Profit A' prendre is a form of property in land. The holder of this form of property is at liberty to detach portions of the land and take possession of them or to fish or hunt.
Contrast a licence. A licence authorizes someone to make use of land in a way that does not qualify as a Profit. For example, permission to park a car on land for a week is probably a licence. It serves as a defence against a trespass claim by the estate holder, but is unenforceable unless it is a contractual licence. A licence is not a form of property in land.
An easement is a form of property in land. The holder of an easement in land defeats an estate holder in that land if the issue is the manner in which the easement holder uses the land in some prescribed way. The easement protects the easement holder’s use of the land against the estate holder. An easement holder can also inhibit the estate holder’s use of the land.
There are four prerequisites that must be proved to establish the existence of an easement.
a) there must be a dominant and a servient tenement.
Tenement means land. The dominant land is the land that benefits from the easement. The servient land is the land in which the easement is held. Assume A and B. Both A and B hold estates in fee simple in lands adjacent to one another. If A were to hold an easement that allowed him to walk across the land in which B holds an estate to reach his land, A's land, in this example, would be a dominant tenement and B's land would be the servient tenement
b) an easement must accommodate the dominant tenement.
The plaintiff must establish that the nature of the easement claimed serves the dominant tenement and is reasonably necessary for the enjoyment of the land. The servitude must have a connection with the land. For example, assume A claims to holds an easement in the land of B that allows A to walk across the land of B. Assume further that B's land is in London, Ontario. A's land is located in Windsor. To prove that A holds an easement A must give evidence(1) that shows that his walking across B's land of is in some way necessary to the enjoyment of his land. The fact that this arrangement(2) between A and B might be of some value to B would not suffice in proving that it was necessary for the enjoyment of A's land. The necessity must relate to the use of the land, not simply to a benefit that may be enjoyed as a result of the arrangement for the arrangement to be considered an easement.
c) the holder of the dominant tenement must be a different person than the holder of the servient tenement.
This requirement is self-explanatory.
d) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
A claim must not be vague or uncertain, and must be capable of a definition to form the subject matter of a deed of grant. There must also be a grantee and grantor that were able to either acquire or transfer a form of property by grant. For example, a claim put forward by a vague group of persons, such as the population of a village will not succeed. The claim must be put forward by a person.(3)
An easement may be created by deed, by implication and by prescription.
As an easement is a form of property in land it can be created and transferred by grant. The four prerequisites of an easement must still be proved. An easement cannot exist if facts that prove the four prerequisites do not exist. Without the existence of the four prerequisites the words in the deed that may look like an easement would probably only amount to a contractual right personal to and only enforceable between the two contracting parties.
An easement may be created by implication. The important question here is implication from what? The deed, that’s what, or, more correctly, the common intention of the parties by implication from the deed.
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Assume an aerial view of a subdivision. B has granted to A an estate in fee simple. The remaining lots are impassable and A does not own a helicopter. In this situation, there is an implication from the grant that it was the common intention of the parties that A should hold an easement that would allow him to gain access to his land by crossing the land of B.
An easement may also be created by continued use of the land of another over a period of time. The Ontario Limitations Act sets out the relevant periods of time that must lapse for an easement to be created. Section 31 reads as follows;
No claim that may be lawfully made at common law, by custom, prescription or grant, to any way or other easement, or to any watercourse, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by a person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
A claim of easement that is based on use of land of another for a period of at least forty years will be defeated if (a) the use of that land was forced, or (b) the use of that land was done in secrecy, or (c) there is proof of written consent.
A claim of easement based on use of the land of another for a period of at least twenty, but less than forty years, will be defeated if (a) the use of that land was forced, or (b) the use of that land was done in secrecy, or (c) there is proof of consent.
Section 31 states that the use of the land must be "without interruption". This does not mean that the person claiming the easement must have continuously used the land of another in a prescribed manner. Rather, it means that the person claiming the easement must not have been obstructed from using the land in that prescribed manner.(4) Section 32 of the Limitations Act sets one year as the period that a person claiming an easement must be obstructed to disprove the creation of an easement based on use of that land over time.
1. I cannot think of any evidence that would suffice to
prove that walking across B's land in Windsor would benefit the land of A's
in London. This does not mean that I am prepared to state with certainty that
these facts, assuming the other elements are provable, could never amount
to an easement.
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2. It is possible that A, on these facts, holds a licence
that allows him to walk across the land of B.
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3. Keep in mind that a person at common law includes a corporation.
This would enable the Corporation of the City of London to bring a successful
claim or to grant an easement. If a corporation were to exceed its capacity
in trying to grant an easement the claim would fail. This is an example of
the requirement that the grantor must be capable of making the grant.
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4. For example, a person that has used a piece of another’s
land for fifty years to park his car while at the cottage for the summer would
not be interrupted in that use simply because the car was never parked there
during the winter. For the use to be interrupted the holder of the estate
in that land must have in some way prevented that person from parking his
car in that location for at least one year.
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