Easement
1.Definition
2.Essentials
3.Acquisition
4.Extinguishment
5.Case Laws
Definition
Section 4 of the Indian Easements Act, 1882
An easement is a legal right held by the owner or occupier of one
property (Dominant Heritage) to use or restrict the use of another
property (Servient Heritage) for the beneficial enjoyment of their own.
The essence of an easement is that it does not transfer ownership but
grants specific usage rights.
Terms:
Dominant Estate: It refers to the property that profits from a
right of way, called ‘dominant’ in official terms, and its owners
have a mandate to use another’s land for some specific
purposes.
Servient Estate: This is the term used to refer to any property
that has an easement as attached (known as servient estate) and
is thus required by law to give a part of its land or resources for
use by the dominant estate.
Encumbrance: A legal phrase for any claim or burden on real
estate, such as an easement, which may affect its title,
transferability, or use.
Scope of Use: This can be taken to mean certain activities done
on servient estate that a party with an easement may do
pursuant to the easement agreement.
Termination: Termination means that an easement ends. It
could end in many ways, including when a time-limited one
expires, abandonment, both parties agree or the court orders it.
Examples :
1. Right of way: Using a neighbour’s land to access a road.
2. Right to water: Crossing someone else’s property to fetch water
from a well.
3. Right to sunlight: Preventing a neighbour from constructing a
building that blocks sunlight.
Illustration
If property owner A has the right to use a pathway on B’s land to
access the main road, A’s property is the dominant heritage, while B’s
property is the servient heritage. This arrangement constitutes an
easement.
The essentials of an easement are:
Two properties: The easement must be between two separate
properties, known as the dominant and servient heritages.
Different owners: The properties must be owned by different
people.
Beneficial enjoyment: The easement must provide a benefit to
the owner of the dominant property.
Positive or negative: The easement can be positive or negative. A
positive easement gives the dominant owner the right to perform
an action, while a negative easement restricts the servient owner
from performing an action.
Attached to the property: The easement must be attached to the
dominant property.
Right in rem: The easement must be a right in rem.
Determinate person: The easement must belong to a specific
person.
Modes of acquisition of easements:
1.Express grant
2. Implied grant
3.Acquisition by prescription
4.Customary easement
5.Transfer of dominant heritage
6. Imputed grant
7.Statute
1. Express grant: The most direct method of creating an
easement is by express grant. Express easements are created by
a written agreement between landowners granting or reserving
an easement. An express easement is created by a deed or by a
will. Thus, it must be in writing. In this the owner of a certain
piece of property conveys the land to another but saves or
reserves an easement in it. This arrangement is known as an
"easement by reservation."
Example an individual who requests access to build a walkway
on his neighbour's property. The grantor in this case can grant
the easement for the length of their ownership over the property
to the grantee, not anytime longer. This specifies the life of the
easement created through an express grant.
Booth v. Alcock it was ruled out that the easement granted
could not continue after the expiration of servient owner’s
interest.
2. Implied grant: Even when no document or agreement has
created an express easement, an easement right may still be
understood (or "implied") by a situation or circumstances.
To create an easement by implication, three requirements must
be met:
1.The easement must be at least reasonably necessary to the
enjoyment of the original piece of property.
2.The land must be divided (or "severed"), so that the owner of a
parcel is either selling part and retaining part or subdividing the
property and selling pieces to different new owners.
3.The use for which the implied easement is claimed must have
existed prior to the severance or sale.
3. Acquisition by prescription: An easement by prescription is
one that is gained under principles of a legal concept known as
"adverse possession", under which someone other than the
original property owner gains use or ownership rights to certain
property. Section 15 provides for the acquisition of the right of
easement by prescription.
Conditions for Acquisition of Easement rights by prescription:
1.There must be a pre-existing easement which must have been
enjoyed by the dominant owner.
2. The enjoyment must have been peaceable
3.The enjoyment must have been as of right
4.The enjoyment must have been as an easement
5. The right must be enjoyed openly,
In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd.
The Supreme Court has laid down that to establish the clause under
Section 15, continuous user of 20 years as of right to do the act
complained of in assertion of a title, peaceably and openly must be
made out.
6. The enjoyment must have been for a period of twenty years, This
period is of sixty years when the servient heritage belongs to the
Government.
4. Customary Easement: Sec.“Customary easement. -An easement
may be acquired in virtue of a local custom. Such easements are
called customary easements.” A customary easement is not an
easement in the true sense of that expression. It is not annexed to the
ownership of a dominant tenement, and it is not exercisable for the
more beneficial enjoyment of the dominant tenement; it is recognized
and enforced as a part of the common law of the locality where it
obtains
Rup Chand v. Sh. Daulatu
it was held that the right of using the edges (mainds) of each other’s
fields for going to their respective fields by the agriculturists is a
customary right of easement and not a right of easement which is
to be acquired by prescription or by necessity.
5.transfer of dominant heritage: Dominant heritage transferred by
the act of the parties or by the operation of law carries the incidental
easement rights with it under sec.19.
A has certain land to which a right of way is annexed. A lets the land
to B for twenty years. The right of way vests in B and his legal
representative so long as the lease continues.
6.Imputed grant: Easements are established by proof of immemorial
enjoyment and created by the operation of doctrine of acquiescence
when the servient owner actively encourages the dominant owner to
exercise a right.
7.Statute: By legislation easements may be created. Indeed even the
rights which do not have the characteristics of the easement may be
statutorily declared to be easements.
Extinguishment of Easements
1. Extinguishment by Release
An easement can be extinguished if the dominant owner voluntarily
releases the right in favour of the servient owner. The release must be
in writing or demonstrated through actions that show an intention to
relinquish the right.
Example: The dominant owner signs a deed relinquishing the right to
use a right of way.
2. Extinguishment by Unity of Ownership
When the ownership of the dominant and servient tenements is
merged into the same person, the easement is extinguished. Since a
person cannot have an easement over their property, the right ceases
to exist.
3. Extinguishment by Expiration of Time
If an easement was created for a limited time or purpose, it is
extinguished once the period expires or the purpose is fulfilled.
Example: A temporary right of way granted for the duration of a
construction project would expire once the project is completed.
4. Extinguishment by Abandonment
An easement can be terminated if the dominant owner intends to
abandon it, usually through non-use over a long period. Abandonment
requires clear evidence that the dominant owner has relinquished the
easement.
5. Extinguishment by Destruction of the Servient Tenement
If the land over which the easement is exercised is permanently
destroyed or altered so that the easement can no longer be used, the
easement is extinguished.
Example: If a path used as a right of way is washed away in a flood
and cannot be restored, the easement may be considered
extinguished.
6. Extinguishment by a Change in Circumstances
When the circumstances under which an easement was granted have
changed so significantly that it is no longer necessary, it may be
extinguished.
7.Servient Owner: By dissolution of right or interest of servient
owner. If a limited interest on servient tenement, he can grant an
easement right. An easement will be ended on dissolution of his
interest on servient tenement.
8.Permenant Alteration of Servient Heritage by superior force: If
the superior force deprives the dominant owner from enjoying the
easement right, then easement right is extinguished.
Case Laws:
Nunia Mal And Anr. vs Maha Dev (1961)
The court clarified that to claim an easement by prescription:
The right must have been exercised peacefully, publicly, and without
interruption for a continuous period of 20 years (30 years in the case
of government land).
Krishna Kumar Agarwal vs Jai Kumar Jain
In this case, the appellant krishna kumar Agarwal constructed a
double stored building. Thereafter, he constructed a partition wall
without permission from the municipality. As a result, the windows
and ventilators on the wall of the respondent’s house were closed. As a
result, there was no light and air. The trial court gave judgement
directing the appellant to remove the walls. The applicant approached
the SC. The SC upheld the decision of the trail court.
Ramlal vs Rakhadu Pandu
An agriculturalist has 0 acres of land. The water was spreading
through small channels which come from tank. After his death, his
two sons, ‘A’ and ‘B’, shared the property: 5acres each. However, the
irrigation channels were in the land of ‘A’. There was no other way the
channel of getting tank water to the land of ‘B’.’B’ sold the land to ‘C’.
‘A’ obstructed the water. As a result, no water would flow into the field
of ‘C’. The sale deed was silent. The court held that even though sale
deed was silent, it was necessary to see to enjoy his land from the
channels of ‘A’.
