Odger's English Common Law

EASEMENT. 25
An easement may be acquired by grant or prescription. A
grant is the express conveyance by a deed under seal of land
or rights over land from one man to another. If an owner
in fee simple expressly grants a right over his own land to
the owner of another piece of land, the latter owner at once
acquires an easement. But very often, although the parties
obviously intended to create an easement, they omit any
express mention of it in the deed. The Court will then some-
times read into the deed a grant of such an easement ; this is
called an implied grant. Thus, if an owner of land grants to
another a part of it so situated that the grantee can only obtain
access to it by passing over the part retained by the grantor,
the Court will conclude that the grantee was intended so to
pass and will imply a grant of " a way of necessity."
Again, an easement may be acquired by prescription. If
the occupiers for the time being of the dominant tenement
have exercised the right for a number of years openly, peace-
ably, uninterruptedly, and without any express permission
from the owner of the servient tenement, the Court will deem
that a user as of right continued for so long a period must
have had a lawful origin, and will permit the present occu-
piers of the dominant tenement to continue to enjoy it. 1
Lord Ellenborough once said that he would, if necessary,
presume a hundred lost grants whenever people have for a
long period of time been doing something which they would
have no right to do, unless they had a deed of grant. 2
A private right of way is an easement. We have already defined a public
right of way. 3 There, no doubt, the soil belongs to one man, though the
public have rights of various kinds over a definite strip of it which is
called a highway. But a public right of way is not an easement, for there
is no dominant tenement, and the public are incapable of taking a grant of a
right from any one. Any member of the public is entitled to use a high-
way, although neither he nor any of his ancestors have ever yet set foot on
the spot or owned any land in the neighbourhood. A private right of way
is wholly distinct from this right of the public. It exists only in the
owner of the dominant tenement ; it can be exercised only by the occupier
1 This mode of acquiring an easement is largely controlled by the Prescription
Act, 1832 (2 & 3 Will. IV. c. 71) j see Disturbance of Easements, Sac, post, pp. 570
572.
* And see L.