LAW OF EASEMENTS: A

BRIEFOVERVIEW OF THE
INDIANEASEMENTS ACT, 1882
S. MOHAMED RAFIQ

12010160105
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WHAT IS AN EASEMENT?
The term easement comes from the Old Latin word aisementum
meaning comfort, Convenience or privilege and it developed into
a legal right or privilege of using something 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 by reason of His ownership of
another.

According to Section 4 of the Indian Easement Act, 1882 defines it

as follows: An easement 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 Prevent something being done, in or upon, or in respect
of certain other land not his own.

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 and
rights of water. (Megarry and Wade, para 27-001).

There is no closed list of easements, as there is of servitudes in

some civil law jurisdictions.

HISTORICAL BACKGROUND OF EASEMENTS

The concept of easement can be traced to antiquity and it is said

that easement is as old as the concept of property itself. The earliest
reference of easements is found in Halhed Gentoo Code which is a
compilation of the ancient Hindu laws in force during the period
1773-1775 in India under the direction of Warren Hastings. From the
code it appears that a person had a 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 on the terrace of another.

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 to Light, etc.). Servitude is a device that ties rights
and obligations to ownership or possession of land so that they run
with the land to successive owners and occupiers.

The whole bundle of rights which constitute the complete ownership

of property was called as d ominium, servitudes were regarded as
fragments of d ominium 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 dominant owners.

The notion of easements during its early days in England was an

admixture of Roman, 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. After the abolition

of the equity courts by virtue of the Judicature Act, 1873 both

remedies were available in the Courts.

EASEMENT DIFFERENTIATED FROM OTHER CONCEPTS

An easement involves a right to use the other's land, a real

covenant the right to insist that the 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 neighbours land, a right that a
neighbour share the cost of maintaining a boundary fence, and a
right that a neighbour not use his land for commercial purposes.

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, although easements do not have
their origin in equity.

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 licence that only gives one a
personal privilege to do something even more limited on the land of
another.

An example of a license is the right to park a car in a parking lot

with the consent of the parking lot owner. 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 easement over another will continue to
enjoy the easement even if the property gets transferred to a
different owner.

A profit-a-prendre refers to the right to remove and appropriate any

part of the soil belonging 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, trees and so forth. (Chundee Churn Roy
v. Shib Chunder Mundul). Historically, the common law courts would
enforce only four types of easement: the right-of-way (easements of
way), easements of support (pertaining to excavations), 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 to an adjacent land and was for the benefit of all, not a
specific person This is also no longer true in many jurisdictions.

DOMINANT AND SERVIENT HERITAGE

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 and the owner of such a land is called servient owner
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. He
cannot do anything on his own land which affects the dominant
heritage and he is bound to suffer for the advantage of the
dominant owner.

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, 1882 The 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 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.

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, the dominant
owner has responsibilities to preserve the easement. His acts and
deeds shall not put the servient owner into inconvenience. Being the
actual user he shall rectify the damages if any caused by his acts at
his own expense.

The servient owner is not obliged to do anything for the advantage

of the dominant heritage. He has no liability whatsoever to construct
a way for the use of the dominant owner or to carry out repairs in
case of any damage to the passageway. As the holder of the
property he is free to use the servient heritage in any manner he
likes, but his acts shall not dilute the right of the dominant owner.

REQUIREMENTS OF A VALID EASEMENT

The essential features of an easement, in the strict sense of the

term, are therefore these: (a) it is an incorporeal right a right to the
use and enjoyment of land not
To the land itself (b) It is imposed upon corporeal property (c) It
requires for its constitution two distinct tenements the dominant
tenement which enjoys the right, and the servient tenement
which submits to it. This last characteristic excludes from the
category of easements the so-called 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 comprise of the
dominant and servient estate.

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 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. That case gave rise to the four well-known
characteristics of easements viz.
1) There must be a dominant tenement and a servient tenement
2) The easement must accommodate the dominant tenement
3) The dominant and servient tenements must be owned by different
persons and
4) The easement must be capable of forming the subject matter of a
grant.

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
to continue to do something, or to prevent or to continue to prevent,
something in or upon or in respect of the servient tenement.
(C. Mohammed v. 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 that such a right should not be recognised as it would
place a burden on a wide and indeterminate area.

As already pointed out there must be a dominant owner and a

servient owner, it must be for the advantage of the dominant owner,
it may be permanent or temporary, or for a limited period of time or
seasonal or for a specified event or out of necessity, the owners
must be two different persons and it must be capable of forming the
subject matter of a grant.

CREATION OF EASEMENTS

The title to easement may be by grant, by custom, by prescription

or necessity. An easement can be acquired by grant. A grant is given
by an agreement executed by a grantor in favour of 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 by the
same deed he may grant a right of way to Y for such land 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.

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.

Easements, which are the subject matters of agreement between

the parties, are for right of way, right to air and light. Some
easements are acquired by grant and others prescription and
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 written form.
However, easements by prescription and custom need not be in
writing.

A deed of grant must clearly mention the purpose of which

easement is granted. By the deed 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 grant of a right to fix a
signboard to the adjoining property advertising the public house
which constituted the dominant tenement was held to comprise an
easement.

DURATION AND NATURE OF EASEMENTS

According to Section 6 of the Indian Easements Act, 1882 An

easement may be permanent 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 become

void or voidable on the happening of a specified event or the

performance or non-performance of a specified Act.

The nature of easements is described in section 7 of the Indian

Easement Act, 1882 which states that easements are restrictions of
one or other of the following rights (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 products thereof and
accessions thereto.
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 another the natural
advantages arising from its situation.

TYPES OF EASEMENTS
There are several classifications of easements which is to be noted. The
types of easements from country to country. Some of the notable types
are enumerated herein. They are divided into
(a) affirmative or positive, those which authorize the commission of an act
by the 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 so as to obstruct ancient lights (cf. also the right to the
support of neighbouring soil)
(b ) continuous, of which the enjoyment may be continual without the
interference of man, e .g. access to light, and d is continuous, where there
must be a fresh act on each occasion of the exercise of the right, e .g. a
right of way, or right to draw water
(c) Apparent, where there are visible external signs of the exercise of the
right, e.g. a right to dam up a watercourse, and non-apparent, 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, 1870 expressly
codifies several types of easements, their effects and the extent to which
they extend and when they cease.

EASEMENTS BY PRESCRIPTION

Prescription means getting a right by continuous assertion of the

right, which has been in use for a long period of time. Thus, to
establish in a Court of law, a right of easement by way of
prescription, the following criteria are to be satisfied.

a) There must be a pre-existing easement which must have been

enjoyed by the dominant owner
b) The enjoyment must have been peaceable
c) The enjoyment must have been as an easement
d) The enjoyment must have been as of right
e) The right must have been enjoyed openly
f) The enjoyment must have been for a period of twenty years
g) The enjoyment for 20 years must have been without interruption
h) The period of twenty years must have ended within a period of two
years immediately preceding the date of suit claiming such easement.

The first seven points were specifically pointed out by the

honourable High Court of Kerala in Krishnan v. Nanukuttan reported
in ILR 1986 (1) Kerala 526. However, if such enjoyment is based on
an agreement between the parties, which state expressly or
impliedly that the enjoyment is not as an easement, the principle of
Section 15 of the Easements Act will not apply.

Further, in order to constitute an interruption, there should be a

cessation of enjoyment by an obstruction created by a person other
than the claimant, and the claimant should not have acquiesced to
the same. Also, if a person enjoys the benefit under a life interest or
an interest fixed at a period of over three years, then that period will
be excluded from the calculation of the twenty years according to
Section 16 of the Easements Act.

Section 17 of the Easements Act provides that the following

easements cannot be acquired by 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 surface water 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 defined
channel.

EASEMENT OF NECESSITY

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 for the reasonable enjoyment of the land but whether the land
can be used at all without the implied grant or reservation.

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, be implied merely because it

makes 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 severance of tenements. They are
said to be created by implied grant. To take a concrete example, if the
owner of a certain field, who irrigates his entire field by taking water from
a well situated within field, sells a part of the field not containing the well,
but retains the part containing the well, the question would naturally arise
whether the purchaser has right to take water from the vendors well to
irrigate his part. If the parties have 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 of conveyance contains
no reference to this point, law would grant to the purchaser of the part
heritage an easement in favour of the said part heritage to take water
from the well situated in the other part heritage retained by the vendor.
According to the case of Muhammad Ramzan v. Naseer Beg, 1980 CLC
1555, the plaintiff must not only prove existence of right of easement at
the time of transfer of property to him but also such right being necessary
for enjoying transferred property.

QUASI EASEMENTS

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 similar advantages would be to deprive
his new 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
intention of the parties.

TERMINATION, SUSPENSION AND REVIVAL OF

EASEMENTS
Generally, mere nonuser does not end an easement. One or more of the
following factors may also have to be present:

Extinction by dissolution of right of servient owner:

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 on condition
that he does not marry C, B impress an Easement on Sultanpur. Then B marries
C, Bs interest in Sultanpur ends, and with it the Easement is extinguished.

Agreement to terminate by grantor and the grantee of the

easement:
An easement is extinguished when the dominant owner releases it,
expressly or impliedly, 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 and easement is extinguished when the
servient owner, in exercise of power reserved in this behalf, revokes the
easement.
Expiration of the time allowed for the easement:
An easement is extinguished where it has been imposed for a limited
period, or acquired on condition that it shall become void on the
performance or non-performance of a specified act, and the period expires
or the condition is fulfilled.
Abandonment or expressed intent to discontinue use of the
easement:
A continuous easement or a discontinuous easement is extinguished when
it totally ceases to 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,

from the day on which it was last enjoyed by the person as a dominant
owner.
Merger where one person buys both dominant and servient
tenement:
An easement is extinguished when the same person becomes entitled to
the absolute ownership of the whole of the dominant and servient
heritages. For example, A, as the owner 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 house and field. The right of way is extinguished.

Extinction by end of necessity in case of easement by necessity:

An easement of necessity is extinguished when the necessity comes to an
end. For example, 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 land which B has acquired
is extinguished.
Extinction by Destruction of Subject Matter:
An easement is extinguished when either the dominant or the servient
heritage is completely destroyed. For example, A has a right of way over a
road running along the foot of a Seacliff. The road is washed away by a
permanent encroachment of the sea. As easement is extinguished.
Suspension of Easement:
An easement is suspended when the dominant owner becomes entitled to
possession of the servient heritage for a limited interest therein or when
the servient owner becomes entitled to 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 during this period.

Revival of Easements:
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) when the destroyed 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 such building is rebuilt upon the same
site and in such a manner as not to impose a greater burden on the
servant heritage. An easement extinguished under Section 46 revives
when the grant or bequest by which the unity of ownership was produced
is set aside by the decree of a competent Court. A necessary easement
extinguished under the same section revives when the unity of ownership
ceases from any other cause. A suspended easement revives if the cause
of Suspension is removed before the right is extinguished under Section
47.