Definition of user: the exercise of a right to the enjoyment of property
The right must be capable of forming the subject matter of a grant
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| The right must be capable of forming the subject matter of a grant
The basic principle is that all easements ‘lie in grant’- that is, in theory, every easement is created by grant, whether express, or implied. Thus, no right can be an easement unless it is capable of being granted. Characteristics a right must possess in order that it may be granted, it appears from case law that there must be at least three requirements. The right must be sufficiently defined- that is, it must not be too vague If the right claimed as an easement cannot be reasonably defined, then it cannot exist as an easement: Thus, in Webb v Bird, in which the plaintiff claimed an easement of the free access of air to the sails of his windmill, which he had enjoyed for 30 years (that is, the claim was by prescription) and which had been obstructed by the defendant, it was held that he could not acquire a right to wind and air coming in an undefined channel, for this was not a right known to the law, it was too vague and uncertain. The right to privacy has been held to be too uncertain for constituting an easement (Browne v Flower). Another type of right is generally considered to be too vague to be an easement is jus spatiandi- a right to wander at large over the servient tenement, for example, where the servient tenement is a park or field. The right to use a defined pathway across the servient tenement to pass from the dominant tenement to a place beyond the servient tenement is, of course, recognized as an easement of way, but the right to wander at large for recreation has always been considered to be too vague and uncertain to be an easement. In Re Ellenborough Park, a park was being developed as a housing estate. The land surrounding the park had been divided into lots and sold to different purchasers. The conveyances of each lot granted to the purchasers stated ‘full enjoyment at all times hereafter, in common with other persons to whom such easements may be granted, of the pleasure of ground.’ Held, the rights were valid easements, notwithstanding that they might involve a jus spatiandi or some analogous right, since: There were clearly a dominant and servient tenements The servient tenement accommodated the dominant tenement (the adjacent dwelling houses) since the right to use the park was connected with the enjoyment of the residences; The right was not too vague or uncertain, since it was for the benefit of a limited number of houses, all bordering the park. The right must not substantially deprive the servient owner of possession of the servient tenement. Since an easement is essentially a right to do an act in the occupation of someone else, a right will not be recognized as an easement if it substantially deprives the owner of the servient tenement of his possession of the land, or it amounts to a claim to joint possession of the servient tenement (Copeland v Greenhalf). There must be a capable grantor and grantee As a corollary to the rule that the right must be capable of being the subject matter of the grant, there must be a capable grantor and grantee. In the case of the grantor, it is obvious that the grantor has no power to grant easements, (for example, where the grantor is a company or a statutory corporation and the grant would be ultra vires), then any purported grant would not create an easement. As it regards the grantee, example usually given of an incapable grantee is a wide and fluctuating body of persons, such as the inhabitants of a village. Download 50.55 Kb. Share with your friends:
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