MODULE 9

5 Marks

CONCEPT OF EASEMENT

Easement is a right, which the owner or occupier of certain land possesses as such, for the beneficial
enjoyment of that land to perform and continue to perform something, or to avert and continue to
avert something being done, in or upon, or in respect of, certain other land which is not his own. The
land for the beneficial enjoyment of which the right exists is known as the dominant heritage and
the owner or occupier of such land is called the dominant owner. The piece of land on which the
liability is trusted upon is called the servient heritage and the owner or occupier of such land is
called the servient owner.

The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882.
According to the provisions of section, an easement right is a right possessed by the owner or
occupier of the land on some other land, not his own, the purpose of which is to provide the
beneficial enjoyment of the land. This right is granted because without the existence of this right an
occupier or owner cannot fully enjoy his own property. It includes the right to do or continue to do
something or to prevent or to continue to prevent something in connection with or in respect of
some other land, which is not his own, for the enjoyment of his own land.

The word ‘land’ refers to everything permanently attached to the earth and the words ‘beneficial
enjoyment’ denotes convenience, advantage or any amenity or any necessity. The occupier or the
owner referred to in the provision is known as the Dominant Owner and the land for the benefit of
which the easementary right exists is called Dominant Heritage. Whereas the owner upon whose
land the liability is imposed is known as the Servient Owner and the land on which such a liability is
imposed to do or prevent something, is known as the Servient Heritage.

Illustration-

1. ‘A’ being the owner of certain land or house has a right of way over B’s house, adjacent to his
house, to move out of the street. This is known as right of easement.

2. Q’s right to go on his neighbor R’s household for fetching water from the well for the purpose of
his own household is a right of easement. Here, the way to the well is through R’s land only. Hence,
Q has an easementary right to pass through R’s household

Q. Extinction Of Easement

Section 37 to 47 of the The Indian Easements Act, 1882, provides for the mode of
extinction of easements.

 Dissolution of Servient Owner’s right

In the situation where the grantor ceases to have any right in the servient tenement
because of some reason, then the right of easements ceases to exist as well. This has been
specified under Section 37 of the Act. For eg- X grants a piece of land to Y for a period of 20
years in the year 1970. In the year 1971, Y imposed an easement in favour of Z. In 1990 Y’s
interest came to an end. Thus, easementary right granted to Z ceases to end as well.

 Expiry of time or happening of an event

When an easement is acquired on certain conditions or for certain purpose or for certain
period of time. On the fulfilment of such condition or purpose or expiry of the time, the
right of easement extinguishes as well as in accordance with Section 6 of the Act.

 Extinction by release

Where in a situation the owner of the dominant heritage releases the right of easement to
the servient owner, the right ceases to exist. Such a release can be both expressly or
impliedly made. For eg- P has a right to discharge water through the eaves to Q’s yard. P
authorized Q to construct a building to such a height as not be able to discharge water. Q
builds it and P’s right comes to an end.

 Termination of necessity

When necessity terminates the easement of necessity terminates as well. For example- A
grants a piece of land to B on which easement of necessity for B is the right of his way over
A’s land. Later on, B purchases a part of the A’s land over which he may pass to reach his
own land. Here, the necessity has ended and so does the easement.

 Useless Easements

When easement is of such a nature that is not useful or becomes incapable of being
beneficial at any time or under any circumstances, then the right of easement ends.

 Permanent change in the Dominant Heritage

When the nature of the dominant heritage changes permanently with increase in burden on
tenement, then the right of easement ceases to exist as the purpose of it was the beneficial
enjoyment of the dominant heritage. For example- A’s house is located such that he has a
right of way by passing through B’s house. Later, due to earthquake, B’s house got cut off
and thus, right of easement ends.

 Extinction by destruction of either of heritages

When either of heritages gets destroyed, the easement ends as it is essential for two
properties to exist for exercising the right.

 Unity by ownership

By unity of ownership it is indicated that when one person becomes the owner of both the
dominant and servient heritage then the right of easement terminates. For instance, A has
right of easement over B’s property. Later on, A purchases B’s property and becomes the
owner of B’s property. In such a case, easement extinguishes.

Another example which can be stated her to explain the concept is that A has a right of
easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of
B’s land. Thus, easement terminates.

Q. Types of Easement

Section 5 of the Indian Easement Act, 1882, explains that there are four types of easements
depending on the type of property involved in the transaction, how the parties involved are
related and the purpose of the easement granted. These are:

Continuous or Discontinuous

Continuous easements are the one whose enjoyment may be continued without the
intervention of any human conduct or act of a man. There is no interference by a man and it
adds special quality to the property. Illustration -A right annexed to Y’s house to receive
light by the windows without obstruction by his neighbor X. This is a continuous easement.

While, on the other hand, right of easement for the enjoyment which an interference of a
man is required is known as discontinuous. In this kind of easement, it is necessary that a
human act is done on the servient heritage.

Apparent or Non- Apparent

An apparent easement is one the existence of which can be seen through a permanent sign.
It can be visible by a careful examination and on reasonable foresightedness. It is also
known as express easement. An inspection is required to check the existence of a right. For
example- There is a drain from A’s land to B’s land and from there it led to an open yard.
This can be visible through a clear inspection and is an apparent easement.

Whereas, a non-apparent easement is just opposite of what apparent easement is. This kind
of easement is not visible through an inspection. There is no permanent sign as such. The
right is in use but is not visible and thus, is known as an invisible easement. For example,
A’s right annexed to A’s land to prevent B from building on his own house.

Another example to explain non-apparent easement is that the right to stop construction
over a certain height.

Positive or negative easement

Under Section 7 of the Act, the positive easement is when the dominant owner asserts his
right over land by some activities such as using the water flowing through the land or
creating a passage for pedestrians.
If the dominant owner takes some kind of action, legal or otherwise, to prevent the servient
owner from using the land, it is known as a negative easement.

Q. Dominant and Servient Owners and Heritages.

Dominant heritage and dominant owner

The landowner who enjoys rights over the property which is not his own is called the
dominant owner. The land, in this case, is known as the dominant tenement or dominant
heritage.

Servient heritage and servient owner

The property in reference to the actual landowner, who cannot object the dominant owner
from using his land, is called servient heritage or servient tenement, and the actual owner is
referred to as the servient owner. The same piece of land is referred to with different terms
when in reference to the dominant owner and the servient owner.

For instance, A owns a piece of land and has passed the easement right over the land to B.
Here A is the servient owner and has the servient heritage. B is the dominant owner and
enjoys the dominant heritage. The dominant and servient owners must be separate, i.e., the
landowner cannot get easement over his own land, as he already holds the title to the land.

Q. Who may acquire easements

Ans. Acquisition of Easement - According to Section 12 of the Act -

An easement may be acquired by the owner of the immovable property for the beneficial
enjoyment of which the right is created or, on his behalf, by any person in possession of the
same.

One of two or more co-owners of immovable property may, as such, with or without
consent of the other or others, acquire an easement for the beneficial enjoyment of such
property. No lessee of immovable property can acquire, for the beneficial enjoyment of
other immovable property of his own, an easement in or over the property comprised in his
lease. [Section 12]

In ----------------------AIR 1987 Raj. 169, it was observed that An easement can be acquired by
the owner of immoveable property for the beneficial enjoyment of a right by any person in
possession of the same. The incidence of easement and that of lost grant are almost the
same. Right of easement is also created by grant and grant of such use may be presumed
from long use or possession although actual transaction of making such grant could not be
discovered.

As easement may be acquired by the owner of immovable property for the beneficial
enjoyment of which the right is created, or on his behalf by any person in possession of the
same [Nihal Chand v. Mst. Bhagwan Dei, A.I.R. 1934 All. 527]. Such an easement shall not,
however, be personal to him. If the physical acts of the dominant owner are of such a
nature as to entitle him to acquire the right of easement, he is entitled to that right
notwithstanding the fact that he was doing those acts under the belief that he was the
owner of the servient heritage. But, it would be otherwise if he had actually asserted and
claimed ownership in an earlier litigation. [Shivpyari v. Mst. Sardari, A.I.R. 1966 Raj. 265].

Acquisition of easement by a tenant against his landlord - Tenant can acquire an easement
over the adjoining land belonging to his landlord for beneficial enjoyment of other
immovable property not his own but belonging to some one else which also he happens to
occupy for the time being as a tenant. [A.I.R. 1939 All. 339]. A tenant cannot acquire an
easement by prescription against his landlord. The reason of this rule is explained by
CHIRNS. L.J. in Goyford v. Muffat in the following words :

"The possession of the tenant of the demised close land is in the possession of his landlord;
and it seems to be an utter violation of the first principle of the relation of landlord and
tenant to suppose that the tenant, whose occupation of the close A was the occupation of
his landlord, could, by that occupation acquire as easement over close B also belonging to
his landlord."

Q. Easement by Prescription.

Easement by prescription occurs where someone uses another's property for a

certain amount of time without permission in a way in which the owner should
be aware of. States set the time limits required for someone to achieve a
prescriptive easement which can range from a few years to over twenty. Courts
recognize prescriptive easements because the individual claiming the easement
used the property for a long period of time and relied on being able to use the
land. For example, Johnny bought property that did not have access to a public
road, but he used the private gravel road of his neighbor to reach a public road
for twenty years. A court may grant him a prescriptive easement if the owner of
the other property did not ask him to stop using the private road.

Section 15 provides for this type. Following are the requisites-

 Right must be definite and certain,

 Right must have been independently enjoyed without any agreement with the
servient owner,

 Must be enjoyed openly, peacefully and as of a right without any interruption for a
continuous period of 20 years and in respect of any government land the period of
non-interruption shall be 30 years.
Q. Easement of necessity and quasi-easement.

Easementary right can be acquired in implied circumstances in the following ways-

 Easement of Necessity

Section 13 of the act deals with this. This consists of the circumstances where the owner or
occupier cannot use his property without exercising the right of easement over the servient
heritage. Thus, absolute necessity is the test and the convenience.

For example– X sells his land to Y for agricultural purpose. Here, Y cannot access his land
without passing through Z’s land (his neighbour). Thus, this is an easement of necessity.

When a joint property is partitioned amongst various coparceners and if right of easement
over one share of the property is essential for the enjoyment of the share of the other
coparcener then latter shall be entitled to easement.

 Quasi Easements

In the case of a person transferring his property to another person then-

 If an easement is continuous, apparent and necessary to enjoy, then in such a case

the transferee shall be entitled to it,

 If such an easement is continuous, apparent and necessary to enjoy the said

property, the transferor has a right to such easement over property transferred by
him

 In case of partition of the property of the joint family, if an easement is continuous,

apparent and necessary to enjoy the share of one coparcener over the other
coparcener, then he is entitled to such a right of easement.

Easements are quasi as those are arising out of circumstances,i.e. When common properties
are converted into tenements by way of sale, mortgage, partition or through any other form
of transfer. In such a case, there is an implied grant of right of easement.

For example– P’s right attached to Q’s house to receive air and light through a window
without any obstruction by his neighbour. This is a continuous.

Q. Definition of easement.

An easement is a legal right to either occupy land owned by another person or use the
facilities on land for a specific purpose, while the legal owner retains the title. In most
cases, even if the title is transferred, the subsequent owners let the 'easement owner'
continue the use of the land. The laws of easement are governed by the Indian
Easement Act, 1882.
Section 4. "Easement" defined.

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.

Dominant and servient heritages and owners.--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.

Explanation.--In the first and second clauses of this section, the expression "land" includes
also things permanently attached to the earth; the expression "beneficial enjoyment
includes also possible convenience, remote advantage, and even a mere amenity; and the
expression "to do something" includes removal and appropriation by the dominant owner,
for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient
heritage or anything growing or subsisting thereon.

Illustrations

(a) A, as the owner of a certain house, has a right of way thither over his neighbour B's land
for purposes connected with the beneficial enjoyment of the house. This is an easement.

(b) A, as the owner of a certain house, has the right to go on his neighbour B's land, and to
take water for the purposes of his household out of a spring therein. This is an easement.

Q. Imposition and Acquisition of Easements.

CREATION OF EASEMENT

Easements are usually created by conveyance in a deed, or some other written document such as a
will or contract. Creation an easement demands for the same formalities as the transferring or
creating of other interests in land do, which typically are: a signature, a written instrument, and
proper delivery of the document. In limited circumstances, the court would create an easement by
implying its existence based on the circumstances.

Two familiar easements created by implication are easements of necessity and easements implied
from quasi-easements. Easements of necessity is typically implied to provide access to a landlocked
fragment of property. Easements implied from quasi-easements are based on a landowner's prior
utilization of part of his property for the benefit of another portion of his land. Other methods of
establishing easements are prescriptive use (the routine, adverse use of another's land), estoppel,
custom, public trust, and condemnation.

For example, A sells his land to B and by the same deed he may grant a right of way to B for such
land for another land of his. Grant is provided by an agreement executed by the grantor in favour of
the grantee for specific consideration. The grant comes into effect when the grantee has the right to
enter upon the grantor’s land. Easement by virtue of custom is nothing but a legal right which is
acquired by the operation of law through continuous use of a land over a long period of time.
Henceforth the right of way continues to exist by prescription, grant or by virtue of custom.
Easements, which are the subject matters of agreement between the two parties, are for right of
way, right to air and light. Surrendering an easement right does not refer to transfer of property.
Easement can be made, altered and even released. Easement right cannot be created or altered
orally. It must be in a written format.

However, easements by prescription and custom not necessarily 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 hands over free and full right to the dominant owner and also his successors a passage wide
enough for movement of people or vehicles between the dominant owner's premises and the public
road against a price consideration. In the case of Moody v. Stegglesxi the grant of a right to put up a
signboard to the adjoining property advertising the public house which constituted the dominant
tenement was held to comprise an easement.

MODES OF AQUISITION OF EASEMENT

• Express Grant: One of the most direct method of creating an easement is by Express grant. Express
easements are created by means of a written agreement between the landowners grant in for
receiving an easement. An Express easement is created by either a deed or by will. Therefore, it
must be in writing. Express easement ought to be signed by both the parties and are recorded with
the deeds to each other. An Express easement can also be created by the owner of a certain piece of
property when he conveys the land to another but reserves or saves and easement in it. This
arrangement is known as easement by reservation.

• Implied Circumstances: Easementary right can be acquired under implied circumstances in the
following ways-

➢ Easement of Necessity: Section 13 of the act deals with easement of necessity. This specifically
deals with the circumstances where the owner or occupier is not privileged to use his property
without exercising the right of easement over the servient heritage. Thus, absolute necessity is
considered to be the test and the convenience.

For example– A sells his land to B for agricultural purpose. Here, B cannot access his land without
passing through C’s land (his neighbor). Thus, this is an easement of necessity.

➢ Quasi Easements: In the case of a person transferring his property to another person thenIf an
easement is continuous, apparent and necessary to enjoy, then in such a case the transferee shall be
entitled to it,

▪ If such an easement is continuous, apparent and necessary to enjoy the said property, the
transferor has a right to such easement over property transferred by him

▪ In case of partition of the property of the joint family, if an easement is continuous, apparent and
necessary to enjoy the share of one coparcener over the other coparcener, then he is entitled to
such a right of easement.
 Easements are quasi as those arise out of circumstances, that is, when common properties are
converted into tenements by means of sale, mortgage, partition or through any other form of
transfer. In such of a case, there is an implied grant of right of easement.

For example– A’s right attached to B’s house to receive air and light through a window without any
obstruction by his neighbor.

➢ Prescriptive Easements: Section 15xviprovides for this type. Following are the requisites- • Right
must be definite and certain,

• Right must have been independently enjoyed without any agreement with the servient owner,

• Must be enjoyed openly, peacefully and as of a right without any interruption for a continuous
period of 20 years and in respect of any government land the period of noninterruption shall be 30
years.

➢ Customary Easements: An easement right can be acquired by virtue of a local custom. This is
known as customary easements. Section 18 of the Act provides for it. For example- people living in a
particular town or city having a right to bury the dead in a particular area or riparian right to use
water.

Q. Remedies for disturbance of easements.

Q. Essentials of easement.

Essentials of Easements

1. Dominant and Servient Heritage

For the enjoyment of right of easement, necessary existence of two properties i.e dominant
and servient heritage is a must. This is because as per the definition, it is the right exercised
by the owner or occupier of one land for enjoying the benefit of his/her land, over the land
of some other person. Dominant and servient heritage cannot be one. Thus, the existence of
two properties and that to be separate from each other is essential.

2. Separate owners

For exercising the right of easements, owners of the two properties shall be different and
not a single person.

3. Beneficial Enjoyment

The object of easements is that the dominant owner enjoys it in a way which includes
express and implied benefits.

4. Positive or Negative

Easements can be both positive or negative. Former refers to a right through which the
dominant owner does some act to exercise the right over the land of the servient owner.
Whereas, the latter denotes an act of prevention. In a negative easement the dominant
owner prevents or restricts the servient owner from doing certain act or acts.

In a right of easement an owner of dominant heritage can do an act or prevent the servient
owner from doing something but he cannot bind the servient owner to do something for
him.

The easementary right exists only when two heritages are adjacent to each other. It is a
right in rem, which means a right available against the whole world. Easement as a right is
always annexed to the dominant tenement. It is a right of re-aliena which means a right
over a servient tenement and no on one’s own land.

Suspension and Revival of easements (from syllabus)

Section 49 of the Act provides that easement can be suspended under the following circumstances-

1. An easement is or can be suspended when the dominant owner becomes entitled to the
possession of servient heritage for a limited interest. An example which can be stated here
to explain the concept is that A has a right of easement over B’s land. In future A takes B’s
land on rent, here A becomes the occupier of B’s land. Thus, easement suspends.

2. When the servient owner becomes entitled to the possession of dominant heritage for a
limited interest, the easement is suspended.

Thus, where both the dominant and servient owner becomes one, easement is suspended.

Revival of Easements

Section 51 of the Act provides for the situations wherein easement suspended or extinguished can
be revived, which are as follows-

1. When an easement is extinguished by destruction of either of the heritages then it can be

revived-

 If the heritage is restored in 20 years.

 If the heritage is rebuilt in 20 years

2. In case of unity of ownership, if the unity breaks due to some reason, then easementary right can
be revived and also through an order of a competent court.