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PATNA (BIHAR)
DOMINANT HERITAGE
AND SERVIENT
HERITAGE
Atul Anurag
3rd Semester
1
Table of Contents
S. No. Particulars
1. Introduction
2. Types of Easement
Concluding Remarks
4.
Bibliography
2
Chapter - 1
Introduction
The Indian Easements Act, 1882 (Act No. V of 1882) was enacted in the year
1882 and came into force on the 1st July, 1882 also it extents to the territories
respectively administered by the Governor of Madras in Council and the Chief
Commissioners of the Central Provinces and Coorg. The Act was enacted to define
and amend the former laws relating to easement and licence.
The judiciary dealt with easementary rights of many kinds while dealing with
controversies relating thereto. The examples of such different kind of right of
easement includes, Right to way, Right to light, Right to air, etc.
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right by Prescription, which is highly challenged and explained term by judiciary. The
third Chapter of the Act makes rules controlling use of right and also provides for all
relevant aspects as to use and enjoyment of easementary right. This chapter contains
provision as to bar to use of easementary right which is not connected with
enjoyment. Even certain provisions under this chapter contain liabilities for expenses
as to preservation of easement and as to damage for want of repair while enjoying
easementary right.
Further Chapter i.e. Chapter fourth of the Act describes right of easement as is
enjoyable without any disturbance and in violation of this right suit could be brought.
Moreover this chapter clarifies other relevant aspects like when cause of action arises
for removal of support and also consequences of abatement as to obstruction to
enjoyment.
Moreover, the chapter fifth of the Act also provides for extinction of easement
by dissolution of right, by release, by revocation, on expiration of limited period or
happening of dissolving condition, on termination of necessity, if easement became
useless, by permanent change in dominant heritage, on permanent alteration of
servient heritage by superior force, by destruction of either heritage, by unity of
ownership, by non-enjoyment or extinction of accessory right. Further it provides for
suspension and revival of easement as per Section 49, 50 and 51 of the Act.
Chapter Sixth of the Act provides for concept of ‘Licence’ and relevant
provisions including its transferability. It defines license under Section 52 of the Act
as, when a person grants to another or definite number of other persons right to do or
continue to do something in or upon the immovable property of such granter, which
would in absence of such grant, unlawful. Such right not amount to easement or an
interest in property. Moreover, Sections 58 and 59 of the Act make provisions for
duties of the Grantor of license. Sections 60, 61 and 62 of the Act provides for
revocation of license. Further Sections provides for rights of Licensee on revocation
or on eviction.1
1
http://lawyerslaw.org/the-indian-easements-act-1882/ Visited on 17th Oct, 2015
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How are easements created?
2. By reservation.
In conveying land by deed, if the grantor wants to reserve certain easement rights,
another way to create that easement is by reservation: “I convey fee interest in Lot 1
to you, Grantee, but I, Grantor, reserve a non-exclusive easement for ingress and
egress over the driveway located on Lot 1.” This is a less common, but perfectly
acceptable, manner of creating easements.
Easements and licenses are similar property interests, but there are some important
distinctions:
a. A written instrument
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d. Easements are also typically recorded, which provides notice to third parties.2
"The term easement has been variously defined by legal authorities, but we
shall confine ourselves in this case to the definition which states that an easement is
the right which the owner of one parcel of land has by reason of such ownership to
use the land of another for a specific purpose, such use being distinct from the
occupation and enjoyment of the land itself.
"The property to which the easement relates and, in the case of positive
easements, over which it physically runs, is known as the servient tenement because it
is 'serving' the dominant tenement.... It is an essential characteristic of
an easement that it does not place on the owner of the servient tenement any
obligation to act."
2
http://www.rcasenc.com/documents/Easements.pdf Visited on 17th Oct, 2015
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Chapter - 3
Types of Easement
A. Appurtenant easements vs. easements in gross
a. Example: An easement is granted to a shopping mall parcel for access across the
neighbouring property owner’s private road in order to allow shopping mall
customers to get from the shopping mall parking lot to the street. This is an easement
appurtenant to the shopping mall parcel, which is the dominant estate. The neighbor
who has granted the easement owns the servient estate.
a. EXAMPLE: Jim grants Sally an easement to fish in his pond, which is located on
his privately owned property. As part of this easement right Sally is also granted an
easement to enter onto Jim’s property to go to and from the pond. While Sally may
live next door, she may move miles away, and the easement follows her; NOT her
property. This is an easement in gross; Sally is the dominant tenant; Jim is the
servient tenant; Jim owns the servient estate (with the pond on it). There is NO
dominant estate. 3. Most of the easements you will come across in commercial real
estate transactions are appurtenant easements.
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2. An implied easement can be created only when the grantor conveys a portion of the
real estate he owns or when he divides a larger tract among separate grantees. In
either case, a severance of parcels occurs, which is a necessary prerequisite to an
implied easement.
3. An easement can be implied at the time of severance ONLY if the “easement” use
existed prior to the severance. Susie owns 2 lots, one of which fronts on a street and
one of which is landlocked. Susie’s driveway crosses both lots. Susie decides to keep
the landlocked parcel and sell off the frontage parcel. Susie forgets to reserve a
driveway easement for ingress an egress to her parcel. In order for Susie to establish
that an implied easement should be created, one of the prerequisites Susie must prove
is that she used the driveway located on the frontage property to access her property
PRIOR to the conveyance of the frontage property; i.e., PRIOR to the severance.
C. Easement by necessity
1. When property is divided in a way that leaves a part of the property without access
to a road (i.e., landlocked), an easement of ingress and egress (“way by necessity”) is
implied across the other part(s).
2. An easement by necessity exists only as long as the need exists. In other words, if
the landlocked property later has direct access to another public road, the prior
implied easement by necessity would go away.
D. Easement by prescription
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1. An easement is affirmative when it entitles the dominant tenant to use the servient
tenement for a particular purpose, such as Sally’s right to use Jim’s fishing pond.
2. An easement is negative when it entitles the dominant tenant to prevent the servient
tenant from using the property in a particular way. For example, if Ralph gave Carol
an easement for a view corridor across Ralph’s property such that Carol’s view of the
lake would never get blocked, Ralph could not build a tall structure, wall or other
obstruction, or allow an obstruction (such as a tree), to hinder Carol’s rights under her
view corridor easement. This is referred to as a negative easement; Carol’s view
corridor rights allow her to compel Ralph to NOT do something.
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Chapter - 3
Definition
Sec 7 of the Indian Easements Act, 1882 contains Easements restrictive of
certain rights. Easements are restrictions of one or other of the following rights:
Meaning
Restrictive easements are also called "negative easements," as their "use" is normally
prohibitive, such as a common "non-vehicular access" easement as shown along a
main thoroughfare where the governmental entity needs to restrict access. Therefore a
restrictive easement is a condition placed on land by its owner or by government that
in some way limits its use, usually regarding the types of structures which may be
built there or what may be done with the ground itself. For instance, if a leased piece
of land is not precluded by zoning laws (probably because it is not in a township)
from having people inhabit it, and the government feels that for some reason living
there would be especially unsafe, it may place a restrictive easement on the property
stating that no one may live there. Restrictive easements are also frequently placed on
wetlands (i.e., a conservation easement) to prevent them from being destroyed by
development.3
3
www.bookrags.com/Wetlands visited on 17th Oct, 2015
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Another type of restrictive easement is Historic Preservation easement in which the
owner of a historic structure agrees not to change specified historic elements of the
facade. The primary difference between location preservation ordinances and historic
preservation easements is that local ordinances are discretionary and can be removed
and a historic preservation easement runs with the property forever. The value of
easements imposed on historic properties already protected by local ordinances has
recently been the subject of discussion by some people who have claimed that “where
the subject property is located in a local historic district in which there are existing
restrictions, regulations and controls, the terms of the easement are substantially
redundant.” Easement-encumbered properties within local historic districts should sell
at a penalty relative to unencumbered properties in such districts because the
easement typically imposes stricter controls than those contained in the usual
preservation ordinance. Easements often prohibit changes in property use or changes
to significant architectural features while ordinances may permit such changes,
subject to review and approval by a board of architectural review. Further, unlike
preservation ordinances, the easement typically contains no relief for "economic
hardship" commonly found in governmental regulation of land use. Easements are
granted in perpetuity while historic district ordinances and local zoning practices
change over time to reflect the dynamics of a changing political and/or economic
interests of a community. An easement on a historic urban property is generally
intended to preserve and conserve the historic, architectural, scenic and cultural
values of a certified historic structure. In the case of properties located in registered
historic districts, the easement will also protect the historic district through limitations
on uses that might jeopardize the architectural scale, style and sense of cultural
identity of the district. The easement does this by restricting alteration and
modification of the property in ways that would change its historic appearance or
remove or replace historic building fabric.
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ownership of one man and added to the ownership of another ,whereas natural rights
are themselves part of the complete rights of ownership, belonging to the ordinary
incidents of property and are ipso facto enforceable in law. Natural rights are
themselves subject to restriction at the instance of easements. Section 7 of the Indian
Easement Act classifies the rights which are so capable of restriction.4
Owner of the land adjoining the public street has got a right to access at every point
where his land adjoins Public Street:
Neither the Government nor the Municipality or any local body has got any right to
put up any obstruction over the public street so as to prevent it from having any access
to the adjoining land. It has been repeatedly held that the owner of the land adjoining
the public street has got a right of access at every point where his land adjoins public
street. In view of the above ratio the fencing of an iron fence put up between the land
of the petitioner and that of the suit cart track is illegal and on that ground alone the
petitioners are entitled to an order of injunction as prayed for5.
4
Sampson v. Hoddinott ,(1857) 1 C.B.N.S. 590;Peacock on Law Relating to Easements in British India,3rd Ed.,
p. 25
5
K.V.K. Janardhanan v. State of Tamil Nadu AIR 1995 Mad. 179
6
Kasim Ali Khan v. Brij Kishore,2 N.W.P. 182.
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with some right created either by law or by contract.7 This has been uniformly
followed by the courts in India as evident from the decisions in Gopalkrishna
Panicker v. Thirunakkara Devasworn8.
A right of easement to allow the water from the plaintiff’s mori and roof to fall on the
defendant’s land will not entitle the plaintiff to claim that the land shall be kept open
and unbuilt. The defendant can build making necessary arrangements to receive the
water from the mori and roof and to carry it away.9
So far as the right to build is concerned, the fundamental position is that every person
is entitled to build right up to the limits of his own property. In doing so , must not
7
Haji Ismail Sait v. Trustees of Harbour Madras, ILR 23 Mad. 389
8
A.I.R. 1959 Ker.202.
9
Bala Binkeshav Bapu v.Mahru Valad Nagu Patil ILR 20 Bom.831
10
Kashinath Dada Shimpai v. Narayan I.L.R. 22 Bom.831.
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infringed the right of the owner of adjoining property. But these rights have first to be
acquired. If they are not acquired then the fundamental position remains. If the
fundamental position is that a man is entitled to right upon the limit of his own
property, then the mere fact that he exercises that right cannot be regarded as an
actionable nuisance. The decision cited in Cawashah Bomanji Parakh v. Profulla Nath
Rudra.11
“it is to have all natural incidents and advantages , as nature would produce them;
there is a right to the light and heat that would come ,to all the rain that would fall to
all the wind that would flow ; aright that the rain , which would pass over the land ,
should not be stopped and made to fall on it ; a right that the wind should not be
checked , but should be able to escape freely; and it were possible that these rights
interfered with one having no right , no doubt an action would lie. But these natural
rights are subject to the right of the adjoining owners , who , for the benefit of the
community , have and must have rights in relation to the use and the enjoyment of
their property that qualify and interfere with those of their neighbours’ rights to use
their property in various ways in which property is lawfully and commonly used.”
11
ILR (1941)Nag.266.
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Chapter- 4
Concluding Remarks
However unlike a lease, an easement does not give the holder a right of
"possession" of the property. Thus according to the researcher an easementary right is
provided for specific relief from specific violations of common basic rights. In the
case of the right to way, any wrongful interference with the right of way constitutes a
nuisance. As, however, a right of way never entitles the grantee, or those lawfully
using the way under the grant, to the exclusive use of the land over which the way
exists not every obstruction of the way amounts to an unlawful interference, and no
action would lie unless there is a substantial interference with the easement granted.
In the case of right to access of light, it does not consist of a right to have a
continuance of the same amount of light throughout. In case of a diminution, the
dominant owner is bound to show that the diminution has interfered with his ordinary
occupations of life and it results in a nuisance if it is sufficient to render the
occupation of the house uncomfortable, and prevent the owner from carrying his
business as beneficially as he formerly did.
In the case of right to access of air, it is co-existence with the right to light.
The owner of the house cannot by prescription claim an entitlement of the flow and
uninterrupted passage of current of wind, neither is he entitled to right of
uninterrupted flow of breeze as such, and he can claim only such amount of air which
is sufficient for sanitary purposes. Hence, it is only in rare and special cases involving
danger to health cases that the court would justify as interfering with the right to
diminution of light under the Indian law under the Indian Easements Act, 1882.
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Bibliography
Books
Acts
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