CHAPTER XIII. DISTURBANCE OF EASEMENTS AND OTHER RIGHTS OVER LAND AND WATER. THERE are many cases in which one man has rights over the land of another, or a right to the flow of water or to the access of light to his own land from across the land of another. For any disturbance or obstruction of these rights an action lay at common law. Such a disturbance or obstruction is really a private nuisance, and might, therefore, have been dealt with in Chapter VIII. But as these rights present many special features of their own, we have thought it best to discuss their characteristics in a separate chapter. There are five different classes of these rights : I. Easements. V. Natural Rights. We have already defined the first four classes of these rights and stated the main distinctions between them.' But a brief recapitulation may not be out of place. I. EASEMENTS. An easement is a right which the owner of one piece of land has over an adjoining piece of land-such as a right to walk over it, to pour water on to it, or to carry a pipe through it for the conveyance of gas or water. The right is not vested in the owner of the first piece of land personally, 1 See ante, pp. 24-27, 76–86. but only in him as the owner of that land and so long as he owns it. If he sells that piece of land, the right will pass along with it to the purchaser and may no longer be exercised by the former owner. It is "appurtenant" to the land and "runs with it;" it is in technical language an "incorporeal hereditament." The land to which the right is thus attached is called the dominant tenement; the land over which the easement is exercised is called the servient tenement. Should these two tenements subsequently become the property of the same owner, the easement disappears. In order to succeed in an action for the disturbance or obstruction of an easement, it is necessary for the plaintiff to establish three things: (i.) that he is the owner of the dominant tenement; (ii) that he or his predecessors in title as owners of the dominant tenement acquired the right in question (a) by express grant; (b) by a grant implied from or written into an express grant of the land itself; (c) by prescription at common law; (d) by presumption of a grant made since 1189 and subsequently lost; or (e) by prescription under the Prescription Act, 1832; (iii.) that the defendant has disturbed or obstructed the plaintiff in the exercise of his right. It is not necessary that the plaintiff should have suffered any pecuniary loss, although such evidence may, of course, be given to increase the amount of the verdict. Actual damage need not be shown if the defendant is proved to have violated the right of the plaintiff. (i.) The ownership and occupation will be proved by the plaintiff as in an action of trespass. It is necessary to clearly define the tenement to which the easement is attached. "There can be no such thing according to our law, or according to the civil law, as what I may term an easement 1 See the remarks of Willes, J., in Bailey v. Stevens (1862), 12 C. B. N. S. at pp. 110-112, and Derry v. Sanders, [1919] I K. B. 223. in gross. An easement must be connected with a dominant tenement."1 (ii) Easements may be acquired by grant, express or implied, or by prescription. (a) Cases of express agreement are comparatively rare and present little difficulty, as the rights of the parties are regulated by the instrument which creates the easement. Strictly such an instrument should be under seal, for at common law an incorporeal hereditament could only be created by a deed. In the present day, however, an objection that there is no seal will not be allowed to prevail, where it is in the opinion of the Court inequitable to insist upon it-as where it has been agreed that money should be paid for the right, or where the owner of the servient tenement has either by acquiescence or express consent induced the owner of the dominant tenement to incur expense in the erection of permanent works. Moreover, an agreement to grant an easement will be enforced, if it be in writing so as to satsify section 4 of the Statute of Frauds; so will even a verbal agreement to grant an easement which has been partly performed.3 But a (b) Easements may also arise by implied grant, e.g., where the owner of property severs it into two or more portions, either retaining one in his own possession or disposing of both to different purchasers. In such a case the benefit of all"continuous and apparent" casements will pass to the purchaser without an express grant, on the principle that "no man shall derogate from his own grant." corresponding reservation of easements will not be implied against the purchaser in favour of a tenement retained by the vendor except in cases of absolute necessity. Thus upon a general conveyance of land there is no implied grant by the purchaser of an easement of light necessary for the enjoyment of an adjacent house retained by the vendor." 4 1 Per Lord Cairns, L. J., in Rangeley v. Midland Ry. Co. (1868), L. R. 3 Ch. at p. 311. The Duke of Devonshire v. Eglin (1851), 14 Beav. 530; and see Plimmer v. Mayor of Wellington (1884), 9 App. Cas. 699. 3 McManus v. Cooke (1887), 35 Ch. D. 695. 4 Davies v. Sear (1869), L. R. 7 Eq. 427. 5 Ellis v. Manchester Carriage Co. (1876), 2 C. P. D. 13. 1 In the case of Wheeldon v. Burrows, Thesiger, L. J., laid down two general propositions: "On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted." "If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant." 2 This last proposition is, however, subject to certain exceptions, the best known of which is the rule as to "ways of necessity." The most common form of casements of necessity is that of the right of way across the land of another. "Where a man, having a close surrounded with his own land, grants the close to another in fee, for life or years, the grantee shall have a way to the close over the grantor's land, as incident to the grant, for without it he cannot derive any benefit from the grant. So it is where he grants the land and reserves the close to himself." 3 Again, when the two tenements are granted to different purchasers at the same time, they will pass with the reciprocal burden and benefit of their continuous and apparent easements, so that the purchaser of one will not be entitled to block the lights of the other as against his fellowpurchaser, though he might have done so as against the vendor. "The sales to the plaintiff and defendant being sales by the same vendor and taking place at one and the same time, the rights of the parties are brought within the application of the general rule of law" that a grantor shall not derogate from his own grant.+ (c) When the easement claimed has not been acquired by grant express or implied, the claim must be founded upon prescription, that is to say, upon an enjoyment of the benefit "during time whereof the memory of man runneth not to the contrary." Our lawyers in the days of the Plantagenets fixed this time as commencing in 1189, the first year of the reign of King Richard I., a date to which succeeding generations have slavishly and absurdly adhered. But it was long ago decided that it was not necessary for the plaintiff to produce affirmative evidence that his predecessors in title had 1 (1879), 12 Ch. D. at p. 49; and see Mundy v. Duke of Rutland (1883), 23 Ch. D. 81, 97; Russell v. Watts (1885), 10 App. Cas. 590. 2 See Midland Ry. Co. v. Miles (1886), 33 Ch. D. 632, 644; Brown v. Alabaster (1887), 37 Ch. D. 490; Schwann v. Cotton, [1916] 2 Ch. 459. 31 Wms. Saund. 323, n.; Pinnington v. Galland (1853), 9 Exch. 1, 12; Goodhart v. Ilyett (1883), 25 Ch. D. 182. 4 Per Tindal, C. J., in Swansborough v. Coventry (1832), 9 Bing. at p. 309; cited with approval by Jessel, M. R., in Allen v. Taylor (1880), 16 Ch. D. at p. 358. enjoyed the right ever since 1189. Proof of user as of right for so long as aged persons could remember was accepted as sufficient to raise a presumption that it had existed from time immemorial. Such user must have been neither secret, nor forcible, nor by the permission of the owner of the servient tenement (nec clam, nec vi, nec precario); else it would not be "user as of right." Subsequently, "for the furtherance of justice and the sake of peace," proof of such a user for twenty years was held sufficient to raise a presumption that the right had been enjoyed from time immemorial.1 But this presumption could always at common law be rebutted by proof that the enjoyment had in fact commenced within the period of legal memory. If the defendant could prove the actual date of the commencement of the enjoyment and that date was subsequent to 1189, the plaintiff's claim was defeated. (d) To avoid this hardship a new method of claim was introduced, by which the right was based upon a fictitious grant, supposed to have been made about the time when the enjoyment of the right commenced and to have been subsequently lost. Such a grant, although made since 1189, would afford a legal origin for the user, provided the right claimed was one which could be created by grant. In all such cases, where the user had continued without interruption for twenty years or more before action brought, the long enjoyment was accepted as strong presumptive (but not conclusive) evidence of the existence of such a "lost grant." It is a principle of our law that a legal origin is, if possible, to be presumed for a long-established practice." Lord Ellenborough once said that he would, if necessary, presume a hundred lost grants whenever people have for a long period of time been doing something which they would have had no right to do, unless they had had a deed of grant. But "the presumption of a lost grant from long-continued 1 Per Parke, B., in Bright v. Walker (1831), 1 Cr. M. & R. at p. 217, cited with approval by Pollock, B., in Bass v. Gregory (1890), 25 Q. B. D. at p. 484. 2 Johnson v. Barnes (1873), L. R. 8 C. P. 527; see also the remarks of Lord Herschell in Philipps v. Halliday, [1891] A. C. at p. 231; and Hulbert v. Dale, [1909] 2 Ch. 570. |