A study on modes on acquisition of Easements

Introduction

An easement is a right permitted by law to occupy or use another person’s land for a particular purpose. The use of
the land here is limited, and the original owner retains lawful title of the land. A legally binding easement ought to
be in writing, the exact location is stipulated in the property’s deed. Easements commonly provides utility
companies access for the purpose of installing and maintaining power, phone, and cable lines, as well as for water
drainage purposes. The term easement is derived from the Latin word ‘aisementum’ which means comfort,
convenience or privilege, and later on developed into a legal right or privilege of using something not one's own.
The concept of easement can be traced to antiquity and it is said that is meant is as old as the concept of property
itself .the earliest reference of easement could be found in Halhed Gentoo code which is a compilation of ancient
Hindu law which was and force during the period 1773-1775 under the directions of Warren Hastings. The
development of human civilization has begun when people started living in groups, in realization of the each
individuals’ private rights with mutual benefits within the society. Hence, the right of easement dates back to the
period of recognition of private property in a definite society. Such a right, arises out of certain aspects of morality,
which permits a third person to enjoy certain benefits in relation to the property, on which he has, neither ownership
nor possession. With due progress in the society, the legislation has given deference to the easement rights, which
makes it necessary for us to have a line of thinking on it. The term easement is nowhere defined Hindi English law.
Lord Esher in Metropolitan Railway v Fowlerii define easement as “some right which a person has over land which
is not his own”1.iii In the words of a well renounced jurist Salmond, easement is a legal servient which can be
exercised on some other piece of land specifically for the beneficial enjoyment of one’s own land. Right of easement
is a form of privilege, the integral part of this privilege is to do an act or prevent certain acts on some other land for
enjoyment of one’s own land2.

Definition & Explanation

The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the
provisions of Section 4, an easementary 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 owner or occupier 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 Serviant Owner and the land on which
such a liability is imposed to do or prevent something, is known as the Servient Heritage.

Illustrations-

1
Hindi English law. Lord Esher in Metropolitan Railway v Fowlerii
2
The Law Brigade (Publishing) Group 22 INTERNATIONAL JOURNAL OF LEGAL
DEVELOPMENTS AND ALLIED ISSUESVOLUME 6 ISSUE 5 – ISSN 2454-1273
SEPTEMBER 2020 AN ANALYSIS ON THE DOCTRINE OF EASEMENT written by Vibha
V
 ‘P’ being the owner of certain land or house has a right of way over Q’s house, adjacent to his house, to
move out of the street. This is known as right of easement.

X’s right to go on his neighbour Y’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 Y’s land only. Hence, X has
an easementary right to pass through Y’s household.

In the words of great jurist Salmond, easement is that legal servient which can be exercised on some other piece
of land specifically for the beneficial enjoyment of one’s own land. Right of easement is basically a form of
privilege, the integral part of which is to do an act or prevent certain acts on some other land for enjoyment of one’s
own land. Other examples ; Right to sunlight etc3

Who may acquire easement ?

Section 12 of the easements act provides that 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 the consent of the other or
others, acquire an easement for the beneficial enjoyment of such property 4

Historical perspective

The right of easement is a right as old as the day when human race first emerging from barbarism, adopted
thecustom of living together in towns or living as other’s neighbours, or respecting eacho t h e r ’ s r i g h t s . I t
f o u n d i t i n d i s p e n s a b l e f o r c o m m o n g o o d t o a d o p t t h e g e n e r a l principle that an individual
should enjoy his property, though fully and exclusively yet so as not to interfere with neighbor’s legitimate
enjoyment of his own property rights5.

Prior to the passing of special legislations relating to easements, the development of law of easements, in british
india was almost invariably accompanied by the application of English principles. For some prior to the drafting of
the original easement Bill there has been a growing conviction amongst the judged in india that lawon the said
subjectshould be properly codified because at the time the law for the most part to be found only in treaties and
reports which is practically inaccessible to a large proportion of the legal profession in the mofusil and the
subordinate judges6.

Chapter

3
https://blog.ipleaders.in/an-overview-law-of-easements-in-india/

4
Book myni
5
. https://www.scribd.com/doc/30805414/Modes-of-Acquisition-of-Easement
6
https://ildm.kerala.gov.in/wp-content/uploads/2017/02/2.INDIAN-EASEMENT-ACT1882.pdf
Easements are super added rights to the ordinary natural incidents of the ownership of a document tenement and
which connote a corresponding burden on a servient tenement against common right.Easements may be acquired in
any of the following ways:

Grants
Easements generally originate in a deed of grant by the servient owner. The grant may be express or implied from
the circumstances and conduct of the parties to the easement or it may be presumed from long user, or it may be
inferred from some usage prevailing in the locality. The absolute owner of the servient tenement can create an
easement to endure perpetually. A limited owner can create an easement only for a period or an interest less than a
perpetual interest and not greater than the interest possessed by himself. 7

In Booth v. Alcock, it was ruled out that General words in a grant should be restricted to that which the grantor had
then the power to grant and will not extend to anything which he subsequently acquire. So the easement granted
could not continue after the expiration of servient owner’interest.

Dalton v. Angus, two adjoining houses had been built each on the extremity of its owner’s soil. One of the houses
was converted into coach factory openly. Twenty years after the conversion, the other house was pulled down so
that the plaintiff’s coach factory would lose the support and it sank and fell. The plaintiff claimed the right of
support under the doctrine of lost grant and succeeded in the appeal. The court held that no prior grant is required to
apply this doctrine.8

Section & of the Easements Act provides that every person who possesses any transferable interest in land can
impose an easement on such land in the circumstances and the extent in or to which he can transfer such interest.
Section 8 gives the power of creating an easement by grant to the owner or occupier of any immovable property.
The servient owner cannot grant an easement which extends beyond his own interest and affect the rights of other
persons. The grantor's right should be greater or co-extensive with interest for which the easement is granted.

Prescription

Acquisition by prescription.-When the access and use of light or air to and for any building have been peaceably
enjoyed therewith, as an easement, without interruption, and for twenty years,and where support from one person's
land, or things affixed thereto, has been peaceably received by another person's land subject to artificial pressure or
by things affixed thereto, as an easement, without interruption, and for twenty years,and where a right of way or any
other casement has been peaceably and openly enjoyed by any person claiming title thereto,as an easement and as of
right, without interruption, and for twenty years, the right to such access and use of light or air, support or other
easement shall be absolute.

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the
institution of the suit wherein the claim to which such period relates is contested. When the property over which a
right is claimed under this section belongs to the Government] this section shall be read as if fer the words "twenty
years" the words "thirty years"] were substituted.

Illustrations

(a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies
the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title

7
Law of property by DR. S. R.MYNENI
8
(1881) 6 App Cas 740
 thereto, as an easement and as of right, without interruption, form 1st January, 1862 to 1st January, 1882.
The plaintiff is entitled to judgment.9
In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd.[xxx], The Supreme Court has laid down that to establish the
clause under Section 15, continuous user of 20 years as of right to do the act complained of in assertion of a title,
peaceably and openly must be made out.10
.
Ram Sahai v. ManSingh[xxxii], it has been held that the fact that the mode of enjoyment was changed from
time to time during the period of twenty years does not cause an interruption within Section 15 where the
change in the mode of enjoyment is due to an act on the part of the dominant owner himself. 11

Chapsibhai v. Purushottam[xxxiii], it was held that if the owner of a dominant tenement has during the
period of prescription, exercised rights on the footing that he is the owner but which he later on claims as
an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement
and he must fail in a claim for an easement.12

In Bankey Lal v. Kishan Lal[xxxiv], it has been held that a right of way may be acquired by prescription
if it is exercised openly and with the knowledge of the owner of the servient tenement, but a right to
commit a nuisance cannot be acquired by prescription no matter how often the act of nuisance is
repeated. AIR1967ALL43

In Tulasamma v. Nandula Buchairamiah [xxxv], It has been held that once the easement is acquired by
prescription, there is no scope for issuing a mandatory injunction to put an end to the mode of enjoyment which
has given rise to the easement.13
AIR 1949 Mad. 826.

Operation of Law
Easements may be created by operation of law viz by estoppel, or by statute or by special statutory proceedings
providing for the acquisition of private road or right of way over the lands of another. The easements created by
operation of law with reasonable reference to public convenience, general good and also public policy.

Easement of Necessity:
2. Quasi-Easement:

9
SANJIVA ROW”S COMMENTARY ON THE INDIAN EASEMENT ACT, 1882PG. 364-365
10
1969 SC Decision 1105
11
AIR 1952 ALL 39

12
AIR1971SC1878

13
AIR 1949 MAD 826
Easements are called 'quasi', as those arising out of circumstances i.e., when the common properties are converted
into tenements by sale, mortgage partition etc. In such a case, there is an 'implied grant'. There is no express grant or
transfer.
Examples:
a) A right attached to B's house to receive light and air through a window without obstruction by his neighbour A.
This is a continuous Easement.
Customary Easement.
An easement may be acquired by virtue of a local custom such easements are called customary
Easements.Eg.:
(i) By the custom of a village every cultivator was entitled to graze his cattle on the common pasture. This is a
customary easement.
(ii) People living in a township have the right to bury the dead in a particular place. This is a customary easement 14.
Rup Chand v. Sh. Daulatu[xxxviii], it was held that the right of using the edges (mainds) of each other’s fields for
going to their respective fields by the agriculturists is a customary right of easement and not a right of easement
which is to be acquired by prescription or by necessity.15

Hero Vinoth (Minor) v. Seshammal court held that an easement by grant does not get extinguished under Section 41
of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary
for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all
without the easement. 16

Court Decisions: The easements may be created or recognized by or judgment or decree based on the facts of the
cases

Imposition: Easements may be created by imposition. Every owner of land, having a transferable interest in it, can
impose over it an easement to the extent of his own right (See the topic 'imposition of easement]

Transfer: Regarding transfer of dominant heritage passes easements. Section 19 of the Easements Act provides,
"where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or
devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour
the transfer or devolution takes place.
Illustration
A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in
B and his legal representatives so long as the lease continue

Legal background

Limitation Act 1963

Section 25 of limitation Act explains about acquisition of easement Where the access and use of light or air to and
for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for
twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative
or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of

14
https://www.lawtool.net/post/acquisition-of-easement

15
AIR 1992 H.P 6
16
AIR 2006 SCC 2234
right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use
of water, or other easement shall be absolute and indefeasible.(2)Each of the said periods of twenty years shall be
taken to be a period ending within two years next before the institution of the suit wherein the claim to which such
period relates is contested.(3)Where the property over which a right is claimed under sub-section (1) belongs to the
Government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were
substituted.17

Judicial perspective

Law commission report

The Commission recommends the improvement of the present law on prescription of easements and profits à
prendre as opposed to abolition thereof

1. There is no reason to distinguish the acquisition of profits à prendre from the acquisition of easements. It is
recommended that profits à prendre be treated in the same way as easements .
2. In respect of both easements and profits à prendre, prescription at common law and under the doctrine of
lost modern grant should be abolished
3. In light of the desire to simplify and clarify the law in this area, the Commission is of the opinion that there
is no virtue in retaining the Prescription Act 1832. We therefore recommend the repeal of this Act and the
Prescription (Ireland) Act 1858, and their replacement with new legislation, which is set out in Appendix A
to this Report
4. The Commission recommends that, under the new legislation, it will be possible to acquire a profit à
prendre in gross by prescription Commission recommends , subject to recommendation 8, that there be a
single prescriptive period of twelve years for both easements and profits à prendre . 18

Case laws

Hardayal v. Chotai

It has been held that it is common in villages as well as in towns, for theowner of well to allow neighbours to draw
water for domestic purposes, but this is alicence which has nothing to do with the beneficial enjoyment of any
land.19

Dharniwhar Sahu v. Bhagirathi Sahu

17
LIMITATION ACT 1963 Section 25

18
LAW REFORM COMMISSION2002 ISSN 1393- 3132

19
AIR 1963 All. 32.
It has been held that as every easement rightexists for the benefit of the owner of the dominant tenement alone, it is
inherent inthe nature of the right that the owner of the dominant tenement may cease toexercise it if the right ceases
to be beneficial. In such cases the owner of the Servienttenement cannot insist on the continuance of the exercise of
the easement, becausethe exercise of the easement right does not create any reciprocal rights in the servient owner. 20

T.M. Jadavji v. S.S. Randidas

It was held that if somehow the enjoyment, whatever its duration,ceases and no suit is initiated within two years of
the cessation thereof the enjoymenthas lost all efficacy for the purpose of acquiring an easement. 21

Chapsibhai v. Purushottam

It was held that an easement by prescription is in fact an ascertain of a hostileclaim of certain rights over another
man’s property and in order to acquire theeasement the person who asserts the hostile claim must prove that he had
theconsciousness to exercise that hostile claim on a property which is not his own andwhere no such consciousness
is proved he cannot establish a prescriptive acquisitionof the right.Further it was held that if the owner of a dominant
tenement has during the period of prescription, exercised rights on the footing that he is the owner but which he later
on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement
and he must fail in a claim for an easement.22
Kumar Banerjee v. Krishna Kumar Gupta and another

It was heldthat where a person has pleaded ownership and has failed, he cannot subsequentlyturn around and claim
that right as an easement by prescription.23

Bankey Lal v. Kishan Lal

It has been held that a right of way may be acquired by prescription if it is exercised openly and with the knowledge
of the owner of theservient tenement, but a right to commit a nuisance cannot be acquired by prescription no matter
how often the act of nuisance is repeated.24

Rup Chand v. Sh. Daulatu

It was held that the right of using theedges (mainds) of each other’s fields for going to their respective fields by
theagriculturists is a customary right of easement and not a right of easement which isto be acquired by prescription
or by necessity.25

20
AIR 1956 Orissa 89.

21
7 Saurashtra LR 183.

22
AIR 1971 SC 1878.

23
AIR 1985 Patna 124.

24
AIR 1967 Allahabad 43.
International perspective

A number of African countries have adopted legislation providing for conservation easements of some type.The
Ugandan environmental easement is not consensual, however, as the easement is created not by agreement of the
parties but by a decision of a court on the application of a "person or group of persons."259 The applicant is required
to compensate the landowner for the lost value of the use of the land,26 0 though the government may pay the
compensation if the easement is of national importance.26 '

B. CANADA

Canadian provinces have adopted private conservation easement enabling legislation.265 These statutes generally
resemble the American model by specifically providing for nonprofit ownership,266 in gross interests, 267 perpetual
ownership if desired by the parties,2 68 and typical environmental preservation purposes.269 Like the American
model, there is no requirement of government approval in creation of a conservation easement held by an NPO.

C. AUSTRALIA

Some Australian states have adopted legislation that permits a conservation covenant held by a specific
conservation trust created in the statute.272 There is significant governmental involvement in the operation and
administration of Australian conservation covenants. A government official must approve acquisition, amendment,
and release of a covenant, after a period of public input.274 This has benefits, in that it ensures that the restrictions
serve public conservation goals and prevents the releaseof beneficial covenants; the costs, though, are the
introduction of potential red tape and the loss of nonprofit initiative.26

Conclusion and suggestion

Unlike lease, an easement does not provide the holder a right of "possession" of the property. Therefore, an
easementary right is a provision made for specific relief from specific violations of common basic rights. However,
a right of way doesn’t entitles the grantee, or those lawfully using the way under the grant, to the exclusive use of
the land over which the way exists neither does every obstruction of the way amounts to an unlawful interference,
and no action would comply unless there is a substantial interference with the easement granted.

25
AIR 1992 H.P 6

https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?
26

referer=&httpsredir=1&article=1687&context=fac_articles_chapters
Suggestion

The claim for easementary rights can legally take place through any of these forms and the principles can also be
borrowed form other legal systems, to assist the process. Though the provisions of the Act are not apparent about the
application of these principles and certain doctrines, judicial interpretation clears all the ambiguity. The study of
easement is important even in layman’s context, so as to have his common rights established with respect to a
person’s property. Apart from the legislation, it is in the hands of the judiciary to prevent such abuses.