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Discuss The Differences Between Easements and Public Rights of Way

An easement is a right to use another person's land in a particular way or to prevent the landowner from using their land in a particular way. There must be a dominant tenement that benefits from the easement and a servient tenement that is burdened by it. In contrast, a public right of way allows any member of the public to pass over the land and does not require a dominant tenement. Additionally, easements are granted by deed between landowners while public rights of way are often created by statutes or dedication to the public. The key difference is that easements involve rights between landowners while public rights of way are rights enjoyed by the general public.

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92 views2 pages

Discuss The Differences Between Easements and Public Rights of Way

An easement is a right to use another person's land in a particular way or to prevent the landowner from using their land in a particular way. There must be a dominant tenement that benefits from the easement and a servient tenement that is burdened by it. In contrast, a public right of way allows any member of the public to pass over the land and does not require a dominant tenement. Additionally, easements are granted by deed between landowners while public rights of way are often created by statutes or dedication to the public. The key difference is that easements involve rights between landowners while public rights of way are rights enjoyed by the general public.

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Guntalk City
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Discuss the differences between easements and public rights of way.

Land can be used to achieve an infinitely unlimited range of purposes, social, residential, commercial,
industrial, agricultural and as such. An efficient utilization of Land inevitably involves rights of access to or
exploitation of the Land.

These rights primarily vest with the fee simple owners. A tenant may also be given these rights by his lease
hold covenants.

Others who wish to have access to or to exploit the Land resources may be given such rights by the fee
simple owners. These rights are sometimes called “incorporeal hereditaments. The most important rights
are easements, profit a prendre and rights of way.

An easement is essentially either a positive or negative right over another’s Land. It is a right to use
another’s Land in a particular way or a right to prevent the owner of another Land from using his own Land
in a particular way. The person who exercises the easement is a “dominant owner” and the person whose
Land is used by the dominant owner is a “servient owner”

On the other hand, public rights are rights enjoyed by any members of the public. Some public rights may
be similar to easements for example the public rights of way.

The discussion will mainly examine the essential characteristics of easements and public rights of way
while distinguishing between the two rights.

The defining characteristics of an easement were laid down in the case of Re. Ellen borough Park (1956)

There must be a dominant tenement that is the Land that takes the benefit and a servient tenement which
is the Land that carries the burden. In the case of Lordon & Blenheim Estates Ltd V Ladbroke Retail Parks
Ltd (1992) 1 WLR1278 Judge Paul Baker said an easement cannot exist as an incorporeal hereditaments
unless and until there are both a dominant and servient tenement in separate ownership, on the other hand
a public right of way differs from an easement in that essential element of a dominant tenement is not
necessary element of a public right of way.

An easement must accommodate dominant tenement. The right to use the servient Land must be
connected with the enjoyment or occupation of the dominant Land and this is not the case for a public right
of way since is does not necessarily need a dominant tenement.

The dominant and servient owners must be different persons. This means that the dominant and servient
Lands must be either owned or occupied by different persons whereas public rights of way are entitled to
exercise such rights do not have to own any of the Land.

A legal easement must be granted by deed for the equivalent of a legal estate while public rights of way are
not specifically granted by deed to the members of the public.
An easement confers a right of its enjoyment only to the dominant tenement on the other hand the public
right of way gives all members of the general public the right to pass over the Land affected by the right of
way.

Public rights of way are often the creation of the statutes such as Access to Roads Act CAP 350 or at
common Law under the doctrine of dedication and acceptance by uninterrupted Long use by the public
(Turner V Walsh (1881) 6 APP. Cas.626. The fee simple owner must have dedicated the highway to the
public and dedication must have been accepted. (R V inhabitants of Tithing of East Mark (1848) 11 PB 877.
Whereas it is for the case of easements, they can be granted or created by prescription that is, by
continuous use over a long period of time.

An easement may be distinguished when there is unity of ownership and possession. Easements are
brought to an end automatically if at any time the dominant and servient lands come into ownership of the
same person. This is not available in the case of a public right of way since it is a right enjoyed by the entire
public some who even might not own any Land.

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