MEANING

Generally speaking, easement refers to the property right by way of nonpossessory interest held by someone to use the facilities on a certain premise for a certain purpose without any legal entitlement.

According to Halsbury’ Laws of England, an easement is  “a right annexed to land, to utilize other land of different ownership in a particular manner, or to prevent the owner of the other land from utilizing his land in a particular manner.”

As Peacock puts in, easement is a privilege without profit, acquired in respect of one tenement by the owner there of, whereby the owner of the tenement is restricted in the full enjoyment of the right thereto, to the extent of being obliged to suffer, or not to do something thereon, for the advantage or benefit of the former tenement.

The American Law states   that an easement is a liberty, privilege or advantage without profit which exists in a man’s estate for the convenience and advantage of the owner of another estate.

Section 4 of The Indian Easements Act, 1882 defines “easement” as 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 which is not his own.

The land for which the beneficial enjoyment right exists is known as the dominant heritage and the owner or occupier of such land is called the dominant owner . The land which exists for the imposition of liability is called the servient heritage and the owner or occupier of such land is called the servient owner.

The expression “land” refers to the things permanently attached to the earth. “Beneficial enjoyment” refers to the possible liberty, privilege and advantage, “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.

ILLUSTRATIONS TO SECTION 4

1. A, as the owner of a certain house has the right to collect water from B’ s pond to water the plants in the garden attached to his house. This is an easement.
2. A allows certain part or surface of his land to be occupied for the purpose of passing and re-passing of the general public. This is not an easement.

OTHER INSTANCES

1.Right to way

2. Right to fresh air

3. Right to use of sunlight

ESSENTIAL INGREDIENTS OF EASEMENT

1. Dominant heritage– An owner or occupier must exist for a certain land where such land is called dominant heritage.
2. Servient heritage – The owner or occupier must have a right to do and continue to do something or to prevent and continue to prevent something  done in or upon some other land. Such other land is called servient heritage.

• Beneficial enjoyment of land  – The very reason for the right of express and implied beneficial enjoyment is for the better utilization and convenience of the dominant tenement.

• The right upon which the exercising right persists must be owned and occupied by some other person. 

CHARACTERISTIC FEATURES OF AN EASEMENT

1. There must be two tenements, the dominant tenement which holds the right and the servient tenement on which the obligation is imposed.

• The two distinct tenements must reside with different owners.

• Easements are exercised for the beneficial ownership of one’s corporeal property.

• The easement is the privilege entertained for the purpose of beneficial enjoyment of the dominant tenement which consists of corporeal property.

• The easement must not be fanciful and should possess known and usual classification with well defined traits and subject matter.

• The easementary imposition is drawn upon the property  of the servient tenements and the owner is not personally liable for such imposition.

• An easement does not imply an ownership of the land through exclusive use of the servient tenements.

EASEMENTS ACQUIRED UNDER THE INDIAN EASEMENTS ACT,1882

1. Easement of way
2. Easement of light
3. Easement of air
4. Easement to support and to take away support
5. Easement to discharge, consume or take water for use

TYPES OF EASEMENTS

According to section 5 of the Act , these are the following types of easements :-

1.Continuous Easement – The easement whose enjoyment is or may be continued without human intervention is called continuous easement.

Example – A has a right to receive air through window without the obstruction of his neighbour, B.

2.Discontinuous Easement – The easement whose enjoyment on the servient heritage requires human intervention.

Example – A has a right of way over B’s land.

3. Apparent Easement –  It is the express easement whose existence is displayed upon careful inspection by a competent person with reasonable foresightedness showing visible signs.

EXAMPLE – 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 matters.

4.Non- apparent Easement – It is the easement which showcases no visible or permanent signs.

EXAMPLE – A has a right to prevent B from building on his own land.

ANOTHER CLASSIFICATION OF EASEMENTS

Section 6 of the Act enumerates another set of classification of easements as follows :-

1. Permanent easement
2. Limited easement – This kind of easement is limited to :-
3. Duration – for a term of years or other limited period or subject to periodical 

interruption.

• Enjoyment – confining within a certain place, time and between certain hours for a particular purpose.
• Conditional easement -Such a condition arises with the commencement of the easement or if it becomes void or voidable on the occurance of a specified event or the performance or non-performance of a specified act.

RESTRICTIVE EASEMENT

The use of certain easements are prohibitive in nature and thus is commonly called ‘negative easements.” Subject to any law for the time being in force, section 7 of the said Act  prescribes easements restrictive of certain rights, namely :-

1. Exclusive right of enjoyment – Every owner of immovable property has his exclusive right to enjoy , dispose of the same along with its products and accessions.
2. Rights to advantages arising from situation – Every owner of immovable property has the uninterrupted right to enjoy the natural advantages arising from its situation without any disturbance or impediment caused by another.

ILLUSTRATIONS

1. Every owner of a house has a right to the air passing thereto without it being unreasonably polluted by others.
2. Every owner of a land has the right to build any structure or ridge on   his land.

 PROFIT-A-PRENDRE

This term is derived from a French expression meaning ‘right of taking’. Easement inculcates the right of an owner or occupier of a certain land to do or continue to do something or to prevent and continue to prevent something being done in or upon or in respect of a certain land of another person. Here, to do something means the right of removing the soil or product of the soil attached to the servient heritage. This nonpossessory right is called profit-a-prendre.

ILLUSTARTIONS

• The right to take away fallen down fruits from another’s garden.
• The right of a person to take timber from another’s land.

RELEVANT CASE LAWS

In Bai Bhicaji v Phirozshah , 40 Bom.401,The English Law recognized the right to commit nuisance as an easementary right acquired by prescription which was again followed by The Bombay High Court.

Later on, it was held in Bankeylal v Kishanlal , AIR.1967 ALL.43  by The Allehabad High Court that the act of throwing night soil on other’s land is a wrongful act of nuisance which cannot be acquired as a matter of right by prescription.

In Hrudananda Biswal v The Union of India (W.P.(C) NO. 6675 OF 2003) , the petitioner Hrudananda was refused by South Eastern Railways , Kolkata his right to passage through Railway land to have access to a public road from his property and consequently filed a writ petition in 2003. The court on hearing railways’ explanation of a possible security threat held that there was no denial of access to the mentioned plot.

CONCLUSION

In Raj Narain v Ram Kishan (AIR 1958 Pat.571) , The Patna High Court observed :

“Easement, therefore , postulates the existence of dominant and servient tenements . This right is exercised for the beneficial enjoyment of the dominant heritage.”

Thus ,  easementary right is granted for specific relief for specific infringement in regard to the common basic rights but does not guarantee the possession of another’s property. It only fixes a way for the uninterrupted interest of utilization by one person in another person’s property for a particular purpose following a particular manner.

REFERENCES

I.INTERNET

    1. https://blog.ipleaders.in/an-overview-law-of-easements-in-india/  

     2. https://blog.ipleaders.in/an-overview-law-of-easements-in-india/  

     3. http://www.legalservicesindia.com/article/481/Easement-restrictive-of-certain-rights.html

     4. https://study.com/academy/lesson/what-is-an-easement-definition-rights.html    

II. STATUTE

INDIAN  LAW

1.The Indian Easement Act , 1882 , No.5, Acts of Parliament,1882 (India)