LAWOFEASEMENTS:ABRIEF

OVERVIEWOFTHEINDIAN
EASEMENTSACT,1882

 WHATISANEASEMENT?
aisementum
The term easement comes from the Old Latin word meaning comfort,
convenience or privilege and it developedintoalegalrightorprivilegeofusingsomething
not one's own" from the early 15c. An easement is the grant of a nonpossessory property
interest that grants the easement holder permission to use another person's land. In simple
terms, it refers to the right which a man sometimes has over one piece of land byreason of
hisownershipofanother.
According to Section 4oftheIndianEasementAct,1882definesitasfollows:Aneasement
is a right which the owner or occupier of certain land possesses, as such, for the beneficial
enjoyment of that land, to do and continue to do something, or to prevent and continue to
preventsomethingbeingdone,inorupon,orinrespectofcertainotherlandnothisown.
Easements are nowhere defined in English law. Lord Esher in
Metropolitan Railway v.
Fowler
defines it as some right which a person has over land which is not his own. The
English Court introduces them by saying: The common law recognised a limited number of
rights which one landowner could acquire over the land of another and these rights were
called easements and profits. Examples of easements includes rights of way, rights of light
(Megarry and Wade, para 27001).
and rights of water. There is noclosedlistofeasements,
asthereisofservitudesinsomecivillawjurisdictions.

HISTORICALBACKGROUNDOFEASEMENTS
The concept of easementcanbetracedtoantiquityanditissaidthateasementisasoldasthe
concept of property itself. The earliest reference of easements is found in Halhed Gentoo
Code which is a compilation of the ancient Hindu lawsinforceduringtheperiod17731775
in India under the direction of Warren Hastings. Fromthecodeitappearsthatapersonhada
right of easement in respect of privacy, light, air and discharge of water through drains.The
ancient Hindu law text Vivada Chinthamani also makes a reference to the concept of
easements.
Hamiltons edition of the Hedaya digest shows that a right in the nature of a waste land is
acquired by one who digs a well in the waste land that no one shall dig within a certain
distance of it so as to disturb the flow of water. It also recognises other easmetary rights
which include the right to water for irrigation and the right to discharge water ontheterrace
ofanother.
The concept of easements were known as by an umbrella term called as servitudes in
Roman law which was broader than the former. Praedial Servitudes was the Roman law
equivalent of Easement relating to immovables. Servitudes were divided into two types
namely., (a). Rural Servitudes (Right of way for man, passage for animals, etc.,) (b). Urban
Servitudes (Right to support to buildings, Right toLight,etc.,).Servitudeisadevicethatties
rights and obligations to ownership or possession of land so that they run with the land to
successiveownersandoccupiers.
The whole bundle of rights which constitute the complete ownership of property was called
dominium,
as dominium
servitudes were regarded as fragments of severed from the original
stock and granted to some person other than the original proprietor in restriction of the
latters absolute ownership. It was referred to as servitudes because the property, over
which they exercised, became subject to a sort of slavery, as it were for the benefit of the
dominantowners.
Thenotionofeasementsduringitsearlydaysin EnglandwasanadmixtureofRoman,Saxon,
Danish and Briton Law. In this period, the remedy for disturbance of an easement lay by
action for damages in law or a suit for injunctions in equity.Aftertheabolitionoftheequity
courtsbyvirtueoftheJudicatureAct,1873bothremedieswereavailableintheCourts.

EASEMENTDIFFERENTIATEDFROMOTHERCONCEPTS
An easement involves arighttousetheother'sland,arealcovenanttherightto insistthatthe
other perform a land related duty, and an equitable servitude the right to control the use to
which the other may put his land. Examples are, respectively, a right of way to cross over a
neighbor's land, a right that a neighbor share the costofmaintainingaboundaryfence,anda
rightthataneighbornotusehislandforcommercialpurposes.
The ownership of an easement is a mere right which confers certain rights over the land in
question, but never any exclusive right to possession. In common law, an easement came to
be treated as a property right in itself and is still treated as a kind of property by most
jurisdictions. In some jurisdictions, another term for easement is equitable servitude,
althougheasementsdonothavetheirorigininequity.
An easementary right is often described as the right to use the land of another for a special
purpose. Unlike a lease, an easement does not give the holder a right of "possession" of the
property, only a right of use. It is distinguished from a licencethatonlygivesoneapersonal
privilege to do something even more limited on the land ofanother.Anexampleofalicense
is the right to park a car in a parking lot with the consent of the parkinglotowner.Licences
in general can be terminated by the property owner much more easily than easements.
Easements also differ from licences in that most easements (easements appurtenant) are
attached to and benefit another parcel of land, not a specific person. This means that a
property that enjoys an easementoveranotherwillcontinuetoenjoytheeasementevenifthe
propertygetstransferredtoadifferentowner.
profitaprendre
A referstotherightto removeandappropriateanypartofthesoilbelonging
to another, or any other thing growing upon or attached to the soil for the purpose of the
profit to be gained from the property, thereby acquired, that is, for example, a right to take
gravel,stone,treesandsoforth.
(ChundeeChurnRoyv.ShibChunderMundul).
Historically, the common law courts would enforce only four types of easement: the
rightofway(easementsofway),easementsofsupport(pertainingtoexcavations),easements
of "light and air", and rights pertaining to artificial waterways, although this is not so now.
Traditionally, it was a right that could only attach toanadjacentlandandwasforthebenefit
ofall,notaspecificpersonthisisalsonolongertrueinmanyjurisdictions.

DOMINANTANDSERVIENTHERITAGE
The landowner who will benefit from the property which is not his own and over which he
has a right is called dominant tenement and the owner of such a land is called the dominant
owner because the owner has control over the use of that particular land which he does not
possess.
The actual landowner who cannot object to the other using his land is called servient
tenement andtheownerofsuchalandiscalledservientownerbecausehehastoabidebythe
requirements and convenience of the dominant owner. In fact, whetherhelikesitornot,itis
a burden brought to bear on him by grant, by custom or by prescription. He cannot do
anything on his own land which affects the dominant heritage and he is bound to suffer for
theadvantageofthedominantowner.
Servient Heritage means an inherited property over which the dominant owners have a right
to use it to their advantages. Dominant Heritage means inheriting a right over anothers
property without owning it. According to Section 4 of the Indian Easements Act,1882The
land for the beneficial enjoyment of which the right exists is called the dominant heritage,
and the owner or occupier thereof the dominant owner the land on which the liability is
imposed is called the servient heritage, and the owner or occupier thereof the servient
owner. X owns a piece of land. Y has the right of wayoverit.HereXistheservientowner
andhastheservientheritage.Yisthedominantownerandhehasthedominantheritage.
The dominant and servient owners have certain rights and obligations to maintain and
preserve the easement. While exercising his right over the property of the servient heritage,
thedominantownerhasresponsibilitiestopreservetheeasement.Hisactsanddeeds shallnot
put the servient owner into inconvenience. Being the actualuserheshallrectifythedamages
ifanycausedbyhisactsathisownexpense.
The servient owner is not obliged to do anything for theadvantageofthedominantheritage.
He has no liability whatsoever to construct a way for the use of the dominant owner or to
carry out repairs incaseofanydamagetothepassageway.Astheholderofthepropertyheis
free to use the servient heritage in any manner he likes, but his acts shall notdilutetheright
ofthedominantowner.

REQUIREMENTSOFAVALIDEASEMENT
The essential features of aneasement,inthestrictsenseoftheterm,arethereforethese:(a)It
is an incorporealrightarighttotheuseandenjoymentoflandnottothelanditself(b)itis
imposed upon corporeal property (c) it requires for its constitution two distinct tenements
the dominant tenement which enjoys the right, and the servient tenement whichsubmits
to it. This last characteristic excludes from the category of easements the socalled
easements
in gross, such as a right of way conferred by grant independently of the
possession of any tenement by the grantee. The true easement is an " appendant " or "
appurtenant " easement, not an easement in gross. Both the Indian as well as the English
Law of easements does not recognize the concept of easements in gross as they do not
compriseofthedominantandservientestate.
In order to assess the validity of an easement it is essential to look both at its substantive
characteristics and at the way in which it has been created. The characteristics that are
necessary for the validity of an easement has been laid down by the decision in
Re
Ellenborough Park. The Court of Appeal had to decide the status of a right for residents to
use a garden in the middle of a square around which their houses were built. Thatcasegave
risetothefourwellknowncharacteristicsofeasementsviz.,
(1)theremustbeadominanttenementandaservienttenement
(2)theeasementmustaccommodatethedominanttenement
(3)thedominantandservienttenementsmustbeownedbydifferentpersonsand
(4)theeasementmustbecapableofformingthesubjectmatterofagrant.
In India, there are two more requirements namely that the easement should be for the
beneficial enjoyment of the dominant tenement and that the easement should entitle the
dominant owner to do or tocontinuetodosomething,ortopreventortocontinuetoprevent,
somethinginoruponorinrespectoftheservienttenement.(C.Mohammedv.Ananthachari)
The courts have from time to time rejected claims to easements on the ground that the right
would be too wide and vague. In
Hunter v Canary Wharf Limited, although the right to
television reception was not pleaded as an easement, the House of Lords nonetheless
considered the issue. Lord Hoffmann concluded thatsucharightshouldnotberecognisedas
itwouldplaceaburdenonawideandindeterminatearea.
As already pointed out there must be a dominant owner and a servient owner, it must befor
the advantage of the dominant owner, it may be permanent or temporary, or for a limited
period of timeorseasonalor foraspecifiedeventoroutofnecessity,theownersmustbetwo
differentpersonsanditmustbecapableofformingthesubjectmatterofagrant.
profitaprendre
The Indian law relating to Easements includes provided it issupportedbya
(profitaprendre appurtenant)
dominant and servient heritage . This is to be contrasted with
profitaprendre
the English Law wherein and easements are separated.However,theIndian
positionissuchthatitdoesnotrecognize
profitaprendreingross.

CREATIONOFEASEMENTS
The title to easement may be bygrant,bycustom,byprescriptionornecessity. Aneasement
can be acquiredbygrant.Agrantisgivenbyanagreementexecuted by agrantorinfavourof
a grantee for a consideration. The grant becomes effective when the grantee has the right to
enter upon the grantor's land. 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
bythesamedeedhemaygrantarightofwaytoYforsuchlandforanotherlandof his.Grant
is given by an agreement executedbythegrantorinfavourofthegranteeforaconsideration.
The grant becomes effective when the grantee has the right to enter upon the grantorsland.
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 continuesto
existbygrant,prescriptionorbyvirtueofcustom.
Easements, which are the subject matters of agreement between the parties, are for right of
way, right to air and light. Some easementsareacquiredbygrantandothers prescriptionand
custom. 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
writtenform.However,easementsbyprescriptionandcustomneednotbeinwriting.
A deed of grant must clearly mention the purpose ofwhicheasementisgranted.By thedeed
of grant the subservient owner gives full and free right to the dominant owner and his
successors a passage wide enough for movement of people and vehicles between the
dominant owner's premises and the public road against a price consideration. In Moody v
Steggles the grantofarighttofix asignboardtotheadjoiningpropertyadvertisingthepublic
housewhichconstitutedthedominanttenementwasheldtocompriseaneasement.

DURATIONANDNATUREOFEASEMENTS
According to Section 6 of the Indian Easements Act,1882Aneasementmaybepermanent,
or for a term of years or other limited period, or subject to periodical interruption, or
exercisable only at a certain place, or at certain times, or between certain hours, or for a
particular purpose, or on condition that it shall commerce or becomevoidorvoidableonthe
happening of a specified event or the performance or nonperformance of a specified Act.
The nature of easements is described in section 7 of the Indian Easement Act, 1882 which
statesthateasementsarerestrictionsofoneorotherofthefollowingrights(namely):
(a) Exclusive right to enjoy The exclusive right of every owner of immovable property
(subject to any law for the time being in force) to enjoy and dispose of the same and all
productsthereofandaccessionsthereto.
(b) Rights to advantages arising from situation The right of every owner of immovable
property (subject to any law for the time being in force) to enjoy without disturbance by
anotherthenaturaladvantagesarisingfromitssituation.

 TYPESOFEASEMENTS
There are several classifications of easements which is to be noted. The types of easements
varies from country to country. Some of the notable types are enumerated herein. They are
a)affirmativeor
dividedinto( positive,thosewhichauthorizethecommissionofanactbythe
dominant owner,
e.g. rights of way, a right to draw water from a spring, rights of aqueduct,
and
negative, when the easement restricts the rights of the servient owner over his own
property,
e.g. prevents him from building on land soastoobstructancientlights(cf.alsothe
right to the support of neighbouring soil) (
b) continuous, of which the enjoyment may be
continual without the interferenceofman,
e.g.accesstolight,and
discontinuous,wherethere
e.g.
must be a fresh act on each occasion of the exercise of the right, a rightofway,orright
to draw water (
c)apparent,wheretherearevisibleexternalsignsofthe exerciseoftheright,
e.g. a right to dam up a watercourse, and
nonapparent, where such signs are absent,
e.g. a
right to lateral support from land, a prohibition to build above a certain height. The Indian
Easement Act,1870expresslycodifiesseveraltypesofeasements,theireffects andtheextent
towhichtheyextendandwhentheycease.

EASEMENTSBYPRESCRIPTION
Prescription means getting a right by continuous assertionoftheright,whichhasbeeninuse
for a long period of time. Thus, to establish in a Court of law,arightofeasementbywayof
prescription,thefollowingcriteriaaretobesatisfied:
a). There must be a preexisting easement which must have been enjoyed by the dominant
owner
b).Theenjoymentmusthavebeenpeaceable
c).Theenjoymentmusthavebeenasaneasement
d).Theenjoymentmusthavebeenasofright
e).Therightmusthavebeenenjoyedopenly
f).Theenjoymentmusthavebeenforaperiodoftwentyyears
g).Theenjoymentfor20yearsmusthavebeenwithoutinterruptionand
h). The period of twenty years must have ended within a period of two years immediately
precedingthedateofsuitclaimingsucheasement.
The first seven points were specifically pointed out by the honourable High Court of Kerala
Krishnanv.Nanukuttan
in reportedinILR1986(1)Kerala526.
However, if such enjoyment is based on an agreement between the parties, which states
expressly orimpliedlythattheenjoymentisnotasaneasement,theprincipleofSection15of
the Easements Act will not apply. Further, in ordertoconstituteaninterruption,thereshould
be a cessation of enjoyment by an obstruction created by a person other than the claimant,
and the claimant should not have acquiesced to thesame.Also,ifapersonenjoysthebenefit
under alifeinterestoraninterestfixedataperiodofoverthreeyears,thenthatperiodwillbe
excluded from the calculation of the twenty years according to Section 16 of the Easements
Act.
Section 17oftheEasementsActprovides that thefollowingeasementscannotbeacquiredby
prescription: (a). An easement that imposes a liability on the property or would lead to the
total destruction of the property (b). A right to the free passage of light or air to an open
space of ground c). A right to surfacewater not flowing in a stream and not permanently
collected in a pool, tank or otherwise d). A right to underground water not passing in a
definedchannel.

EASEMENTOFNECESSITY
An easement of necessity is implied only where the right is essential for the use of the land
granted or retained. The question is not whether it is necessary forthereasonableenjoyment
of the land but whether theland canbeusedatallwithouttheimpliedgrantorreservation.A
claim will only be successful where the land is absolutely inaccessible or useless without
the easement. The most obvious example of a situation in which an easement of necessity
may be implied is where a grantor conveys an entire plot of land except for a piece in the
middle, which is completely surrounded by the part conveyed. Unless the reservation of a
right of way over the land granted is implied, the land in the centre would be completely
landlocked. An easement of necessity will not, however,beimpliedmerelybecauseitmakes
it more convenient to use the land. An easement of necessity is coextensive with the
necessity, as it existed when the easement was imposed.
These easements arise on the
severanceoftenements.Theyaresaidtobecreatedbyimpliedgrant.
To take a concrete example, if the owner of a certain field, who irrigates his entire field by
taking water from a well situated withinfield,sellsapartofthefieldnotcontainingthewell,
but retains the part containing the well, the question would naturally arise whether the
purchaser has righttotakewaterfromthevendorswelltoirrigatehispart.Ifthepartieshave
settled this question by specific mention in the deed of conveyance, their common intention
as so expressed must be given effect to. But if the deed ofconveyancecontainsnoreference
to this point, law would grant to the purchaser of the partheritage an easement in favour of
the said part heritage to take water from the well situated in the other partheritage retained
by the vendor. According to the caseof
MuhammadRamzanv.NaseerBeg,1980CLC1555,
the plaintiff must not only prove existence of right of easement at the time of transfer of
propertytohimbutalsosuchrightbeingnecessaryforenjoyingtransferredproperty.

QUASIEASEMENTS
The principle of quasi easement is that where the one portion of the property has been
dependant on another portion for necessary advantages and the former portion is alienated,
the denial to the grantee of the enjoyment of similaradvantageswouldbeto deprive hisnew
acquired property of utility and benefit of his bargain. A quasi easement will not come into
existence if it is expressly excluded by the terms of the grant or are inconsistent with the
intentionoftheparties.

TERMINATION,SUSPENSIONANDREVIVALOFEASEMENTS
Generally, merenonusedoesnot endaneasement.Oneormoreofthefollowingfactorsmay
alsohavetobepresent:
Extinctionbydissolutionofrightofservientowner:
When, from a cause which preceded the imposition of an easement, the person by whom it
was imposed ceases to have any right in the servient heritage, the easement is extinguished.
For example, A transfers Sultanpur to B onconditionthathedoesnotmarryC,Bimpressan
easement on Sultanpur. Then B marries C, Bs interest in Sultanpur ends, and with it the
easementisextinguished.
Agreementtoterminatebygrantorandthegranteeoftheeasement:
An easement is extinguished when the dominant owner releasesit,expresslyorimpliedly,to
the servient owner. Such release can be made only in the circumstances and to the extent in
and to which the dominant owner can alienate the dominant heritage. An easement may be
released as to part only of the servient heritage. Similarly as per section 39 of the Indian
Easements Act, 1870 an easement is extinguished when the servient owner, in exercise of
powerreservedinthisbehalf,revokestheeasement.
Expirationofthetimeallowedfortheeasement:
An easement is extinguished where it has been imposed for a limited period, or acquired on
condition that it shall become void on the performanceornonperformanceofaspecifiedact,
andtheperiodexpiresortheconditionisfulfilled.
Abandonmentorexpressedintenttodiscontinueuseoftheeasement:
A continuous easement or a discontinuous easement is extinguished whenittotallyceasesto
be enjoyed as such for an unbroken period of twenty years. With respect to a continuous
easement, from the day on which its enjoyment, was obstructed by the servient owner or
rendered impossible by the dominant owner and, in the case of a discontinuous easement,
fromthedayonwhichitwaslastenjoyedbythepersonasadominantowner:
Mergerwhereonepersonbuysbothdominantandservienttenement:
An easement is extinguished when the same person becomes entitled to the absolute
ownership of the whole of the dominantandservientheritages.Forexample,A,astheowner
of a house, has a right of way over Bs field. A mortgages his house, and B mortgages his
field to C. Then C forecloses both mortgages and becomes thereby absolute owner of both
houseandfield.Therightofwayisextinguished.
Extinctionbyendofnecessityincaseofeasementbynecessity:
An easement of necessity is extinguished when the necessity comes to an end. Forexample,
A grant B a field inaccessible except by passing over As adjoining land, B afterwards
purchases a part of that land over which he can pass to his field. The right of way over As
landwhichBhasacquiredisextinguished.
ExtinctionbyDestructionofSubjectMatter:
An easement is extinguished when either the dominant or the servientheritageiscompletely
destroyed. Forexample,Ahas arightofwayoveraroadrunningalongthefootofaseacliff.
The road is washed away by a permanent encroachment of the sea. As easement is
extinguished.
SuspensionofEasement:
An easement is suspended when the dominant owner becomes entitled to possession of the
servient heritage for a limited interest thereinorwhentheservientownerbecomesentitledto
possession of the dominant heritage for a limited interest therein. For example A has a right
of way of Bs land obtains for lease his land, the easementary right of way is suspended
duringthisperiod.
RevivalofEasements:
An easement extinguished under Section 45 revives (ii) when the destroyed heritage is,
before twenty years have expired restored by the deposit of alluvion(b) whenthedestroyed
heritage is a servant building and before twenty years have expired such building is rebuilt
upon the same site, and (c) when the destroyed heritage is a dominate building and before
twenty years have expired suchbuildingisrebuiltuponthesamesiteandinsuchamanneras
not to impose a greater burden on the servant heritage. An easement extinguished under
Section 46 revives when the grant or bequest by which theunityofownershipwasproduced
is set aside by thedecreeofacompetentCourt.Anecessaryeasementextinguishedunderthe
same section revives when the unity of ownership ceasesfromanyothercause.A suspended
easement revives if thecauseofSuspensionisremovedbeforetherightisextinguished under
Section47.