Rivers & Easements

Easement Rights

An easement is a right which some person acquires for the benefit of a particular piece of property over another property. An easement might add to the riparian rights of an owner or qualify or limit them when it is held by another party.

The categories of easements are not closed. However, they must have certain characteristics.

An easement is a property right. It can be granted by a deed or arise by virtue of long use.

An easement must benefit nearby land as such. It cannot be merely a personal benefit to the owner of the land.

Acquiring Easement

An easement may be granted by deed. It may arise secondarily to other rights by necessity or implication in a deed. In the case of a fishery, there may be an ancillary rights-of-way to the fishery along the banks for the purpose of exercise of such rights.  Where the main easement ceases, the secondary easement will terminate.

The period for showing a prescription for the acquisition of an easement by long use against the State is 60 years. Due to a technicality in the reforming 2009 act, there appeared to be a problem in claiming against that State for the period between 2021 and 2069.

This is because the 2009 Act excludes periods before 2009 and requires 60 years to use claims against the state, with only 12 years in other cases. This was corrected by a 2021 Act.

If a person interferes with an owner’s rights for a sufficient length of time, 20  years as of right without interference, he may apply to court for a declaration that he has obtained an easement.

An easement is different to permission or a lease allowing something to be done. If something is done under a lease, a licence, or by consent, then it operates under the terms of the consent and will end once the licence, lease or consent is. In contrast, an easement is acquired by somebody who acts as if they had the right, where the owner takes no action against them.

An easement may be granted in relation to water rights by a deed. Easements affecting registered land must generally be registered as burdens on the title when they are affected. They appear in part III of the folio. Easements being acquired by long use affect registered land without being registered.

Extinguishment

Easement rights can be lost by long disuse. Rights enjoyed by way of an easement over other land can be lost after 12 (20) years of non-use, where they were acquired by long use. This provision does not apply to rights expressly granted by deed or grant.

Easements may terminate by disuse for a period of over 20/ 12 years. This principle applies to easements acquired by long use and implication but not by express deed. Easements may be released or abandoned

Where fishing and sporting rights have not been exercised for a period, the landowner can apply to the Land Registry to have them cancelled. If the matter is disputed, it may be referred to court. There are common law and now statutory criteria for the extinguishment of property rights, including fishery rights.

Extra or Reduced Rights

Rights in watercourses may subsist in accordance with the law of easements. It is possible to have an easement to abstract, divert, or obstruct a neighbour’s water. The right to divert water which is in a natural watercourse can be acquired as an easement if it persists for a sufficient period.

Once the easement to divert or obstruct a watercourse has been established, the diversion or obstruction cannot be altered subsequently so as to increase the burden on the owner affected. The extent of use is fixed by the type of use that applies during the period during which it was acquired.

In some cases, water easements might be rendered unlawful by legislation on water supply, fisheries, pollution or the environment. At common law, it is possible to have an easement to interfere with water relative to what riparian owners downstream or upstream otherwise have. This includes a right to pollute.

However, in modern times, most pollution is unlawful. An easement right to interfere with water might be possible in some cases while still complying with environmental law.

Easements may be acquired for water flowing in underground streams through known and defined channels in the same terms as surface watercourses. Water in an undefined underground channel seeping through land cannot be the subject of property rights. They cannot be conveyed or acquired as an easement.

Limiting or Augmenting Riparian Rights

A lower-level owner is not entitled to divert a natural watercourse to the detriment of other riparian owners. However, a riparian owner or other third party may acquire an easement to divert a natural watercourse by deed or long use as of right. This right would itself be subject to protection against third parties, including the other riparian owner, once acquired.

Equally, if a person discharges surface water onto the land of another that would not have naturally occurred, he may commit a nuisance and be liable in damages and subject to an injunction. However, an easement to discharge surface water may arise by long use.

In accordance with general principles, the extent of the easement is defined by its use in the period of acquisition. If its use is substantially increased to place a substantially greater burden on the land affected the easement no longer holds.

An easement for an outfall pipe may be established.  This may permit that which should otherwise be a nuisance.  This is a so-called right of eavesdrop.

The right to enter the land in order to clean drains and watercourses will generally be inhere in the easement itself.  The rights may be exercised by independent contractors or public authorities on behalf of the dominant property owner.

Many artificial pipes are constructed under statutory power.  The Public Health legislation, later known as the Sanitary Services legislation, empowers local authorities to install pipes and drains to their areas. Canals and waterways were constructed from the 18th century onwards under statutory powers.

If a person contaminates water in a natural stream, causing sensible (appreciable) alteration in its character or quality, he infringes the rights of lower riparian owners. They may take an action without proof of damage. There may also be statutory rights in underwater pollution legislation. It may also be a criminal offence.

The common law concepts of pollution or interference with water quality required that the contamination was more than trifling or insubstantial. No claim or action arose if it was temporary or too trivial. Changes in the character of the watercourse may include changes in temperature, the addition of hard water to soften the water stream, and pollution, making it unsuitable for use for drinking.

Easement “to Pollute”

Despite the general principles of common law in relation to pollution there are circumstances where legal action may be precluded because the defendant has acquired a  right by way of an easement to cause pollution. If the riparian owner causes pollution confined within its property, no action lies at common law.

The right to cause pollution may arise by statutory authority where the works are authorised. It may arise by long use or custom. However, pollution is generally prohibited under statute in almost all circumstances under modern environmental legislation.

Easement to pollute can arise by long use. For example, the right to wash away stone and discharge water containing substances from a mine was established.  It is a principle that an easement may be acquired only for a lawful use.  Accordingly, the extent to which an easement to pollute may now be acquired is now severely limited

An easement is unlawful unless it complies with the water pollution legislation. An easement to cause a public nuisance could never be acquired.  Accordingly, an easement to flood, cause substantial pollution such as to endanger public health could never be acquired.

Customs and Statute

An easement may be claimed by custom by the inhabitants of the district. Such easements include the right to take water from a spring. It must not be for the benefit of the public at large and must be sufficiently certain.

Right similar to easements rise in relation to water under statute. There are extensive rights for pipes, sewers, and drains for water supply and waste disposal under the Water Services Act and Sanitary Services legislation.