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Easement Rights
Author, Javed Razack, Advocate

There are several villages in the midst of agricultural lands and there are houses surrounded by
other houses. The local inhabitants of these places have one common disadvantage they do not
have direct access to the road. To reach the public road they have to pass through someone elses
property.

There are several acres of sprawling agricultural lands for which water has to flow through
adjoining lands. There are some remote areas where people still collect water from a distant
water body, walking over a long stretch of land , which does not belong to them. The owners of
such lands, on the other hand, cannot deny these trespassers.

The Easements Act of 1882 clearly says that people are privileged to use the land out of
necessity and /it is the privilege of the people to use the land out of necessity, which the owners
cannot deny.

The word Easement stands for the right to use anothers property. It is a right, which the owner
of a particular land enjoys over an adjacent property, which he does not possess. It is the right
over a property belonging to someone else and not to the person claiming easement.
The landowner who gets the benefit from the property which is not his own and over which he
has a right is called dominant heritage or dominant tenement and the owner of such a land is
called the dominant owner. Dominant because the owner has control over the use of that
particular land which he does not possess.

Here the property of the actual landowner who cannot object to the other using his land is called
servient heritage or servient tenement and the owner of such a land is called servient owner.
Servient or subordinate because he has to abide by the requirements and convenience of the
dominant owner. In fact, whether he likes it or not, it is a burden brought to bear on him by grant,
by custom or by prescription.

X owns a piece of land. Y has the right of way over it. Here X is the servient owner and has the
servient heritage. Y is the dominant owner and he has the dominant heritage.

In short, Servient Heritage means an inherited property over which the dominant owners have a
right to use it to their advantages and Dominant Heritage means inheriting a right over anothers
property without owning it.

The title to easement may be by grant, by custom or by prescription. When an easement is

acquired by grant, the deed of easement may be separate or the grant may be included in a deed
relating to the dominant heritage. For example, X sells his land to Y and by the same deed he
may grant a right of way to Y for such land or for another land of his.

Grant is given by an agreement executed by the grantor in favour of the grantee for a
consideration. The grant becomes effective when the grantee has the right to enter upon the
grantors land.

Prescription means getting a right by continuous assertion of the right, which has been in use for
a long period of time. According to the Indian Easements Act, for example, the inhabitants of a
building enjoying the access and use of air and light as a right, continuously for over 20 years
,have the right to enjoy them without any condition or restriction.

Easement by virtue of custom is a legal right acquired by the operation of law through
continuous use of a land over a long period of time.

Therefore, the right of way continues to exist by grant, prescription or by virtue of custom.

The dominant owner has the right over the property of the servient or subordinate owner. It is a
privilege enjoyed by the dominant owner over the property, which he does not own. The servient
owner cannot enjoy his own property. He cannot do anything on his own land and he is bound to
suffer because of the advantageous position of the dominant owner. If at all the servient owner
does something on dominance own property, the dominant owner has the right to prevent it.

Thus in an easement, there must be a dominant owner and a servient owner.It must be to the
advantage of the dominant owner that may be permanent or temporary, or for a limited period of
time or seasonal or for a specified event or out of necessity. Here, the owners must be two
different persons and capable of forming/ writing the subject matter of a grant.

There are several types of easement. Right of way, right to air and light, riparian rights, right to
build, right to uninterrupted flow of water, are a few.

Easements, which are the subject matters of agreement between the parties are : right of way and
right to air and light. Some easements are acquired by grant and others by prescription and
custom. We are dealing with easements, which form subject matters of grant.

Creation of an easement does not mean transfer of property. In the same manner, surrendering an
easement right does not imply transfer of property. Easement can be made, altered and released.
Easement right cannot be created or modified orally. It must be in a written form. However,
easements by prescription and custom need not be in writing.