EASEMENTS AND PROFITS

7.0

Introduction
Easements and Profits, collectively known as servitudes, are interests entitling
their owners to exercise certain rights over the land of another. Easements may
be defined as rights annexed to land entitling its owner (the dominant owner) to
do, or prevent the doing of, something on another persons piece of land (the
servient tenement).1 Examples of common easements include: rights of way,
light, support of a building and water.
A Profit prendre has been described as a right to take something off another
persons land.2 The thing taken must at the time of taking be susceptible of
ownership.3 Examples of a profit would include a profit of piscary which
entitles a person to enter anothers land and take fish, profit in the soil giving the
right to take sand, gravel or coal. The main distinction between an easement and
a profit is that the latter entitles its owner to take away something capable of
ownership from the servient land, while the former does not. An easement also
differs from a profit in that a profit may exist in gross, (i.e. independent of
ownership of land or belonging to a person in his own right, not as annexed to
ownership of land) while an easement must always be appurtenant i.e attached
to ownership of particular land4. Further, the owner of a profit enjoys
possessory rights over the servient tenement and the owner may bring an action
of trespass for their infringement. The burden of a profit attaches to land (hence
its proprietary status) but the benefit may be held by any person or indeed any
number of persons.

7.1

The Nature of Easements as Interests in Land

Easements comprise certain rights which one land owner may exercise or enjoy
over the land of another. It is important to point out at the outset that every
easement will involve two separate pieces of land. An easement is a proprietary
interest in land itself. It is not merely personal to the persons who originally
created it. An easement confers a benefit and a burden on the land itself so that
it may be enjoyed or suffered by any subsequent owner of the dominant or
servient land. An easement therefore differs from a licence in that a licence is
not a proprietary interest in land and in that an easement is always appurtenant
to land. A lease, like an easement, is a proprietary interest in land. However, the
distinction between the two is that an easement does not give its owner any
possessory right over the land of another.5

William,H. Land Law, 3rd Edition, London, Sweet and Maxwell, 1994, p.64.
Duke of Sutherland v Heathcote [1892] 1 CH 475 at Page 484.
3
Lowe v J.W. Ashmore Limited [1971] Ch 545 at 557.
4
Maudsley and Burns Land Law, Cases and Materials, 5th edition, London, Butterworths, 1986 P.561.
5
Ibid P.562.
2

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An easement may be either positive or negative. A positive easement is the right

to do something on the land of another, for example a right of way, whereas a
negative easement imposes a restriction on the servient owner such as with the
right of light or air the servient owner may not build so as to unreasonably
obstruct the flow of light. Similarly, a right of support imposes a restriction that
a neighbors property will not be disturbed.
7.2

The Essential Characteristics of an Easement

There are established criteria for determining whether an alleged right is capable
of amounting to an easement. It was laid down by the Court of Appeal in
England in Re Ellenborough Park,6 that there are four essentials for an
easement to exist. These are discussed below.

7.2.1

There Must be a Dominant and Servient Tenement

For a right to exist or qualify as an easement there must be a dominant and
servient tenement. Dixon has observed that this criterion lies at the very heart of
the nature of an easement.7 It may be recalled from above that every easement
involves two separate pieces of land. This is because easements are rights which
exist for the benefit of one piece of land and are exercised over another. There
must be land that is benefiting from the exercise of the right (the dominant
tenement) and land that is burdened (the servient tenement). In technical terms it
is said that an easement cannot exist in gross i.e independent of ownership of
land but only as appurtenant (attached ) to a dominant tenement. 8 A privilege to
a person with no dominant land is a licence.
An easement cannot exist unless and until there is both a dominant and servient
tenement in separate ownership. In London and Blentheim Estates Limited v
Ladbroke Retail Parks Limited,9 it was held that no easement existed because
the potential servient tenement had been transferred before the dominant
tenement had been acquired.

7.2.2

The Dominant and Servient Tenement must not be Owned and Occupied
by The Same Person.
It has been observed that the creation and continued existence of an easement is
dependent on the dominant and servient tenements being owned or occupied by
different persons.10 This is simply because an easement is essentially a right in
another persons land: e.g. to walk over it or to enjoy the passage of light over it.
According to the learned authors of Megarrys Manual of the Law of Real
Property, an easement is essentially a right in alieno solo (in the soil of

[1955] 3 All ER 667.

Dixon, M, land law, London, Cavendish publishing Limited, 1994 at p. 156.
8
Hayton, D, megarys manual of the law of real property, 6th ed, London, ELBS,, 1982. p.396.
9
[1993] ALL E.R 307.
10
Hayton, D, supra note 8 at 397.
7

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another) and therefore a person cannot have an easement over his land. In Roe v
Siddons Fry L.J observed that:When the owner of Whiteacre and Blackacre passes over the
former to blackacre he is not exercising a right of way in respect of
Blackacre; he is merely making use of his own land to get from one part
of it to another.11
Rights exercised by an owner over another land of his own are known as quasieasements.
The learned authors of Megarrys Manual of the Law of Real Property have
pointed out that the same person must not only own both tenements, but also
occupy both of them before the existence of an easement is rendered
impossible.12 There must be both unity of ownership and unity of possession for
an alleged easement to be rendered impossible. This means that a tenant may
enjoy an easement over land retained by the landlord and vice versa as in this
case there is unity of ownership but no unity of possession. 13 Once the dominant
tenement and servient tenement come into the ownership and possession of the
same person, any easement over the servient tenement is extinguished.
7.2.3

The Easement must Accommodate the Dominant Tenement

For an alleged right to qualify as an easement, it must accommodate i.e. benefit
the dominant tenement as tenement. This requirement makes it clear that
easements are rights which attach to land and not to persons. Thus, any alleged
easement must confer a benefit on the land as such and not merely on the person
who currently owns the land. The general idea is that the alleged easement must
benefit the user of land, the value of the land or the mode of occupation of the
land.
According to Megarrys Manual of the Law of Real Property, the test is
whether the right makes the dominant tenement a better and more convenient
tenement.14 There must be a connection or nexus between the user of the
dominant tenement and the enjoyment of the right. This may be established by
showing that the general utility of the dominant tenement has been improved for
example, by giving a means of access or light.
The right must not confer a purely personal advantage on the owner of the
dominant tenement. In Hill v Tupper,15 the owner of a canal granted the
Plaintiff the sole and exclusive right to put or use pleasure boats on the canal for
profit. The defendant without any authority put rival boats on the canal. It was

11

[1888] 22 OBD 224 at 236.

Hayton, D,supra note 8 at 397.
13
Ibid at page 398.
14
Ibid at page 396.
15
(1862) 2H 8C 121.
12

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held that Hills right amounted to a mere personal advantage or a licence not a
right attaching to land itself. He could not sue Tupper as the right was not an
easement. The right was not sufficiently connected with the land so as to
amount to an easement. It has been observed that if Hill had been granted the
right to cross and recross the canal to get to and from his land then an easement
could have been created.16
7.2.4

The Easement must be Capable of Forming the Subject Matter of the

Grant
This is an all embracing criterion. According to Dixon, technically the point is
that every easement must be capable of being expressly conveyed by deed; it
must lie in grant.17 What it means in practice is that there are certain types of
rights which previous case law has suggested are intrinsically unsuitable for
inclusion in the list of easements.
According to Megarrys Manual of the Law of Real Property, the above
criterion involves the following points:-18
(a) That there must be a capable grantor and grantee. The person or
entity granting an easement must have the capacity to do so. Equally, the
grantee must have legal capacity to receive a grant.
(b) The right must be sufficiently definite. A vague or inexact right
cannot exist as an easement; for example, there is no easement of privacy
or of a general flow of air (not in a defined channel) over land.20

19

(c) The right must be within the general nature of rights capable of existing as
easements.
The learned authors of Megarrys Manual of the Law of Real Property have
further observed that although most easements fall under one of well known
heads of easements such as way, light, support, e.t.c, the list of easements is not
closed.21 The right must fall within the general characteristics of an easement. It
is not necessary that a new easement should fall under recognized categories
(way, water, light, support). What is of importance is that the right should satisfy
the four general characteristics of an easement. New easements have from time
to time been recognized. Examples include a right to use a lavatory on anothers
land22 and the right to store coal in a coal Bunker.23
16

Hayton, D,supra note 8 at 397.

Dixon, M, supra note 7 at 157.
18
Hayton, D, supra note 8 at pages 398 399.
19
Ibid.
20
Ibid.
21
Browne v Flower [1911] I Ch 219.
22
Miller v Emcer products [1956] ch 304.
23
Wright v Mcadam [1949] 2KB 744.
17

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Courts are reluctant to recognize an easement which gives the dominant

tenement owner exclusive occupancy of the servient tenement 24. Further it is
unlikely that a Court will recognize an alleged easement that requires the
servient tenement owner to spend money.25 This is because an easement is a
right over the servient land for a defined purpose and is not equivalent to a right
of ownership of that land.26
7.3

Acquisition of Easments and Profits

Easements and Profits may be acquired or created by statute or by grant, express
or implied or by prescription based on long use or presumed grant.27

7.3.1

Express Grant or Reservation

An easement is expressly granted when the owner of the potential servient
tenement grants or gives an easement over that land to the owner of what will be
the dominant tenement. Under express reservation, the owner of the potential
dominant tenement keeps i.e. reserves an easement over that land. This can
occur where land is owned by a potential servient owner and he then sells or
leases a piece of that land to another, he may include in that sale or lease a grant
of an easement to the purchaser.

7.3.2

Statute
Easements may be granted by an Act of Parliament for example giving rights in
respect of cables, pipes, sewers etc.

7.3.3

Presumed Grant or Prescription

A presumed grant may be based on the doctrine of prescription at common law
or on the doctrine of a lost modern grant or may arise under the Prescription
Act, 1832 and in each of these cases the right is founded on long undisturbed
possession or use.28
The law presumes from long enjoyment that the right had a lawful origin in a
grant. In each case the following common criteria must be established:

(a)

The use is as of right. This is explained in the Latin maxim nec vi, nec clam,
nec precario, (without force, without secrecy without permission). In Union
Lighterage Co. v London Graving Dock Co, 29 secret user occurred where a

24

Copeland v Greenhalf [1952] CH 488.

Philips v Pears [1965] 1 QB 76.
26
Ibid.
27
See generally, Hayton, D, supra note 8 at pp. 408-428.
28
William, H, supra note 1 at P.70.
29
[1902] 2Ch. 557.
25

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dock supported by invisible rods were sunk under the servient tenement. In
Liverpool Corporation v H.Coghill and Son Limited,30 a secret discharge of
chemicals into a sewer could not qualify as an easement.
(b)

The user must be continuous, as far as the nature of the right allows 31. User can
be by successive owners of the dominant tenement.

(c)

The user must be by or on behalf of the owner against another owner. If a tenant
acquires an easement against a third party, he acquires it on behalf of the fee
simple estate. If a tenant occupies the servient tenement, an easement cannot be
acquired against it, though if user began against a fee simple owner, it does not
make it invalid for prescriptive purposes if the land is later leased 32. As
prescription rests on acquiescence, a claim will fail if user can be proved only
when the servient land was occupied by a tenant for the fee simple owner may
not be able to contest the user.33

At common law a grant was presumed if enjoyment dated from time

immemorial i.e since 1189 (since the first year of the reign of King Richard the
first). This was later converted into the test of living memory and later on a user
of twenty years or more has sufficed. 34 Such a grant would not be available if at
any time since 1189 the right could have existed.35 A mechanism to avoid the
rigours of common law rule was developed by the Courts under the fiction of
lost modern grant. If a claimant could show actual enjoyment for a reasonable
period, the Court was bound to presume an actual grant which was later lost. 36
Twenty years or more could be sufficient for the purpose.
In Charles Dalton v Henry Angus and Co. and Another,37 it was held that a
right to a lateral support from adjoining land may be acquired by 20 years
uninterrupted enjoyment for a building proved to have been newly built, or
altered so as to increase pressure at the beginning of that time and it is so
acquired if the enjoyment is peaceable and without deception or concealment
and so open that it must be known that some support is being enjoyed by the
building.
7.3.3.1 The Prescription Act
The preamble to the Prescription Act38 provides that it is an Act for shortening
the time of prescription in certain cases. The object of the Act was to simplify
the method of acquisition of easements by prescription by shortening the time of
legal memory by: (1) making it impossible to defeat a claim to an easement or
profit prendre by custom, prescription or grant, or merely by showing that it
30

[1918] 1Ch. 307.

William, H, supra note 1 at p.64.
32
Ibid.
33
Hayton, D. supra note 8 at 416.
34
William, H. supra note 1 at p.71.
35
Ibid.
36
Hayton, D, supra note 8 at p. 418.
37
[1881] 6 App Cas 740.
38
Halsburys Statutes, 2nd Edition, Volume, 6, p. 667.
31

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could not have existed at some point of time since the commencement of legal
memory i.e since the first year of reign of King Richard the first and without
obliging the claimant to resort to the unsatisfactory fiction of lost modern grant
and by making certain periods suffice as proofs of the existence of specified
rights claimed39. The statute has not in any way rescinded previous practice. It
has merely provided an additional method of claiming an easement or profit
prendre.40 The claimant may now proceed under the statute or according to the
common law or under the doctrine of lost grant or by all these methods and the
present practice is to plead all these methods alternatively. 41The Act does not
enable claimants to establish an easements or profits rights which could not be
established as such at common law.42
The Prescription Act treats easements of light differently from other easements.
Section 2 of the Act provides that an easement (other than that of light) can be
claimed where it is actually enjoyed by any person claiming a right thereto
without interruption for the full period of 20 years and it shall not be defeated
by showing that the user began at any time prior to the 20 years period though it
may still be defeated in other ways (for example, on the ground that it was
secretive, permissive or forceable. Section 3 of the Act deals with the easement
of light. The section provides that where a right of light has been actually
enjoyed for a full period of 20 years without interruption the right becomes
absolute and indefeasible unless enjoyed by written consent or agreement.
7.4

Recording of Memorial of Easement in a Certificate of Title.

Section 50 of the Lands and Deeds Registry Act provides how memorial of
easement must be recorded in a certificate or provisional certificate of Title. The
section provides that:
Whenever any easement or incorporeal right, other than an
annunity or rent-charge, in or over any land comprised in a
Provisional Certificate or a Certificate of Title, is created
for the purpose of being annexed to, or used and enjoyed
together with, other land, the Registrar shall enter a
memorial of the instrument creating such easement or
incorporeal right upon such Provisional Certificate or
Certificate of Title and also upon any Provisional
Certificate or Certificate of Title of such other land, and
such memorial shall, as from the date of entry thereof, have
the effect of including such easement in such Provisional
Certificate or Certificate of Title of such other land as
appurtenant to the land therein described.

7.5

Case Law.

39

Ibid.
Supra note 38 at Page 814.
41
Ibid. at Page 699.
42
Supra note 7 at 427.
40

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(a) Two Types of Easements- Negative and Positive Easement - No Right of protection against weather.
Phipps v Pears [1964] 2 ALL ER 35 [CA]
[The facts of the case appear from the judgment of LORD DENNING MR]
In the 1920s there were two old houses in Warwick, standing side by side, Nos 14 and 16, Market Street. They
were both owned by a Mr Field. About 1930 he pulled down No 16 but left the old No 14 standing. He erected a
new house at No 16, Market Street, with its flank wall flat up against the old wall of No 14. He did not bond the two
walls together, but the new wall was built up touching the old wall of No 14. On 17 July 1931, Mr Field conveyed the
new No 16, Market Street to Helena Field, but remained himself owner of the old No 14. Helena Field disposed of
No 16 and eventually in 1951 Mr Phipps (the present plaintiff) bought it, as it was, standing then alongside the old
No 14. Mr Field died and his personal representative in 1957 conveyed No 14, Market Street to the governors of the
Lord Leycester Hospital.
So there were the two housesnew No 16 and old No 14standing side by side. In 1962 the Warwick
Corporation made an order for the demolition of old No 14, Market Street because it was below the required
standard. It was, I suppose, unfit for human habitation. In consequence, in September, 1962, the governors of the
Lord Leycester Hospital demolished it; and when they did so, there was left exposed the flank wall of new No 16.
This was in a very rough state. It had never been pointed. Indeed, it could not have been because of the way it was
built, flat up against the old No 14. It had never been rendered or plastered. So it was not weatherproof. The result
was that the rain got in and during the winter it froze and caused cracks in the wall. The plaintiff seeks to recover for
the damage done.
In his particulars of claim the plaintiff alleged that No 16 had a right of support from No 14 and that the
defendants had withdrawn that support. He failed on this point, because the county court judge found that No 16 did
not depend on No 14 for its support. There was, in fact, no support the one for the other. They were independent
walls, untied one to the other. Then it was said on the plaintiffs behalf that at any rate his house No 16 was entitled
to protection from the weather. So long as No 14 was there, it afforded excellent protection for No 16 from rain and
frost. By pulling down No 14, the defendants, he said, had infringed his right of protection from the weather. This
right, he said, was analogous to the right of support. It is settled law, of course, that a man who had his house next
to another for many years, so that it is dependent on it for support, is entitled to have that support maintained. His
neighbour is not entitled to pull down his house without providing substitute support in the form of buttresses or
something of the kind, see Dalton v Angus. Similarly, it was said, with a right to protection from the weather. If the
man next door pulls down his own house and exposes his neighbours wall naked to the weather whereby damage
is done to him, he is, it is said, liable in damages. The case, so put, raises the question whether there is a right
known to the law to be protectedby your neighbours housefrom the weather. Is there an easement of
protection?
There are two kinds of easement known to the law: positive easements, such as a right of way, which give the
owner of land a right himself to do something on or to his neighbours land: and negative easements, such as a right
of light, which gives him a right to stop his neighbour doing something on his (the neighbours) own land. The right
of support does not fall neatly into either category. It seems in some way to partake of the nature of a positive
easement rather than a negative easement. The one building, by its weight, exerts a thrust, not only downwards, but
also sideways on to the adjoining building or the adjoining land, and is thus doing something to the neighbours land,
exerting a thrust on it; see Dalton v Angus ((1881), 6 App Cases at p 793) per Lord Selborne LC. But a right to
protection from the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own
house. Seeing that it is a negative easement, it must be looked at with caution, because the law has been very
chary of creating any new negative easements.
Take this simple instance: Suppose you have a fine view from your house. You have enjoyed the view for
many years. It adds greatly to the value of your house. But if your neighbour chooses to despoil it, by building up
and blocking it, you have no redress. There is no such right known to the law as a right to prospect or view: see
Bland v Moseley. The only way in which you can keep the view from your house is to get your neighbour to make
a covenant with you that he will not build so as to block your view. Such a covenant is binding on him by virtue of
the contract. It is also binding in equity on anyone who buys the land from him with notice of the covenant: but it is
not binding on a purchaser who has no notice of it, see Leech v Schweder. Take next this instance from the last
century. A man built a windmill. The winds blew freely on the sails for thirty years working the mill. Then his
neighbour built a schoolhouse only twenty-five yards away which cut off the winds. It was held that the miller had no

135

remedy: for the right to wind and air, coming in an undefined channel, is not a right known to the law, see Webb v
Bird. The only way in which the miller could protect himself was by getting his neighbour to enter into a covenant.
The reason underlying these instances is that if such an easement were to be permitted, it would unduly restrict your
neighbour in his enjoyment of his own land. It would hamper legitimate development, see Dalton v Angus ((1881),
6 App Cas at p 824) per Lord Blackburn. Likewise here, if we were to stop a man pulling down his house, we would
put a brake on desirable improvement. Every man is entitled to pull down his house if he likes. If it exposes your
house to the weather, that is your misfortune. It is no wrong on his part. Likewise every man is entitled to cut down
his trees if he likes, even if it leaves you without shelter from the wind or shade from the sun. There is no such
easement known to the law as an easement to be protected from the weather. The only way for an owner to protect
himself is by getting a covenant from his neighbour that he will not pull down his house or cut down his trees. Such
a covenant would be binding on him in contract; and it would be enforceable on any successor who took with notice
of it, but it would not be binding on one who took without notice.

(b) Essentials of an Easement

The established criteria for determining whether an alleged right
is capable
of amounting to an easement were discussed in Re
Ellenborough Park Re Davies (deceased) Powell and
Others v Maddison and Another.43 The case is excerpted
below.
[The facts of the case appear from the judgment of SIR RAYMOND EVERSHED MR ]
The substantial question raised in this appeal is whether the respondent, or those whom he has been appointed to
represent, being the owners of certain houses fronting on, or, in some few cases, adjacent to, the garden or park
known as Ellenborough Park in Weston-super-Mare, have any right known to the law, and now enforceable by them
against the owners of the park, to the use and enjoyment of the park to the extent and in the manner later more
precisely defined. Both the premises now belonging to the respondent, or to the owners for whom he acts as
champion, [who will be referred as the owners of the houses] and also the park itself, were originally part of an
estate known as the White Cross Estate. The houses in question were built and the park laid out in the middle of the
last century. None of the owners of the houses is an original grantee from the proprietors of the White Cross Estate.
Similarly, the present owners of the park are the successors in title of the original grantors of the premises of the
house owners. A second question is also raised in the appeal. It is, on the basis that the owners of the houses have
an enforceable right in law against the owners of the park, in what proportions between the owners of the houses on
the one side, and the owners of the park on the other, should certain sums of money be divided, which have been
paid to the latter by the War Office, in respect of the occupation of the park under requisition by the military
authorities during the war? Danckwerts J who came to a conclusion on the main question in favour of the owners of
the houses, also made an order as to part of these compensation moneys: but as to the rest directed an inquiry of a
somewhat complicated character, for the purpose of ascertaining how the remainder of such moneys should be
divided between the owners of the park, on the one hand, and the owners of the houses, on the other hand.
Although the payment of the compensation moneys was the circumstance which gave rise, in fact, to the present
substantial question in the case, this court has been absolved from any determination of the question of their
division: for, with a view to avoiding the considerable costs of the inquiry which has been directed, the parties before
us have agreed on a compromise of that question which the court is prepared to approve: and the compromise also
extends to the application of those moneys in the alternative event of this court arriving at a different view from that
of Danckwerts J on the main question.
The plaintiffs in the action are the present owners of the garden or park; but they hold the property as trustees
on certain trusts under which the first defendant, Mrs Maddison, is one of the beneficiaries. She has accordingly
been the appellant in this court. The second defendant, Mr Fred Allen, who is the respondent to this appeal, was
appointed by Danckwerts J to represent for the purposes of the proceedings all persons claiming to have any rights
of user of the property known as Ellenborough Park as a private open space. In the course of the hearing
before us it appeared that Mr Allen is in fact not the owner of any of the relevant premises, but is a tenant of one of
the houses which belongs to a limited company. It was agreed by learned counsel before us that the limited
43

[1955] 3 ALL ER 667.

136

company should be added as a defendant to the proceedings, and its name added to the brief of Mr Goff, who
appeared for the respondent and who informed us that he had been sufficiently instructed by the company. The
appeal proceeded before us accordingly on the basis that an owner of one of the houses was before the court, and
the order which will be drawn up must provide for the necessary amendment of the proceedings.
The substantial question in the case, which we have briefly indicated, is one of considerable interest and
importance. It is clear from our brief recital of the facts that if the owners of the houses are now entitled to an
enforceable right in respect of the use and enjoyment of Ellenborough Park, that right must have the character and
quality of an easement as understood by, and known to, our law. It has, therefore, been necessary for us to consider
carefully the qualities and characteristics of easements, and for such purpose to look back into the history of that
category of incorporeal rights in the development of English real property law. It may be fairly assumed that in
Duncan v Louch (1845) (6 QB 904) the Court of Queens Bench in 1845, and particularly Lord Denman CJ who
delivered the first judgment in the court, was of opinion that such a right as the owners of the houses claim was
capable of fulfilling the qualifying conditions of an easement. Buckley J in 1904 in Keith v Twentieth Century Club
Ltd (90 LT 775) answered certain questions which Byrne J had ordered to be set down to be argued before the
court, themselves depending on the assumption that such a right could exist in law. On the other hand, Farwell J, a
judge peculiarly experienced and learned in real property law, on two occasions, namely, in 1903 in International
Tea Stores Co v Hobbs ([1903] 2 Ch 165) and in 1905 in A-G v Antrobus ([1905] 2 Ch 188) used language
appearing to treat as axiomatic the proposition that a right which should properly be described as a jus spatiandi was
a right excluded by English law, as by Roman law, from the company of servitudes. The four cases which we have
mentioned must be considered hereafter at greater length. But it can be said at once that, with the possible
exception of the first, none of them constitutes or involves a direct decision on the question now before us: and
although the existence of gardens surrounded by houses, the owners or occupiers of which enjoy in practice the
amenities of the gardens, is a well-known feature of town development throughout the country, no other case
appears to have come before the courts in which the validity of the rights in fact enjoyed in the gardens has ever
been testedThe four characteristics stated by Dr Cheshire correspond with the qualities discussed by Gale in his
second chapter, sections 2, 5, 3, and 6 and 8 respectively. Two of the four may be disregarded for present
purposes, viz, the first and the third. If the garden or park is, as it is alleged to be, the servient tenement in the
present case, then it is undoubtedly distinct from the alleged dominant tenements, viz, the freeholds of the several
houses whose owners claim to exercise the rights. It is equally clear that if these lands respectively constitute the
servient and dominant tenements, then they are owned by different persons. The argument in the case is found
accordingly to turn on the meaning and application to the circumstances of the present case of the second and
fourth conditions; ie, first, whether the alleged easement can be said in truth to accommodate the dominant
tenement, in other words, whether there exists the required connection between the one and the other; and,
second, whether the right alleged is capable of forming the subject-matter of a grant. The exact significance of this
fourth and last condition is, at first sight perhaps, not entirely clear. As between the original parties to the grant it is
not in doubt that rights of this kind would be capable of taking effect by way of contract or licence. But for the
purposes of the present case, as the arguments made clear, the cognate questions involved under this condition
are: whether the rights purported to be given are expressed in terms of too wide and vague a character; whether, if
and so far as effective, such rights would amount to rights of joint occupation or would substantially deprive the
owners of the park of proprietorship or legal possession; whether, if and so far as effective, such rights constitute
mere rights of recreation, possessing no quality of utility or benefit; and on such grounds cannot qualify as
easements.
We pass accordingly to a consideration of the first of Dr Cheshires conditionsthat of the accommodation of
the alleged dominant tenements by the rights as we have interpreted them. For it was one of the main submissions
by counsel for the owners of the park that the right of full enjoyment of the park granted to the purchaser by the
conveyance of 23 December 1864, was insufficiently connected with the enjoyment of the property conveyed in that
it did not subserve some use which was to be made of that property; and that such a right accordingly could not exist
in law as an easement. In this part of his argument, counsel was invoking a principle which is, in our judgment, of
unchallengeable authority, expounded, in somewhat varying language, in many judicial utterances, of which the
judgments in Ackroyd v Smith (1850) (10 CB 164) are, perhaps, most commonly cited. We think it unnecessary to
review the authorities in which the principle has been applied; for the effect of the decisions is stated with accuracy
in Dr Cheshires book at p 457. After pointing out that one of the fundamental principles concerning easements is
that they must be not only appurtenant to a dominant tenement, but also connected with the normal enjoyment of the
dominant tenement,
and referring to certain citations in support of that proposition the learned author proceeded:

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We may expand the statement of the principle thus: a right enjoyed by one over the land of another does
not possess the status of an easement unless it accommodates and serves the dominant tenament, and is
reasonably necessary for the better enjoyment of that tenement, for 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, but a mere contractual right personal to and only enforceable between
the two contracting parties.
Can it be said, then, of the right of full enjoyment of the park in question which was granted by the conveyance of 23
December 1864, and which, for reasons already given, was, in our view, intended to be annexed to the property
conveyed to Mr Porter, that it accommodated and served that property? It is clear that the right did, in some degree,
enhance the value of the property and this consideration cannot be dismissed as wholly irrelevant. It is, of course, a
point to be noted; but we agree with the submission of counsel for the owners of the park that it is in no way decisive
of the problem; it is not sufficient to show that the right increased the value of the property conveyed unless it is also
shown that it was connected with the normal enjoyment of that property. It appears to us that the question whether
or not this connection exists, is primarily one of fact, and depends largely on the nature of the alleged dominant
tenement and the nature of the right granted. As to the former, it was in the contemplation of the parties to the
conveyance of 1864 that the property conveyed should be used for residential and not commercial purposes. .
As to the nature of the right granted, the conveyance of 1864 shows that the park was to be kept and maintained as
a pleasure ground or ornamental garden, and that it was contemplated that it should at all times be kept in good
order and condition and well stocked with plants and shrubs; and the vendors covenanted that they would not at any
time thereafter erect or permit to be erected any dwelling-house or other building (except a grotto, bower, summerhouse, flower-stand, fountain, music-stand or other ornamental erection) within or on any part of the pleasure
ground. On these facts counsel for the owners of the park submitted that the requisite connection between the right
to use the park and the normal enjoyment of the houses which were built around it or near it had not been
established. He likened the position to a right granted to the purchaser of a house to use the zoological gardens
free of charge or to attend Lords cricket ground without payment. Such a right would undoubtedly, he said, increase
the value of the property conveyed, but could not run with it at law as an easement, because there was no sufficient
nexus between the enjoyment of the right and the use of the house. It is probably true, we think, that in neither of
counsels illustrations would the supposed right constitute an easement, for it would be wholly extraneous to, and
independent of, the use of a house as a house, ie, as a place in which the householder and his family live and make
their home; and it is for this reason that the analogy which counsel sought to establish between his illustrations and
the present case cannot, in our opinion, be supported. A much closer analogy, as it seems to us, is the case of a
man selling the freehold of part of his house and granting to the purchaser, his heirs and assigns, the right,
appurtenant to such part, to use the garden in common with the vendor and his assigns. In such a case the test of
connection, or accommodation, would be amply satisfied; for just as the use of a garden undoubtedly enhances, and
is connected with, the normal enjoyment of the house to which it belongs, so also would the right granted, in the
case supposed, be closely connected with the use and enjoyment of the part of the premises sold. Such, we think,
is in substance the position in the present case. The park became a communal garden for the benefit and
enjoyment of those whose houses adjoined it or were in its close proximity. Its flower beds, lawns and walks were
calculated to afford all the amenities which it is the purpose of the garden of a house to provide; and apart from the
fact that these amenities extended to a number of householders instead of being confined to one (which on this
aspect of the case is immaterial) we can see no difference in principle between Ellenborough Park and a garden in
the ordinary signification of that word. It is the collective garden of the neighbouring houses to whose use it was
dedicated by the owners of the estate and as such amply satisfied, in our judgment, the requirement of connection
with the dominant tenements to which it is appurtenant. The result is not affected by the circumstance that the right
to the park is in this case enjoyed by some few houses which are not immediately fronting on the park. The test for
present purposes, no doubt, is that the park should constitute in a real and intelligible sense the garden (albeit the
communal garden) of the houses to which the enjoyment is annexed. But we think that the test is satisfied as
regards these few neighbouring, though not adjacent, houses. We think that the extension of the right of enjoyment
to these few houses does not negative the presence of the necessary nexus between the subject-matter enjoyed
and the premises to which the enjoyment is expressed to belong.
Counsel for the owners of the park referred us to, and to some extent relied on , Hill v Tupper (1863) (2 H & C
121), but in our opinion there is nothing in that case contrary to the view which we have expressed. In that case the
owner of land adjoining a canal was granted the exclusive right to let boats out for hire on the canal. He did so and

138

then sought to restrain a similar activity by a neighbouring landowner. He sought to establish that his grant
constituted an easement but failed. As Pollock CB said in his judgment (2 H & C at p 126):
it is not competent to create rights unconnected with the use and enjoyment of land, and annex them
to it so as to constitute a property in the grantee.
It is clear that what the plaintiff was trying to do was to set up, under the guise of an easement, a monopoly which
had no normal connection with the ordinary use of his land, but which was merely an independent business
enterprise. So far from the right claimed sub-serving or accommodating the land, the land was but a convenient
incident to the exercise of the right. For the reasons which we have stated we are unable to accept the contention
that the right to the full enjoyment of Ellenborough Park fails in limine to qualify as a legal easement for want of the
necessary connection between its enjoyment and the use of the properties comprised in the conveyance of 1864
and in the other relevant conveyances.
We turn next to Dr Cheshires fourth condition for an easementthat the right must be capable of forming the
subject-matter of a grant. As we have earlier stated, satisfaction of the condition in the present case depends on a
consideration of the questions, whether the right conferred is too wide and vague, whether it is inconsistent with the
proprietorship or possession of the alleged servient owners, and whether it is a mere right of recreation without utility
or benefit.
To the first of these questions the interpretation which we have given to the typical deed provides, in our judgment,
the answer; for we have construed the right conferred as being both well defined and commonly understood. In
these essential respects the right may be said to be distinct from the indefinite and unregulated privilege which, we
think, would ordinarily be understood by the Latin term jus spatiandi, a privilege of wandering at will over all and
every part of anothers field or park, and which, though easily intelligible as the subject-matter of a personal licence,
is something substantially different from the subject-matter of the grant in question, viz, the provision for a limited
number of houses in a uniform crescent of one single large but private garden. Our interpretation of the deed also
provides, we think, the answer to the second question; for the right conferred no more amounts to a joint occupation
of the park with its owners, no more excludes the proprietorship or possession of the latter, than a right of way
granted through a passage or than the use by the public of the gardens of Lincolns Inn Fields (to take one of our
former examples) amount to joint occupation of that garden with the London County Council, or involve an
inconsistency with the possession or proprietorship of the council as lessees. It is conceded that in any event the
owners of the park are entitled to cut the timber growing on the park and to retain its proceeds. We have said that in
our judgment, under the deed, the flowers and shrubs grown in the garden are equally the property of the owners of
the park. We see nothing repugnant to a mans proprietorship or possession of a piece of land that he should decide
to make of it and maintain it as an ornamental garden, and should grant rights to a limited number of other persons
to come into it for the enjoyment of its amenities.
As appears from what has been stated earlier the right to the full enjoyment of Ellenborough Park, which was
granted by the conveyance of 1864 and other relevant conveyances, was in substance no more than a right to use
the park as a garden in the way in which gardens are commonly used. In a sense, no doubt, such a right includes
something of a jus spatiandi inasmuch as it involves the principle of wandering at will round each and every part of
the garden except, of course, such parts as comprise flower beds, or are laid out for some other purpose, which
renders walking impossible or unsuitable. We doubt, nevertheless, whether the right to use and enjoy a garden in
this manner can with accuracy be said to constitute a mere jus spatiandi. Wandering at large is of the essence of
such a right and constitutes the main purpose for which it exists. A private garden, on the other hand, is an attribute
of the ordinary enjoyment of the residence to which it is attached, and the right of wandering in it is but one method
of enjoying it. On the assumption, however, that the right now in question does constitute a jus spatiandi, or that it is
analogous thereto, it becomes necessary to consider whether the right which is in question in these proceedings is,
for that reason, incapable of ranking in law as an easement.
Duncan v Louch, on the other hand, decided more than a hundred years ago but not, as we have observed,
quoted to Farwell J in either of the two cases which we have cited, is authoritative in favour of the recognition by our
law as an easement of a right closely comparable to that now in question which, if it involves in some sense a jus
spatiandi, is nevertheless properly annexed and appurtenant to a defined hereditament. Duncan v Louch was an
action brought by the plaintiff as owner of premises, No 15 Buckingham Gate, Adelphi, London, on account of
obstruction by the defendant of what the plaintiff alleged to be a right of way from Buckingham Gate over or across
Terrace Walk to a watergate on the Thames River. On the trial before Wightman J it was objected on the
defendants part that, though the plaintiff had alleged a right of way from terminus to terminus, the right which he had
in fact proved under his documents of title was a right to use Terrace Walk for the purposes of pleasure, that is, to

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pass and repass over every part of the close. The objection was overruled by the trial judge. The plaintiff showed
cause before the Queens Bench why the rule nisi obtained by the defendant for a verdict in his favour should be
discharged; and the matter, as so often was the case in like circumstances, strictly turned on the narrow question
whether the alleged variance between the allegation and the proof was fatal to the plaintiffs case. The decision in
the plaintiffs favour was to the effect that, although the right proved exceeded the allegation, nevertheless the
former necessarily embraced the latter. The argument on the defendants part thus appears from the report (6 QB at
p 910):
If this be a right of way, it is a right only of using the way for the purpose of passing from terminus to
terminus, and not of walking for pleasure between the intermediate points. But the right is in fact one of a kind
altogether different. It is like the privilege which the builder of a square, who reserves the centre for a garden
common to all the houses, grants to the owners and tenants of the houses of walking about the garden, on
condition of keeping it in order.
Whether Mr Peacocks argument assumed that such a right as he had cited by way of analogy was one recognised
by the law, Lord Denman CJ in his judgment, in terms, so held. He said (ibid, at p 913):
I think there is no doubt in this case. Taking the right, as Mr. Peacock suggests, to be like the right of the
inhabitants of a square to walk in the square for their pleasure I cannot doubt that, if a stranger were to put
a padlock on the gate and exclude one of the inhabitants, he might complain of the obstruction
Similarly, Patteson J (ibid):
I do not understand the distinction that has been contended for between a right to walk, pass and repass
forwards and backwards over every part of a close, and a right of way from one part of the close to another.
What is a right of way but a right to go forwards and backwards from one place to another?
And Coleridge J in his judgment, described the right proved as an easement. The reasoning of the decision and
the circumstances of the case, no less than the language used, particularly by Lord Denman CJ involve acceptance
as an easement of a right such as that with which, according to our interpretation of the effect of the relevant deeds,
we are here concerned.
The remaining one of the four cases mentioned at the beginning of this judgment, Keith v Twentieth Century Club
Ltd, is, however, in our view, of much less assistance. There, the plaintiffs were owners and occupiers of two rows
of houses in London and claimed the right to use the garden between these rows. The plaintiffs sought in the action
an injunction to restrain the defendants (who were owners of certain other houses in one of the rows and carried on
the business there of a proprietary ladies club) from authorising members of the club to use the garden: and the
questions formulated by Byrne J, in an order made by consent.
For the reasons which we have stated, Danckwerts J came, in our judgment, to a right conclusion in this case and
accordingly the appeal must be dismissed.

(c)

Essential Characteristics Of An Easement- Prescription

As A Mode Of Acquisition Of An Easement.

The essential characteristics of an easement were also discussed in

the Zambian High court case of Chona Vs Evergreen Farms
Limited.44
The case also involved prescription as a mode of
acquisition of an easement.

44

1996/HP/2727/ (H/C unreported).

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[The facts of the case appear from the judgment of Chitengi. J, as he then was]
On the 11th June, 1996 the Plaintiff took an Originating summons out of the Principal Registry claiming right of way
to and from Lusaka over Farm No. 681 which is adjacent to his Farm No. 677A Lusaka West which right of way he
has undiputedly exercised and used since he bought the Farm No. 677A aforesaid in 1969. The Affidavit pleads that
as owner of the Farm No. 677A Lusaka West, he and his servants, agents and relatives are entitled to the usual right
of way to and from Lusaka on foot or by vehicles over the road which passes through the adjacent Farm 681 owned
by the defendant for sole purpose of gaining access to and from the said Farm No.677A.
The Plaintiff gave both affidavit and viva voce evidence. He testified that since 1969 he has been the beneficial
owner of sub division A Of farm 677 which is adjacent to Farm No. 681/Rem owned by the defendant. At the time he
took occupation of the said farm 677 in 1969 he found that the vendor and his predecessor had been allowed by the
previous owners of the farm No. 681/Rem to pass over a road which passes through farm No. 681/Rem on access
road to and from Lusaka. His servants, agents, relatives and he have been exercising the right of way over Farm
681/Rem. Its previous owners, Boers and English men created no problem over the use of the access road.
Now servants and agents of the defendant have tried to stop him, his servants, agents and relatives from exercising
the right of way and at times the defendants servants and agents have used or threatened violence to stop him, his
servants agents and relatives from exercising their rights. He is most astonished by the hostility of the defendant
because he expected more friendly neighbours from Indians who are the shareholders of the defendant than from
whites.
The Office of the Commissioner of Lands advised the parties as of the access road but occasional interference and
obstruction of the road by the defendant continued from time to time. On 9th May, 1996, a meeting to resolve the
problem was held between his advocates and two shareholders of the defendant one of whom was one Yacoup
Patel who promised that there would be no interference as from 13th May, 1996. Interference has In fact continued
for example about 25th May, 1996 his servant Patrick Silewo and Arnold Musulumba were prevented by the servants
of the defendant from using the right of way to access Farm No. 677A. The road over which he has the right of way
is clearly marked on the Maps obtained from the Commissioner of lands and was identified at. the meeting of 9th
May, 1996 aforesaid.
The Plaintiffs farm is bounded by other farms other than the defendants farm which is to the north of the Plaintiffs
farm. To the south there is farm No. 676 belonging to Mr Mwiinga, to the East there are the remaining extent of Farm
677 and Farm 677B, to the North there are also other Farms 681 and 680 adjacent to the remaining of extent 681.
There were only cattle grids until the road reached the plaintiffs gates. For twenty six years there was no problem
with the access road until the defendant took over the Farm and closed the access road.
When trouble started he got a letter by hand of Police from West Wood Police Station and written by Mr. Silungwe,
the Officer in-charge of Planning Office,(DW 2) on 19th September, 1995 accusing him of trespassing on the
defendants farm. The letter was dated 15th August, 1995. He wrote to DW 2 the letter exhibit MIP to the affidavit In
opposition explaining how he bought the farm and how he was then using the access road. As a result In a letter
dated 29th September, 1995 DW 2 suggested to realign the road in order to provide access to his farm. He went to
see DW 2 on 10th October, 1995. DW 2 spoke at length to the defendant on the phone. DW 2 then drew a new
access road along the eastern side of the defendants farm. He was satisfied because for some weeks the defendant
opened the new access on the eastern side (hereinafter referred was the boundary road). Later the defendant
closed the boundary road altogether. The defendant wants a piece of land from the Plaintiff in exchange for the
boundary road...
The defendant called three witnesses. The first defence witness was Ayub Ibrahim Patel the farm Manager. He
testified that he has been at the farm for three years. The farm was purchased in 1994. His neighbours are Plaintiffs
farm 677B, Choondo farm 677A and Mike Faddy farm 681A. The defendant is the remaining extent. The plaintiff and
Mr Choondo are to the South and Mike Faddy Is to the North. From the main road to the farm gate there Is an
access road which passes between farms 682 and 681A which belong to Mr Mike Faddy. The access road was
created by the government. This access road Is part of 681A. This access road is for the farm where they are.
During his stay he saw one or two cars pass saying they were going to the plaintiffs farm. He has never seen the
plaintiff himself pass on the road.
The road on the Notice to produce dated 15th April, 1997 marked Existing road reserve did not in fact exist. It was
a fire guard. He became aware of the road when the Court visited the farm with the parties. He is aware of the
access road in the map attached to the affidavit in reply. This road was approved on 10 th October, 1995 after a
meeting The defendants certificate of title shows no change of becons with the road approval. He has not prevented

141

the plaintiff from using the road. He prevented who bought the farm from using the road to protect the land, animals
and for security purposes.
There are other access roads, one from Kacheta School and the other from semintel farm from Makeni road, which
Is not the Government approved road but it is the access road given by the Ministry of Lands. He accepts the access
road from the Plaintiffs farm if he is given another land and the gate is shifted. He objects to the access road from
the Plaintiffs gate passing by the subdivisions. If the defendant is not given land then it should be given monetary
compensation.
Cross examined he said when he moved to the farm he did not find the Plaintiff using the road. People were passing
through the defendants farm and by the residence. He did not find out how long the people had been using the road.
He has no idea whether the Plaintiff has been using the road since 1969. He knows that the access road Is from
Makeni road because there are two fences. The fences were not given by Lands. He did not show the Court the
approval for Kacheta School access road. He saw that the road is between a class room and a toilet. The boundary
road was approved after it had been agreed upon but he has a problem with the agreed road. He wants
compensation. Before this meeting the Plaintiff was using the road through the defendants farm. After the
meeting it was agreed that the plaintiff uses the proposed boundary road it is ten meters wide. He was supposed to
be compensated equal land by the plaintiff. The plaintiff was supposed to pay K 30,000 per month to grade the
access road. After the meeting DW2 made a map, there is no government road from the defendants gate to the
plaintiff corner. If there was it would have shown on the defendants title deeds and the beacons would have been
moved. The map in the notice to produce dated 15 th April, 1997 is dated 28th May 1993. He obtained title deeds in
1995. There is no change to the diagram in the certificate of title. He does not know whether there are any rights
registered in respect of the access road. The access road has not been constructed because the Plaintiff came to
court and he does not know why. There is no access road approved by the Government and so he requests
compensation. He is giving land. He searched the Registry of Lands and there are no rights registered relating to
any existing access road.
Cross examined he said that as a result of the meeting DW 2 did the proposed access road. The Plaintiff used to
pass through the defendants farm but he does not know for how long. The map on his certificate of title shows
walking tracks across his farm and across boundaries. The defendants neighbour has access through the farm on
the walking tracks. What the document has done is to remove the access road from the middle of the farm to the
boundary. The defendant requests compensation because it is losing land.
Mr Mumba raised the issue that the Plaintiff has abandoned his claim of right of way through the defendants farm
and now seeks right of way at the edge of the defendants farm. If I hold that the Plaintiff has proved a case not as
pleaded then of course his claim must fail. I have given my anxious consideration to Mr Mumbas submissions on
this issue. I find these submissions untenable. The Plaintiffs claim is for right of way through the defendants farm.
The road I have referred to as the boundary road Is still on the defendants farm. The fact that the Plaintiff is
prepared to accept a right of way through another part of the defendants farm does not amount to the Plaintiff
abandoning his claim and is not fatal to his case. What the Plaintiff seeks is a right of way through the defendants
farm to the High Way to and from Lusaka. Whether this right of way is in the middle or at the edge of the defendants
farm is immaterial to the plaintiff. So the fact that the Plaintiff is not Insisting on the road he says he has been using
since 1969 does not amount to abandoning his claim for right of way over the defendants farm. Indeed, it would be
unreasonable on the part of the Plaintiff to Insist that he will use no other passage on the defendants farm than the
one he says he has been using before. When I visited the Plaintiffs farm and the defendants farm i saw that there
were some development going on In the area of the road the Plaintiff said he had been using. As this road passes by
the main house one would not insist, that the defendant. Should not develop that part of the farm for the only reason
of providing the Plaintiff right of way.
Mr Mumba submitted that there are many other routes the Plaintiff can use to get to the Lusaka high Way. The first
defendants witness also talked about an access road to the Plaintiffs farm from Makeni road. The defence witness,
however, never pointed out this access road to me and where it starts from the Plaintiff farm to Makeni road and did
not say whether Makeni road is adjacent to the Plaintiffs farm or whether the alleged access road passes through
other farms and it so who the owners of these farm are. In result I find that on the evidence the alleged access road
referred to by the first defence witness is a mere fiction.
As regards Mr Mumbas submission that the Plaintiff has many other routes to use I say that this submission, without
more, glosses over the legal principles involved In matters of this nature. The issue is not whether the Plaintiff can
use any route, but whether a person leaving the Plaintiffs farm can use the other routes suggested to and from the
Lusaka High Way..
A right of way is basically an easement. For there to be an easement it is trite that there must be a dominant and a
servient tenement..

142

In other words the easement can not exist in gross, that is to Say not appurtenant to any land. Further the right must
accommodate the dominant tenement. That is to say the right must Improve the usefulness or amenity of the
dominant tenement.
I visited the parties farms. The Plaintiffs farm is bounded by many farms. In relation to the Lusaka high way only the
defendants farm Is the servient tenement to the Plaintiffs farm because the relationship between the two farms
meets the conditions I have referred to above. The defendants Farm has therefore to provide the right of way.
The routes suggested through the other farms are not available to the Plaintiff. The Plaintiff can not insist on them at
Law as his farm Is not a dominant tenement, to these other farms. As Mr Silungwe, witness for the defence, I think
rightly said, these are unofficial roads. I drove on, saw and walked on some of these roads. The routes through Mr
Mwiingas farm, lead to no where. Some are oppressive routes for the Plaintiff to take. It will mean the Plaintiff
everyday threading the maze of the farms in Lusaka West for him to reach the Lusaka high way at great expense.
The route suggested trough the Kacheta School will create a danger to our children. I have never seen a road any
where passing through a School.
After holding that the only servient tenement to the Plaintiffs farm is the defendants farm, I have now to consider
whether there existed and exists a right of way from the Plaintiffs farm through the defendants farm to the Lusaka
High Way. Much evidence has been led to establish that the right of way Is not registered and does not appear on
the defendant certificate of title obtained as recently as 1995. That may be the case but the evidence Is agreed that
since the defendant took possession of the farm the defendants witnesses numbers one and three have seen
people from the Plaintiffs farm pass through the defendants farm though they have not seen the Plaintiff pass
through the defendants farm. And as to the period before the defendant took possession of the farm the only
witness as to what happened was the Plaintiff. The Plaintiff gave evidence that for twenty six years from 1969 to
1995 when the defendant came and trouble started, he was using the road through the defendants farm. He also
testified that when he bought the farm In 1969 he found the previous owners passing through the defendants farm.
This evidence is Uncontroverted and as I have no reason to doubt the veracity of the Plaintiff I accept It. That being
the case I accept Mr Hakasenkes Submissions that the Plaintiff acquired an easement by prescription at common
law, the Plaintiff having been an uninterrupted user for over twenty years. Of course prescription is a rebuttable
presumption but it has not been rebutted.
The defendants said, and Mr Mumba submitted and argued to that effect, that they are not opposed to the Plaintiff
using the access road.. This Is untenable at Law. The right of way extends to every one living on the dominant
tenement which is the Plaintiffs farm. And after the sub divisions the occupants of the sub divisions have also the
right of way through the defendants road. The right of way accommodates the dominent tenements; It. improves the
usefulness of the dominant tenement. To restrict the free passage to the Plaintiff and his family only will turn the
easement into a license which it is not.
In view of what I have said above the evidence and submissions that the proposed access road cannot be effected
cannot stand. As I have already said and for the reasons I have given the Plaintiff is entitled to a right of way through
the defendants farm.

(d) Right of light must be acquired, either by grant or

prescription and when acquired by prescription it must be
in respect of a building and defined windows or other
apertures in the nature of windows in the building.
In JASAT v PATEL,45 the plaintiff claimed damages for obstruction of
light and air to his residence. According to the plaintiff the defendant,
who owned adjoining property, at first built a tall wall and then built a
bulk store incorporating the wall. This caused a nuisance to his
premises as it obstructed fresh air and light. According to the
defendant the wall was part of the bulk store and was effected with
45

(1978) ZR 208 (HC).

143

the approval of the Council's authority and was occupied after a

certificate to occupy was given. Documents in support of the
permission were produced. The production of the documents, which
were produced at the trial without the prior knowledge of the plaintiff,
were objected to by the plaintiff on the grounds of being taken by
surprise, but were allowed by the court. It was submitted that the
wall prevented the plaintiff's right to light and air and as a result his
comfort and convenience had suffered; and that the alleged
permission from the Township Council could not be a defence to a tort
of nuisance. The defendant contended that there was no evidence as
to the extent to which the wall had diminished the light.
It was held ,inter alia, by the High Court (Sakala J, as he was) that :(i)

(ii)
(iii)

A right of light must be acquired, either by grant or prescription

and when acquired by prescription it must be in respect of a
building and defined windows or other apertures in the nature
of windows in the building.
A diminution of light is not necessarily actionable for there must
be substantial privation of light, sufficient to render the
occupation of the house uncomfortable.
In determining whether there has been an infringement of a
right to light, a court is entitled to have regard to the locality
and to the higher standard of lighting of the present day and is
not confined to the rule that, so long as half a room was
adequately lit, there was no infringement.
Though the above case was mainly argued from the point of
view of the tort of nuisance the holding under (i) above is also
the position under the law relating to acquisition of an
easement of light.

7.9

SUMMARY OF CHAPTER SEVEN.

Servitudes involve the enjoyment of rights over another
persons land. Easements and Profits which are both interests in
land, are interests or rights entitling their owners to exercise
certain rights over the land of another.
An easement may be described as the right held by one land
owner to do something in or on the land of another or to
prevent the other land owner from doing something on his own
land. A person posses an easement in respect of his enjoyment
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of some estate or interest in a particular piece of land, and the

easement is said to be appurtenant to that land (Hansford V Jago
[1921] 1 Ch 32).
Easements may be positive or negative,
according as the right is to do something or prevent another
from doing something. Easements may be created by statute,
or by grant, express or implied, or by prescription, based on
long use or presumed grant. They may be extinguished by
statute, release, express or implied, or unity of ownership of the
dominant and servient tenements. Among the common
recognizable easements are; right of way, right of light,
watercourse and support of buildings but there is no confined
list of easement and many miscellaneous cases have been
recognized. What is important is that the alleged right must
satisfy the essential characteristics of an easement which were
discussed in Re Ellenborough Park case.
Profits a Prendre are rights to enter the land of another and
take therefrom, some profit of the soil or a portion of the soil
itself. The main difference between an easement and a profit is
that a profit may exist in gross; i.e belonging to a person in his
right, not as annexed to ownership of land, while an easement
must always be attached to ownership of particular land. The
other distinction is that an easement confers a right to utilize
the servient tenement in a particular manner or to prevent the
commission of some act on that tenement whereas a profit a
prendre confers a right to take from the servient tenementsomething capable of ownership or some part of the soil of that
tenement. The chief distinction between an easement and a
licence is that a licence is generally revocable at the instance of
the person who has granted it. Moreover a licence is merely
personal and does not run with the land (King V. David, Allen
and Sons, Bill Posting Ltd, [1916] 2 A.C 54).

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