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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.

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), easement s 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 i s 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 socal led “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.,

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. 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.

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.