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vustudents
05-01-2012, 12:52 AM
Easements can be created only in three ways, that is, by statute, by grant and by custom.
(A) By statute: There are, or have been, very many public and private acts under which, or by the exercise or performance of powers or obligations contained in them, easements of rights analogous thereto, can arise. At one extreme, statutes provide for the creation of easements and profits, which differ from other easements or profits only in tracing their origins to a legislative provision rather than a conveyance or long user. Statues may create easements not merely expressly but also by implication.
(B) By grant: Creation of easement by grant can be in three ways:
(1) Express grant: The grant of an easement for a legal estate must be by deed. The use of the word “grant” or any other particular word is not necessary for the express creation of an easement; any words are sufficient which clearly show the intention to create an easement grantable at law. A grant is a means of conferring some power or right to come upon the grantor’s land, to walk over it, or to dig in it, or to conduct water over it, or to draw water form it. It is a means of giving something to a person, but it is not the means by which a person can abridge his own natural or possessory rights in or powers over his own land, and restrict himself from doing something on his own land which he otherwise lawfully might do. Thus if a person wished to bind himself not to build on his own land, or not to remove support by digging out the minerals under it, or not to spot the flow of a stream, or not to obstruct the light and air, he could not do so by making a grant; his course would be to make a covenant with the person he intended to benefit not to do these acts.
(2) By will or testamentary disposition: An easement may arise by implication under a grant, including a lease and a testamentary gift, of land if an intention to grant it can property be inferred. Easements may also be acquired under a devise. There are sundry instances to be found in the reports of claims to easements created, or supposed to have been granted, by will, but they do not demand particular notice. From these cases it will be seen that the rules for construction of wills, as to whether the words used are sufficient to pass, revive or recreate easements, whether appurtenant or suspended or extinguished by unity of ownership, to a devise, are the same as those for the construction of deeds.
(3) Implied grant: The doctrine of the creation of easements by implication of law is founded upon an implied grant which arises in connection with some express grant or disposition of the servient or dominant tenement. Such a grant can only be implied where both the dominant and servient tenements have been in common ownership so that the creation of an easement by implication of law many be said to be the outcome of the former relationship between the two tenements. The disposition which causes a cessation of the common ownership and thus gives rise to the implication of an easement may be of either tenement or a simultaneous disposition of both tenements.
(4) Presumed grant- -prescription: Easements acquired by prescription are on the basis of presumed grant. Really, prescription is not a mode of creating an easement but of establishing an existing easement. Prescription is defined by Gale to be a title acquired by use or enjoyment had during the time and in the manner fixed by law.
(a) continuous user as of right by the owner of the dominant tenement, and
(b) acquiescence by the servient tenement.
From these elements the grant of an easement is presumed. Easement can be acquired by presumed grant or prescription in three ways:
(a) under section 15, easements act,
(b) under section 26, Limitation act, 1908,
(c) by lost grant.
Prescription under (c)‘by lost grant’ can only acquired when it cannot be acquired under (a) or (b).
(c) By custom: Customary easement is one acquired in virtue of a local custom. (S. 18). A valid customary easement must be possessed of the same characteristics as a valid custom, i.e, it must be ancient, reasonable and certain. The essential difference between a customary easement and a customary right is that in case of the former the custom must be for the beneficial enjoyment of a dominant tenement whilst in the case of the latter the custom may be independent of any dominant tenement. Sections 8 to 11 of the easements act deal with the acquisition of easements by express grant, section 13 with acquisition of easements by implied grant, section 15 with acquisition of easements by prescription or presumed grant and section 18 with of easements by custom.