EASEMENT

Introduction
An easement is a legally recognized right to use or occupy someone else's land for a specific purpose. The
original owner is still legally entitled to the land, despite certain restrictions on its use. The land title specifies
the precise location of a legally enforceable easement. Utility companies frequently utilize easements to gain
access for water drainage, phone, cable, and power line installation and maintenance. I The Latin word
"aisementum," which meaning "comfort, convenience, or privilege," is the source of the English word
"easement," which eventually evolved into a legal right or privilege to use property that is not one's own.

There is a long history of the concept of an easement that goes back to antiquity; some even argue that it
predates the concept of property. The Halhed Gentoo code, an ancient Hindu law compilation put together under
Warren Hastings's supervision and in effect from 1773 to 1775, contains the first mention of easements. \

No definition exists for the term "easement" in Hindi or English law. In the Metropolitan Railway v. Follerii
case, Lord Esher defined an easement as "any right that an individual has over land that is not their own. A legal
servient that may be used on another piece of land expressly for the beneficial enjoyment of one's own land is
known as an easement, according to eminent jurist Salmond. Access is the privilege of cross another person's
property to enjoy your own, or the power to forbid them from doing so.

Concept of Easement
A landowner's or occupier's right to use a piece of land for the beneficial enjoyment of that land, such as
carrying out and continuing to carry out tasks or prohibiting actions from being taken in, upon, or in relation to
other pieces of land, is known as an easement which is not his property. The person who owns or occupies land
covered by a right of beneficial enjoyment is known as the dominant owner, and the land itself is referred to as
dominant heritage.

The definition of easement is given in Section 4 of The Indian Easements Act, 1882. According to the rules in
this section, an easement is a right that a landowner or occupier has on a different piece of property that is not
their own, with the goal of grant the beneficial enjoyment of the land. This privilege is granted because the
absence of one's own property prevents an owner or occupier from enjoying it to the fullest. In order to enjoy his
own land, he has the freedom to do anything he wants to do or to keep doing anything he wants to do, including
stopping anything that has to do with or is related to another person's land that is not his.

Permanently attached objects are referred to as "land," and advantageous, practical, or necessary objects are
referred to as "beneficial enjoyment." The Dominant Owner and the Occupier are the names of the owners or
occupiers mentioned in the clause.

The land for which an easement is in place is referred to as "dominant heritage."

However, the land upon which such a liability is placed in order to achieve or evade something is called the
Servient Heritage, and the landowner who places it upon is called the Servient Owner.

Requirements Of valid Easement

The following crucial easement characteristics are included in the strict application of the doctrine:
1.​ Since it relates to using and enjoying land rather than the land itself, it is an intangible right.
2.​ Real estate forms its basis;
3.​ Its constitution must acknowledge the existence of two distinct tenements: a "servient tenement," which
submits to the "dominant tenement," which has the right.
The court in Re Ellenborough Parkvi established the requirements that must be met for an easement to be
considered legal. Whether or not residents could use a garden in the center of the square where their houses
were built was a decision that had to be made by the Court of Appeal.

Types of Easement
Easements come in four different varieties. Section 5 of the Indian Easement Act describes the different kinds of
easements. It specifies that easements can be visible or not, continuous or discontinuous.
1.​ Continuous Easement: If there are no human interruptions to the easement's use, it is deemed
continuous.
 ○​ For example, Y's neighbor X cannot prevent him from using the windows to let light into his
house through the right annexation. An easement is still in existence.​

○​ After a continuous 20 years of complete cessation of use as such, a continuous easement is

extinguished.
2.​ Discontinuous easement: A discontinuous easement is one that can only be enjoyed through human
interaction.
○​ Take a path that goes through R's land and is annexed by Q's house, for instance. There is a
break in this easement.​

3.​ Apparent easement: A permanent sign that a knowledgeable observer could spot with close inspection
designates an apparent easement.
○​ An illustration would be the rights annexed to L's land, which permit water to cross M's land
via an aqueduct and be collected by a drain. A person with such knowledge would carefully
inspect and locate the drain. These are what we call apparent easements.​

4.​ Non-apparent easement: In the absence of such a sign, an easement is deemed non-apparent.
○​ Illustration: A right annexed to Y's house prevents Z from building on his own land. This
doesn't seem to be an easement.

Creation of Easement
An easement is typically created by conveyance in a will, contract, or other legal document. Easements are
created through the same processes that are typically needed for the creation or transfer of other land interests: a
signature, a written instrument, and the proper delivery of the document. In some cases, the facts would lead the
court to infer the existence of an easement.

Two well-known easements that are created by implication are easements of necessity and easements deduced
from quasi-easements. Generally, opening a landlocked portion of property requires implied easements of
necessity. The prior use of a landowner's property for the benefit of another portion of their land serves as the
foundation for the implied easements found in quasi-easements. Other ways easements can be established
include prescriptive use (the regular, unfavorable use of someone else's land), estoppel, custom, public trust, and
condemnation.

For example, under the terms of the same deed, if A sells B his land, he may grant B a right of way over that
land for another portion of his land. The grant is made pursuant to a signed agreement in the grantee's favor
signed by the grantor in exchange for special consideration. When the grantee is allowed to access the grantor's
property, the award comes into effect. A customary easement is simply a legal right that develops over time as a
result of continued land use that complies with the law. The right of way continues after this through grant,
prescription, or custom.

Easement agreements between the two parties address rights of way, air, and light. Releasing oneself from an
easement does not imply a transfer of property. Easement can be made, altered, or even released. An easement
right is not negotiable or amendable orally. It must be recorded in writing.

However, customary or prescribed easements do not always require documentation. The grant deed must clearly
specify the purpose for which an easement is granted. By the deed of grant, the submissive owner bestows all
rights, free and clear, upon the dominant owner and his heirs. a road that, while taking pricing into
consideration, is big enough to permit traffic flow between the dominant owner's properties and the public road.
In the Moody v. Stegglesxi case, it was determined that the public house, which constituted the dominant
tenement, was entitled to a signboard promoting it as part of the easement granted to the neighboring property.

Modes Of Acquisition Of Easement

Express Grant: Using an express grant is one of the simplest methods to establish an easement. A formal
agreement between the recipient of the easement and the landowner grant creates an express easement. Express
easements can be established by will or deed. It has to be in writing as a result. Both parties must sign an
express easement and record it with their individual deeds. When a landowner transfers ownership of their
property to another person while reserving or maintaining an easement over it, this can also result in the creation
of an express easement. The term "easement by reservation" refers to this arrangement.
Easement of Necessity: This subject is covered in Section 13xiv of the act. This focuses on circumstances where
the owner or occupier is unable to use their property without making use of the easement rights granted by the
servient heritage. As a result, it is thought that the convenience and test are essential.

As an example, A sells B his land so that B can farm it. In this case, getting to B's land requires passing through
C, his neighbor's land. As such, this easement is required.

Case Laws:
Nunia Mal And Anr. vs Maha Dev on 20 September, 1961
Various types of easement rights were urged during the course of arguments in the lower courts. Taking up the
plaintiff's plausible easement claims, Mr. F. C. Mittal has argued the case by demonstrating that, had they been
pleaded in this case, the claims would not have been tenable. It was not possible to claim easement by
prescription based on the acknowledged facts of this case. In order to obtain a right of way by prescription under
section 15 of the Indian Easements Act, which is equivalent to section 26 of the Indian Limitation Act, it must
be demonstrated that the right of easement has been peacefully and publicly enjoyed as such, uninterrupted, and
for twenty years.

In addition, the twenty years will be interpreted as a period that ends two years after the suit is instituted, at
which point the disputed claim falls under that period. The defendants' blatant denial of the plaintiff's right to
exercise it over the previous three years is made explicit in paragraph 5 of the plaint. The plaintiff's attorney
stated prior to the issues that the obstruction had been occurring for the previous four to five years. According to
Plaintiff's Mukhtiar, P.W. 5, the right had not been used for the previous 15 or 16 years, that is, since 1939. The
plaintiff does not even remotely possess a prescriptive easement claim.

Shivpyari And Anr. Mst. Sardari on 11 Novenber, 1965

To be granted an easement, the use of someone else's land cannot be subservient to the landowner; it must be
actual or potentially wrongful, and it must be practiced openly. The three primary prerequisites for acquiring an
easement are as follows. Section 15 of the Indian Easements Act reflects similar ideas. Obtaining an easement
requires restricted use of another person's land; issues arise if the claimant has sole possession of the land. A
limited user may claim easement rights even though they are negated by unity of ownership and they own
additional property. It is important to determine the claimant's intention, especially if they are the exclusive
possessor.

Cases from the High Court offer a variety of perspectives. Obtaining easement requires real ownership—not just
pretend ownership. When operations follow authorized usage, false ownership beliefs do not prevent the
acquisition of easements. The complex concept of consistency of possession typically excludes easement claims
unless they are brought about by exceptional circumstances.

Gopalbhai Jikabhai Suvagiya vs Vinubhai Nathabhai Hirani on 26 September, 2018

If an easement has been used continuously for twenty years—without interruption by someone claiming
title—openly, peacefully, and legally—then it can be acquired, along with rights of way and other variations.
The rights to light, air, and support can also be obtained by twenty years of continuous, peaceful enjoyment;
these rights do not need to be publicly asserted or enjoyed. For other easements, on the other hand, obtaining
absolute rights requires enjoyment as of right. For easements against private persons, these requirements must
be fulfilled for the full twenty years, and for easements against the government, for thirty years.

In another situation, known as a "lost grant," the presumption of easement rights can arise from an enduring use
or possession. Even if there are other routes available, an easement remains in place once it has been granted.
This is supported by prior legal decisions, which highlight the dominant owner's entitlement to use the specific
path set forth in the grant without having to consent to a divergence by the servient owner. It is well established
by law that owners of immovable property are able to obtain easements for the benefit of occupants, with such
rights being assumed from long-standing use, and that there is no set time frame for immemorial claims.

Bachhaj Nahar vs Nilima Mandal & Ors on 23 September, 2008

By awarding relief based on easementary rights that the plaintiffs had not claimed, the High Court disregarded
pleading principles. The conversion of a title suit into an easement enforcement matter was improper because
the defendant was not given the chance to contest such a claim and the pleadings were improper. Although the
appellate court maintained the lower court's conclusion that there was no title, it incorrectly issued an easement
injunction. If such relief was warranted, it ought to have been pursued in isolation. In the lack of pertinent
pleading and legal questions, the High Court's ruling went beyond its authority.
Kandukuri Balasurya Prasadha Row vs The Secretary Of State For India on 3 May, 1917
In the event that the Vasundhara River is regarded as government land, the circumstances are as follows: A right
or easement to use the river's water is implied if the owner of the river grants the adjacent land with the
irrigation channel together with the land itself. Physical characteristics such as the channel's width or the
infrastructure controlling water flow should be used to determine the extent of this right rather than historical
patterns of water use.

The passage of an easement is not negated even if the grantor or their tenants have never used the water before.
Any easement, however, would only apply to the channel and not the river itself if the land were granted apart
from the channel. In a situation like this, if water wasn't previously used from the channel, it's possible that the
physical conditions necessary to create a continuous and obvious easement don't exist; as a result, the grant
wouldn't grant anyone the right to use the water in the channels

Conclusion
An easement does not grant its holder the right of "possession" of the property, in contrast to a lease.
Consequently, a provision designed to provide particular relief from particular violations of fundamental rights
is known as an easement right. Regarding the right of way, any unauthorized intervention with the right of way
is an annoyance. However, no action would be compliant unless there is a substantial interference with the
easement granted. Neither does a right of way grant the grantee, or those lawfully using the way under the grant,
the exclusive use of the land over which the way exists, nor does every obstruction of the way constitute an
unlawful interference.

When it comes to the right to light, this does not mean that one has the right to constant light levels. When there
is a diminution, the dominant owner must demonstrate that it has affected his daily activities and caused a
nuisance if it prevents the owner from operating his business as profitably as he once did and causes enough
discomfort to make occupying the house uncomfortable.

Hero Vinoth v. Seshammaxxxi1, a seminal case, established that an easement could not be applied to an
acquisition by grant and that it would only continue for the duration of the absolute necessity.

If a specific sharer was granted a right of way, that right could not be revoked just because that sharer had
another option.