FEDERAL UNIVERSITY OYE EKITI

FACULTY OF LAW

COURSE CODE: LPU 402

COURSE TITLE: LAND LAW 2

GROUP: GROUP 8

LECTURER IN CHARGE BARR. OSADOLA

QUESTION: DISCUSS EXTENSIVELY ON EASEMENTS

NAME MATRIC NO
1. OLUMUYIWA BANKOLE. LAW/2020/1072

2. OLUYOLE SHARON OLUWAKEMI. LAW/2020/1073

3. OMITA EBUNOLUWA MODUPE. LAW/2020/1074

4. ONIYE IFEMIDE INIOLUWA. LAW/2020/1075

5. OWOSENI FISAYO MERCY. LAW/2020/1076

6. OWOYOMI BUKUNMI FAVOUR. LAW/2020/1077

7. PETERS CHERISH FUNMILOLA. LAW/2020/1078

8. POPOOLA AYOMIDE TOMIWA. LAW/2020/1079

9. POPOOLA OLAOLUWA EMMANUEL. LAW/2020/1080

OUTLINE

1. Introduction to Easements

2. Essential Characteristics of an Easement (from Re Ellenborough Park 1956)

3. Types of Easements

4. Creation of Easements

5. Termination of Easements

6. Remedies for Interference

7.Case Laws on Easements

8. Conclusion and Compilation

INTRODUCTION TO EASEMENTS

An easement is an interest in land which entitles a landowner to use, restrict the use of, his neighbour's
land in particular way, without giving him possession. It is a limited form of right. For example, rights of
way, rights of light, rights of water.

In other words, an easement is a legal right that allows one landowner to use a portion of another's land
for a specific purpose, without owning it. This right is non-possessory, meaning it doesn't grant
ownership but permits certain uses, such as accessing a road or laying utility lines.

According to BURN,1"An easement is a privilege without a profit, that is to say, it is a right attached to
one particular piece of land which allows the owners of that land(the dominant owner) either to use the
land of another person (the subservient owner) in a particular manner, as by walking over or depositing
rubbish on it or to restrict its user by that other person to a particular extent, but which does not allow
him to take any part of its natural produce or it's soul"

The land benefiting from the easement is known as the "dominant tenement," while the land burdened
by it is the "servient tenement."

An easement may be either affirmative or negative. An easement is positive or affirmative if it gives the
right to the dominant owner to enter the land of the servient owner to do something to his enjoyment.
It is negative on the other hand, if it places a restriction or limitation on the use of land.

In LEECH V. SCHWEDER2, it was held that a legal easement is a jus in rem, not a jus in personam; it
permanently binds the land over which it is exercisable and permanently avails the land for the
advantage of which it exists.

CATEGORIES OF EASEMENTS

The categories of easement is not static. They are open ended and may expand to accomodate more
categories to fit into modern societal requirement, trade and circumstances they include:

(1) Right of way.

(ii) Right of light that the light flowing over adjoining land to a window should not be unreasonably
obstructed

(iii) Right to water connection include a right to divert the course of a stream for irrigation purposes of a
right to discharge water to the land of another.

(iv) Right to fencing which includes right to have a fence maintained by an adjoining owner

1
Burn, E. H. Cheshire's Modern Law of Real Property, 12th ed. (London: Butterworths, 1976) 515

2
(1874) L. R. 9 Ch. App. 463
(v) A right to the support of buildings by adjoining lands or buildings

(vi) miscellaneous easement includes:

(a) right to hang dothes on a line passing over neighbouring soil

(b) right to run telephone lines over neighbouring land

(c) right to fix a signboard on the walls of another person’s house

(d) right to lay stones on adjoining land to regulate soil erosion

(e) right to use an airfield.

ESSENTIAL CHARACTERISTICS OF AN EASEMENT (FROM RE ELLENBOROUGH PARK 1956)

In the above case where the issue was whether granting someone the use of a park as a part of a
purchase create an easement/property right over the park and more generally, what must be present
for an easement to exist. The court granted the easement and outlined the conditions for the granting of
an easement. In the leading judgement Evershed MR stated that an easement may be granted as long
as:

1. There is a dominant and a servient tenement,

2. The easement must accommodate the dominant tenement (this accommodation must go
beyond raising the value of the dominant tenement and the easement must be linked to the use
of the dominant tenement),
3. The dominant and servient tenements must have different owners
4. The right must be capable of being the subject matter of a grant (this is necessary as easements
do not physically exists and thus cannot be passed by possession, leaving a grant as the only
option. Further, the right must not be purely for recreation – it must have utility.

ESSENTIALS/REQUIREMENTS OF AN EASEMENT
For an interest is to qualify as an easement, it must possess the following four characteristics.

 There must be a dominant and a servient tenement

 An easement must accommodate the dominant tenement
 The servient tenement must be close enough to the dominant tenement to confer a practical
benefit on it.
 Dominant and servient owners must be different persons
 The easement must be capable of forming the subject-matter of a grant

1. THERE MUST BE A DOMINANT AND A SERVIENT TENEMENT

An easement cannot exist "in gross" but only as appurtenant to a dominant tenement. On transfer of
the dominant tenement, the easement will pass with the land, so that the occupier for the time being
can enjoy it, even if he is a mere lessee.

For instance , if a person who owns a piece of land grants a right to use a path across it to the owner of
the neighbouring, the one granting the right is the servient tenement while adjoining land owner is the
dominant tenement. If the right had been granted the right to party C who owned no land at all, then
party C would have acquired a license to walk over the piece of land, but his right could not exist as an
easement, for a dominant tenement was lacking.

2. AN EASEMENT MUST ACCOMMODATE THE DOMINANT TENEMENT:

A right cannot exist as an easement unless it confers a benefit on the dominant tenement as such. It is
not sufficient that the right should give the owner for the time being some personal advantage; the test
is whether the right makes the dominant tenement a better and more convenient property.

This may be done not only by improving its general utility, as by giving means of access or light, but also
by benefiting some trade which is carried on, on the dominant tenement, at least, if the trade is one
long established.

In BAILEY V. STEPHENS3, Byles, J. expressed it thus: "the incident sought to be annexed, so that the
assignee of the land may take advantage of it, must be beneficial to the land in respect of the
ownership.

This requirement has been variously stated in CLAPMAN V. EDWARDS4 thus: "an easement must be
3
(1862) 12 C. B. (NS) 91 at 115

4
(1938) 2 All E. R. 507
connected with the enjoyment of the dominant tenement and must be for its benefit"

3. THE SERVIENT TENEMENT MUST BE CLOSE ENOUGH TO THE DOMINANT TENEMENT TO CONFER A
PRACTICAL BENEFIT ON IT.

This does not mean that a right cannot exist as an easement unless the dominant and servient
tenements are contiguous; even if they are separated by other land, an easement can still exist,
provided that they are near enough for the dominant tenement to receive some benefit as such.

Whether the necessary nexus exists depends greatly upon the nature of the dominant tenement and the
nature of the right alleged. If, for example, the dominant tenement is a residential house and if there is
annexed to it by express grant a right to use an adjourning garden for purposes of relaxation and
pleasure, this is a clear case where the right is sufficiently connected with the normal enjoyment of the
house to rank as an easement. The fact that the right enhances the value of the dominant tenement is a
relevant, but not a decisive consideration.

4. DOMINANT AND SERVIENT OWNERS MUST BE DIFFERENT PERSONS:

An easement is essentially a right in alieno solo (in the soil of another). A man cannot have an easement
over his own land; thus, the dominant and servient tenements must, therefore, not be both owned and
occupied by the same person.

Otherwise, it would be merely walking from one part of his one's land to another.

However, before the existence of an easement is rendered impossible, the same person must not only
own both tenements but also simultaneously occupy both of them

The rule that both the dominant and servient tenements must be owned by different persons is in line
with the proposition that a man cannot have rights against himself.

However, rights habitually exercised by a man over part of his own land which, if the part in question
were owned and occupies by another would be easements, are called quasi-easements.5 Quasi-
easements are of some importance, for they may sometimes become true easements if the land is
subsequently sold in separate parcels.

5. THE EASEMENT MUST BE CAPABLE OF FORMING THE SUBJECT-MATTER OF A GRANT:

5
Wheeldon V. Burrows (1879) 12 Ch. D. 31, at 49.
A right over land cannot amount to an easement unless it is capable of forming the subject matter of a
grant. The saying is that all easements "lie in grant." This means that no right can exist as an easement
unless it could have been granted by deed, either express, implied or presumed.

The principles underlying this rule are that only certain kinds of rights are capable of being rights of
property which one man can convey to another, and that every easement in theory owes its existence to
a grant by deed; although in practice many easements are established by long user, the presumption
always is that a grant was once made.

CREATION OF EASEMENTS

The creation of an easement refers to the legal process by which a right is granted to a person to use
another person's land for a specific purpose. Easements are a common feature in property law, and they
can be created in several ways.

1. Express Grant or Reservation

 Grant: When the servient owner expressly gives the dominant owner an easement (e.g., a right of
way).

 Reservation: When a landowner sells part of their land but reserves an easement over the sold land
for their own use.

 Must be in writing and comply with the requirements of Section 52 of the Law of Property Act 1925
(in England) or relevant local legislation.

 Usually created by deed and registered if the land is registered.

2. Implied Easement

Can arise even without express words. There are three main types:

 Necessity: Where the land would be useless without the easement (e.g., no access road).

 Common Intention: Where both parties intended the land to be used in a particular way that
requires the easement.

 Wheeldon v Burrows Rule: Where the seller used a part of the land for the benefit of the other part
before sale, and it was continuous and apparent.
3. Easements by Prescription

 Created through long use over time (typically 20 years or more).

 Based on the principle of “use as of right” – the use must be:

 Without force

 Without secrecy

 Without permission (i.e., as of right)

 There are three methods: common law, Prescription Act 1832, and doctrine of lost modern grant.

4. Statutory Easements

 Created by operation of statute, often in utility cases (e.g., for laying pipes or electricity cables).

 Governed by specific laws depending on the country.

5. Equitable Easements

 Arise where an agreement for an easement exists but does not meet legal formalities (e.g., not
created by deed).

 May be enforceable in equity if there is a valid contract (e.g., under the doctrine of part
performance).

TERMINATION OF EASEMENTS

Easements generally lasts forever,

There are actually many ways an easement can be terminated (sometimes referred to as the
extinguishment of the easement). If the easement terminates before the original time period that it was
supposed to last for runs out, the easement is said to be “extinguished.” The ways which easement can
be terminated or extinguished are:

1) Expiration

2) Release

3) Estoppel

4) Prescription

5) Abandonment

6) Destruction of servient estate

7) Cessation of the Purpose of the Easement

8) Merger

9) Statute

10) Court order

1. Expiration

The simplest way an easement can be terminated is if the time period for the easement’s existence
expires. In such a case, the easement would have to have a time limit that was set at the time that the
easement was created. When that time limit runs out, the easement simply expires and ceases to exist.
In addition, an easement can be created with the express provision that it shall terminate upon the
occurrence of a specified event. When that event occurs, the easement will automatically expire.

For example, if a landowner grants a neighbor a right of way for five years to access a public road, once
the five years are over, the easement ceases to exist unless renewed.

2. Release

An easement once granted may be ended by a release in writing stating that the owner of the easement
gives away all rights and remedies including the ability to sue under the easement.
This means that both the property owner and the easement holder agree to formally terminate the
easement through a written release.

Release can be implied by the non user of an easement together with the surrounding circumstances.
In SWAN V SINCLAIR (1925) A C 227 the court held that although mere non user is insufficient to
extinguish an easement of right of way, the surrounding circumstance sufficiently show an intention on
the owners to abandon the project.

3. Estoppel

The equitable doctrine of estoppel may also lead to the extinguishment of an easement. Estoppel is a
principle of equity based upon ideas of fairness and avoiding injustice. Estoppel may apply if a holder of
the easement right engages in conduct that results in the owner of the servient estate responsibly
believing that the easement has been abandoned and the owner acted to her detriment based upon
that belief.

For example, if Mr. A owns land with an easement allowing Mr. B access to a water source. Mr. B
installs a borehole and stops using the easement without informing Mr. A. After several months of non-
use, Mr. A builds a fence, assuming the easement is abandoned. Mr. B may be estopped from claiming
the easement due to his inaction and failure to communicate, leading Mr. A to reasonably believe the
easement is no longer necessary. Thus, the easement can be terminated by estoppel.

4. Prescription

This is acquired through continuous and open use of the property without the permission of the owner
for a statutory period. Just as an easement can be created by prescription (adverse possession), an
easement can also be terminated by prescription if the owner of the servient tenement excludes the
easement holder from the usage of the easement for the prescribed statutory period of time.

Terminating through prescription occurs when the property owner takes actions that are inconsistent
with the easement holder’s rights for a specified period of time, which is typically five years. This can
include blocking access to the easement or otherwise using the property in a manner that interferes
with the easement holder’s rights. The termination would become effective if the easement holder
takes no legal rights to regain access. For example:

Adam and Brent are neighbors. Brent holds an easement that allows him to cut through Adam’s
property to access a street. One day, Adam builds a wall between Brent’s property and the path over
which Brent is supposed to be allowed to cross, thereby denying Brent access to the path. If this wall
stays up for the statutory period of time and Brent brings no legal action to enforce his easement, his
easement could be lost by prescription.
5. Abandonment

An easement can rarely be extinguished by abandonment, or ditching the easement altogether.

However, a court may find abandonment if it can be proven that the holder of the easement intended to
abandon the easement and engaged in conduct that supported such an intent. It's important to
emphasize that both intent and conduct substantiating the intent must be present.

Sometimes failure to use the right for a long enough period of time is sufficient to establish the intent to
abandon, but it depends on the circumstances.

For example, if a utility company has an easement to run power lines across a farmer's land but stops
using the easement for several years without any justification, the farmer may argue that the easement
has been abandoned.

6. Destruction of servient estate

The servient estate is the property burdened by the easement, and sometimes it involves an easement
over a building or some other structure on the property. If the structure is destroyed by some natural
disaster or some third party (i.e., not the owner of the servient estate), the easement may be
terminated (i.e., the destruction of servient estate). For example, if you have an easement to use a
bridge and the bridge is destroyed by a tornado, you may lose the right to cross over that bridge.

Of course, this scenario will generally only manifest itself in situations where the easement calls for the
usage of certain facilities (e.g. power lines that run through the servient estate) and those facilities are
destroyed. Even where applicable, an easement can only be extinguished in this manner if the servient
estate is destroyed through no fault of the servient estate’s owner. If the servient estate owner
intentionally destroys the subject of the easement, the owner of the servient estate will be liable to pay
damages to the easement holder and the easement will not be extinguished.

For example, Adam and Brent are neighbors. Adam builds a large swimming pool in his backyard. He
and Brent negotiate a deal whereby Brent will gain an easement that will allow him to swim in Adam’s
pool any time he wants to. One day, an accidental fire destroys the swimming pool. In such a case,
Brent’s easement will be extinguished. However, if Adam intentionally destroyed the pool, he will have
to pay Brent damages for the loss that Brent suffered by being deprived of the ability to swim in the
pool. In addition, Brent’s easement will not be extinguished. Therefore, when and if the pool is rebuilt,
Brent’s easement will continue where it left off before the pool was destroyed.

7. Cessation of the Purpose of the Easement

This method of extinguishments is confined to easements that are created by necessity. If an easement
is created by necessity and the necessity ends, for whatever reason, then the easement ends along with
the necessity.

For example, Sally owns property that is surrounded on three sides by road and on the fourth side by
rocky terrain that is unsuitable for driving or walking on. Sally sells an interior part of her property that is
surrounded on three sides by her property, and on the fourth by the rocky terrain, to Don. The deed
mentions nothing about Don getting an easement to cross Sally’s property. Don gains an easement by
implication because of the necessity of his accessing the road. Thus, Sally allows him to cross her
property within the path outlined in red. A few years after the sale of the property to Don, the City
blasts away the rocky surface and extends Washington Street so that it is accessible from Don’s
property. The easement to cross the red path is no longer necessary because Don can now access a road
from his own property. Therefore, he automatically loses his easement to cross the red path.

8. Merger

An easement may be extinguished by merger. Since an easement is an interest in land held by another
person, if the dominant estate (i.e., the property benefiting from the easement) and the servient
estate (i.e., the property burdened by the easement) become owned by the same person, there's no
dominant or servient estate because they've merged into one (i.e., the term merger).

This means that the owner of the easement and the property owner become the same person;
therefore the easement is no longer necessary and may automatically terminate.

9. By statute.

This occurs when a statute is enacted that expressly or impliedly extinguishes an existing easement. The
Land Use Act of 1978 is a key statute governing land ownership and use in Nigeria. Under this Act, the
government can revoke or terminate existing rights, including easements, for public purposes or in the
interest of overriding public interest. If a statute is enacted to develop a particular area for
infrastructure projects, any existing easements that hinder such development may be terminated by the
statute. An example of this is provided under s. 28 of the Land Use Act LFN 2004.

10. Court Order

A court may terminate an easement if it finds that the easement is no longer necessary or has been
misused. For example: If a landowner sues to terminate an easement that allows a neighbor to drain
water onto their property, and the court finds that the drainage is causing significant damage, the court
may order the termination of the easement.
REMEDIES FOR INTERFERENCE

Interference with an easement can lead to legal issues and may require action to protect the rights of
the easement holder. Here are the main remedies available when there's interference with an
easement:

1. Injunction

- A court order to stop the interfering party from continuing the interference.

- Can be temporary (interim) or permanent depending on the situation.

- Often used when damages are not sufficient or the interference is ongoing.

2. Damages

- Compensation for loss suffered due to the interference.

- Can cover:

- Cost of repair or removal of obstruction.

- Loss of use or enjoyment of the easement.

- Any consequential losses (e.g. business disruption).

3. Abatement

- The easement holder may take self-help measures to remove the interference.

- Risky – must be done lawfully and proportionately, or it could lead to legal consequences.

4. Declaration of Rights

- A court may issue a declaration confirming the existence and extent of the easement.

- Useful in disputes where the right is being denied or questioned.

5. Specific Performance
- Rare, but sometimes the court may order the interfering party to do something specific (e.g., restore
access, rebuild a damaged structure related to the easement).

6. Negotiated Settlement

- Parties may agree to modify, relocate, or extinguish the easement by mutual consent.

- Avoids litigation and can be more cost-effective.

REFERENCE

LAND USE ACT

ADEWALE TAIWO, THE NIGERIAN LAND LAW 2016, PRINCETON PUBLISHERS

1. CJ Okoye Lawview & Co. Topic 12: Easement. Retrieved from: https://cjokoyelawview.com/law-422-
land-law-ii/topic-12-easement

2. Studocu. Nigerian Land Law: Profit a Prendre and Easement. Retrieved from:
https://www.studocu.com/row/messages/question/5896058/extensively-explain-the-following-under-
nigerian-land-law-profit-a-prendre-easement

"Foundations of Law - The Creation of Easements"

https://www.lawshelf.com/coursewarecontentview/the-creation-of-easements

"Creation of Easements Land Law Lecture" https://www.lawteacher.net/lectures/land-law/easements-

profits/creation/