LXV. PRECEDENT GRANT OF AN EASEMENT (a). 1. Parties. 2. Testatum: GRANT to the COMMITTEE of VISITORS of a LUNATIC ASYLUM of a RIGHT to MAKE a DRAIN at a PRICE to be FIXED AFTER the COMPLETION of the WORKS. THIS INDENTURE, made, &c., between A. B., of, &c. [grantor], of the first part; C., D., E., F., G., and H., (being the Committee of Visitors of the Lunatic Asylum of), of the second part; and the said C., D., E., F., and G., being the persons appointed by the said committee of visitors for the purpose of taking the grant hereinafter expressed to be hereby made, of the third part: WITNESSETH, that in consideration of the payment to be made to the said A. B. as hereinafter provided, and of the covenants hereinafter entered into by the said C., D., An easement a right over another's land. Qualities of easements. An easement may exist by grant or by implication, can be granted only by deed. (a) Mr. Gale has exhausted the subject of the law of easements, and the substance of the present note is extracted from his able work. In addition to the ordinary rights of property determined by the boundaries of a man's own soil, the law recognises the existence of certain accessorial rights to be exercised over the property of, and therefore imposing a burden upon his neighbour. That branch of these accessorial rights, which confers merely convenience to be exercised over the neighbouring land, without any participation in the profits of it, is called easements: Gale, 1. The essential qualities of easements properly so called are thus distinguished: 1st. They are incorporeal. 2nd. They are imposed on corporeal property. 3rd. They confer no right to a participation in the profits arising from it. 4th. They must be imposed for the benefit of corporeal property. 5th. There must be two distinct tenements-the dominant to which the right belongs; the servient upon which the obligation is imposed. 6th. By the civil law it was also required that the cause should be perpetual: Gale, 5. Easements may exist by virtue of an express, or an implied grant, or by prescription: for the present purpose it is only necessary to consider their creation and enjoyment under an express grant. An easement, being an incorporeal hereditament, can be created only by an instrument under seal: Co. Litt. 9. a: Hewlins v. Ship PRECEDENT GRANT OF AN to make and maintain a drain within E., F., and G., He the said A. B., by the direction of the said committee of visitors (testified by their being parties to and executing these presents), doth hereby grant and confirm unto the said C., D., E., F., and G., their heirs and assigns, FULL RIGHT and liberty to make and for ever consideration; maintain a culvert or drain through the lands of the said grant of rights; A. B., situate in the county of delineated in the plan drawn on the margin of these presents and therein coloured green, in the line coloured red on the said plan, or as near limits, to the said line as circumstances will permit, and not in any case further from the said line than is shown by the lines drawn on the said plan and there indicated as the lines of deviation, and according to the sections shown on the said plan, AND for that with purpose surveyors, workmen, horses, carts, waggons, and other persons and things to enter upon the said lands, and to sink and make shafts sink shafts, therein at the points in the said plan indicated for such to enter on lauds, pam, 5 B. & C. 221; S. C., 7 D. & R. 783; Cocker v. Cowper, 1 C. M. & R. 418. But a licence, which is not a grant, and may be recalled immediately, may be given without a deed; 4 M. & S. 565; see Gale, ch. 3; Wood v. Leadbitter, 13 M. & W. 838. -run with the land; Easements may be granted separately from a conveyance of the Easements by dominant tenement, or may be included in a conveyance of it: in grant: the grant of an easement, per se, the precise words of the instrument determine the extent of the right created. A covenant, or other instrument under seal, clearly evincing the intention of the parties, may operate as a grant: Holmes v. Seller, 3 Lev. 305; Gale, 72. Easements, in general, bear a strong resemblance to covenants running with land, both express and implied. Upon a grant, or covenant conferring an easement, the successive owners of the dominant estate-who, in the case of an ordinary covenant, would, at common law, be strangers to the contract-become entitled to the benefit of the rights conferred, and may sue for a violation of them: Gale, 73. And where the dominant tenement itself is conveyed, whether in fee or for any less estate, all rights which the conveying party enjoyed by virtue of, and as appendant to his estate as against third parties pass with it: Gale 75, and authorities there cited; and ante, Vol. 1 p. 87. impose As a general rule, easements impose no personal obligation upon the owner of the servient tenement to do anything; the burden of liabilities on PRECEDENT GRANT OF AN and remove earth, to use drain, shafts (but not any other points), and either to remove and carry away in manner hereinafter mentioned all or any or the clay, sand, gravel, stones, and earth which shall be taken out of the said culvert or drain and shafts, or to use all or any parts thereof for the manufacture of bricks or or make bricks, otherwise in making the said culvert or drain and shafts and the works thereto, AND to use such drain or culvert for the purpose of conveying and carrying off the sewage and waste water from the said asylum in the direction of and into the river at a place or within the limits of deviation indicated in the said plan; and from time to time and at all reasonable times, with surveyors, workmen, horses, carts, waggons, and other persons and things, to enter into and upon the said lands and shafts and culvert or drain, and inspect the condition of, and amend, and repair, and cleanse the said shafts and culvert or drain, and from time to time for the purposes aforesaid, or any of them, and to bring and place upon the said lands, or any parts thereof, and remove, such materials, machinery, and other things as they shall think fit, TO HAVE AND TO HOLD all the said premises herein before expressed to be hereby granted UNTO AND TO THE USE of the said C., D., to enter on lands and inspect. 3. Habendum to grantees in fee. the dominant not on the servient tenement. repair falls on the owner of the dominant tenement: Gale, 424. And where the enjoyment of the easement is had by means of an artificial work (as a drain or a conduit) the owner of the dominant tenement is liable to any damage to the servient tenement arising from its want of repair. But where the easement is natural, and the injury to the servient tenement arises from natural causes only, no such liability accrues: Id. 425. As the burden of repair is by law imposed upon the owner of the dominant tenement, a corresponding right is also conferred upon him to do all those acts which may be necessary to secure the full enjoyment of the easement, though he should thereby be compelled to commit a trespass: Id. 441. But in doing these works for the enjoyment of an easement the owner of the dominant tenement must not do anything to alter the accustomed mode of enjoyment, in such a manner as to impose a greater burden on the servient tenement, or unnecessarily inconvenience its owner: Id. 448. And he must not only exercise ordinary care and skill in his operations, but must, as far as possible, repair all damage done to the servient tenement: Id. 449. PRECEDENT GRANT OF AN grantees to execute works E., F., and G., their heirs and assigns, under and subject to the covenants and conditions hereinafter contained, and on the part of the said C., D., E., F., and G., their heirs and assigns, to be performed and observed (b): AND THE SAID C., D., E., F., and G. do hereby for themselves, their heirs and assigns, covenant with the said A. B., his heirs and assigns (c), that they the said C., D., E., F., and G., their heirs or assigns, will excavate, make, and form the 4. Covenants by said culvert or drain in a proper and workmanlike manner, with good and sufficient materials in all respects, in properly; the line or within the limits of deviation and according to the sections aforesaid, AND will not make or sink any shaft, pit, or opening in the said lands of the said A. B. in any other places than those marked for shafts in the said plan, AND will remove and carry all clay, sand, gravel, stones, and earth which shall be excavated or taken out in the formation of the said drain or culvert or shafts, and shall not be made into bricks or otherwise used in the formation of the said drain or culvert and shafts, to any place or places not exceeding 200 yards from the said drain, -to sink shafts only in specified places ; to remove earth to a certain distance; of visitors of a lunatic (b) This easement was purchased under the powers given by Conveyances "The Lunatic Asylums Act, 1853,"(16 & 17 Vict. c. 97), into which to committee are, by s. 36, incorporated the provisions of "The Lands Clauses Consolidation Act, 1845," applicable to the case of lands taken asylum. by agreement. By the same section it is directed, that lands purchased shall be conveyed to such persons, being not less than five in number, and in such manner as the committee of visitors may direct, in trust for the purposes of the Lunatic Asylums Act; and any conveyance so made has the like force and effect as a conveyance made under section 81 of The Lands Clauses Consolidation Act. Sect. 37 provides for the appointment of new trustees whenever the number of trustees is reduced to less than three, and vests the lands in the continuing and new trustees without a conveyance. (c) The covenants here entered into are not personal, but the Covenants on burden of them will run with the dominant tenement. The committee of visitors have, under the Act, the power of making a contract, with the liability to have it enforced not personally against them, but to liquidate the amount, in order that there may the part of committee of visitors of a lunatic asylum, PRECEDENT GRANT OF AN -to complete works by a given day; -to prevent the drain from being a nuisance; -to avoid unnecessary damage; -to open drain only at shafts; -to give notice before entry; -to pay for fixed by arbi- -how to be euforced. which the said A. B., his heirs or assigns, shall from time to time appoint, and in default of such appointment as the said C., D., E., F., and G., their heirs or assigns, shall think fit, AND will complete the said drain or culvert and all works belonging thereto in all respects on or before the day of, AND will for ever thereafter, and at all times, maintain, repair, and cleanse the said drain or culvert in such a manner that the same shall not be a nuisance or inconvenience to the lands of the said A. B., his heirs or assigns, or the tenants or occupiers thereof, AND will, in making and forming the said culvert or drain and all works belonging thereto, and in maintaining, repairing, and cleansing the same, do as little damage or injury as possible to the surface of the said lands and the crops for the time being thereon, AND will not at any time or times open the said culvert or drain at any place or places other than the shafts aforesaid, unless from extraordinary circumstances it shall be absolutely necessary to do so for the purpose of effectually inspecting, maintaining, repairing, or cleansing the said culvert or drain, AND will not at any time or times (unless in cases of extraordinary stoppage or accident) enter to inspect, maintain, repair, or cleanse the said culvert or drain without giving to the said A. B., his heirs or assigns, and the tenants or occupiers of the lands, three clear days' notice of the intention so to do; AND FURTHER, that they the said C., D., E., F., and G., their heirs or assigns, or the said committee of visitors aforesaid for the time being, will, within one calendar month after the same shall have been ascertained as hereinafter provided, pay to the said A. B., his heirs or assigns, as the owner or owners of the lands be a remedy by mandamus to get damages for a breach of it. For the breach of such covenants an action lies against the clerk of the committee (not against the covenantors), although he may not have funds to answer it; and the fruits of the action cannot be acquired either immediately, or by the ordinary process: Kendall v. King, 17 C. B. 483; Wormwell v. Hailstone, 6 Bing. 668; Emery v. Day, 1 C. M. & R. 245. |