2. INTRODUCTION
An easement is a right to use or enter on to the real
property of another without possessing it. The
easements rights are called in Roman law as jura in
re aliena(i.e,right in the property of another)These
rights are also called as servitudes ,in roman law as
jus in re aliena(i.e,duty in the property of another)
Easements are helpful for providing pathways across
two or more pieces of property. An easement is
considered as a property right in itself at common
law and is still treated as a type of property in most
jurisdictions.
Illustration
A ,as the owner of a certain house ,has the right to go
on his neighbour B’s land and to take water for the
purpose of his house hold activities-its an easement
3. DEFINITION
Section 4 of Easements Act,1882
Easement’ defined. -An easement is a right
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 heritages 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.
4. ESSENTIAL ELEMENTS OF
EASEMENTS
There must be a dominant and a servient tenement;
The easement must accommodate the dominant
tenement, that is, be connected with its enjoyment
and for its benefit;
The dominant and servient owners must be
different persons;
The right claimed must be capable of forming the
subject-matter of a grant;
5. CLASSIFICATION OF EASEMENTS
Public and Private easements
Positive and negative easements
Apparent and non- apparent easements
Continuous and Discontinuous easements
Appurtenant and in gross easements
Floating easement
Structural encroachment
Way leave
6. WHO MAY ACQUIRE EASEMENTS
According to Section 12 of The Indian Easements Act, 1882
An easement may be acquired by the owner of the immovable
property for the beneficial enjoyment of which the right is created,
or on his behalf, by any person in possession of the same.
One of two or more co-owners of immovable property may, as such,
with or without the consent of the other or others, acquire an
easement for the beneficial enjoyment of such property.
No lessee of immovable property can acquire, for the beneficial
enjoyment of other immovable property of his own, an easement in
or over the property comprised in his lease.
7. MODES OF ACQUISITION OF EASEMENTS
Grant
Prescription
Operation of Law
Easement of Necessity
Quasi easement
Court decision
Customary easement
Imposition
Transfer
Easement by prior use
8. GRANT
It may be granted or reserved in a deed or other legal
instruments by the servient owner. The grant may be
express or implied from the circumstances and conduct
of the parties to the easement or it may be presumed
from long user or it may be inferred from some usage
prevailing in the locality.
9. PRESCRIPTIONAccording to Section 15 of the Act ;
where the access and use of light or air and for any building have been peaceably enjoyed
therewith, as an easement, without interruption, and for twenty years.
And where support from one person’s land or things affixed thereto, has been peaceably, received
by another person’s land subjected to artificial pressure, or by things affixed thereto, as an
easement, without interruption, and for twenty years,
And where a right of way or any other easement has been peaceably and openly enjoyed by any
person claiming title thereto, as an easement and as of right, without interruption, and for twenty
years,
The right, to such access and use of light or air, support, or other easement, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next
before the institution of the suit wherein the claim to which such period relates is contested
.
10. ESSENTIALS:
According to section 15 of the easements Act to acquire the
prescriptive right the following conditions shall be fulfilled;
The right claimed must be certain
The right claimed must have been enjoyed by the claimant
It must have been enjoyed independently of any agreement
with the owner of the land
The enjoyment must be
Peaceable
As an easement
Open
As of right
With out interruption
By person claiming title there of
For a period of 20years ending within two years before the
suit incase the right is claimed
11. Illustration
A suit is brought in 1883 for obstructing a right of way. The
defendant admits the obstruction but denies the right of way. The
plaintiff proves that the right was peaceably and openly enjoyed by
him, claiming title thereto, as an easement, and as of right, without
interruption, from Ist January, 1862, to 1st January, 1882. The
plaintiff is entitled to judgment.
Cases : Harischandra Prasad v.Krishnamurthy,
Heeralal v.Ramjeevan,Punitdas v. Kandalal Das
12. CUSTOMARY EASEMENT
Section 18 of the Act deals with Customary easements.
An easement may be acquired in virtue of a local
custom. Such easements are called customary easements. A
valid customary easement must be possessed of the same
characteristics as a valid custom.
Illustration
By the custom of a certain town no owner or occupier of a
house can open a new window therein so as substantially to
invade his neighbor’s privacy. A builds a house in the town
near B’s house. A thereupon acquires an easement that B shall
not open new windows in his house so as to command a view
of the portions of A’s house which are ordinarily excluded
from observation, and B requires a like easement with respect
to A’s house.
13. OPERATION OF LAW
By Estoppel
By statute
By Special Statutory proceedings
14. EASEMENT OF NECESSITY
Easement without which the property cannot be enjoyed at all.
An easement of necessity is an easement which the law
creates by virtue of doctrine of implied grant on the severance
of the common ownership of the tenements to meet the
necessity of a particular case.
Illustration
A lets a house to B for a particular business. B has no access
in them other than by crossing A’s land. B is entitled to a right
of way over that land suitable to the business to be carried on
by B in the house.
Cases : Karunakaran v. Janaki Amma,State of Gujarat v. Harilal
Moti Lal
15. Easement of necessity cannot be claimed in absence of
severance of tenements
Krishnamaraju v. Marraju
Govind Bhatta v. Rambhatta
16. QUASI EASEMENTS
Quasi easements are conveniences to which an owner subjects are
part of his property for the benefit of another.Quasi easement meant
for better use and convenience of the dominant tenement.Quasi
easements exists in the property even before the property divided in
to two or more parts.
Illustartion
A sells B a house with windows overlooking A’s land. The light
passing over A’s land to the windows is necessary for enjoying the
house as it was enjoyed when the sale took effect. Afterwards A
sells the land to C. Here C cannot obstruct the light by building on
the land for takes it subject to the burdens to which it was subject in
A’s hands.
18. IMPOSITION
Imposition is a voluntary creation of a right. Every owner of land
having a transferable interest in it, can impose over it an easement to
the extent of his own right.
Illustration
A is tenant of B’s land under a lease for an unexpired term of twenty
years, and has power to transfer his interest under the lease. A may
impose an easement on the land to continue during the time that the
lease exists or for any shorter period.
19. TRANSFER
Section 19 Of Easements Act provides, Where the dominant heritage
is transferred or devolves, by act of parties or by operation of law,
the transfer or revolution shall, unless a contrary intention appears,
be deemed to pass the easement to the person in whose favour the
transfer or devolution takes place.
Ram’s car
Hari’s LAND
– servient tenement
Ram's LAND
– dominant tenement
SOLD TO
Vishal
20. EASEMENT BY PRIOR -USE
An easement may also be created by prior use.
There are five elements to establish an easement by prior use:
Common ownership of both properties at one time
Followed by a severance
Use occurs before the severance and afterward
Notice
Necessary and beneficial
21. Illustartion
A owns two lots. One lot has access to a public street and the
second is tucked behind it and fully landlocked. A's driveway
leads from the public street, across the first lot and onto the
second lot to A's house. A then sells off the first lot but forgets
to reserve a driveway easement in the deed.
A originally had common ownership of both properties. A also
used the driveway during this period. A then severed the land.
Although A did not reserve an easement, the driveway is
obviously on the property and a reasonable buyer would know
what it is for. Finally, the driveway is reasonably necessary for
a residential plot;
Here, there is an implied easement.
