An easement is a right which the owner or occupier of certain land (dominant heritage) possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own (servient heritage).
1. Core Characteristics of an Easement
- There must be two distinct tenements: Dominant Heritage (land benefited) and Servient Heritage (land burdened).
- The dominant and servient owners must be different natural or juristic persons.
- It must be for the beneficial enjoyment of the dominant tenement.
- It must impose a duty on the servient owner to tolerate or refrain from doing something; it cannot compel them to perform an active positive duty.
2. Types of Easements
- Continuous vs. Discontinuous: A continuous easement is one whose enjoyment is or may be continual without the act of man (e.g., right to light/water flow). A discontinuous easement requires an active human act to enjoy it (e.g., right of way).
- Apparent vs. Non-Apparent: An apparent easement is shown by some visible sign (e.g., a paved path). A non-apparent easement has no visible signs (e.g., restriction on building height).
3. Riparian Rights
Natural rights incident to the ownership of land bordering a natural stream or water body. Every riparian owner has a right to the natural flow of water past their land, undiminished in quantity and unpolluted in quality, subject to reasonable domestic use by upper riparian owners.