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An easement grants the owner of one piece of land, a utility company or another entity the right to do something on land owned by someone else. It also creates a duty for the landowner to allow use of the land as described in the easement. A water easement refers to the right of a landowner or other entity to have access to water lines, drainage or water sources on property owned by someone else.
In legal terminology, the rightful user is referred to as the "dominant tenement." Two pieces of land located along the banks of a creek or river both have access to the water. The person who owns the land downstream owns the dominant tenement. The person who owns the land upstream is the servient tenement. In other words, the upstream landowner may not violate the water easement of the downstream landowner by damming the water flow and denying access to the benefits of the water to that person.
A water easement can be created in a variety of ways, and deeds may include a clause stating the terms of any water easement or other easement. An express grant creates a Deed of Grant that separately describes the easement. Easements of necessity may be recognized in case of providing transportation to a dominant tenement if the route is the only means of access between public highway and the land. For example, a barge might need to land near a road that does not otherwise pass through the dominant tenement. Easement by prescription happens when someone performs an action repeatedly and in the open without the landowner's permission for a period of 20 years or more, such as using someone's pond, lake, stream or well.
An easement instrument is a document that legally and officially records the existence and description of the easement. It generally specifies conditions of easement, such as the rights and duties of each tenement. After the document has been created and signed, it is registered on the titles to both or either piece of land. It is usually recorded with the deed in the office of the agency that handles deeds and similar documents for the specific jurisdiction in which the easement exists.
Some types of easements do not require recording or registration, such as those created by legal statute. Utility companies and government agencies must be able to convey water through water pipes in order to provide healthy, usable water to citizens. This provides a legal easement granting the entity in question access to property to install, maintain and service the water pipes. Some properties require a water easement that allows for the draining of water or sewage.
In order for an easement to exist, there must be a servient tenement that grants a benefit to a dominant tenement, specific rights must be set forth, the dominant tenement must not pay for the easement rights, and exclusive rights of occupation cannot be granted. In the United Kingdom, the Law of Property in 1925 says that any doubts as to the existence of a water easement or other easement calls for heavy favor toward its existence. Proving an easement does not exist can be difficult. One such way to do so is to prove the easement was created because of an illegal act.
It is very difficult to dissolve easement rights, but the law does grant the servient tenement owner the right to peaceful enjoyment and legitimate development of his or her own land. Easements do not end when property is sold or bequeathed but carry forward until legally dissolved. They may be dissolved through mutual agreement of both tenements or upon providing proof that the easement is redundant and is no longer needed, such as in the case of a newly built road that does not cross the servient tenement. Easements granted as a condition of subdivision or that grant a right of way may not be removed.
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