Meaning and nature of Easements
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. 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.
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.
Illustrations-
● ‘P’ being the owner of certain land or house has a right of way over Q’s house, adjacent
to his house, to move out of the street. This is known as right of easement.
● A voluntary dedication of right by ‘X’ to the public for passing or re-passing over a
surface of certain land is not a right of easement.
● X’s right to go on his neighbour Y’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 Y’s land only. Hence, X has an easementary right to pass through Y’s
household.
In the words of great jurist 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.
Other examples of right of easement includes-
● Right of way
● Right to discharge rainwater
● Right to sunlight etc
Essentials of Easements
1. Dominant and Servient Heritage
For the enjoyment of right of easement, necessary existence of two properties i.e dominant and
servient heritage is a must. This is because as per the definition, it is the right exercised by the
owner or occupier of one land for enjoying the benefit of his/her land, over the land of some
other person. Dominant and servient heritage cannot be one. Thus, the existence of two
properties and that to be separate from each other is essential.
2. Separate owners
For exercising the right of easements, owners of the two properties shall be different and not a
single person.
3. Beneficial Enjoyment
The object of easements is that the dominant owner enjoys it in a way which includes express
and implied benefits.
4. Positive or Negative
Easements can be both positive or negative. Former refers to a right through which the
dominant owner does some act to exercise the right over the land of the servient owner.
Whereas, the latter denotes an act of prevention. In a negative easement the dominant owner
prevents or restricts the servient owner from doing certain act or acts.
In a right of easement an owner of dominant heritage can do an act or prevent the servient
owner from doing something but he cannot bind the servient owner to do something for him.
The easementary right exists only when two heritages are adjacent to each other. It is a right in
rem, which means a right available against the whole world. Easement as a right is always
annexed to the dominant tenement. It is a right of re-aliena which means a right over a servient
tenement and no on one’s own land.
In Nirmala Devi and Ors. v. Ram Sahai and Ors. AIR 2004 All 358, the court laid down that in
view of the definition of the Easement in Section 4 of the Easements Act the following materials
are required to be present in order to claim an easement right:-
(i) the right is in the owner or occupier of land as such;
(ii) it is for the beneficial enjoyment of that land;
(iii) it is to do or to continue to do something or to prevent or continue to prevent something
being done;
(iv) that something is in or upon or in respect of certain other land; and
(v) the other land is not his own.
CREATION OF EASEMENT
Easements are usually created by conveyance in a deed, or some other written document such
as a will or contract. Creation an easement demands for the same formalities as the transferring
or creating of other interests in land do, which typically are: a signature, a written instrument,
and proper delivery of the document. In limited circumstances, the court would create an
easement by implying its existence based on the circumstances.ix
Two familiar easements created by implication are easements of necessity and easements
implied from quasi-easements. Easements of necessity is typically implied to provide access
to a landlocked fragment of property. Easements implied from quasi-easements are based on
a landowner's prior utilization of part of his property for the benefit of another portion of his
land. Other methods of establishing easements are prescriptive use (the routine, adverse use
of another's land), estoppel, custom, public trust, and condemnation.
For example, A sells his land to B and by the same deed he may grant a right of way to B for
such land for another land of his. Grant is provided by an agreement executed by the grantor
in favour of the grantee for specific consideration. The grant comes into effect when the
grantee has the right to enter upon the grantor’s land. Easement by virtue of custom is nothing
but a legal right which is acquired by the operation of law through continuous use of a land
over a long period of time. Henceforth the right of way continues to exist by prescription,
grant or by virtue of custom. Easements, which are the subject matters of agreement between
the two parties, are for right of way, right to air and light. Surrendering an easement right does
not refer to transfer of property. Easement can be made, altered and even released. Easement
right cannot be created or altered orally. It must be in a written format.
However, easements by prescription and custom not necessarily be in writing. A deed of grant
must clearly mention the purpose of which easement is granted. By the deed of grant the
subservient owner hands over free and full right to the dominant owner and also his successors
a passage wide enough for movement of people or vehicles between the dominant owner's
premises and the public road against a price consideration. In the case of Moody v. Stegglesxi
the grant of a right to put up a signboard to the adjoining property advertising the public house
which constituted the dominant tenement was held to comprise an easement.xii
Profit a Prendre
According to The Indian Easements Act, 1882, profit a prendre is a part of the definition of
easements. An instance to explain the concept is, a right to take earth from the land of the other
person for making an earthenware is a profit a prendre. This is basically a profit made out of the
land of the other person. Other examples of profit a prendre-
● Right of fishery
● Right to take fruits of trees in the season
●
This is the right which is exercised on the land appurtenant to the dominant heritage. Hence,
there shall be the existence of two heritages i.e. dominant and servient. The owner of the
dominant heritage exercises this right on the property of the servient owner. Profit a prendre is a
right to do something on the land of servient tenement for more beneficial enjoyment of the
dominant heritage.
Classification of Easements
Section 5 of the The Indian Easements Act, 1882 classifies the easements as follows–
Continuous or Discontinuous
Continuous easements are the one whose enjoyment may be continued without the intervention
of any human conduct or act of a man. There is no interference by a man and it adds special
quality to the property. While, on the other hand, right of easement for the enjoyment which an
interference of a man is required is known as discontinuous. In this kind of easement, it is
necessary that a human act is done on the servient heritage.
Apparent or Non- Apparent
An apparent easement is one the existence of which can be seen through a permanent sign. It
can be visible by a careful examination and on reasonable foresightedness. It is also known as
express easement. An inspection is required to check the existence of a right. For example-
There is a drain from A’s land to B’s land and from there it led to an open yard. This can be
visible through a clear inspection and is an apparent easement.
Whereas, a non-apparent easement is just opposite of what apparent easement is. This kind of
easement is not visible through an inspection. There is no permanent sign as such. The right is
in use but is not visible and thus, is known as an invisible easement. For example, A’s right
annexed to A’s land to prevent B from building on his own house.
EXTENT OF EASEMENT
The extent of easements require precise definition in order that the dominant owner may know
what would constitute an excessive user of his rights and the servient owner what would
constitute a wrongful obstruction on his part of the easement right
Section 28 of the Indian Easements Act provides:
Extent of Easements: With respect to the extent of easements and the mode of their enjoyment,
the following provisions shall take effect:
Easement of necessity: An easement of necessity is coextensive with the necessity as it existed
when the easement was imposed.
Other Easements: The extent of any other easement and the mode of its enjoyment must be
fixed
with reference to the probable intention of the parties, and the purpose for which the right was
imposed or acquired.
In the absence of evidence as to such intention and purpose4
-
a) Right of way: A right of way of any one kind does not include a right of way of any other
kind.
(b) Right to light or air acquired by grant: The extent of a right to the passage of light or air to a
certain window, door or other opening, imposed by a testamentary or non-testamentary
instrument, is the quantity of light or air that entered the opening at the time the testator died or
the non-testamentary was made.
(c) Prescriptive right to light or air: The extent of a prescriptive right to the passage of light or
air to a certain window, door, or other opening is that quantity of light or air which has been
accustomed to enter that opening during the whole of the prescriptive period irrespectively of
the
purposes for which it has been used.
(d) Prescriptive right to pollute air and water: The extent of a prescriptive right to pollute air or
water is the extent of the pollution at the commencement of the period of user on completion of
which the right arose.
4
Id.
6
(e) Other prescriptive rights: The extent of every other prescriptive right and the mode of its
enjoyment must be determined by the accustomed user of the right.
In Anguri vs. Jiuan Dass, it was held that, it is open to the defendants-dominant owners to use
their property in any manner permitted by law and hence they cannot be restrained from
opening
new windows, as customary right of privacy appears to have been pleaded or proved in this
case.
However, if the defendants open any new windows, the plaintiffs servient owners are fully
entitled to block the same by raising the height of their walls and the defendants are not entitled
to break or damage the said or any portion thereof so as to remove the obstruction to their new
windows.5
Easement of Light
Paul vs. Robson: The enunciation of the law in Colls vs. Home & Colonial Stores, was approved
and applied by the Privy Council in Paul vs. Robson6
The case went up to the Privy Council from
the Calcutta High Court and the decision therein governs provinces like Bengal where the Indian
Easements Act is not in force. In a recent case, Rajani Kanta vs. Nirmal Chandra7
, following that
Privy Council decision, the Calcutta High Court has held that the following principles are
applicable in judging whether there has been an actionable obstruction of ancient lights:
The plaintiff can insist on the preservation to him only of such quantity of light (and air)
as might be reasonably required for comfortable occupation and not of any excess even if
he had enjoyed it in the past.
Even if a building is vacant for the statutory period, it can acquire easement rights over
the servient tenement.
In considering whether the amount of light (and air) left unobstructed is sufficient for
comfortable occupation it is irrelevant that by making structural alterations on the
dominant tenement, the dominant owner can obtain better ventilation. The dominant
owner cannot be required to keep his doors open so as to compensate for the darkening of
the windows.
Easement of Air
5 A.I.R. 1988 S.C. 2024
6
41 LA. 180 ILR 42 Cal. 4627 M.L.J. 117 (PC); Krishan Kishore vs. Sankaran A.I.R. 1974 Ori. 89
7 A.I.R. 1945 Cal. 438.
7
Mode of Acquisition: There is no distinction between the acquisition of a right to light and of a
right to air8
. A right to the access of air passing over the unlimited surface of neighbouring land
cannot, therefore, be acquired by prescription. It is only where such access is enjoyed either
through a definite aperture or through a definite channel over adjoining property that the right
can be acquired by prescription.
Extent of the Right: In England: The extent of the right to air in England is, however, not the
same as that of the right to light. The measure of interference with air that entitles the plaintiff to
relief is considerably different from that in regard to light. In City of London Brewery Co.
vs.
Tennant9
, Lord Selborne observes:
"Now the nature of the case which would have to be made for an injunction by reason of the
obstruction of air is toto caelo different from the case which has to be made for an injunction in
respect of light. It is only in rare and special cases involving danger to health, or at least
something very nearly approaching it, that the Court would be justified in interfering on the
ground of diminution of air.
In England on account of the cold climate the purpose of easement is to shut out the air and to
let
in the light. Air is thus of less account than light and So in respect of it a cause of action accrues
only when interference has so far diminished its supply as to involve danger to health.
In India: In India, however, air is at least of as much importance as light. The extent of the right
to air has, therefore, been made co-extensive with the right to light10. Explanation III to Sec. 33
of the Easement Act provides:
"Where the easement disturbed is a right to the free passage of air to the openings in a house,
damage is substantial within the meaning of this section if it interferes materially with the
physical comfort of the plaintiff, though it is not injurious to his health.
Easement of way
8Cable vs. Bryant (1908) 1 Ch. 259.
9
(1873) 9 Ch. App. 212
10 Sec. 28, Cl. (c)
8
Kinds of Ways: Rights of way are of various kinds. An easement of way may be a footway
simpliciter or it may be a general right of way for foot passengers as well as for people on
horseback and for carts, carriages and other vehicles. Section 28, Cl. (a) of the Easements Act
provides thus:
"A right of way of anyone kind does not include a right of way of any other kind."
Rights of way may be divided into three classes11:
Private Rights of Way: These belong to particular individuals, when they are vested in
them as owners of particular tenements they are easements properly so called. Such
easements have their origin in grant or prescription.
Rights of way belonging to certain classes of persons: A right of way may be claimed by
a portion of the public, e.g., inhabitants of a village. These are not really easements
because they are not appurtenant to any tenement. Such rights have their origin in
custom.
Public Rights of Way: Public rights of way in the full sense of the term exist for the
benefit of the public at large. These are created by legislative enactment or by dedication.
Dedication may be presumed from long user12. Only the full owner of land can dedicate it
to the public.
Easements in water
Restrictions on natural rights: We have seen that it is the natural right of a riparian proprietor to
use for riparian purposes the water of natural streams which flow past his land and to have the
water come to him undiminished in flow, quantity and quality and unaffected in temperature and
go from him without obstruction. These natural rights may be restricted in some manner when
an
easement is acquired in respect of the water.
Prescriptive rights of Riparian Owners: An an easement to use more water than may be justified
by his riparian needs and so to diminish the quantity of water flowing to the lower heritor. In no
event, however, can such an easement extend to all the water of the stream and confer an
11 Chunilal vs. Ramkishen ILR 15 Cal. 460 (F.B.).
12 Panchanon Ray vs. Fazlur Rahman A.I.R. 1942 Cal. 505
9
exclusive right to use the whole of the running water.13 Easement rights arise also with
reference
to the flow of the water. A riparian owner has no natural right to impound water flowing in
defined natural channels but is entitled only to use the water as it passes14. A right to impound
and divert water for the riparian purposes of a tenement can be acquired as an easement15. A
right
to conduct the water over the servient tenement in a particular way may be acquired as an
easement. Easements affecting the purity of the water may also be acquired.
Easement of Eaves droppings: One important easement in connection with water is that of
discharging rain water on to another's land from the eaves of a house. This is known as the
easement of eaves-dropping. Such an easement does not impose an obligation on the servient
owner to keep his land open and unbuilt for the reception of the water discharged. He can build
provided he makes other suitable arrangements for carrying of the water discharged on his
land16
.
The easement is not lost by the dominant owner raising the house17
13 Jahn White & Suns vs. J. & M White (1906) A.C. 72
14 Jagannatha Raju vs. Raja of Vizianagaram A.I.R. 1937 Mad. 310
15 Eshan Chandra vs. Nil Moni ILR 35 Cal. 851
16 Bala vs. Maharu ILR 20 Bom. 788
17 Harvey vs. Walters (1872) LR. 8 C.P. 162
In conclusion, easements play a crucial role in property law by ensuring the beneficial
enjoyment of one's land through the use of another's property. As defined under Section 4 of
The Indian Easements Act, 1882, easements grant rights to perform specific actions or prevent
certain activities on adjacent lands, benefiting the dominant heritage while imposing obligations
on the servient heritage. These rights can be established through written agreements,
prescription, or necessity, and encompass various forms, including rights of way, light, air, and
water use. The proper understanding and application of easements facilitate harmonious land
use and neighborly relations, underpinning the essential balance between individual property
rights and community interests.
