Odger's English Common Law

GRANTS, EXPRESS AND IMPLIED. 567
in gross. An easement must be connected with a dominant
tenement." 1
(ii.) Easements may be acquired by grant, express or
implied, or by prescription.
(a) Cases of express agreement are comparatively rare and
present little difficulty, as the rights of the parties are regu-
lated by the instrument which creates the easement. Strictly
such an instrument should be under seal, for at common law
an incorporeal hereditament could only be created by a deed.
In the present day, however, an objection that there is no
seal will not be allowed to prevail, where it is in the opinion
of the Court inequitable to insist upon it—as where it has
been agreed that money should be paid for the right, or
where the owner of the servient tenement has either by
acquiescence or express consent induced the owner of the
dominant tenement to incur expense in the erection of per-
manent works. 2
Moreover, an agreement to grant an easement
will be enforced, if it be in writing so as to satsify section i
of the Statute of Frauds ; so will even a verbal agreement
to grant an easement which has been partly performed. 3
(b) Easements may also arise by implied grant, e.g., where
the owner of property severs it into two or more portions,
either retaining one in his own possession or disposing of
both to different purchasers. In such a case the benefit of
all ''continuous and apparent" easements will pass to the
purchaser without an express grant, on the principle that
u no man shall derogate from his own grant." But a
corresponding reservation of easements will not be implied
against the purchaser in favour of a tenement retained by the
Thus upon a
vendor except in cases of absolute necessity. 4
general conveyance of land there is no implied grant by the
purchaser of an easement of light necessary for the enjoyment
of an adjacent house retained by the vendor. 5
1 Per Lord Cairns, L. J., in Rangeley v. Midland By. Co. (1868), L. R. 3 Ch.
at p. 311.
2 The Duke of Devonshire v. Eglin (1851), 14 Beav. 630 ; and see Plimmer t.
Mayor of Wellington (1881), 9 App. Cas. 699.
3 McManus v. Cooke (1887), 35 Ch. D. 695.
'* Davies v. Sear (1869), L. R. 7 Eq. 427.
» Ellis v. Manchester Carriage Co. (1876), 2 C. P. D. 13.