited. Self-help is allowed against the excess, and not against the right. If the excessive and the lawful user cannot be separated, the servient owner must go to court instead.

A worked example

Anil has a right of way, acquired by prescription over twenty years, along a track across Bina's field, used throughout for a bullock cart to reach his farm.

A tree falls across the track. Under section 24 illustration (c), Anil may enter and remove it, doing it in the manner causing Bina as little inconvenience as possible, and repairing any damage.

Who pays? Anil. Section 25 puts the expenses of any act necessary for the use or preservation of the easement on the dominant owner.

Anil lays a pipe under the track and it leaks, flooding Bina's crop. Section 26: the easement being enjoyed by means of an artificial work, Anil must compensate for damage from want of repair.

Bina lets the track become overgrown. Section 27: she is not bound to do anything for Anil's benefit, and illustration (a) is exactly this.

Bina grazes cattle on the grass of the track. Permitted, on illustration (b), so long as Anil's way is not obstructed.

Bina builds a wall across the end of the track. Forbidden by illustration (b): she must not restrict the easement or render its exercise less convenient.

Anil converts his farm into a quarry and starts running loaded lorries along the track. Under section 28(e) the extent of a prescriptive right is the enjoyment during the prescriptive period, which was a bullock cart. Under section 29 he cannot substantially increase the easement by altering the dominant heritage. The lorry traffic is excessive user.

What can Bina do? Under section 31 she may obstruct the excessive user, but only if doing so would not also obstruct Anil's lawful user. If she cannot separate the two, she must sue.

Anil's farm is partitioned between his two sons. Under section 30 both become entitled to the way severally, provided no additional burden falls on Bina's field.

Anil wants to move the track twenty metres north. Under section 23 he may alter the place of enjoyment, provided he imposes no additional burden on Bina's field.

What it does NOT mean

The servient owner owes no positive duty, and section 27 says so as clearly as illustration (f) to section 4.

He is not excluded from his own land. He may use it in any way consistent with the easement.

Accessory rights are not unlimited. They must be exercised so as to cause as little inconvenience as possible, and damage must be repaired.

Deviation is not a general right. It arises where the servient owner makes the way impassable, and must be reasonable.

The dominant owner cannot enlarge his easement by enlarging his property.

Partition does not multiply the burden. Section 30 requires that no additional burden be imposed.

Self-help against excess is limited. Section 31 permits obstruction only where the lawful user is not obstructed too.

Prescriptive light is measured by what came through the openings, not by what the owner now needs.

Distinctions

Quick revision

• s.22: exercise in the mode least onerous to the servient owner, and confine it to the place used.
• s.23: the mode and place may be altered, provided no additional burden.
• s.24: accessory rights, all acts necessary to secure full enjoyment, with least inconvenience and repair of damage. Seven illustrations: mend pipes, adapt a drain, repair a way or remove a tree, reasonable deviation where the servient owner blocks it, remove rocks, repair a supporting wall, repair a dam.
• s.25: the dominant owner pays the expenses. s.26: he compensates for damage from want of repair of an artificial work.
• s.27: the servient owner need do nothing, may use his land consistently with the easement, but must not restrict it or make it less convenient. He may let a wall fall; he may not pull it down.
• s.28: extent follows acquisition: necessity, grant, or the enjoyment during prescription.
• s.29: no substantial increase by altering the dominant heritage. s.30: on partition, several entitlement without additional burden. s.31: the servient owner may obstruct excessive user, only if the lawful user is not thereby obstructed.

Test yourself

1. Who pays for repairing a drain over which an easement is enjoyed? The dominant owner. Section 25 puts on him the expenses of constructing works, making repairs, or doing any other act necessary for the use or preservation of the easement.

2. Is the servient owner bound to keep a supporting wall in repair? No. Illustration (c) to section 27 says he is not bound to keep the wall standing and in repair, though he must not pull it down or weaken it so as to make it incapable of giving the necessary support.

3. When may a dominant owner deviate from a right of way? Where the servient owner has rendered the way impassable, and then only if the deviation is reasonable, on illustration (d) to section 24.

4. How is the extent of a prescriptive right to light measured? By the quantity of light which has been accustomed to enter the openings during the prescriptive period, whatever the purpose for which it was used.

5. Can a dominant owner get more support by putting up a bigger building? No. Section 29 provides that he cannot, by merely altering or adding to the dominant heritage, substantially increase an easement.

6. What happens to an easement when the dominant heritage is partitioned? Under section 30 the sharers become entitled severally to the easement, provided no additional burden is thereby imposed on the servient heritage.

7. What may a servient owner do about excessive user? Under section 31 he may obstruct the excessive user, but only where the obstruction would not also obstruct the lawful user. Otherwise he must seek relief from the Court.

8. May the dominant owner change where he exercises the easement? Yes. Section 23 permits him to alter the mode and place of enjoyment from time to time, provided he does not thereby impose any additional burden on the servient heritage.