CHAPTER III. Rules controlled by contract or title. any THE INCIDENTS OF EASEMENTS. 20. The rules contained in this chapter are controlled by contract between the dominant and servient owners relating to the servient heritage, and by the provisions of the instrument or decree, if any, by which the easement referred to was imposed. Incidents of And when any incident of any customary easement is incustomary consistent with such rules, nothing in this chapter shall affect such incident. easements. Bar to use uncon 21. An easement must not be used for any purpose not nected with connected with the enjoyment of the dominant heritage. enjoyment. easement. Illustrations. (a) A, as owner of a farm Y, has a right of way over B's land to Y. Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y. He must not use the easement for the purpose of passing to and from Z1. (b) A, as owner of a certain house, has a right of way to and from it. For the purpose of passing to and from the house, the right may be used, not only by A, but by the members of his family, his guests, lodgers, servants, workmen, visitors and customers; for this is a purpose connected with the enjoyment of the dominant heritage. So, if A lets the house, he may use the right of way for the purpose of collecting the rent and seeing that the house is kept in repair. Exercise of 22. The dominant owner must exercise his right in the mode which is least onerous to the servient owner 2; and when the exercise of an easement can without detriment to the exercise of dominant owner be confined to a determinate part of the servient Confine ment of easement. 1 Lawton v. Ward, 1 Ld. Raym. 75% and where there are several dominant owners, one of them must 7 Cal. 674. The Roman rule that the owner of the servitude aquae ductus must, the absence of a special agreement, lead the water off in pipes (fistulas), illustrates this clause. heritage, such exercise shall, at the request of the servient owner, be so confined 1. Illustrations. (a) A has a right of way over B's field. A must enter the way at either end and not at any intermediate point 2. (b) A has a right annexed to his house to cut thatching-grass in B's swamp. A, when exercising his easement, must cut the grass so that the plants may not be destroyed. alter mode 23. Subject to the provisions of section 22, the dominant Right to owner may, from time to time, alter the mode and place of of enjoyenjoying the easement, provided that he does not thereby ment. impose any additional burden on the servient heritage 3. Exception. The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage 1. Illustrations. (a) A, the owner of a saw-mill, has a right to a flow of water sufficient to work the mill. He may convert the saw-mill into a corn-mill, provided that it can be worked by the same amount of water. (b) A has a right to discharge on B's land the rain-water from the eaves of A's house. This does not entitle A to advance his eaves if, by so doing, he imposes a greater burden on B's land. (c) A, as the owner of a paper-mill, acquires a right to pollute a stream by pouring in the refuse-liquor produced by making in the mill paper from rags. He may pollute the stream by pouring in similar liquor produced by making in the mill paper by a new process from bamboos, provided that he does not substantially increase the amount, or injuriously change the nature, of the pollution. (d) A, a riparian owner, acquires, as against the lower riparian 1 The latter part of this section was suggested by the Prussian Landrecht, Iter Theil, 22ter Titel, § 29. 2 Woodyer v. Hadden, 5 Taunt. 132, per Chambre J. Gale, 557: Goddard, 326. 4 Suth. Civ. R. 49: Panjab Record, 1867, p. 156: Gale, 577: Landrecht, ubi supra, § 70. So in the case of the dominant owner of a right of passage for boats in the rainy season over another person's tank, 7 Cal. 145. The English law agrees, Pearson v. Spencer, 1 B. & S. 571: 3 B. & S. No exception is made in the case Baxendale v. McMurray, L. R., 2 Ch. Ap. 790: Goddard, 352. Right to do acts to secure owners, a prescriptive right to pollute a stream by throwing sawdust into it. This does not entitle A to pollute the stream by discharging into it poisonous liquor'. 24. The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of enjoyment. the easement 2; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible 3; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage *. Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights 5. Accessory rights. Illustrations. (a) A has an easement to lay pipes in B's land to convey water to A's cistern. A may enter and dig the land in order to mend the pipes, but he must restore the surface to its original state. (b) A has an easement of a drain through B's land. The sewer with which the drain communicates is altered. A may enter upon B's land and alter the drain, to adapt it to the new sewer, provided that he does not thereby impose any additional burden on B's land". (c) 4, as owner of a certain house, has a right of way over B's land. The way is out of repair, or a tree is blown down and falls across it. A may enter on B's land and repair the way or remove the tree from it. (d) A, as owner of a certain field, has a right of way over B's land. B renders the way impassable. A may deviate from the way and pass over the adjoining land of B, provided that the deviation is reasonable 8. 1A as owner of three houses has an easement to drain them into B's sewer. B builds three more cottages. He is not entitled to drain them also into the sewer, Metropolitan Board of Works v. London & N.W. Ry. Co., 17 Ch. D. 246. 2 Goddard, 21, 332. Suggested by the Prussian Land- 5 Gale, 550, calls them 'secondary Pomfret v. Ricroft, 1 Wms. Saund. 322 b, 322 c, and see Goodhart v. Hyett, 25 Ch. D. 182, where the Court restrained B from building a house over A's pipe, on the ground that if the house were built it would be impossible, or at all events not reasonably practicable, for A to get at the pipe when he had need to repair it. So if A has an easement to draw water from B's well this includes the right to keep the well in repair (Dig. 43, 22, 1, 6). So an easement to water cattle on B's land includes the right to lead them on to the land. And of course A may enter and cleanse or repair the drain (Dig. 43 23, I, pr.). 8 Goddard, 374 (e) A, as owner of a certain house, has a right of way over B's field. A may remove rocks to make the way 1. The wall (f) A has an easement of support from B's wall. gives way. A may enter upon B's land and repair the wall. (9) A has an easement to have his land flooded by means of a dam in B's stream. The dam is half swept away by an inundation. A may enter upon B's land and repair the dam. necessary 25. The expenses incurred in constructing works, or making Expenses repairs, or doing any other act necessary for the use or preser- for preservation of an easement, must be defrayed by the dominant vation of owner 2. easement. from want 26. Where an easement is enjoyed by means of an artificial Liability work, the dominant owner is liable to make compensation for for damage any damage to the servient heritage arising from the want of of repair. repair of such work 3. owner not 27. The servient owner is not bound to do anything for the Servient benefit of the dominant heritage 3, and he is entitled, as bound to do against the dominant owner, to use the servient heritage in anything. any way consistent with the enjoyment of the easement *: but he must not do any act tending to restrict the easement or to render its exercise less convenient 5. Illustrations. (a) A, as owner of a house, has a right to lead water and send sewage through B's land. B is not bound as servient owner to clear the watercourse or scour the sewer. (b) A grants a right of way through his land to B as owner of a field. A may feed his cattle on grass growing on the way, provided that B's right of way is not thereby obstructed; but he must not build a wall at the end of his land so as to prevent B from going beyond it, nor must he narrow the way so as to render the exercise of the right less easy than it was at the date of the grant. (c) A, in respect of his house, is entitled to an easement of support from B's wall. B is not bound as servient owner to keep 1 Or if the way be a carriage-way, he may metal the road so as to render it fit for the traffic, Newcomen v. Coulson, 5 Ch. D. 133. 2 Gale, 527. 'Gale, 573. This rule is qualified by sec. 50 infra. The Act does not provide for the rights called in German Reallasten-such as the maintenance of embankments and sluices-which impose a duty upon a given piece of land. As to embank- Thus where B has a right of pas- 5 N. W. P. 1867, p. 191. Extent of easements. Easement of necessity. Other ease ments. Right of way. Right to the wall standing and in repair1. But he must not pull down or weaken the wall so as to make it incapable of rendering the necessary support 2. (d) A, in respect of his mill, is entitled to a watercourse through B's land. B must not drive stakes so as to obstruct the watercourse 2. (e) A, in respect of his house, is entitled to a certain quantity of light passing over B's laud. B must not plant trees so as to obstruct the passage to A's windows of that quantity of light3. 28. With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect: An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed *. The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired 5. In the absence of evidence as to such intention and purpose (a) a right of way of any one kind does not include a right of way of any other kind: (b) the extent of a right to the passage of light or air to a light or air certain window, door or other opening, imposed by a testaby grant. mentary or non-testamentary instrument, is the quantity of acquired Prescrip tive right to light or air. light or air that entered the opening at the time the testator died or the non-testamentary instrument was made: (c) the extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used7: |