Mount Kenya University
Department of Law
Bachelor of Law
Law of Tort II
Professor Manyasi (Lecturer)
Question: What is the relationship between easement and the law of tort? Discuss.
An easement is an interest in land which is created by express agreement, prior use, or necessity that permits one person to make use of another’s estate. An affirmative easement gives one person the right to use another’s land; a negative easement prevents the owner from using his land in a way that will affect another person’s land. In understanding easement law, the important distinctions are between easements appurtenant and in gross, and between dominant and servient owners (in U.S.A. jurisdiction). Easement appurtenant
In the U.S., an easement appurtenant is one that benefits the dominant estate and "runs with the land", i.e., an easement appurtenant generally transfers automatically when the dominant estate is transferred. Easement in gross
An easement in gross benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal use (for example, an easement to use a boat ramp) or a commercial use (for example, an easement to a railroad company to build and maintain a rail line across property. Affirmative easements
An affirmative easement is the right to use another's property for a specific purpose. Negative easements
A negative easement is the right to prevent another from performing an otherwise lawful activity on their property. For example, an affirmative easement might allow land owner A to drive his cattle over the land of B. A has an affirmative easement from B. Conversely, a negative easement might restrict B from blocking A's mountain view by putting up a wall of trees. A has a negative easement from B. Dominant and servient estate
Evershed MR in Re Ellenborough Park  Ch 131 avers that an easement requires the existence of at least two parties. The party gaining the benefit of the easement is the dominant estate or dominant tenement, while the party granting the burden is the servient estate or servient tenement. An example is where, the owner of parcel A holds easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden. Public and private easements
A private easement is held by private individuals or entities. A public easement grants an easement for a public use, for example, to allow the public an access over a parcel owned by an individual. Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions. The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easements: •
easements of way
Easements of support but pertaining to excavations only •
Easements of "light and air"
Rights pertaining to artificial waterways
Modern courts recognize more varieties of easements, but these original categories still form the foundation of easement law. Other types of easements now recognized by law include: Easements are most often created by express language in binding documents. Parties generally grant an easement to another, or reserve an easement for themselves. Under most circumstances having a conversation with another party is not sufficient. Courts have also recognized creation of easements in other ways. The free dictionary by Farlex defines the law of tort as a body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury...
Please join StudyMode to read the full document