This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
(a) Easements. - An easement is a right to use the land of another for a certain purpose without the right to take anything from the land.
Examples. - Eights of way, rights to carry water across land by means of pipes or otherwise, rights of drainage, rights to light, etc.
Acquisition of Easements. - Easements may be acquired.
(1) By Express Grant. - A tenant in fee simple may agree to grant to another a right of way over his land.
This may now be done by means of a use (e).
If X grants land to A to the use that B shall have a right of way over the land: B gets a legal right of way.
By the Conveyancing Act, 1881, s. 6, when a person conveys land he is deemed to cpnvey with it all rights of light and other easements appurtenant to the land, or enjoyed with it, as if they had been expressly mentioned in the conveyance.
(2) By Implied Grant. - When the owner of a large piece of land conveys part of it to another, the part conveyed cannot have any easements over the part retained, for a man cannot have an easement over his own land (see p. 178). But if the land granted has, in fact, enjoyed any such advantages as access of light or use of drains, the
(c) Conveyancing Act, 1881, s. 62.
Rights over Land in the Possession of others 177 grantor cannot afterwards destroy them. The rule is sometimes stated as follows: "A man cannot derogate from his own grant"
Thus A owns land partly covered with buildings: he sells the part containing the building to B.
A cannot build on the vacant land in such a way as to shut out the light from the house sold to B.
Swansoorough v. Coventry (1832), 9 Bing. 305.
The Postmaster-General owned certain land. He sold part of the land, on which was a house, to S. On the same day he sold the rest of the land to C. C's land was practically vacant land, the only building being one storey high, and the house bought by S received its light over the top of the low building on C's land. C commenced to build on his land so as-to obstruct the light coming to the house bought by S.
Held, the Postmaster-General could not have derogated from his grant by increasing the one-storey building so as to -obstruct the lights of S's house, and C was in no better position
This case also illustrates the further rule that if the original owner of the whole land, sells the vacant land over which the light comes, either at the same time, or after he sells the house which has enjoyed the light, the purchaser of the vacant land cannot obstruct the light of the house.
But if the original owner sells the vacant land, and retains the house which has enjoyed the light, the purchaser of the vacant land can obstruct the light coming to the house. There is no implied reservation of light to the grantor (d), and a purchaser from the grantor is in no better position;
(d) Ray v. Hazeldine (1904), 2 Ch. 17.
therefore if the original owner sells the house after he sells the vacant land, the purchaser of the vacant land may obstruct the light of the house (e).
(3) By Prescription: as to this see p. 254.
Destruction of Easements. - An easement may be (1) released by deed, or (2) it may be abandoned, or (3) merged.
Abandonment. - There is no fixed time during which mere non-user of an easement will destroy it. But if the easement is not used for a long time, and particularly if the person entitled to the easement does some act (e.g. blocking up a window which received the light) which shows an intention to abandon the easement, it may be destroyed.
Merger. - A person cannot have an easement over his own land: therefore if the land to which the enjoyment of the easement is attached (called the "dominant tenement") passes to the same person as the owner of the land over which the easement is enjoyed (called the "servient tenement") the easement is destroyed.
(b) Profits a prendre. - A profit is the right to take something from the land, e.g. rights to dig minerals, shoot game, catch fish, etc.
The rules as to acquisition and destruction are similar to those relating to easements, except as to prescription, for which, see p. 253.