LAW OF EASEMENTS: A BRIEF

OVERVIEW OF THE INDIAN

EASEMENTS ACT, 1882
 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 27001). 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 17731775
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.
Hamilton’s 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 dominium, servitudes were regarded as fragments of dominium severed from the original
stock and granted to some person other than the original proprietor in restriction of the
latter’s 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
neighbor's land, a right that a neighbor share the cost of maintaining a boundary fence, and a
right that a neighbor 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 profitaprendre 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 rightof-
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 another’s
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 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 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
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. That case gave
rise to the four wellknown 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.
The Indian law relating to Easements includes profitaprendre provided it is supported by a
dominant and servient heritage (profitaprendre appurtenant).This is to be contrasted with
the English Law wherein profitaprendre and easements are separated. However, the Indian
position is such that it does not recognize profitaprendre in gross.

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 grantor’s 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 nonperformance 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
varies 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 discontinuous, where
there must be a fresh act on each occasion of the exercise of the right, e.g. aright 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 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, 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 preexisting 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; and
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. Nanukuttanreported in ILR 1986 (1) Kerala 526.
However, if such enjoyment is based on an agreement between the parties, which states
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 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
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 vendor’s 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 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 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 nonuse 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, B’s 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 an 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 nonperformance 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 B’s 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 A’s adjoining land, B afterwards
purchases a part of that land over which he can pass to his field. The right of way over A’s
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. A’s 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 B’s 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.