Relationship between the Law of Tort and Easement
Mount Kenya University
Nairobi Campus
Department of Law
Bachelor of Law
Law of Tort II
Professor Manyasi (Lecturer)
Adm./113/01151
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 [1956] Ch 131 avers that an easement requires the existence of at least two parties. The party
Nairobi Campus
Department of Law
Bachelor of Law
Law of Tort II
Professor Manyasi (Lecturer)
Adm./113/01151
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 [1956] Ch 131 avers that an easement requires the existence of at least two parties. The party