UNIT V EASEMENTS

DEFINITION
TYPES OF EASEMENT
ACQUISITION EXTINCTION AND PROTECTION OF EASEMENTS
 INTRODUCTION TO EASEMENT

Easements are certain rights dealing with two different real estate properties having two
different ownership. The recognition and existence of the easement rights can be traced
historically to the roman period In the roman period the real estate properties held by
various persons were found without individual access ways to their lands. As such one
had to pass through another person's property to reach his land.

Over a period of continuous use without interruption, a right to use ones property to
reach another's persons property has become an easement under the roman law

Prior to the British rule, in India there were no clear and well defined rules related to
easement right and the British tried to introduction and apply English laws of easement
in India to deal with cases arising out of easement issues and rights. The Indian easement
act- 1882 came in to force in the year 1882 during the British rule.
 DEFINITION OF EASEMENT AND ITS CHARACTERISTICS

•By definition easement is a right which the owner of a certain land or estate possesses 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 which is not his own

• Easement is a certain acquired right implied or acquired through constant use for some
specified time without interruption. Such rights acquired are called easement. Easement is
a non-possessory right of use, meaning that the persons enjoying the easement right over
another person’s land cannot possess the land, but can only enjoy certain rights.

•Essential characteristics of easement are existence of two heritage or estates held by two
different parties
 SERVITUDE

Dictionary meaning of servitude is a condition of being a slave or being under control of

someone else. For examples, consider a case where “ A” uses “B” s property to reach his land.
Over a period of continuous use “A” acquires a right to use “B” property to pass through it reach
his property. The right becomes an easement, and is also called servitude.

DOMINANT AND SERVIENT HERITAGE ;OR ESTATE:

For example, consider that the owner of land ‘A’ holds an easement right to use
a passage way on the land of ‘B’ to gain access to ‘A’ ‘s house. Here, ‘A’ s easement is
the dominant heritage, receiving the benefit. ‘B’s land is the serviette heritage, granting
the benefit. In other words, land of ‘A’ is the dominant estate, receiving the benefit, and
‘B’s land is the serviette estate, granting the benefit or suffering the burden. The party
enjoying or gaining the benefit of the easement is the dominant heritage, while the party
granting the enjoyment is the serviette heritage.
 TYPES OF EASEMENT

Continuous easements.
Discontinuous easements
Apparent easements.
Non Apparent easements.

1.Continuous easement:
Continuous easement is a right which may be enjoyed without any act of man.
Consider two adjacent plots “A” and “B’’ one below the other in a hilly terrain. Rain water
flowing naturally in such plots without act of man is considered as continuous easement.
Owner of “B’’ cannot object nor stop or level natural flow of water by any means.

2.Discontinuous easement:

A discontinuous easement is a right which is subject to the act of man. A right of

way to access ones property is such an easement, because the enjoyment of the right is
dependent on man’s intervention.
 TYPES OF EASEMENT

3.Apparent easements:
Apparent easements are those that are visible. The natural discharge of rain
water from the sloping roof top of one’s building to another person’s land is an example
of apparent easement.

4.Non Apparent easement:

Non apparent easement is a right where there are no visible signs of path and
the path is non apparent. (Example: Underground existing sewer line). Qualified persons
can identify them by inspection and testify to the existence of easement right.

IN ADDITION TO THE PRINCIPAL EASEMENTS DESCRIBED ABOVE,

THERE ARE OTHER EASEMENTS:

Affirmative and negative easements

Public and private easements.
Floating easements.
AFFIRMATIVE AND NEGATIVE EASEMENTS
Affirmative easement is the right of one person
using another’s property for a specific purpose. For
example, affirmative easement might allow land
owner B to collect water from the land of A. B has A
an affirmative easement from A.
Negative easement is a prohibitive activity
or denial of some activity. B
Example: ‘A’ has easement right to pass
through ‘B’ property to reach the public road. ‘B’ is
restricted to build a compound wall or fencing that
blocks the right of way of ‘A’ to the public road. ‘A’
has negative easement over ‘B’.

PUBLIC EASEMENT:
A public easement is one that grants an easement right for public to
allow them access to pass through a land owned by a section of another community.
Right of way acquired by a particular community to pass through a road
predominantly surrounded by another community, peacefully and without interruption over
a period of 20 years creates a public easement.
 PRIVATE EASEMENT-EASEMENT OF NECESSITY:
A private easement exists between
two or more private individuals or families. Mostly it is
A about right of way or rights of light and air or use of well
water acquired by necessity and prior use.
Consider a field having a well in one
corner and divided into two lots A & B by a partition
deed between two brothers. There is no other source of
B water supply in lot B and the well is used to irrigate the
entire lot.

Even if no mention of the use of well is made in the partition agreement, owner of lot-B acquires
the right to draw water from the well. This is one example of easement acquired by necessity and
prior use.
FLOATING EASEMENT:
Floating easement deals with case where right of way is not defined, it
occurs when a person has been crossing a field without any visible path, and when there is no
fixed location or limits to the right of way.
Consider another case of fire in a building which has limited access for
the fire engine to enter. Use of adjacent building open space by the Fire services is a case of
floating easement for public purpose. It is also a case of a government acquiring an implied
easement over private land by virtue of the public service it performs.
EASEMENTS-IMPOSITION AND ACQUISITUON CONDITION:
A person who enjoyed uninterrupted access to a property from other
property for more than 20 years can impose easement on the property through which he gained
access to his property. On similar condition, one can impose easement of light and air.
easement by prior use:
WAYS OF CREATING EASEMENTS: Plot A
•By prior use
•By prescription
•By way of grant
CREATION OF EASEMENT BY PRIOR
USE-CONDITIONS: Plot B
There must in existence one time two common
ownership properties
Properties followed by severance,
Use occurs before and after severance. Public road
Example-1 easement by prior use:
For example, consider ‘A’ owns two plots one behind the other, sells the front plot to
‘B’. ‘B’ has access to a public street and ‘A’s plot is behind it and is landlocked.
‘A’ was using the front plot to reach his house in the rear plot before the sale. ‘A’
originally had common ownership of both properties. ‘A’ also used the driveway during this
period prior to the sale. Although ‘A’ did not reserve an easement right, the driveway is visible
and it is necessary to reach his plot. Otherwise ‘A’ cannot reach his house or get access to the
street. This is another example of easement by prior use.
EXAMPLE-2 EASEMENT BY PRIOR USE: Plot A
Implied easement. An easement created by prior
use is based on the assumption that a land owner when he Sewer
is selling a part of the property intends to create an lines
easement, but forget to include it in the sale deed.
A notice of inspection report by a qualified Plot B
engineer about the existence of a sewer line serving the
house at the plot establishes implied easement by prior use.

BY PRESCRIPTION Public road

Easements by prescription are created after the dominant estate has used the adjacent
property of another owner, say for example to enjoy the benefit of air and light continuously for a
period of 20 years, without the permission and knowledge of the other owner. Prescription has a
indicates lapse of time in the context of acquiring or destroying a right.
Works in a way similar to adverse possession
While adverse possession ripens into title of land, prescriptive rights
mature into easement Plot A
Five requirements
•Use must begin and continue without the actual or implied
permission of landowner (must be adverse to owner of land) Plot B
•Use must be open and notorious
•Use must be exclusive
•Use must be in same place within definite lines
•Use must be continuous and interrupted Public road
 ACQUISITION OF EASEMENT RIGHT BY GRANT:

Requires prior existence and use of the easement

Apparent
Permanent for enjoyment of the
Continuous property granted
Necessary

X and Y are two individuals in joint family and drawing equal share of water
from the only one well in a lot of land. The lot is partitioned into two part ‘A’ and ‘B’ by
a partition agreement. Consequently the well forms part ‘A’ of ‘X’s portion.

Consider a situation that arises when water in the well is depleted to a extent
that “Y’’ cannot draw his share of water. “X’’ denies “Y” to draw his share on the
contention that well has only limited water enough to meet his share. By mutual
agreement, “Y” agrees to deepen the well at his cost and the water level is restored to the
extent so that “Y” can reclaim his share. “X” then grants a right to “Y’’ , called easement
by grant.
 ARCHITECT ROLE-EASEMENTS:

•Architect can enlighten people about easements rights, on issues arising in family
partitions and large bodies of communities with regard to right of ways, and use of
common facilities for their peaceful enjoyment.

•He can safe guard interests of those who seek his advice to stop someone from acquiring
easement rights by prescription.

•He can also be of service in matters of riparian rights in the use of water flowing from
other states for irrigation purposes.