18-Geom-B5 Survey Law · May 2014
Nivaar worked solution (AI-drafted; not reviewed by a licensed engineer)
National Exams — May 2014 — 04-Geom-B5 Survey Law. Three hours; CLOSED BOOK, NO CALCULATOR. Twelve questions constitute a complete paper (the first twelve as they appear are marked); most answers require sentence-and-paragraph format. All twelve questions are solved in full below. Content is framed in the Canadian common-law and Ontario land-registration context named by the source.
Reference texts: Survey Law in Canada (Canadian Council of Land Surveyors / Carswell, 1989); Brown, Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th ed., Wiley, 2017); Ontario Land Surveyor educational materials and the Association of Ontario Land Surveyors (AOLS) Survey Review; the Land Titles Act, R.S.O. 1990, c. L.5, the Registry Act, R.S.O. 1990, c. R.20, the Surveys Act, R.S.O. 1990, c. S.30, and the Condominium Act, 1998, S.O. 1998, c. 19; Re Ellenborough Park, [1956] Ch. 131 (C.A.).
Question text not reproduced: the examination questions are © Engineers and Geoscientists BC. Open the official past paper (linked at the top of this page) to read the question, then follow the worked solution below.
An easement is a proprietary right that one parcel of land enjoys over another — for example a right of way, a right of drainage, or a right of support. The classic statement of what is required is found in Re Ellenborough Park, [1956] Ch. 131, which fixed four essential characteristics without all of which no easement can exist.
1. There must be a dominant and a servient tenement. An easement cannot exist "in gross"; it must attach to a piece of land (the dominant tenement) that enjoys the benefit and burden a piece of land (the servient tenement) that bears it. A right personal to an individual, unconnected to land, is a licence or a contractual right, not an easement.
2. The easement must accommodate the dominant tenement. The right must confer a benefit on the dominant land as land — improving its use or enjoyment — and not merely give a personal or commercial advantage to the current owner. The dominant and servient tenements must also be reasonably proximate for the right to accommodate.
3. Dominant and servient owners must be different persons (diversity of ownership). One cannot have an easement over one's own land, because a landowner may already do anything on his own land; the right only becomes an easement when the two tenements are in separate ownership or occupation.
4. The right must be capable of forming the subject-matter of a grant. This means there must be a capable grantor and a capable grantee, and the right must be sufficiently definite in nature — not a vague claim (such as a right to a "view" or to general recreation) and not one that amounts to exclusive possession or a claim to the servient owner's whole beneficial use.
Beyond these four characteristics, an easement must be created by a recognised legal mode: express grant or reservation in a deed, implication (necessity, or under the rule in Wheeldon v. Burrows), prescription (long uninterrupted use as of right, where still available), or by statute. To bind successors and be enforceable against a purchaser it should be registered against title.
