EASEMENT

Introduction
The word "easement" is derived from the old Latin word "aisementum," which originally meant
"comfort, convenience, or privilege." From an early easement, the term has developed into "a
legal right or privilege to use anything other than one's own." The right to use another person's
property is granted to the holder of an easement through the creation of a non-possessive
property interest.It alludes to the privilege that a man might occasionally enjoy, a right that is
granted to the person doing something on the grantor's real property without adding value to the
actual property itself.

MEANING OF EASEMENT
According to Section 4 of The Indian Easements Act, 1882, an "easement" is a right that the
owner or occupier of a specific parcel of land has in order to use that land in a beneficial manner
by doing or continuing to do something on it or by stopping something from happening on
another parcel of land that is not his own.

DEFINITION OF EASEMENT
According to Halsbury's Laws of England- An easement is "a right annexed to land, to utilize
other land of different ownership in a particular manner, or to prevent the owner of the other land
from using his land in a particular manner."

Illustrations
Aman has the authority to take water from Samar's pond to water the plants in the garden that is
connected to his house because he is the owner of that particular house. This easement exists.

Rohan permits a specific area or surface of his property to be used for passage and re-passing
by members of the general public. There is no easement here.

ESSENTIAL OF EASEMENT
According to Section 4 of the Indian Easement Act, 1882, the idea of an easement over property
entails a number of fundamental terms of usage that are legally specified. Which are −
1) Dominant Heritage and Dominant Owner − The dominant owner is the landowner, who has
rights over land that is not his own. The land under this situation is referred to as the dominant
legacy or dominating tenement.

2) Servient Heritage and Servient Owner − The property is referred to as a servient heritage or
servient tenement, and the actual owner is referred to as the servient owner. The servient owner
cannot protest against the dominant owner using his land. When referring to the dominant
owner and the servient owner, various phrases are used to refer to the same parcel of land.

As an illustration, Aman owns some land and has given Sana an easement over it. In this case,
Aman is the servant owner and comes from a servant family. Sana has a dominating
background and is the dominant owner. The dominant and servient owners must be distinct, so
the owner of the land cannot obtain an easement over it as he already holds the title.

3) Positive or Negative Easement − According to Section 7 of the Act, a positive easement

occurs when the dominant owner establishes his right to the land through certain actions, such
as using the water that flows through the land or constructing a pedestrian path. It is referred to
as a negative easement if the dominant owner uses whatever means, whether legal or illegal, to
hinder the servient owner from using the property.

Termination of easement
The right to easement can be taken away by means of a grant by the servient owner, as in the
case described above by the State of Punjab, against the landowners.

Rajesh Rai, Advocate (Supreme Court) and Founder, RR Legal Partners LLP, highlights, “In
Punjab, the State government terminated the easement given to landowners, where they could
use the groundwater under the land prior. The State was, by default, the servient owner in this
case. Under Section 37 of the Act, even though the landowners had possessory rights over the
land they owned, they only had non-possessory, i.e., easement rights over the facilities that
came with the land”.

NOTABLE CASE LAWS

The English Law acknowledged the right to commit annoyance as an easementary right
obtained by prescription in Bai Bhicaji v. Phirozshah, 40 Bom. 401, and the Bombay High Court
once more upheld this interpretation.

The Allehabad High Court later ruled in Bankeylal v. Kishanlal, AIR.1967 ALL.43, that spreading
night soil on someone else's property is an illegal nuisance that cannot be acquired as a matter
of right through prescription.

In Hrudananda Biswal v. The Union of India (W.P.(C) NO. 6675 OF 2003), the petitioner
Hrudananda was denied access to a public road from his property by South Eastern Railways,
Kolkata, and as a result, he filed a writ petition in 2003. The court determined that there was no
denial of access to the indicated plot after hearing railways' explanation of a potential security
threat.

Nature And Duration of easement-

According to Section 6 of the 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 solely at
an explicit 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 revocable on the happening of a specific
event or the performance or non-performance of a specified Act.”

The nature of easements is described under Section 7 of the Act, 1882 which states that
easements are restrictions of one or the other of the following rights, namely:

(a) Exclusive right to enjoy –The prerogative of each owner of immovable Property (subject to
any law for the nowadays in force) to relish and lose identical and every one merchandise
therefrom and accessions thereto.
(b) Rights to benefits arising from scenario the right of each owner of stabile property (subject to
any law for the present in force) to relish while not disturbance by the other natural professionals
that arise from its situation.

Kinds of Easement –
There are four different types of easement. According to section 5 of Indian Easement Act , the
types easements are –
• Continuous Easement
• Discontinuous Easement
• Apparent Easement
• Non- Apparent Easement

1. Continuous Easement –
-Easement which are of continuous of nature are called as continuous Easement.
-It can be made without any interference.
It add a special quality to the property.
-Continuity doesn’t means that continuity of enjoyment however means to require the property
permanently.
-For example:- Right to receive light and air ; to flow water on others land by drainage; drainage
passing through others land; right to repair etc.
2. Discontinuous Easement –
-The easement for whose enjoyment human act is necessary is known as discontinuous
Easement.
-It is necessary that human act should be done on the land of servient owner.
-Act of man does not mean that it is such an act only which is necessary for the use of
easement.
For example :- Right to passage ; right to throw garbage on others land; right to flow water etc.
3.Apparant Easement :-
-It is known as express easement.
Its existence is appears form any permanent sign.
-It is such right which can be expressed or referred by external permanent sign of property.
-For example:- Right to flow water from drainage; doors , windows and rains are some such
things that are visible to all or any persons if any drain is underground and might be seen by a
competent person is apparent easement.
4.Non-Apparent Easement –
-It is also known as invisible easement.
It is in use but there is no visible sign or proof of the being used.
-It cannot be seen by a competent person.
For example:- right to stop construction above certain height, rite of passage, right to receive
support.

• An Easement may be –
-Permanent easement:- It is of permanent nature. It is the general rule of easement to be
permanent. A limit or condition is exception .
-Limited easement:- It is temporary easement . It is meat for limited period or purpose.
-Conditional easement :- It is such easement which depends upon fulfillment depends upon
certain conditions.

EASEMENT BY 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.

EASEMENT BY PRISCRIPTION
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.

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 city or
town having a right to bury the dead in a particular area or riparian right to use water.

EXTINCTION, SUSPENSION AND REVIVAL 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.

#Suspension of Easements
Section 49 of the Act provides that easement can be suspended under the following
circumstances-
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.
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-

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.