The Indian Easements Act, 1882

Introduction

The right of easement is a right as old as the day when human race first emerging from
barbarism, adopted the custom of living as other’s neighbors, or respecting each other’s
rights. It found it indispensable for common good to adopt the general principle that an
individual should enjoy his property, though fully and exclusively, yet so as not to interfere
with neighbour’s legitimate enjoyment of his own property rights. This salutary principle
appears to be the original foundation on which easements are based. In this I Introductory
lesson we will discuss various aspects of easement such as definition and meaning of
Easement, Easement and Public right contrasted, Easement distinguished from customary
rights and Difference between easement under the English and Indian Laws. We will also
discuss continuous and discontinuous, apparent and non-apparent easements. In order to
check your level comprehension, the students are advised to answer questions as asked at the
end of each sub-section and also at the end of the lesson.

1.1 Easement Defined

The term “easement” has been variously defined. An easement has been said to be a privilege
which the owner of one tenement has over the tenement of another. It has also been defined
as a right which one person has to use the land of another for a specific purpose or servitude
imposed as a burden on the land. In some cases it has been stated that an easement is a right
which one proprietor has to some profit, benefit, or lawful use out of or over the estate of
another proprietor.

Section 4 of the Indian Easements Act defines easement as:

An easement is aright 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 heritage 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 serviant 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 l and and to
take water for the purposes of his household, out of a spring therein. This is an easement.
(c) A, as the owner of a certain house, has the right to conduct water from B’s stream to
supply the fountain in the garden attached to the house. This is an easement.
(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his
own cattle on B’s field, or to take, for the purpose of being used in the house, by himself, his
family, guests, lodgers and servants, water or fish out of C’s tank, or timber out of D’s wood,
or to use, for the purpose of manuring his land, the leaves which have fallen from the trees in
E’s land. These are casements.
(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of
passing and re-passing. This right is not an easement.
(f) A is bound to cleanse a watercourse running through his land and kept it free from
obstruction for the benefit of B, a lower riparian owner. This is not easement.

Essential characteristicsof easement: The following six characteristics are essential to an

easement:
(1) There must be a dominant and servient tenement;
(2) An easement must accommodate the dominant tenement;
(3) The right of easement must be possessed for the beneficial enjoyment of the dominant
tenement;
(4) Dominant and servient owners must be different persons;
(5) The right should entitle the dominant owner to do and continue to do something, or to
prevent and continue to prevent something being done, in or upon, or in respect of the
servient tenement; and
(6) That something must be of a certain or well defined character and may be capable of
forming the subject-matter of a grant.
In Nirmala Devi and Ors. v. Ram Sahai and Ors. AIR 2004 All 358, the court laid down that
in view of the definition of the Easement in Section 4 of the Easements Act the following
materials are required to be present in order to claim an easement right:-
(i) the right is in the owner or occupier of land as such;
(ii) it is for the beneficial enjoyment of that land;
(iii) it is to do or to continue to do something or to prevent or continue to prevent something
being done;
(iv) that something is in or upon or in respect of certain other land; and
(v) the other land is not his own.

1.2 Easement and Public right contrasted

An easement is a private proprietary privilege appurtenant to a dominant tenement. Apart
from statute, it must be founded against common right on a grant express or implied in a
transaction or presumed from long user by prescription. By contrast a public right is enjoyed
by the public at large, irrespective of any interest they may have in the tenement. An
indeterminate and fluctuating body of persons, such as the public, or the community, or a
section of the public, or section of the community, cannot have any right of easement. For
instance, public rights of way which every citizen is entitled to use at his pleasure are not
dependant on the ownership of any estate; and even a public road or highway is taken to be a
dedication to the public of the occupation of the surface of the land for the purpose of passing
and repassing. So far as the ordinary easement is concerned, the occupation remains with the
owner of the servient heritage, subject to the easement.

1.3 Easement distinguished from customary rights

Easements are distinguished from that class of rights which exist in particular localities under
special local customs whereby a wholly undefined and fluctuating body of persons is entitled
to utilize the land of another person in a particular manner and for a particular purpose. Such
rights founded on custom appertain to many persons as a class, and not as grantees, nor do
such rights require the existence of a dominant tenement. They are analogous to easements,
but are not really easements, since some necessary elements of easements are wanting.
A customary right is a right in gross while an easement is always appurtenant to a tenement.
Customary rights are claimed for a large or fluctuating body of persons in respect of a locality
and it is unnecessary to look out for their origin from grant or otherwise. Private easements,
on the other hand, are claimed by defined persons and arise from a grant, which is either
express or implied or by prescription.

1.4 Difference between easement under the English and Indian Laws
1. In India easementary rights can be claimed only in respect of corporeal property such as
land and not in respect of incorporeal rights. But under the English Law an easement can be
claimed in respect of an incorporeal right also.
2. An easement right under the English Law is a privilege without profit. It permits
enjoyment of certain rights in respect of the dominant tenement without allowing the owner
of the dominant tenement to share in the profits which arise out of the soil of the servient
heritage.
Thus easement excludes what is called profits a prendere. Under Indian Law an easement
also includes profits a prendere. It includes a right to enjoy the profits arising out of the soil
of another owner. This is made clear by the Explanation to section 4 which lays down that 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.
3. Under the Indian Law two tenements need not be adjacent to each other because used in
the section are that the servient heritage must be “certain other land” not belonging to the
dominant owner. But under the English Law the heritages must be adjacent ones.

1.5 Section 5. Continuous and discontinuous, apparent and non-apparent easements.-

Easements are continuous or discontinuous, apparent or non-apparent.
A continuous easement is one whose enjoyment is or may be continual without the act of
man.
A discontinuous easement is one that needs the act of man for its enjoyment.
An apparent easement is one the existence of which is shown by some permanent sign,
which, upon careful inspection by a competent person, would be visible to him.
A non-apparent easement is one that has no such sign.
Illustrations
(a) A right annexed to B’s house to receive light by the window without obstruction by his
neighbour A. This is a continuous easement.
(b) A right of way annexed to A’s house over B’s land. This is a discontinuous easement.
(c) Rights annexed to A’s land to lead water thither across B’s land by an aqueduct and to
draw off water thence by a drain. The drain would be discovered upon careful inspection by
a person conversant with such matter. These are apparent easements.
(d) A right annexed to A’s house to prevent B from building on his own land. This is a non
apparent easement.
Apparent and non-apparent easements.- An easement is apparent if its existence is
evidenced by some apparent sign, whether that sign be patent to everyone or whether it can
only be perceived on a careful inspection by a person ordinarily conversant with the subject.
An easement is non-apparent if no external sign points to its existence. For apparency to be
material the apparency must be on the servient tenement. A right of way on the servient
tenement may be an apparent easement or a non-apparent easement according to the
circumstances of each case.
Where a right of way is shown by a permanent doorway and a formed path, it is an apparent
easement. But where there is neither permanent doorway nor a formed path, the right of way
cannot be said to be an apparent easement.
Continuous and discontinuous easement.-Continuous easements are those whose
enjoyment are, or may be, continued without the act of man. A right to receive light or air are
examples of continuous easements, because for their enjoyment no act of man is needed. A
discontinuous easement is one that needs the act of man for its enjoyment. A right of way is
an example of discontinuous easement, because for its enjoyment an act of man is needed and
the act is done on the soil of the servient owner.

INCIDENTS OF EASEMENTS (SECTIONS 20-31)

2.1 Introduction
In this lesson we will discuss the incidents of easement, bar to use unconnected with
enjoyment, confinement of exercise of easement, right to alter mode of enjoyment, right to do
acts to secure enjoyment. We will also discuss liability for expenses necessary for
preservation of easement, liability for damage for want of repair, extent of easements and
increase of easement.

2.2 Section 20. Rules controlled by contract or title. –

The rules contained in this Chapter are controlled by any contract between the dominant and
servient owners relating to the servient heritage, and by the provisions of the instrument or
decree, if any, by which the easement referred to was imposed.
Incidents of customary easements.- And when any incident of any customary easement is
inconsistent with such rules, nothing in this Chapter shall affect such incident.
Section 20 lays down that the rules in Chapter III (Sections 20-31) are controlled by any
contract between the dominant and servient owner relating to a servient heritage. As a matter
of construction it only means that if there is any inconsistency between the terms of the terms
of the contract between the parties and the rules laid down in Chapter III, it is the terms of the
contract that will prevail and not the particular rule contained in that chapter. But where there
is no such inconsistency, the terms of the contract can be given effect to without ignoring or
in any way whittling down the effect of any rule contained in Chapter III.

2.3 Section 21. Bar to use unconnected with enjoyment.-

An easement must not be used for any purpose not connected with the enjoyment of the
dominant heritage.
Illustrations
(a) A, as owner of a farm Y, has right of way over B’s land to Y. Lying beyond Y, A has
another farm Z the beneficial enjoyment of which is not necessary for the beneficial
enjoyment of Y. He must not use the easement for the purpose of passing to and from Z.
(b) A, as owner of a certain house, has a right of way to and from it. For the purpose of
passing to and from the house, the right may be used, not only by A, but by the members of
his family, his guests, lodgers, servants, workmen, visitors and customers: for this is a
purpose, connected with the enjoyment of the dominant heritage. So, if A lets the house, he
may use the right of way for the purpose of collecting the rent and seeing the house is kept in
repair.
It is well established that an easement must be used by the dominant owner for some purpose
connected with the enjoyment of the property in the dominant tenement. It cannot be enjoyed
for the purposes unconnected with the enjoy of the dominant tenement.
The justice and good sense of this are obvious, otherwise the user of the restrictive right
might be extended in all sorts of ways not contemplated by the servient owner, the burden
imposed on the servient tenement might be indefinitely increased, and the easement in
relation to such extended user might become a mere right in gross.

2.4 Section 22. Exercise of easement: confinement of exercise of easement.-

The dominant owner must exercise his right in the mode which is least onerous to the servient
owner; and when the exercise of an easement can without detriment to the dominant owner
be, confined to a determinate part of the servient heritage, such exercise shall, at the request
of the servient owner be so confined.
Illustrations
(a) A has a right of way over B’s field, A must enter the way at either end and not at any
intermediate point.
(b) A has a right annexed to his house to cut thatching grass in B’s swamp. A when
exercising his easement must cut the grass so that the plants may not be destroyed.
Section 22 lays down that every easement right should be exercised in a way which is “least
onerous to the servient owner. The least onerous mode of enjoyment of his right by the
dominant owner is that which might be expected from the full owner of the servient tenement
himself had he any occasion to enjoy the same right. The test of the conduct of the dominant
owner is what a reasonable man would do under similar circumstances on his own land. The
reason for this rule is that an easement right imposes a burden on the servient heritage and it
is but reasonable that the dominant owner must be enjoined not to increase the burden by
indiscriminate use of the right.

2.5 Section 23. Right to alter mode of enjoyment.-

Subject to the provisions of Section 22, the dominant owner may, from time to time, alter the
mode and place of enjoying the easement provided that he does not thereby impose any
additional burden on the servient heritage.
Exception.- The dominant owner of a right of way cannot vary his line of passage at
pleasure, even though he does not thereby impose any additional burden on the servient
heritage.
Illustrations
(a) A, the owner of a sawmill, has a right to a flow of water sufficient to work the mill. He
may convert the sawmill into a corn-mill; provided that it can be worked by the same amount
of water.
(b) A has a right to discharge in B’s land the rain-water from the eaves of A’s house. This
does not entitle A to advance his eaves if, by so doing, he imposes a greater burden on B’s
land.
(c) A as the owner of a paper-mill, acquires a right to pollute a stream by pouring in the
refuse liquor produced by making in the mill paper from rags. He may pollute the stream by
pouring similar liquor produced by making in the mill paper by a new process from bamboss,
provided that he does not substantially increase the amount, or injuriously change of the
pollution.
(d) A, a riparian owner, acquires as against the lower riparian owners, a prescriptive right to
pollute a stream by throwing sawdust into it. This does not entitle A to pollute by
discharging into it poisonous liquor.

2.6 Section 24. Right to do acts to secure enjoyment.-

The dominant owner is entitled, as against the servient owner, to do all acts necessary to
secure the full enjoyment of the easement; but such acts must be done at such time and in
such manner as, without detriment to the dominant owner, to cause the servient owner as
little inconvenience as possible; and the dominant owner must repair, as far practicable, the
damage (if any) caused by the act to the servient heritage.
Accessory rights.- Rights to do acts necessary to secure the full enjoyment of an easement
are called accessory right.
Illustrations
(a) A has an easement to lay pipes in B’s land to convey water to A’s cistern. A may enter
and dig the land in order to mend the pipes, but he must restore the surface to its original
state.
(b) A has an easement of a drain through B’s land. The sewer with which the drain
communicates is altered. A may enter upon B’s land and alter the drain, to adapt it to the
new sewer, provided that he does not thereby impose any additional burden on B’s land,
(c) A, as owner of a certain house, has a right of way over B’s land. The way is out of repair
or a tree is blown down and falls across it. A may enter on B’s land and repair the way or
remove the tree from it.
(d) A, as owner of a certain field, has a right of way over B’s land. B renders the way
impassable. A may deviate from the way and pass over the adjoining land of B provided that
the deviation is reasonable.
(e) A, as owner of a certain house, has a right or way over B’s field. A may remove rocks to
make the way.
(f) A has an easement of support from B’s well. The wall gives way. A may enter upon B’s
land and repair the wall,
(g) A has an easement to have his land flooded by means of a dam in B’s stream. The dam is
half swept by an inundation. A may enter upon B’s land and repair the dam.
Accessory rights.- Rights to do acts necessary to secure the full enjoyment of an easement
are called accessory rights. These are sometimes called “Accessory easements” or
“Secondary easements”. It should be here noted that the maxim of law I,s that whosoever
grants a thing is supposed also tacitly to grant that without which the grant shall be of no
effect. A dominant owner is free to do all such acts on the servient tenement as are accessory
to secure the fullest possible enjoyment of the easement, but he cannot act in a manner as to
impose a greater burden on the servient tenement He must take all possible precautions to
see that he exercises his acts at the such time and in such manner that least inconvenience is
caused to the servient owner. If by the exercise of an accessory right some damage is caused
to the servient owner, the dominant owner must repair as far as possible the damage so
caused. Accessory easements must not be confused with subordinate easements which have
been described as independent and inconsistent easements capable of imposition upon the
same servient heritage when subject admits of it.

2.7 Section 25. Liability for expenses necessary for preservation of easement-
The expenses incurred in constructing works, or making repairs, or doing any other act
necessary for the use or preservation of an easement, must be defrayed by the dominant
owner.
As a general rule it is an obligation of the dominant owner to carry out all repairs and do all
acts on the servient tenement necessary for the use and the preservation of his easement and
to bear the expenses of so doing because “he who has the use of a thing ought to repair it.”
The liability of the dominant owner is a necessary corollary to the rule that the servient owner
is under no personal or active obligation to do anything for the benefit of the dominant
tenement.

2.8 Section 26. Liability for damage for want of repair.–

Where an easement is enjoyed by means of an artificial work, the dominant owner is liable to
make compensation of any damage to the servient heritage arising from the want of repair of
such work.
Where the enjoyment of the easement is to be had by means of any artificial work on the
servient tenement, placed thereby, and belonging to the dominant owner, he is under a duty to
keep the work in proper repair so as not to cause damage to the servient tenement. The
dominant owner is liable for any damage arising from the want of repair of such work.

2.9 Section 27. Servient owner not bound to do anything.–

The servient owner is not bound to do anything for the benefit of the dominant heritage, and
he is entitled, as against the dominant owner, to use the servient heritage in any way
consistent with the enjoyment of the easement; but he must not do any act tending to restrict
the easement or to render its exercise less convenient.
Illustrations
(a) A, as owner of a house, has a right to lead water and send sewage through B’s land. B is
not bound, as servient owner, to clear the watercourse or scour the sewer.
(b) A grants a right of way through his land to B as owner of a field. A may feed his cattle on
grass growing on the way, provided that B’s right of way is not thereby obstructed; but he
must not build a wall at the end of his land so as to prevent B from going beyond it, nor must
he narrow the way so as to render the exercise of the right less easy than it was at the date of
the grant.
(c) A, in respect of his house, is entitled to an easement of support from B’s wall. B is not
bound, as servient owner to keep the wall standing and in repair. But he must not pull down
or weaken the wall so as to make it incapable of rendering the necessary support.
(d) A, in respect of his mill, is entitled to a watercourse through B’s land. A must not drive
stakes so as to obstruct the watercourse.
(e) A, in respect of his house, is entitled to a certain quantity of light passing over B’s land.
B must not plant trees so as to obstruct the passage to A’s windows of that quantity of light.

The servient owner is under no personal obligation to do anything for the benefit of the
dominant owner. He is free to use his tenement in any way he likes provided it is not
inconsistent with the enjoyment of his tenement by the dominant owner. The owner of the
servient heritage is prohibited from doing any act tending to restrict the easement, or to
render its exercise less convenient

2.10 Section 28. Extent of easements-

With respect to the extent of easements and the mode of their enjoyment, the following
provisions shall take effect:

Easement of necessity- An easement of necessity is co-extensive with the necessity, as it

existed when the easement was imposed.

Other easements- The extent of any other easement and the mode of its enjoyment must be
fixed with reference to the probable intention of the parties, and the purpose for which the
right was imposed or acquired.

In the absence of evidence as to such intention and purpose-

(a) Right of way- A right of way of any one kind does not include a right of way of any other
kind;
(b) Right of light or air acquired by grant.– The extent of a right to the passage of light or
air to a certain window, door on other opening, imposed by a testamentary or non-
testamentary instrument, is the quantity of light or air that entered the opening at the time the
testator died or the non-testamentary instrument was made;
(c) Prescriptive right to light or air- The extent of a prescriptive right to the passage of light
or air to a certain window, door or other opening is that quantity of light or air which has
been accustomed to enter that opening during the whole of the prescriptive period
irrespective of the purposes for which it has been used;
(d) Prescriptive right to pollute air or water- The extent of a prescriptive right to pollute
air or water is the extent of the pollution at the commencement of the period of user on
completion of which the right arose; and
(e) Other prescriptive rights- The extent of every other prescriptive right and the mode of
its enjoyment must be determined by the accustomed user of the right.

Section 28 lays down certain rules for determining the extent of easements and the mode of
their enjoyment.

Easements of necessity.- In the case of an easement of necessity the rule broadly stated is that
the user of the right must be limited by the actual necessity of the case. In relation to the use
to which the dominant tenement may be put, the question arises as to the point of time to
which the actual necessity is to be referred. The state of circumstances existing at the time of
the grant must determine the necessity of the case. Otherwise the necessity which is the
foundation of the right, might be converted into a mere question of convenience, changing its
character according as the dominant owner choose to alter the mode of his enjoyment of the
dominant tenement. It is well settled law both in India and England that an easement of
necessity cannot be converted into an easement of convenience, which might change its
character frequently according to the whims and needs of the dominant owner.

Right of Way.- When an easement of way is created by deed of grant or by will the extent and
mode of its enjoyment must, in conformity with the general rule, be ascertained from the
terms of the instrument itself, which are to be construed, if necessary, with reference to the
circumstances existing at the date of the instrument. However, where there is a right of way
proved by user, the extent of the right must be measured by the extent of the user.

Right to light and air.- In suit for damages for obstruction of easement of light and air the
dominant owner (plaintiff) must prove that there has been diminution in the quantity of light
and air which used to enter his house during the whole of the prescriptive period and that
such diminution has made the occupation of the house uncomfortable or unsuitable for
carrying on his business as beneficially as he was doing before. Mere diminution in the
quantity of light and air does not give rise to the cause of action. Section 28 which confers the
right of easement has to be read with Section33 of the Act which indicates the extent and the
limitation under which the right of easement is enjoyed. Indeed if Section 28 is completely
divorced from the scope of Sections 33 and 35 then the two sections would run contradictory
to each other and this will be against the rule of harmonious interpretation of statutes. Section
28 merely indicates in what measure aright of easement of light or air can be acquired but
how that right is to be actually enforced when disturbed is laid down in Sections 33 and 35 of
the Act.
Extent of right to light or air acquired by grant: If the plaintiff has been receiving light and
air through his two ventilators for over the statutory period and has thus acquired
easementary right, he is entitled to get light and air through the said ventilators though he
might be getting enough light and air by other means (Santhannagiri Rammaya
v.Narsinhapuram Narayana Chetty, AIR 1968 AP 151).

If there is something in the instrument itself, as to the extent and mode of enjoyment, the
terms of the deed, and not this rule, will be proper guide fixing such extent and mode of
enjoyment, as the rule applies only when there is no evidence as to the intention of the parties
and the purpose for which the right was created (Ganga Charan Dhar v. Satkrit Lal Dey,
133 I.C. 214: AIR 1932 Cal. 118: 53 C.L.J. 604).

Extent of prescriptive right to light and air.- The owner of the dominant tenement has a right
to claim that he must receive his prescriptive share of light or air through the defined passage
(Shanker v Dattaraya, 131 I.C. 429: AIR 1931 Nag. 80). The use of the words “window,
door or other opening” shows that the Indian law, unlike the English law expressly regards a
door as an opening for the passage of light. Therefore, according to the Indian law, the
prescriptive right to light and air can be acquired even through a door (Veerappa Mallappa v.
Nagappa Jakirappa, AIR 1965 Mys. 292).