JAMIA MILLIA ISLAMIA

FACULTY OF LAW

PROPERTY LAW PROJECT

LAW OF EASEMENTS: A BRIEF OVERVIEW OF THE INDIAN EASEMENTS ACT,
1882

Submitted to:

Dr. Qazi Mohd. Usman

Professor (Property Law)

Submitted by:

Md. Modassir

Roll No. – 32

Student ID- 201903798

B.A. - LL.B(H) (Regular)

3rd Semester, 2nd Year

Batch: 2019-24
 ACKNOWLEdGEMENT

I would like to express my sincere gratitude to my teacher Dr. Qazi Mohd.

Usman for providing his invaluable guidance, comments and suggestions
throughout the course of the project.

I would also like to thank my dearest friend Shadab Anwar for thier continuous,
endless support in helping me gather the resources and compiling in the form of
this project.
 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.1

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.2

1
The Transfer of Property Act121
2
Dr Avtar Singh and Prof (Dr) Harpreet Kaur, The Transfer of Property Act121(LexisNexis, Haryana, 6thedn., 2020).
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.3

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.4
3
Transfer of Property Act, 1882
4
Subharao’s G.C.V., Transfer of Property Act, 23, 15th Edition, 2006.
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 rightofway (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.5

DOMINANT AND SERVIENT HERITAGE

5
Shukla S N, The Transfer of Property Act, 56, 26th Edition, 2007
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.6

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.7

6
Sinha R K, The Transfer of Property Act, 97, 9th Edition, 2006

7
Sinha R K, The Transfer of Property Act, 97, 9th Edition, 2006
 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.8

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

8
Sinha R K, The Transfer of Property Act, 97, 9th Edition, 2006
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.9

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
9
Sinha R K, The Transfer of Property Act, 127, 9th Edition, 2006
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) af irmative 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. 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 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. Nanukuttan reported 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.10

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.11

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
10
Indian Easement Act, 1882
11
Indian Easement Act, 1882
easement on Sultanpur. Then B marries C, B’s interest in Sultanpur ends, and with it the
easement is extinguished. 12

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. 13
12
Sinha R K, The Transfer of Property Act, 127, 9th Edition, 2006

13
Sinha R K, The Transfer of Property Act, 127, 9th Edition, 2006
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 47.14

CONCLUSION

The Indian Easements Act, provides for the whole concept of right of easements and its
regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by the
owner of the dominant heritage over the heritage of servient owner for the beneficial enjoyment
of his own land. It not only defines what actually easements consist of but also provides with its
classification. Easements can be prescriptive, customary, quasi and of necessity.

Thereafter, modes of acquiring easements has been provided under Section 7 of the said Act
according to which it can acquired through an express grant or is in certain circumstances
considered to be an implied right. If easement is to be acquired through the express grant then
such a clause has to be specifically mentioned in the deed of sale, mortgage or any other deed in
accordance with the mode of transfer. Easements is a right in rem, that is, it is available against
the whole world. It can be subject to limitations as well and can be restrictive too. Easements can
be both positive and negative. Whereas, on the other hand licenses can only be positive in
nature.

Further, the Act talks about the provisions regulating the suspension, extinction and revival of
the easements. Also, how easements is different from licenses has been discussed. The article
also explains the concept of licenses along with its essentials. License can be revocable as
mentioned in the Act  and irrevocable as mentioned under Section 60 of the Act. They can also
be transferred according to Section 56 of the Act. It is a right in personam which is not available
against the whole world but is granted personally.

BIBLIOGRAPHY
14
Sinha R K, The Transfer of Property Act, 127, 9th Edition, 2006
Primary sources:

Indian Easement Act, 1882

Secondary sources:

BOOKS

Author: B.B. Katiyar, Law of easement and licences, (Lexis Nexis; Sixteenth edition, 2017).

Sinha R. K., “The Transfer of Property Act”, 9th Edition, 2006.

Sukla S. N., “The Transfer of Property Act”, 26th Edition, 2007

ONLINE SOURCES:

1) http://lawtimesjournal.in/law-of-easement/
2) http://legislative.gov.in/sites/default/files/A1882-05.pdf
3) https://blog.ipleaders.in/an-overview-law-of-easements-in-india/
4) https://www.findlaw.com/realestate/land-use-laws/easement-basics.html
5) https://www.academia.edu/23567468/Law_of_Easements_A_Brief_Overview_of_the
_Indian_Easements_Act_1882