THE LAW OF PROPERTY

EASEMENTS

Submitted to: Submitted by:

Ms. Kavita Bist Varun Solshe (5131)

Yash Tiwari (5138)

Stuti Sharma (5169)

B.A L.L.B(H)

8th Sem. ,Section E

2015-2020
 ACKNOWLEDGEMENT

It is our genuine pleasure to express our deep sense of thanks and gratitude to
my mentor and guide Ms. Kavita Bist.

Her dedication and keen interest and above all her helping attitude is
responsible for completion of my work.

Thank you.
INTRODUCTION

Section 4 of Easement Act defines an Easement. An Easement is a right which the owner or
occupier of certain land possesses for the beneficial enjoyment of that land, to do or to
continue to do something, or to prevent or to continue to prevent something being done in or
upon or in respect of certain other land not his own. Land includes those things that are
permanently attached. Beneficial enjoyment includes any convenience or advantage or any
amenity. The owner or occupier is the dominant owner and his land is the dominant heritage.
The land on which the liability is imposed is called a servient heritage or tenement and the
owner of that, is the servient owner.

Eg.: 'A' the owner of the house has a right of way over B's land. This is for the beneficial
enjoyment of As house. This is an Easement. A is the owner of a house. He has a right of way
over B's land to bring water from a stream. This is an easement.

Eg.: a) Right of way.

b)Right to nail fruit trees on neighbour's land.

c)Right to discharge rain water by an eave.

d)Right to bury the dead in a particular

CREATION OF EASEMENTS
The title to easement may be by grant, by custom, by prescription or necessity. 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. 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.
Therefore the right of way continues to exist by grant, prescription or by virtue of custom.
Easements, which are the subject matters of agreement between the parties, are for right of
way, right to air and light. Some easements are acquired by grant and others prescription and
custom. Creation of an easement does not mean transfer of property. In the same manner,
surrendering an easement right does not imply transfer of property. Easement can be made,
altered and released. Easement right cannot be created or modified orally. It must be in a
written form. However, easements by prescription and custom need not 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 gives full and free right to the dominant owner and his successors a
passage wide enough for movement of people and vehicles between the dominant owner's
premises and the public road against a price consideration.

In Moody v Steggles the grant of a right to fix a signboard to the adjoining property
advertising the public house which constituted the dominant tenement was held to comprise
an easement.

DURATION AND NATURE OF EASEMENTS

According to Section 6 of the Indian Easements Act, 1882 “An easement may be permanent,
or for a term of years or other limited period, or subject to periodical interruption, or
exercisable only at a certain place, or at certain times, or between certain hours, or for a
particular purpose, or on condition that it shall commerce or become void or voidable on the
happening of a specified event or the performance or nonperformance of a specified Act.”
The nature of easements is described in section 7 of the Indian Easement Act, 1882 which
states that easements are restrictions of one or other of the following rights (namely): (a)
Exclusive right to enjoy -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.
TYPES OF EASEMENTS
There are several classifications of easements which is to be noted. The types of easements
varies from country to country. Some of the notable types are enumerated herein. They are
divided into

(a) affirmative or positive, those which authorize the commission of an act by the dominant
owner, e.g. rights of way, a right to draw water from a spring, rights of aqueduct, and
negative, when the easement restricts the rights of the servient owner over his own property,
e.g. prevents him from building on land so as to obstruct ancient lights (cf. also the right to
the support of neighbouring soil);

(b) continuous, of which the enjoyment may be continual without the interference of man,
e.g access to light, and discontinuous, where there must be a fresh act on each occasion of
the exercise of the right, e.g. a right of way, or right to draw water;

(c) apparent, where there are visible external signs of the exercise of the right, e.g. a right to
dam up a watercourse, and non-apparent, where such signs are absent, e.g. a right to lateral
support from land, a prohibition to build above a certain height. The Indian Easement Act,
1870 expressly codifies several types of easements, their effects and the extent to which they
extend and when they cease.
EXTINCTION OF EASEMENTS.
The modes of extinction of an easement are specified in Sns. 37 to 47.

i) Dissolution of Servient Owner's right. (Sn.37): If the grantor ceases to have

any right in the servient tenement because of some reason preceding the
imposition of an easement, then the right extinguishes. A in 1960 let
Saltanpur to B for 20 years. B in 1961 imposed an easement on the land in
favour of C. In 1980, B's interest came to an end; with this, the easement
given to C also extinquished.
ii) Expiry of time or happening of an event (40). When the easement is for a
limited period or is acquired on a certain condition, the easement ends when
the time expires or the condition fulfilled.
iii) Extinction by release (39). When the dominant owner releases the easement
to the servient owner, the easement is extinguished. The release may be
express or implied. A has a right to discharge water through the eaves to B's
yard. A authorised 'B' to build to such a height as not to discharge water
through the eaves. B builds. The right is extinguished.
iv) Termination of necessity (41). Easements of necessity become extinguished
when the necessity comes to an end. A grants' B' a land which has an
easement of necessity of right of passage over A’s land. B later buys a part
of the land of A over which he may pass to reach his land. The necessity
ends. Hence, the easement also ends.
v) Useless easement (42). When the easement is incapable of being beneficial
at any time and under any circumstances, it ends. A grants a right to B, a
doctor, the use of a dispensary. But, B takes sanyasa for ever. So not
beneficial to him. Hence, the easement ends. '
vi) Permanent change in dominant heritage (43). When there is a permanent
change in the dominent heritage, with the increase of burden on the
tenement, the easement terminates (subject to certain exceptions). A has a
hut where he is living. He has a right of way over B's land. The hut is
demolished and a mini-theatre is built. The right of way stands extinguished .
vii) Permanent alteration of servient heritage. If by Vis Major reasons, the
servient tenement is destroyed, the easement comes to an end. A has a right
of way over B's land. Due to earthquake B's land is cut off and has become a
crator. The easement ends.
vii) Extinction by destruction of either of the heritages (45). If either the
dominant or the servient is destroyed, the easement ends. The reason is there
cannot be any easement without the two tenements. ix) Unity by ownership:
If the servient & dominants become one, i.e., by purchase etc., the easement
ends.
viii) Non-enjoyment (47). If the easement is not enjoyed for 20 years, the right
extinguishes.
SUSPENSION & REVIVAL OF EASEMENT
Suspension Sn. 49:

1. An easement is suspended, when the dominant owner becomes entitled to possession of the
servient heritage for a limited interest.

2. When the servient owner, becomes entitled to possession of the dominant heritage for a
limited interest, the easement is suspended.

Here, when both the dominent & servient heritages become one, the easement is suspended.

A has a right of way over B's land. A takes out B's land on rent for 2 years. The easement is
suspended for 2 years.

Revival of Easement Sn. 51:

1. When an easement is extinguished by destruction of dominent or servient heritage, it

revives.

a) if the heritage is restored in 20 years (by alluvial).

b) if rebuilt in 20 years.

2. In the case of unity of ownership, the easement survives by orders of a competent court. In
the case of unity of ownership, if the unity ends for any other reason, the easement survives.

3. A suspended easement revives when the cause for suspension is removed. A has a right of
way over B's land. A taken on rent B's land for 5 years. Easement is suspended. After 5 years,
B rents out to C. The easement revives
RIPARIAN RIGHTS
The rights which fall within the purview of riparian rights may be enlisted as follows:

Authority to use the bank of a watercourse as well as water bed

 Access to and from water

 Protection of the property from soil erosion

 Rights of certain uses such as drinking and other domestic purposes.

 Swimming

 Boating

 Navigation

 Fishing

 Errection of structures

 Use of water

s LEGAL FRAMEWORK World over Government is guided by three common but

differentiated doctrines i.e.

i. Doctrine of Public Trust

ii. Doctrine of Riparian Rights
iii. Doctrine of Prior Appropriation

In India, water law or the following doctrines fall within the purview of the Indian
Easements Act of 1882. In the Indian Constitution, water is in the state list as Entry 17
subject to the provisions of Entry 56 of List I i.e. Union list. Under the Easements Act, the
rights of a riparian i.e. a person who owns the land adjoining a river or a water stream is
recognized by this right. A riparian owner is bestowed with the right to use water stream
which flows past his land equally with other riparian owners. A riparian shall also incur the
right to have the water come to him undiminished in flow, quantity, quality and to go beyond
his land without obstruction. Section 7 of the Act renders that every riparian owner has the
right to continued flow of waters of a natural stream without any destruction or unreasonable
pollution. It would be pertinent to note that The Easement’s Act of 1882 recognizes the
customary rights of riparian that are acquired under two basic rules. They are:

1. Long usage or prescription

2. Local custom
However, even these rights are not absolute. It does not render a completely independent and
absolute right that is enjoyable without any external interference. To be more precise it would
be significant to note that these rights are subject to the Government’s right to regulate the
collection, the retention and the distribution of the waters of rivers and streams flowing in
natural channels.

Recognizing the riparian right as a natural right is again evincible in the case of The
Secretary of State for India v. Sannidhiraju Subbarayudu . The decision in Kandukuri
Balasurya Row v. Secretary of State for India was applied in order to establish the same.
The relevant paragraph runs as follows:

“A riparian right is a natural right and is not acquired by immemorial user. It exists by law,
it may be lost by the adverse enjoyment of another but it has not gob to be enjoyed to be kept
up. Whatever the enjoyment at the date of the grant may be, the measure of the right that
passes is determined only by the configuration and the width of the river and stream. I
therefore think in this case the plaintiff is entitled to draw water from the Addarapu kalva in
exercise of his rights as a riparian owner and so long as he does not exceed those rights he is
not liable to water-cess. That in India rights of the riparian owner include also the right to
take reasonable quantity of water for purposes of irrigation scarcely admits of any doubt.”
LICENCE
In India, the Indian Easements Act, 1882 provides for law relating to licences in property law.
Section 52 of Indian Easements Act, 1882 defines Licence as under:

“Where one person grants to another, or to a definite number of other persons, a right to do or
continue to do, in or upon immovable property of the grantor, something which would, in the
absence of such rights, be unlawful, and such right does not amount to an easement or an
interest in the property, the right is called a licence.”

From the above definition of licence, it seems that if a person himself has acquired a right or
interest in an immovable property through an instrument, the right conveyed in his favour in
that instrument, will not be licence. In India, judicial and legislative definitions of licence have
followed the English definitions of the term

Under Section 52, if a person is given the right to use the immovable property in a particular
way under certain terms while retaining control and possession of the same, the person so
permitted is only a licencee. The question that arises in this context is that whether the
relationship is that of landlord-tenant or licensor-licensee. The relationship depends on the
intention of the parties that whether there was interest in the land or merely personal privilege
without any interest.

A licence cannot be granted only in favour of definite number of persons and not in favour of
fluctuating body or individuals. The agreement involved in the case, even if binding on the
defendants, cannot be considered to be at least a bilateral agreement between the
representatives of the two parties and containing reciprocal conditions. A licence is a personal
right given to the licencee and, therefore, Section 56 of the Easements Act, 1882 provides that
licence cannot be transferred by the licencee or exercised by his servants and agents.

The Supreme Court in Associated Hotels of India Ltd. v. R.N. Kapoor summed the concept of
Licence as under:

“Under the aforesaid section, if a document gives only a right to use the property in particular
way or under certain terms while it remains in the possession and control of the owner thereof,
it will be a licence. The legal possession, thereof, continues to be with the owner of the
property, but the licencee is permitted to make use of the premises for a particular purpose. But
for the permission, his occupation would be unlawful. It does not create in his favour any estate
or interest in the property.”

It important to take note of essential features of licence as under:

1. A licence is not connected with the ownership of land / property but creates only a
personal right or obligation;
2. Licence only creates a right or interest in the immovable property to do something,
under the authority of the grantor of the licence.
3. A licence cannot be transferred or assigned;
4. Licence is purely permissive right arising only by permission, express or implied, and
not by adverse exercise or in any other way;
 5. It only legalize a certain act which would otherwise be unlawful and does not confer
any interest in the property itself in or upon or over which such act is allowed to be
done.
6. A licencee cannot sue outsiders in his own name.

Kinds of Licence

A licence may be of the following two kinds:

1. Bare licence which is purely a matter of personal privilege, and

2. Licence coupled with a grant or interest in the land.

Whether the act allowed to be done is a bare licence or something more than a licence depends
on the terms of the transaction.

When a landowner permits another to use the land under circumstances in which it is reasonable
to foresee that the licensee will spend money or otherwise change position in the belief that the
license will not be revoked, the license may become irrevocable. For example, if a person owns
two parcels, one of which has no access to a public road, sells the landlocked parcel to another
person, and gives him permission to build a driveway across the lot the seller has retained, the
license becomes irrevocable when the buyer invests in the property, reasonably believing that
the permission will not be revoked.

1. Bare Licence
A bare licence is a personal permission or consent, granted without consideration, to enter,
traverse over or be present upon the land of another. A bare licence is a licence granted
gratuitously which is not coupled with the grant of an interest in the land, e.g. the licence which
one necessarily grants to one’s guests. Such a licence may be revoked at any time.

A bare licence is a defence to what would otherwise amount to the tort of trespass. Where the
licencee oversteps the ambit of the licence, his status will therefore be that of trespasser. If the
person is permitted to enter the land for one purpose but enters for another purpose, or whilst
on the land begins to pursue a different purpose to that which he is authorised, again he becomes
a trespasser, where it is known or understood that the occupier would not have given consent.

If a person is allowed to do the act on the land without interfering with the nature of the land
or without taking any profits from the land, then it is a case of bare licence. Bare licences may
be created expressly or impliedly and no formalities are required – a bare licence may arise by
implication from circumstances or conduct.

Bare licenses generally are not assignable (transferable) and are revocable at will by the
property owner. Bare licence becomes irrevocable when the licensee acting upon the licence
executes a work of a permanent character and incurs expense in doing so.
2. Licence coupled with a grant or interest in land
A licence coupled with a grant or interest in land arises where there is a permission to enter
onto another’s land for the purpose of removing something from that land (such as timber).
This licence combines the grant of an interest (such as a profit a prendre) with an ancillary
permission to enter the land to realise or exploit that interest. A license coupled with an interest
arises when a person acquires the right to take possession of property located on someone else’s
land, as when a lender acquires the right to repossess an automobile that is located on private
property after the borrower has defaulted on a loan.

A licence may be coupled with the grant of an interest in the land, as when standing timber is
sold on terms that the purchaser is to sever the timber: the sale of the timber on these terms
implies the grant to the purchaser of a licence to enter the land in order to obtain the timber.
Such a licence is irrevocable so long as the interest to which it is annexed lasts, and unless
otherwise agreed it can be assigned.

If the person is allowed to take exclusive possession of the land, to plant trees over it, then it is
not a bare licence but it is a licence that is coupled with grant or interest in land. If the licence
gives the licensee a right to make a construction on land, it is not a bare license but it is a licence
coupled with an interest in land. In such a case, the licensee who has entered possession after
execution of the licence, is entitled to maintain a suit against the trespasser who has
dispossessed him.

Licenses coupled with an interest usually are both assignable and irrevocable, at least until the
holder of the license has had a reasonable time to retrieve the property that gave rise to the
license. Where such operative facts give a privilege accessory to and in aid of the exercise of a
power, or other legal interest, otherwise vested in the licensee.
 BIBLIOGRAPHY

Transfer of property by Prof. Ashok K. Srivastava

The Indian Easements Act, 1882.