Common Law

Natural rights theory

It must be remembered that an easement is a specific right subtracted from the general rights constituting ownership of one property and attached to the ownership of another property. In the language of the Act an easement is a restriction of a natural right. An easement, therefore, must be distinguished from natural rights. The latter, as their name imports, are those incidents and advantages which are provided by nature for the use and enjoyment of a person’s property. They are part of the ownership rights. the illustrations to S. 7 of the Easements Act furnish instances of such natural rights. One of such natural rights is the right of every owner of upper land that water naturally rising in or falling on such land, and not passing in defined channels, shall be allowed by the owner of the adjacent lower land to run naturally thereto. Thus the right of the owner of a high land to drain off its surplus surface water to the adjacent lower lands is incidental to the ownership of the land.

Natural rights, as their name imports, are those incidents and advantages, which are provided by nature for the use and enjoyment of a man’s property. These rights are treated by law as the ordinary incidents of property and annexed to land whatever land exists. Generally speaking, it may be said that the function of natural rights is to secure to the owner of land the full enjoyment thereof undiminished by any tortious acts on the part of his neighbour. In considering the acquisition of easements a material effect of the distinction easements and natural rights is to be noticed. Easements can only be created and conferred by the act of man, whereas natural rights arc incident to land, and to them the owner of land has as much right as he has to the land itself, without the direct intervention of human agency — that is, without any act of creation and gift by the servient owner, and without any act of acquisition on his own part. (Goddard on Law of Easements, 7th Edition at page 126). Natural rights though resembling easements in some respects, are clearly distinguishable from them. The essential distinction between easements and natural rights appears to lie in this that easements arc acquired restrictions of the complete rights of property, or, to put it in another way, acquired rights abstracted from the ownership of one man and added to the ownership of another, whereas natural rights are themselves part of the complete rights of ownership, belong to the ordinary incidents of property and are ipso facto enforceable in law. Natural rights are themselves subject to restriction at the instance of easements. It is also necessary to notice the distinction between easement and licence. The chief distinction is that whereas an easement cannot be extinguished merely at the will of the grantor, a licence is, generally revocable at the will of the person who has given it.

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