An easement can be defined as a privilege without profit whereby an owner of land or servient tenant allows another person who has the dominant tenement certain rights over his land. The person with the right to an easement must however be the land owner. Easement falls into 2 categories: (1) affirmative easement and (2) negative easement.
- Affirmative easement: These are easements which give a right to the dominant owner to enter upon the land of the servient owner. Examples are granting of a right of way, a right to store certain items, a right to hang many clothes on a leaf, etc. the list of easement is very extensive and expands with changes that take place in the circumstances of mankind.
- Negative easement: These are easements that do not give a right to enter upon the land of another, but rather require that certain things should not be done e.g. one should not disturb the right to the flow of air to another’s window, a right to light, a right to discharge on neighbourhood land, a right to support to ones building. These categories of easement is not however extensive.
A profit a prendre is a right to go on another person’s land and some profit from it e.g. right to destroy game on another person’s land for ones use, the right to pasture cattle on one’s land, the right to take fish from another’s water, the right to graze cattle on another’s land etc. the person with a right to a profit a prendre need not be a land owner.
Methods of acquiring easements and profits
One may acquire an easement by statute, by express grant, by implied grant and by presumed grant- we mean that one must have enjoyed the right from time immemorial for over 40 years and the right must be peaceable and not with permission.
Extinguishment of easements and profits
This may take place in one or two ways
- By Release: This may be express or implied. In the case of MOORE vs. RANSON, a wall which carried an easement with it was pulled down. It was re-built 14 years later and this person claimed the easement. The court held that the easement had earlier come to an end and by release and as such, it could not now be claimed for the new wall.
- By Unity of Scission: This is where the owner or the dominant tenant and servient tenant becomes the same person or where the owner of the dominant tenement purchases the land of the servient tenement.
In customary law, we have certain local customary rights which is similar to easement e.g. rights of fishermen to hang their net on certain adjoining land to the river. There are also right of free passage over public thoroughfare. No one must block such a passage.
A restrictive covenant is a contract between two neighbouring land owners by which one party anxious to preserve the amenities of residence, acquire the right to restrain the other party from putting his land to certain specified uses e.g. the doctrine of restrictive covenant does not apply to purchaser of the legal estate without notice. Furthermore, it only applies to negative covenants that are those restraining one from doing something.
