EASEMENT

Meaning of Easement –

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

According to Section 4 of the Indian Easement Act, 1882 defines it as follows: “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.”

Thus an easement is a right to use another's property. It is a right, which the

owner of a particular land enjoys over an adjacent property, which he does not
possess. It is the right over a property belonging to someone else and not to the
person claiming easement. Examples includes rights of way through neighbor’s
property or right to use a neighbor’s lavatory, or right to park a car on their land.

In every easement there must be a dominant owner and a servient owner. The
right of easement necessarily contemplates two species of land. One is for
beneficial enjoyment of which the right of privilege exists and the other on which
the liability is imposed. The formers is called "dominant heritage" and the latter
"servient heritage".

A landowner's benefit from a property which is not his own and over which he has
a right is called a dominant heritage or dominant tenement, and the owner of
such a land is called the dominant owner. Dominant because the owner has
control over the use of that particular land which he does not possess.

And where another person has a right over a part of the property of a landowner
is called servient tenement and the owner of such a land is called servient owner.
Servient or subordinate because he has to abide by the requirements and
convenience of the dominant owner.

For example if A and B are neighbours. And A’s land lies north of B’s and has no
access to the road except by way of a right of way across B’s land, out to the road.
In this situation, A’s land is dominant tenement and A is dominant owner and B’s
land in servient tenement and B is servient owner.

Thus An easement a right that benefits one piece of land (the dominant land) and
burdens (or is exercised over) other piece of land (the servient land).

Characteristics of Rights of Easement

1) that there must be two distinct plots of land affected - dominant and a
servient tenement;
2) the right created must be actually capable of benefitting the dominant
tenement: although it is not essential that the dominant and servient
tenements be adjacent to one another
3) The right should entitle the dominant owner to do and continue to do
something , or to prevent and continue to prevent something being done,
in or upon, or in respect of servient tenement
4) Dominant and servient owners must be different persons.

Kinds/ Types of Easement

There are four types of easement Section. 5 of Easement Act deals with the types
of easement. It provides that the easements are either continuous or
discontinuous ,apparent or non apparent.

A) Continuous Easement -
A continuous easement is one whose enjoyment is, or may be, continual without
the act of man. Illustration -A right annexed to B’s house to receive light by the
windows without obstruction by his neighbor A. This is a continuous easement.
A continuous easement is extinguished when it is totally cease to be enjoyed as
such for an unbroken period of 20 years.
B) Discontinuous easement - A discontinuous easement is one that needs the act
of man for its enjoyment. Illustration - A right of way annexed to A’s house over
B’s land. This is a discontinuous easement.

C) Apparent easement - An apparent easement is one the existence of which is

shown by some permanent sign which, upon careful inspection by a competent
person, would be visible to him. Illustration-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. These are apparent easements.

D) Non-apparent easement - A non-apparent easement is one that has no such

sign. Illustration - A right annexed to A's house to prevent B from building on his
own land. This is a non-apparent easement.

CREATION OF EASEMENTS
The title to easement may be created by grant, by custom, by prescription or
necessity.
1. An easement can be acquired by grant. A grant is given by an agreement
executed by a grantor in favour 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 grant 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 favour of the grantee for a consideration. The grant
becomes effective when the grantee has the right to enter upon the
grantor’s land.
2. 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.
3. Easement may be created by prescription. Acquiring of easement by
prescription is governed by Section 15 of Easement Act and Section 25 & 26
of Limitation Act. In order to establish, a right of easement by way of
prescription, the following criteria are to be satisfied: a). There must be a
pre-existing 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.
4. 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.

EXTINCTION OF EASMENTS
Sections 37 to 47 of Indian Easements Act deal with the extinction of easements.
The circumstances under which easements extinguished are as under :-
(1) From a Cause Which Preceded The Imposition of Easement - Section 37 lays
down that 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 servient heritage,
the easement is extinguished.
The Section lays down a general principle that any body who has a contingent or
limited interest in the servient tenement can grant on easement which would
terminate with his own name.
Illustration - `A' transfers Sultanpur to `B', on condition that he does not marry `C'
B imposes an easement in Sultanpur. Then `B' marries `C'. B's interest in Sultanpur
ends and with it the easement is extinguished.
(2) By Release Express or Implied - Section 38 says that easement is extinguished
when the dominant owner releases it expressly or impliedly,
Express release :- An easement may be created by express grant, so easements
may be extinguished by express release. An express release can occur by a
declaration oral or written, because there is no statute requiring an express
release to be written.
Implied release :- Just as the grant of easement may be presumed from the
conduct of the parties, so the release of an easement by the dominant owner
may, in certain circumstances be implied. The release of an easement will be
implied :-
(a) Where the dominant owner `expressly' authorises an act of permanent nature
to be done, on the servient heritage, the necessary consequence of which is to
`prevent his future enjoyment of the easement, and such act is done in pursuance
of such authority.
(b) Where any permanent alteration is made in the dominant heritage of such a
nature, as to show that the dominant owner intended to cease to enjoy the
easement in future.
(3) By revocation :- Section 39 lays down that an easement is extinguished when
the servient owner in exercise of a power reserved in this behalf, revokes the
easement.
(4) On the expiration of limited period of happening of dissolving condition :-
Where an easement is imposed for a limited period or is acquired on condition
that it shall become void on the performance or non-performance of a specified
act, then such an easement would extinguish on the expiration of the limited
period or on the fulfilment of the contingent condition. This provision is given in
Section 40 of the Indian Easement Act.
(5) On termination of necessity :- Section 41 provides that an easement of
necessity is extinguished when the necessity comes to an end. This section
codifies the principle that an easement of necessity does not last longer than the
necessity. Easements of necessity are those easements which are absolutely
necessary for the enjoyment of the dominant heritage. When the absolute
necessity ceases and the dominant heritage can be enjoyed without such
easement, the easement extinguishes.
(6) On becoming useless :- Section 42 says that when an easement causes loss of
any benefit to the dominant owner under any circumstances and places an
unnecessary burden on the servient tenement, then the easement extinguishes.
(7) By permanent change in dominant heritage :- Section 43 provides that an
easement, other than easement of supports is extinguished in the following
circumstances which must co-exist :-
(i) There must be a permanent change in the dominant heritage;
(ii) in consequence of that permanent change the burden on the servient heritage
must have been materially increased; and
(iii) the increased burden, i.e., the excessive use of easement, cannot be reduced
by the servant owner without interfering with the lawful enjoyment of the
easement.
(8) On permanent alteration of servient heritage by superior force :- Section 44
lays down that where the servient tenement is permanently altered by a superior
force in such a way that the dominant owner can no longer enjoy his easement
right, the easement is extinguished. But an exception has been made in case of an
easement by way of necessity, in which case the dominant owner has a right to
fresh way of necessity.
(9) By Destruction of Either Heritage :- Section 45 provides that an easement is
extinguished by complete destruction of a tenement, servient or dominant.
(10) By Unity of Ownership :- Section 46 lays down that an easement is
extinguished when the same person becomes entitled to the absolute ownership
of whole of the dominant and servient heritage. It is general rule of law that
easements are extinguished by operation of law of the ownership of the
dominant and servient tenements becoming absolutely united in one and the
same person.
(11) By non-enjoyment :- Section 47 lays down that an easement is extinguished
by non-enjoyment for a period of 20 years.
A discontinuous easement is extinguished when for a like period it has not been
enjoyed as such.
Such period shall be reckoned, in the case of a continuous easement, from the
day on which its enjoyment was obstructed by the servient owner, or rendered
impossible by the dominant owner, and in case of a discontinuous easement,
from the day on which it was last enjoyed by any person a dominant owner :
Provided that, if, in the case of discontinuous easement, the dominant owner,
within such period, registers under the Indian Registration Act, 1877, a
declaration of his intention to retain such easement, it shall not be extinguished
until a period of twenty years have elapsed from the date of the registration.
An easement is not extinguished under this section :
(a) where the cessation is in pursuance of a contract between the dominant and
servient owners;
(b) where the dominant heritage is held in co-ownership, and one of the co-
owners enjoys the easement within the said period; or
(c) where the easement is a necessary easement.
Where several heritages are respectively subject to right of way for the benefit of
a single heritage and the ways are continuous, such rights shall for the purposes
of this section, be deemed to be a single easement. [Section 47]