CHANAKYA NATIONAL LAW UNIVERSITY

PATNA (BIHAR)

PROPERTY LAW PROJECT REPORT ON

DOMINANT HERITAGE
AND SERVIENT
HERITAGE

Submitted To: Submitted By:

Dr. PKVS Rama Rao Atul Anurag
Lecturer (Law) B.A. LL.B. (Hons.)
3rd Semester, Roll No. 1124
 Acknowledgement
Writing a project is one of the most significant academic challenges I
have ever faced. Though this project has been presented by me but there are
many people who remained in veil, who gave their all support and helped me to
complete this project.

First of all I am very grateful to my subject teacher Dr. PKVS Rama

Rao without the kind support of whom and help the completion of the project
was a herculean task for me. He donated his valuable time from his busy time
to help me to complete this project and suggested me from where and how to
collect data.

I am very thankful to the librarian who provided me several books on

this topic which proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous

advice which was very useful and could not be ignored in writing the project.

Atul Anurag

Roll No. -1124

3rd Semester

1
 Table of Contents

S. No. Particulars

1. Introduction

2. Types of Easement

3. Violation of Easementary Rights

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.

Easement is a term connected to Property. Under the property laws, Easement

plays most important role which enables a person owning property to enjoy his
property rights without any hurdle. Easement as defined under First Chapter and
Section 4 of the Act, is a right which the owner or occupier of certain land possesses,
as such, for the beneficial enjoyment of the 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. In simple terms easement could be meant as a right
and the person entitled thereof being owner or occupier of certain land, for the
beneficial enjoyment of his land, could require adjoining land owners to do or
continue to do something and even also could prevent them from doing something
being done in or upon the their lands which are not owned by right holder. The Act
also provides for certain illustrations for easy understanding of readers and pleaders.
Further Sections like Section 5 and 6 define different kinds of easements like
‘Continues and discontinuous, apparent and non-apparent easements; and Easement
for limited time or on condition. Moreover Section 7 of the Act provides for nature of
Easement i.e. how easement restricts certain rights of other land owners.

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.

The Second Chapter of the Act contains provisions as to imposition,

acquisition and transfer of easement and describes who may impose easement and
who may acquire it. Also this Chapter of the Act makes provisions as to acquisition of

3
 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

4
How are easements created?

1. By express language, or grant.

This is the most common method of granting an easement: by a deed or written

conveyance. “I grant you a non-exclusive perpetual easement right to cross the
westernmost 10 feet of my property.”

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 distinguished from licenses.

Easements and licenses are similar property interests, but there are some important
distinctions:

a. An easement is generally a perpetual, non-revocable right, while a license is often

revocable and is typically limited in duration.

b. An easement is insurable from a title insurance standpoint, while a license is not

typically insurable.

c. An easement is typically recorded; a license is not typically recorded

d. Generally speaking, an easement is a more powerful property interest than a

license.

Requirements for creating an easement

a. A written instrument

b. signed by the grantor and

c. delivered to the grantee

5
 d. Easements are also typically recorded, which provides notice to third parties.2

Dominant & Servient Heritage

Section 4 of chapter 1 of Indian Easement Act, 1882 talks about dominant and
servient heritage. According to it, “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.”

"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.

"In figurative language, the land subject to the easement is described as

a servient tenement and the land enjoying the easement as the dominant tenement.
However, it is not necessary that the two tenements be contiguous or adjoining."

"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

6
 Chapter - 3
Types of Easement
A. Appurtenant easements vs. easements in gross

1. An appurtenant easement is an easement that is intended to benefit a particular

piece of land (dominant estate/tenement) rather than a particular individual. In this
case, there is also a servient estate/tenement—the land over which the dominant estate
has its easement rights.

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.

2. An easement in gross is intended to benefit a particular individual regardless of

whether she owns any land. The land over which this individual has her easement
rights is the servient estate/tenement. In the case of an easement in gross, there may
be no dominant estate/tenement. The intent is to benefit the holder of the easement
right, but the holder’s right to use may well enhance the value of the property she uses
in connection with her exercise of an easement right.

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.

B. Easement by implication, or quasi-easement

1. Narrow circumstances; court would be implying the easement as a matter of law—

requires a court finding that the parties had intended to create an easement but simply
failed to do so expressly

7
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

1. Analogous to adverse possession—complicated concept but the bottom line is

this—an easement by prescription essentially follows the line of thought that “it has
been used for so many years for this purpose, an easement, though not expressly
created, was created by prescription”. Example: Joe’s property is located between
Sally’s home and the park. Every day Sally walks across Joe’s property with her dog
to get to the park. Every day Sally walks back from the park across Joe’s property
back home. Sally has been doing this for 30 years (very old dog). Sally’s argument
that she has an easement by prescription would flow from this type of fact pattern.

E. Affirmative and negative easements

8
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.

9
 Chapter - 3

Easement of Restrictive Rights

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:

a) Exclusive right of enjoyment- The exclusive right of every owner of immovable

property (subject to any law for the time being in force) to enjoy and dispose of the
same and all products thereof and accessions thereto.

b) Rights to advantages arising from situation-The right of every owner of immovable

property (subject to any law for the time being in force) to enjoy without disturbance
by another the natural advantages arising from its situation.

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

Historic Preservation Easement

3
www.bookrags.com/Wetlands visited on 17th Oct, 2015

10
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.

Natural rights and easements

Natural rights though resembling easements in some respect, are clearly

distinguishable from them. The essential condition between easement and natural
rights appears to lie in that is that easements are acquired restrictions of the complete
rights of property or to put in another way, acquired rights abstracted from the

11
 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

Below are the illustrations to the rights-

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.

Owners right to enjoy limited by Municipal Act:

Under the Bombay Municipal Corporation Act (iii of 1888), the Bombay Municipal
Corporation has power to enter upon lands belonging to private owners , to make
connection between their main pipes and to lay the pipes forming connection through
or under such lands , even without the owners permission , provided reasonable notice
is given to them.6

Owners right to build any structure on his land:

Parties may build whatever structure they please on their land, i.e., a Hindu temple, by
the side of a mosque, provided that they do not interfere with the free enjoyment of
the neighbour’s property.[6]The general rule of law is that the owner of one piece of
land has a right to it in the natural course of user; unless, in doing so, he interferes

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.

12
 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.

Right of owner to build a ridge on his land:

A person has a natural right, as owner of land, to raise a ridge on his own land,
adjoining a highway, so as to prevent water flowing from such highway “into his
garden ;and the Municipality will be guilty of trespass and liable for damages, if it
removes the ridge so put up. An injunction may be granted restraining such illegal act.

Easement of discharging water:

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

Easement of discharging smoke: Building on the servient tenement:

An injunction to restrain the servient owner from building on his land so as to
interfere with the right of easement to discharge smoke over such land may be
granted.10

Magistrate may make an order to prevent riot-

Any person is entitled to establish a market on his own land, and the owner of a
neighbouring market has no right of the suit for the loss which may ensue from the
establishment of the new market. This right is subject to the order of the Magistrate to
prevent riot,etc.

Fundamental position as the right to build-

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.

13
 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

Natural right of passage arising out of the location of plots:

Natural rights are rights in rem ,that is enforceable against all who may violate
them,and they are either affirmative, as rights to do something ,or a negative,as rights
which every owner of immoveable property has, that his neighbor shall not disturb the
natural conditions under which he enjoys his property.[14]Sections 7(b) of the Indian
Easement Act deals with rights to advantages arising out of situations have been dealt
with. A set of statutory illustrations have been provided under the section. None,
however deals with a right of passage, Bramwell, L.J., in the case of Bryant v.
Lefever , observed:

“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.

14
 Chapter- 4
Concluding Remarks

Thus concluding, an easement is a right which the owner of a property has to

compel the owner of another property to permit something to be done, or to refrain
from doing something on the survient element for the benefit of the dominant
tenement. E.g. Right to light, right of way. The property in respect of which as
easement is enjoyed is the dominant element, and its owner, dominant owner, and that
over which the right is exercised is called the survient tenement, and its owner, a
servient owner.

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.

15
 Bibliography
Books

 Avtar Singh, Transfer of Property Act (Universal Publishing House)

 R.K. Sinha, Transfer of Property Act (Central Law House)
 Dr. Poonam Pradhan Saxena, Property Law (Lexis Nexis Publcation)
 G.P Singh(Ed), “Ratanlal and Dhirajlal’s, THE LAW OF TORTS”, 25th Ed Reprint,
2008. Wadhwa and Company, Nagpur.
 R.K Bangia, “LAW OF TORTS”, 21st Ed, 2008. Allahabad Law Agency, Faridabad.

Acts

 Indian Easement Act, 1882

16