Positive and Negative Easements

Creation by Express of Implied Grant [454]

-Express Grant of an Easement: Take example of wishing to sell a piece of land surrounded on three sides by wood and road on one side. If seller gives the buyer the landlocked part and gives the buyer an easement to use the road, he’s granting an estate and an easement and this is called an express grant of an easement.

-When words are not clear as to whether it is an express grant or grant by reservation the deed will be construed in favour of the grantee. In doubtful cases it will be easier to argue for existence of an express grant.

-One can either expressly grant an easement in a grant or expressly reserve the easement in a grant.
Implied Grants and Reservations [454]

Implied grant: the law implies into a land transaction which is silent on the subject an agreement to also create an easement (in favour of the purchaser of the dominant tenement). Situation in which easements are most commonly created by implication occurs when there is a severance of a possessory interest in the land into two or more interests.

This implication occurs on the basis of three possible types of implied easements:

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  (A) An implied easement of apparent accommodation or non-derogation (an implied grant); Wheeldon v. Burrows (1879)[455] – a.k.a. easement implied by ‘prior use’ in US law – ‘generally speaking when the owner of two adjoining lots conveys one of them, he impliedly grants to the grantee all those continuous (not sporadic) and apparent (discoverable by someone conversant with these matters) easements that are necessary to the reasonable use of the property granted and which are, at the time of the grant, used by the owner of the entirety for the benefit of the parts granted.’
  
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    The easement must be used by the owner before the transfer (prior to the transfer it would be considered a ‘quasi-easement’);
    
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    The easement was necessary for the reasonable use of the property granted; and/or
    
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      Unlike an implied easement of necessity, standard isn’t high. Something to take into account is whether obtaining alternative access would require considerable inconvenience and cost (Canada Lands Company CLC v. Trizechahn Office Properties 2000 ABQB).
      
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    The easement was continuous and apparent;
    
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  (B) An implied easement based on common intentions
  
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    Common intentions determined by examining whether “the easement must be both an obvious and “necessary inference from the circumstances in which the conveyance was made” (Barton v. Raine (1980) (Ont. C.A.)).
    
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    Wong v. Beaumont Property Trust Ltd. [1965] Q.B.
    
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  (C) Implied easement of necessity
  
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    Only applies in circumstances where individual with property interest CANNOT access their property w/o the easement.
    
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    A strict necessity must be proven; mere inconvenience is insufficient (Condominium Plan No. 7810477 v. Condominium Plan No. 7711723)
    

1. 
   Ways of Necessity - rights of way to land that would otherwise be landlocked. Legal fiction treats this as an implicit grant in the intentions of the parties, rather than as the result of public.
   
   1. 
      Ontario Road Access Act – provides a statutory easement of necessity.
      
2. 
   Mutual Easement [457] – For example two houses requiring each other for support.
   
3. 
   [458] Situations where necessary to imply the reservation of an easement in order to permit a grantor to fulfill his obligations to a grantee in a simultaneous sale of two pieces of land.
   
4. 
   [459] Law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to manner/purpose for which the land granted/retained is to be used.
   

Introduction

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  An easement can be created through a “presumed grant” – e.g. by “prescription” – This is not the same as adverse possession because: 1) Prescription applies only to non-possessory rights; and 2) It requires less than possessory title.
  
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  This is the 3^rd way in which an easement can be created (express and implied are the 2 others).
  
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  In Ontario, prescription is dealt with by the Limitations Act (see sections 31, 32, 33 and 35).
  
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  Section 31 establishes two periods for the creation of an easement:
  
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  Section 31: User of 20 years or more beginning after 1189 AD (date at which records begin) can be defeated by whatever defence available under the common law (i.e. parole evidence is admissible);
  
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  Section 31: After 40 years of adverse use, the easement becomes “absolute and indefeasible”, if the claimant has a fee simple (i.e. tenant cannot prescribe against his landlord) – The 40 year and 20 year claims can be defeated by showing that user was: forcible, secret or allowed by written permission – The 40 year claim, however, cannot be defeated as a twenty year claim can, by proving it was enjoyed by oral permission.
  
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  Section 32: States that section 31 can only be invoked if the period of use immediately precedes the bringing of an action. Twenty or forty years of use do not by themselves constitute prescription; an action must be brought and the necessary period of enjoyment must be immediately precede the bringing of the action – The period must be without interruption – The claimant must not be obstructed from enjoying use – Interruption has only taken place if user has been prevented for a full year – Any interruption less than a full year does not stop prescription.
  
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  Section 33: Cannot acquire prescription to air, light, or any dwelling-house (i.e. house), work-shop or other building unless it was acquired by 20 years use before Mar 5 1880.
  
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  Section 35: Prescription for wires and cables attached to property or buildings can only be acquired by grant from the owner of the property.
  
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  So, a tenant cannot prescribe his landlord;
  
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  A forcible or secret use will fail.
  
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  Interruption must be for one year (details later on).
  
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  Example: X crosses on Y’s land for 19 years + 1 day. On the following day, Y prevents X from crossing. X can take an action against Y, claiming he has acquired the easement through prescription because the interruption was less than 1 year.
  
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  Additional differences/similarities between a prescription and adverse possession: 1) prescription confers one ‘stick in a bundle of rights’; AP confers an entire ‘bundle’; 2) prescription is an action; AP is a defence; 3) duration is different: prescription needs either 20/40 years, whereas AP needs 10/20 years; 4) both prescription and AP must be continuous (subject to exceptions); 4) both prescription (user as of right) and AP must not be secretive.
  

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  Use must be continuous (but not use every day).
  
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  Use must be as of right, meaning “of course I can do this.”
  
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  The servient land must have acquiesced.
  
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  For prescription to operate the right must:
  
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  1) be exercised for a sufficient amount of time (statute, 20/40 years);
  

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  2) have the right nature and quality as evidenced by:
  

i) nec clam (no secrecy)

ii) nec vi (no violence)

iii) nec precario (no permission)

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  No violence: the claimant cannot brush aside protest by the owner – removing an obstacle to his user once may reinforce his claim by showing that he feels he is entitled to the right – but removing it twice (because the owner has put up the obstacle again) could be interpreted as using force.
  
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  No secrecy: the easement must be used openly so that the serviant tenement owner knows about it and acquiesces – Note: if the owner had no means of informing himself of the user, he cannot be held responsible for not doing so. The use must be open, notorious and without stealth.
  

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  Court held that G had acquired a prescriptive right to use of the chimney and granted an injunction restraining K from interfering with such use
  
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  Trial judge held as fact that G has been in continuous use of the chimney since 1912 and therefore the claim was based on s. 31 of the Limitations Act of use for 20 years – he commenced to use the chimney with the knowledge and permission of the then owners of house.
  
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  The evidence clearly shows that the original owner of the servient tenement had knowledge of the use of the chimney by G
  
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  Whether the use is secret is a question of fact to be decided on the evidence in case – on the evidence in this case K and his predecessors in title must be held to have had knowledge or the means of knowledge that the chimney was being used by the plaintiff
  
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  For prescription to operate there must be neither force, nor secrecy, nor permission Thus, prescription is based upon consent or acquiescence by the servient owner.
  
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  Actual ignorance is not always sufficient to escape prescription – An owner has a duty to know certain things – where an ordinary diligent owner of land would have a reasonably opportunity of becoming aware of the enjoyment of another person of a right over his land, he cannot allege that it was secret – knowledge will be imputed.
  
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  Under Limitations Act, consent to the user by the owner, unqualified as to time, will not be a bar to prescription; but other permission asked and granted, periodic payments, acknowledgment by the dominant owner that his user is not as of right, at any time during the 20-year period, will prevent his acquiring a prescriptive right.
  
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  In this case, the owner could have easily found out about the chimney earlier on (he had means of knowledge) – By not doing so, he allowed sufficient time to pass for there to be prescription.
  

2. Consent can be implied.

3. Consent is at the root of prescription.

4. Ignorance of the use by the dominant tenement does not imply consent but ignorance alone does not mean there is no consent. It is contextual for there are some things “every man ought to be presumed to know.”

5. A fraudulent or surreptitious use cannot support a prescriptive claim.
Rule – Whether the use is secret is a question of fact to be decided on the evidence in case.

Rule – Actual ignorance is not always sufficient to escape prescription – An owner has a duty to know certain things – If he neglects to make reasonable enquiries, knowledge may be imputed to him.

1. 
   There must be a dominant and servient tenement.
   
2. 
   The 2 owners must be different.
   
3. 
   The easement must be capable of forming the subject matter of a grant
   
4. 
   The easement must accommodate the dominant tenement, and in accommodating the dominant tenement, it must be reasonable necessary for the better enjoyment of that tenement.
   

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  Note: If it has no necessary connection therewith, although it confers an advantage upon the owner, and renders his ownership of the land more valuable, it is not an easement at all.
  
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  The use of the road satisfies the requirements of an easement – the only question was whether it satisfied the fourth element (accommodation) and the court held that it did
  
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  Court held that the use of the alternative route “confers a convenience which enables a better enjoyment of the Caldwell tenement, and in all likelihood confers an advantage upon Caldwell which renders his ownership of the land more valuable.”
  
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  Appreciation of value does not justify the prescriptive easement.
  
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  The gravel road is useful but not necessary.
  
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  The gravel road is connected but not necessary. It is not critical to the enjoyment of his property because he still has a convenient access to his property.
  
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  But in reality, C’s land is landlocked so the law will imply a grant of an easement to ensure access to landlocked land.
  
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  C did not claim necessity since necessity is not a requirement for a prescriptive claim.
  
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  C has an easement because he used it continuously for 20 years.
  
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  The claimant cannot make a claim on the basis of necessity, as the use of the road is not necessary to his enjoyment of his land – However, prescription is unrelated to a easement of necessity
  

Presumed grant of easement?