PROJECT WORK

DR. B.R. AMBEDKAR NATIONAL LAW UNIVERSITY

SUBJECT – PROPRTY LAW

TOPIC – EASEMENT

SUBMITTED BY:
NAME – MANMOHAN AGGARWAL
ROLL NO.- 2201066
BATCH AND COURSE – 2027 AND BA.LLB.
SUBMITTED TO:
NAME – DR. RENU SHARMA
 INDEX

PG.
S.NO PARTICULARS
NO.
1. ACKNOWLEDGEMENT 1
2. INTRODUCTION 2
3. WHAT IS AN EASEMENT? 2
4. ORIGIN OF EASEMENT 3
5. CONDITIONS FOR EASEMENT 4
6. REQUIREMENTS OF EASEMENT 4
7. CREATION OF EASEMENTS 6
8. DURATION AND NATURE OF EASEMENTS 7
9. TYPES OF EASEMENTS 7
10. QUASI EASEMENTS 10
TERMINATION, SUSPENSION AND REVIVAL OF
11. 10
EASEMENTS
12. CONCLUSION 13
13. BIBLIOGRAPHY 14
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to

my teacher DR. RENU SHARMA who gave me the
golden opportunity to complete this project work. I came
to know about so many new things while working on the
project.

I am greatly indebted to the various writers, jurists, and

all others from whose writings and works I have taken
help to complete this project.

Manmohan Aggarwal
2201066

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 INTRODUCTION

An easement is one of the property rights that is capable of being a legal interest. Among the
fundamental rights accommodation is one of most significant rights that a person should get.
An easement is a right which the owner of one piece of land (the dominant owner) may
acquire to make use of another's nearby piece of land (the servient owner) in a certain way for
the benefit of his own land e.g. rights of way, light, support, air, water, etc. An easement
should be distinguished from a profit which is a right to go on to somebody else’s land (the
servient land) and take something from the servient land which exists there naturally e.g. the
right to graze. Easement normally means the right to use a land that does not belong to the
person using it. Section 26 of the Limitation Act, 1908 provides for acquisition of right to
easement.

WHAT IS AN EASEMENT?

The concept of easement has been defined under Section 4 of The Indian Easements Act,
1882. According to the provisions of Section 4, an easementary right is a right possessed by
the owner or occupier of the land on some other land, not his own, the purpose of which is to
provide the beneficial enjoyment of the land. In other words, an easement is a right given to
another person or entity to trespass upon land that person or entity does not own. Easements
are used for roads, for example or given to utility companies for the right to bury cables or
access utility lines. Landlocked home owners sometimes pay for an easement to cross the
land of another to reach their home. It can be understood through below mentioned
illustrations –

❖ Ram being the owner of certain land or house has a right of way over Sita’s house,
adjacent to his house, to move out of the street. This is known as right of easement.
❖ A voluntary dedication of right a person Madhav to the public for passing or re-
passing over a surface of certain land is not a right of easement.
❖ Keshav’s right to go on his neighbour Radha’s household for fetching water from the
well for the purpose of his own household is a right of easement. Here, the way to the
well is through Radha’s land only. Hence, Keshav has an easementary right to pass
through Radha’s household.

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This right is granted because without the existence of this right an occupier or owner cannot
fully enjoy his own property. It includes the right to do or continue to do something or to
prevent or to continue to prevent something in connection with or in respect of some other
land, which is not his own, for the enjoyment of his own land. Easements run with the land.
Almost every home has an easement. It is important to look for easements in the public
records, especially if a prospective buyer plans to put in a swimming pool. A property owner
cannot build on top of an easement. Easements by prescription are acquired by hostile, open
and notorious use for five years. For example, rigid easements could be claimed by a person
who travels across a parcel of land owned by another and continuously for five years without
the owner’s permission or consent.

The word ‘land’ refers to everything permanently attached to the earth and the words
‘beneficial enjoyment’ denotes convenience, advantage or any amenity or any necessity. The
owner or occupier referred to in the provision is known as the Dominant Owner and the land
for the benefit of which the easementary right exists is called Dominant Heritage. Whereas
the owner upon whose land the liability is imposed is known as the Serviant Owner and the
land on which such a liability is imposed to do or prevent something, is known as the
Servient Heritage.

ORIGIN OF EASEMENT

The term ‘easement’ comes from the old Latin word ‘aisementum’ meaning “comfort,
convenience or privilege” and is developed into “a legal right or privilege of using something
not one’s own.” An easement is the grant of a non-possessory property interest that grants the
easement holder permission to use another person’s land. In simpler terms, it refers to the
right which a man sometimes has oner one piece of land by reason of his ownership of
another.

In the words of Salmond, easement is that legal servient which can be exercised on some
other piece of land specifically for the beneficial enjoyment of one’s own land. Right of
easement is basically a form of privilege, the integral part of which is to do an act or prevent
certain acts on some other land for enjoyment of one’s own land.

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 CONDITIONS FOR EASEMENT

Section 26 of the Limitation Act provides for the rules of acquisition of the right of easement.
According to this section the right of easement regarding enjoyment of light, air, way,
watercourse, use of water or other easement shall be absolute and indefeasible if it is enjoyed
continuously for a period of 20 years in the case of enjoying private property or 60 years in
the case of public property. But this use or enjoyment must fulfill some essential conditions
which have been stated as follows:

➢ Peaceably: Enjoyment of easements must not be by force stealth or violence of any

sort.

➢ Openly: Easement must be open and not by stealth or surreptitiously or in disguise.

➢ As of right: The enjoyment must be rightful for both the parties and not unfair.

➢ Without interruption: This means without any obstruction on the part of the person

against when the easement is claimed. Easements may be enjoyed whenever the

situation demands, not necessarily at all times. Non users of easements have no right

to interrupt in this case.

However, the right acquired by section 26(1) will be extinguished if there is any interruption
for 2 years. So, if any such right is acquired and subsequently obstructed, the person acquired
it must file a suit within 2 years claiming such a right.

REQUIREMENTS OF EASEMENT

The essential features of an easement, in the strict sense of the term, are these:

(a) It is an incorporeal right; a right to the use and enjoyment of land not to the land itself

(b) it is imposed upon corporeal property

(c) it requires for its constitution two distinct tenements the "dominant tenement" which
enjoys the right, and the "servient tenement" which submits to it.

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This last characteristic excludes from the category of easements the so-called easements in
gross, such as a right of way conferred by grant independently of the possession of any
tenement by the grantee.

The true easement is an " appendant " or " appurtenant " easement, not an "easement in
gross". Both the Indian as well as the English Law of easements does not recognize the
concept of *easements in gross' as they do not comprise of the dominant and servient estate."

In order to assess the validity of an easement it is essential to look both at its substantive
characteristics and at the way in which it has been created. The characteristics that are
necessary for the validity of an easement has been laid down by the decision in Re
Ellenborough Park1. The Court of Appeal had to decide the status of a right for residents to
use a garden in the middle of a square around which their houses were built. That case gave
rise to the four well-known characteristics of easements viz.,

(1) there must be a dominant tenement and a servient tenement;

(2) the easement must accommodate the dominant tenement;

(3) the dominant and servient tenements must be owned by different persons; and

(4) the easement must be capable of forming the subject matter of a grant

In India, there are two more requirements namely that the easement should be for the
“beneficial enjoyment” of the dominant tenement and that the easement should entitle the
dominant owner to do or to continue to do something, or to prevent or to continue to prevent,
something in or upon or in respect of the servient tenement. (C. Mohammed v.
Ananthachari2) The courts have from time to time rejected claims to easements on the
ground that the right would be too wide and vague. In Hunter v Canary Wharf Limited3,
although the right to television reception was not pleaded as an easement, the House of Lords
nonetheless considered the issue. Lord Hoffmann concluded that such a right should not be
recognised as it would place a burden on a wide and indeterminate area.

As already pointed out there must be a dominant owner and a servient owner, it must be for
the advantage of the dominant owner, it may be permanent or temporary, or for a limited
1
Re Ellenborough Park, [1955] EWCA Civ 4
2
C. Mohammed v. Ananthachari, AIR 1988 KERALA 298
3
Hunter v Canary Wharf Ltd, [1997] UKHL 14

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period of time or seasonal or for a specified event or out of necessity, the owners must be two
different persons and it must be capable of forming the subject matter of a grant. The Indian
law relating to Easements includes profitaprendre proyided it is supported by a dominant and
servient heritage (profitaprendre appurtenant). This is to be contrasted with the English Law
wherein profitaprendre and easements are separated. However, the Indian position is such
that it does not recognize profitaprendre in gross.

CREATION OF EASEMENTS

The title to easement may be by grant, by custom, by prescription or necessity. An easement

can be acquired by grant. A grant is given by an agreement executed by a grantor in favor of a
grantee for a consideration. The grant becomes effective when the grantee has the right to
enter upon the grantor’s land. The deed of easement may be separate or the agent may be
included in a deed relating to the dominant heritage. For example, X sells his land to Y and
by the same deed he may grant a right of way to Y for such land for another land of his. Grant
is given by an agreement executed by the grantor in favor of the grantee for a consideration.
The grant becomes effective when the grantee has the right to enter upon the grantor’s land.
Easement by virtue of custom is a legal right acquired by the operation of law through
continuous use of a land over a long period of time. Therefore, the right of way continues to
exist by grant, prescription or by virtue of custom.

Easements, which are the subject matters of agreement between the parties, are for right of
way, right to air and light. Some easements are acquired by grants and others prescription and
custom. Creation of an easement does not mean transfer of property. Int eh same manner,
surrendering an easement right does not imply transfer of property. Easement can be made,
altered and released. Easement right cannot be created or modified orally. It must be in a
written form. However, easements by prescription and custom need not be in writing.

A deed of grant must clearly mention the purpose of which easement is granted. By the deed
of grant the sunservient owner given full and free and right to the dominant owner and his
successors a passage wide enough for movement of people and vehicles between the
dominant owner’s premises and the public road against a price consideration. In Moody v.

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Steggles the grant of a right to fix a signboard to the adjoining property advertising the public
house which constituted the dominant tenement was held to comprise an easement.

DURATION AND NATURE OF EASEMENTS

According to Section 6 of the Indian 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 only at a certain 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 voidable on the
happening of a specified event or the performance or nonperformance of a specified Act."
The nature of easements is described in section 7 of the Indian Easement Act, 1882 which
states that easements are restrictions of one or other of the following rights (namely):

(a) Exclusive right to enjoy – The exclusive right of every owner of immovable property
(subject to any law for the time being in force) to enjoy and dispose of the same and all
products thereof and accessions thereto

(b) Rights to advantages arising from situation – The right of every owner of immovable
property (subject to any law for the time being in force) to enjoy without disturbance by
another the natural advantages arising from its situation

TYPES OF EASEMENTS

There are several classifications of easements which is to be noted. The types of easements
vary from country to country. Some of the notable types are enumerated herein. They are
divided into –

(a) affirmative or positive, those which authorize the commission of an act by the dominant
owner, e.g. rights of way, a right to draw water from a spring, rights of aqueduct, and
negative, when the easement restricts the rights of the servient owner over his own property,
e.g. prevents him from building on land so as to obstruct ancient lights (also the right to the
support of neighbouring soil)

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(b) continuous, of which the enjoyment may be continual without the interference of man,
e.g. access to light, and discontinuous, where there must be a fresh act on each occasion of
the exercise of the right, e.g. a right of way, or right to draw water

(c) apparent, where there are visible external signs of the exercise of the right, e.g. a right to
dam up a watercourse, and nonapparent, where such signs are absent, e.g. a right to lateral
support from land, a prohibition to build above a certain height. The Indian Easement Act,
1870 expressly codifies several types of easements, their effects and the extent to which they
extend and when they cease.

Easement By Prescription

Prescription means getting a right by continuous assertion of the right, which has been in use
for a long period of time. Thus, to establish in a Court of law, a right of easement by way of
prescription, the following criteria are to be satisfied:

a). There must be a preexisting easement which must have been enjoyed by the dominant
owner;

b). The enjoyment must have been peaceable;

c). The enjoyment must have been as an easement;

d). The enjoyment must have been as of right;

e). The right must have been enjoyed openly;

f. The enjoyment must have been for a period of twenty years;

g). The enjoyment for 20 years must have been without interruption; and

h). The period of twenty years must have ended within a period of two years immediately
preceding the date of suit claiming such easement.

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The first seven points were specifically pointed out by the honourable High Court of Kerala
in Krishnan v. Nanukuttan reported in ILR 1986 (1) Kerala 526. However, if such enjoyment
is based on an agreement between the parties, which states expressly or impliedly that the
enjoyment is not as an easement, the principle of Section 15 of the Easements Act will not
apply. Further, in order to constitute an interruption, there should be a cessation of enjoyment
by an obstruction created by a person other than the claimant, and the claimant should not
have acquiesced to the same. Also, if a person enjoys the benefit under a life interest or an
interest fixed at a period of over three years, then that period will be excluded from the
calculation of the twenty years according to Section 16 of the Easements Act.

Section 17 of the Easements Act provides that the following easements cannot be acquired by
prescription: (a). An easement that imposes a liability on the property or would lead to the
total destruction of the property; (b). A right to the free passage of light or air to an open
space of ground; c). A right to surfacewater not flowing in a stream and not permanently
collected in a pool, tank or otherwise; d). A right to underground water not passing in a
defined channel

Easement Of Necessity

An easement of necessity is implied only where the right is essential for the use of the land
granted or retained, The question is not whether it is necessary for the reasonable enjoyment
of the land but whether the land can be used at all without the implied grant or reservation. A
claim will only be successful where the land is "absolutely inaccessible or useless" without
the easement. The most obvious example of a situation in which an easement of necessity
may be implied is where a grantor conveys an entire plot of land except for a piece in the
middle, which is completely surrounded by the part conveyed. Unless the reservation of a
right of way over the land granted is implied, the land in the centre would be completely
landlocked. An easement of necessity will not, however, be implied merely because it makes
it more convenient to use the land. An easement of necessity is coextensive with the
necessity, as it existed when the easement was imposed. These easements arise on the
severance of tenements. They are said to be created by implied grant.

To take a concrete example, if the owner of a certain field, who irrigates his entire field by
taking water from a well situated within field, sells a part of the field not containing the well,

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but retains the part containing the well, the question would naturally arise whether the
purchaser has right to take water from the vendor's well to irrigate his part. If the parties have
settled this question by specific mention in the deed of conveyange, their common intention
as so expressed must be given effect to. But if the deed of conveyance contains no reference
to this point, law would grant to the purchaser of the partheritage an easement in favour of the
said part heritage to take water from the well situated in the other partheritage retained by the
vendor. According to the case of Muhammad Ramzan v. Naseer Beg, 1980 CLC 1555, the
plaintiff must not only prove existence of right of easement at the time of transfer of property
to him but also such right being necessary for enjoying transferred property."

QUASI EASEMENTS

The principle of quasi easement is that where the one portion of the property has been
dependent on another portion for necessary advantages and the former portion is alienated,
the denial to the grantee of the enjoyment of similar advantages would be to deprive his new
acquired property of utility and benefit of his bargain. A quasi easement will not come into
existence if it is expressly excluded by the terms of the grant or are inconsistent with the
intention of the parties.

TERMINATION, SUSPENSION AND REVIVAL OF EASEMENTS

Generally, mere nonuse does not end an easement. One or more of the following factors may
also have to be present:

Extinction by dissolution of right of servient owner:

When, from a cause which preceded the imposition of an easement, the person by whom it
was imposed ceases to have any right in the servant, the easement is estinguished. For
example, A transfer Sultanpur to B on condition that he does not marry C, B impress an
easement on Sultanpur. Then B marries C, B's interest in Sultanpur ends, and with it the
easement is extinguished.

Agreement to terminate by grantor and the grantee of the easement:

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An easement is extinguished when the dominant owner releases it, expressly or impliedly, to
the servient owner. Such release can be made only in the circumstances and to the extent in
and to which the dominant owner can alienate the dominant heritage. An easement may be
released as to part only of the servient heritage. Similarly, as per section 39 of the Indian
Easements Act, 1870 an easement is extinguished when the servient owner, in exercise of
power reserved in this behalf, revokes the easement

Expiration of the time allowed for the easement:

An easement is extinguished where it has been imposed for a limited period, or acquired on
condition that it shall become void on the performance or nonperformance of a specified act,
and the period expires or the condition is fulfilled.

Abandonment or expressed intent to discontinue use of the easement:

A continuous easement or a discontinuous easement is extinguished when it totally ceases to

be enjoyed as such for an unbroken period of twenty years. With respect to a continuous
easement, from the day on which its enjoyment, lays obstructed by the servient owner or
rendered impossible by the dominant owner, and, in the case of a discontinuous easement,
from the day on which it was last enjoyed by the person as a dominant owner:

Merger where one person buys both dominant and servient tenement:

An easement is extinguished when the same person becomes entitled to the absolute
ownership of the whole of the dominant and servient heritages, For example, A, as the owner
of a house. has a right of way over B's field. A mortgage his house, and B mortgages his field
to C. Then C forecloses both mortgages and becomes thereby absolute owner of both house
and field. The right of way is extinguished.

Extinction by end of necessity in case of easement by necessity:

An easement of necessity is extinguished when the necessity comes to an end. For example,
A grant B a field inaccessible except by passing over A's adjoining land, B afterwards
purchases a part of that land over which he can pass to kxis field. The right of way over A's
land which B has acquired is extinguished.

Extinction by Destruction of Subject Matter:

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An easement is extinguished when either the dominant or the servient heritage is completely
destroyed. For example, A has a right of way over a road running along the foot of a seacliff.
The road is washed away by a permanent encroachment of the sea. A`s easement is
extinguished.

Suspension of Easement:

An easement is suspended when the dominant owner becomes entitled to possession of the
servient heritage for a limited interest therein or when the servient owner becomes entitled to
possession of the dominant heritage for a limited interest therein. For example A has a right
of way of B's land obtains for lease his land, the easementary right of way is suspended
during this period.

Revival of Easements:

An easement extinguished under Section 45 revives (ii) when the destroyed heritage is,
before twenty years have expired restored by the deposit of alluvion; (b) when the destroyed
heritage is a servant building and before twenty years have expired such building is rebuilt
upon the same site, and (c) when the destroyed heritage is a dominate building and before
twenty years have expired such building is rebuilt upon the same site and in such a manner as
not to impose a greater burden on the servant heritage. An easement extinguished under
Section 46 revives when the grant or bequest by which the unity of ownership was produced
is set aside by the decree of a competent court. A necessary easement extinguished under the
same section revives when the unity of ownership ceases from any other cause. A suspended
reassessment revives if the cause of suspension is removed before the right is extinguished
under Section 47.

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 CONCLUSION

The Indian Easements Act, provides for the whole concept of right of easements and its
regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by the
owner of the dominant heritage over the heritage of servient owner for the beneficial
enjoyment of his own land. It not only defines what actually easements consist of but also
provides with its classification. Easements can be prescriptive, customary, quasi and of
necessity.

Thereafter, modes of acquiring easements had been provided under Section 7 of the said Act
according to which it can acquired through an express grant or is in certain circumstances
considered to be an implied right. If easement is to be acquired through the express grant then
such a clause has to be specifically mentioned in the deed of sale, mortgage or any other deed
in accordance with the mode of transfer. Easements is a right in rem, that is, it is available
against the whole world. It can be subject to limitations as well and can be restrictive too.
Easements can be both positive and negative. Whereas, on the other hand licenses can only be
positive in nature.

Further, it talks about the provisions regulating the suspension, extinction and revival of the
easements. Also, how easements is different from licenses has been discussed. The article
also explains the concept of licenses along with its essentials. License can be revocable as
mentioned in the Act and irrevocable as mentioned under Section 60 of the Act. They can
also be transferred according to Section 56 of the Act. It is a right in personam which is not
available against the whole world but is granted personally.

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 BIBLIOGRAPHY

❖ SCC ONLINE

❖ Manupatra

❖ blog.ipleaders.in

❖ Indian Kanoon

❖ readcube.com

❖ traceyourcase.com

❖ legum.app

❖ aaptaxlaw.com

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