Express Easements - Interpretation and Extent

Question 1

what if the grant does not state the width, length, and location of the easement

Answer 1

if the grant does not fix the measurements of the easement, then the reasonable portion of the land surrounding the easement would be used

• if there is an argument/dispute whether a specific part of an easement was meant to be used, then the burden of proof falls on the party that’s against using it.
• they have to show that the easement did not include that particular area
• unless its proven otherwise, they can use the easement in a way that is reasonable and fits what the easement was originally intended for

Question 2

Intent of easement

Answer 2

• whether the easement is
  GRANTED or RESERVED

1.beneficiary favoured -
- the person or party who originally got the easement (dominant holder) should generally be favoured in disputes regarding it

2. consideration
   - amount of money or value the original beneficiary paid for the easement matters
   - if its close to what someone would pay to buy the land outright, it might suggest that the land was actually sold, not just given the easement
3. prior use -
   - courts will look at what the land was used for before the dispute happened, which matters to.

person who got easement should have upper hand, esp if they paid a fair amount for it, and if the land was used in a certain way before without any problems

Question 3

Can a party on their own relocate an easement?

Answer 3

MAJORITY - prohibits either party from relocating on their own when an easement has been fixed

MINORITY - allows the servant owner to relocate the easement as long as the relocation gives/provides the dominant estate similar benefits to the original easement

Question 4

can an easement holder increase intensity of use of an easement?

Answer 4

• must be of intensity , rather than change in the kind of use
• normal increased use over the use, courts declare has been contemplated by the parties
• appurtenant easement = increased use must be from the development of the dominant estate
• permitted as long as it does not burden the servient estate
  (means the use of the land increases because of improvements to the main property. This is allowed as long as it doesn’t make things harder for the neighbouring property)

Question 5

can an easement holder use the easement to serve property that was not part of the original dominant estate?

Answer 5

NO
- owner of appurtenant easement (dominant owner) can not use the easement, or permit the use of an easement to be used by property that was not part of the original agreement

• that would be a trespass and misuse

Question 6

who has the duty to repair/maintain an easement?

Answer 6

• easement holder, the dominant holder is supposed to make repairs necessary to maintain the easement
• unless there is express language saying otherwise.
• an easement holder has to make whatever repairs are necessary to further easement holders enjoyment, as long as servant estate is not overly burdened
• servient owner usually does not have duty to maintain and up keep the easement
• there main duty is to refrain from the easement holders enjoyment of his or her rights
• servient holders can use her property as he or she wants, can give their properties to others for other easements on her land
  –> as long as does not interfere with enjoyment of the original easement