Easements

professional practice

SHASHANK BHATT
12/AR/007

WHAT IS AN EASEMENT?

AN EASEMENT IS A RIGHT WHICH THE OWNER OR OCCUPIER OF CERTAIN LAND POSSESSES, AS SUCH, FOR THE
BENEFICIAL ENJOYMENT OF THE LAND:

1.

TO DO AND CONTINUE TO DO SOMETHING; OR

2.

TO PREVENT AND TO CONTINUE TO PREVENT SOMETHING FROM BEING DONE; IN OR UPON, OR IN RESPECT OF CERTAIN
OTHER LAND NOT HIS OWN.

ILLUSTRATION

(A) 'A' AS THE OWNER OF A CERTAIN HOUSE, HAS A RIGHT OF WAY OVER HIS NEIGHBOR'S LAND FOR THE PURPOSE
CONNECTED WITH THE BENEFICIAL ENJOYMENT OF THE HOUSE. THIS IS AN EASEMENT.
(B) 'A' AS THE OWNER OF CERTAIN HOUSE, HAS THE RIGHT TO GO ON HIS NEIGHBOR'S LAND, AND TO TAKE WATER FOR THE
PURPOSE OF HIS HOUSEHOLD, OUT OF A SPRING THEREIN. THIS IS AN EASEMENT.
Right of way

B
Well

(a)

(b)

DOMINANT HERITAGE VS. SERVIENT HERITAGE

Dominant heritage

Servient heritage

The land for the beneficial enjoyment of The land on which the liability of
which the right of easement exists is
beneficial enjoyment of the easements
called dominant heritage.
is imposed is called servient heritage.
Dominant heritage is the land whose
Owner of servient heritage has to
owner is entitled to claim certain
sacrifice a part of his absolute right of
concessions from the owner of the
enjoyment and ownership of his land for
servient heritage.
the beneficial enjoyment of the land of
Owner of dominant heritage is benefited
dominant owner.
by the provisions of the easement act.

CHARACTERISTIC OF EASEMENT
o

OWNER OR OCCUPIER OF LAND IS NECESSARY.

THE RIGHT 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 MUST HE VESTED IN THE OWNER OR
OCCUPIER.

THE RIGHT SHOULD BE FOR THE BENEFICIAL ENJOYMENT OF THE DOMINANT HERITAGE, SINCE IT IS ATTACHED TO LAND
AND AS SUCH IT IS TRANSFERRED AUTOMATICALLY WITH THE SALE OF LAND AND SEPARATE AGREEMENT IS NOT
NECESSARY.
A = OWNER OF PQRS; ACCESS NOT POSSIBLE
WITHOUT PASSING OVER B'S PLOT (RSTV),
A = SELLS TO 'C'

THE RIGHT OF PASSING OVER THE LAND OF 'B' IS AUTOMATICALLY TRANSFERRED TO 'C' PROVIDED RIGHT OF WAY HAS BEEN
ENJOYED BY 'A' AS AN EASEMENT, IT IS AN EASEMENT OF NECESSITY.
o

SERVIENT HERITAGE IN OR UPON WHICH THE RIGHT OF DOMINANT HERITAGE HAS TO BE EXERCISED MUST NOT BELONG
TO DOMINANT OWNER THAT IS BOTH LANDS MUST HAVE DIFFERENT OWNERS. THIS IS A RIGHT OVER SOMEBODY ELSES
LAND AND THE OWNER CAN NOT ENJOY EASEMENT OVER HIS OWN LAND.

OTHER RIGHTS RESEMBLING EASEMENT

1.

NATURAL RIGHTS

THESE RIGHTS NORMALLY ARISE OUT OF GEOGRAPHICAL CONFIGURATION OF THE PROPERTY AND ARE INHERENT, IN THE
PROPERTY ITSELF.

THESE ARISE OUT OF THE NATURAL SITUATION OF THE PROPERTY

E.G. THE RIGHT WHICH THE OWNER OF LAND ON A HIGHER LEVEL HAS OF DISCHARGING HIS SURPLUS WATER ON HIS
NEIGHBOR'S LAND ON A LOWER LEVEL, IS A NATURAL RIGHT AND NOT AN EASEMENT.

SOME OF THE NATURAL RIGHTS, BENEFITS PROVIDED BY NATURE FOR THE ENJOYMENT OF MAN'S PROPERTY
1.

TO RECEIVE AIR AND LIGHT FREELY.

2.

TO RECEIVE LIGHT WHICH FALLS VERTICALLY UPON THE LAND BUT NOT LIGHT THROUGH ADJACENT PLOT.

3.

NO RIGHT TO POLLUTE AIR.

4.

RIGHT OF SUPPORT TO LAND IN ITS NATURAL CONDITION, E.G., ADJOINING OWNER DIGS THE PIT AND FILLS IT WITH
WATER. THAT WILL INTERFERE WITH THE SUPPORT OF ADJOINING LAND.

5.

RIGHT TO DRAIN RAIN WATER FROM HIGHER PLOT TO LOWER PLOT, BUT RIGHT TO DISCHARGE POLLUTED WATER IS
NOT A NATURAL RIGHT. SUCH RIGHT SHOULD EITHER BE ACQUIRED BY WAY OF PRESCRIPTION OR BY WAY OF
EASEMENT.

CASES IN WHICH THE NATURAL RIGHTS OF THE OWNERS TO ENJOY THEIR PROPERTY EXCLUSIVELY ARE RESTRICTED
1.

0WNER CANNOT DEVELOP THE PLOT AS HE LIKES, BUT IS SUBJECT TO RULES AND REGULATIONS OF LOCAL
BODIES.

2.

FRESH AIR SHOULD NOT BE POLLUTED.

3.

UNREASONABLE NOISE OR VIBRATION WHICH MATERIALLY INTERFERES WITH ONE'S PHYSICAL COMFORTS NOT
ALLOWED.

4.

EVERY OWNER OF LAND HAS A RIGHT TO SO MUCH LIGHT AND AIR AS PASSES VERTICALLY THERETO.

5.

RIGHT OF SUPPORT OF ADJACENT LAND IN NATURAL CONDITION.

6.

NO RIGHT TO PASS POLLUTED WATER FROM HIGHER TO LOWER LAND.

Window

Window

(4)
(1,2)

Basement

Retaining wall

OTHER RIGHTS RESEMBLING EASEMENT

2. CUSTOMARY RIGHTS
o

THESE ARE RIGHTS ARISING OUT OF THE CUSTOM, VESTED IN FAVOR OF A LARGE OR
FLUCTUATING BODY OF PERSONS LIKE INHABITANTS OF PARTICULAR VILLAGE OR MEMBERS
OF CERTAIN CASTE.

IT IS A RIGHT IN GROSS WHEREAS AN EASEMENT IS ALWAYS APPURTENANT TO A TENEMENT,

E.G., RIGHT TO BURY THE DEAD AT A CERTAIN BURIAL GROUND, RIGHT TO HAVE HOLI
FESTIVAL ON CERTAIN PIECE THE OF LAND.

RIGHT OF WAY IN FAVOR OF A LARGE AND FLUCTUATING BODY OF PERSONS WILL FORM A
CUSTOMARY RIGHT, BUT IF SUCH RIGHT OF WAY IS MEANT FOR BENEFICIAL ENJOYMENT THE
DOMINANT HERITAGE, THIS WILL BE AN EASEMENT.

IN THE LATTER CASE TWO ASPECTS ARE :a)

EXISTENCE OF DOMINANT HERITAGE

b)

BODY OF DETERMINATE PERSONS TO ENJOY THE SAID EASEMENT.

CONTINUOUS AND DISCONTINUOUS EASEMENT

CONTINUOUS EASEMENT

1.

THERE ARE THE EASEMENTS WHOSE ENJOYMENT IS CONTINUED WITHOUT THE ACT OF MIN
E.G.. RIGHT TO RECEIVE LIGHT FROM THE NEIGHBOR'S PROPERTY IS A CONTINUOUS
EASEMENT A; NO ACT OF MAN IS REQUIRED TO DO SOMETHING.

2.

SIMILARLY, A DRAIN UNDER A PROPERTY IS ALSO A CONTINUOUS EASEMENT.

3.

THE DOORS AND WINDOWS TO RECEIVE AIR AND LIGHT AS WELL AS THE DRAINS ARE ALSO
'MOWN AS APPARENT EASEMENTS AS THE SAME ARE VISIBLE ONES

DISCONTINUOUS EASEMENT

1.

IT REQUIRES THE ACT OF MAN FOR ENJOYMENT, E.G., RIGHT TO TAKE WATER OR FISH FROM
THE NEIGHBOR'S TANK ARE THE DISCONTINUOUS EASEMENTS WHICH REQUIRE A FRESH ACT
ON EVERY OCCASION.

2.

A NON-APPARENT EASEMENT IS NOT VISIBLE, E.G., CANNOT CONSTRUCT OVER HIS LAND DUE
TO EASEMENT RIGHT OF `A', IS A NON-APPARENT EASEMENT.

THE FOLLOWING ARE SOME OF THE IMPORTANT

EASEMENTS
1.

RIGHT TO USE AND ENJOY LIGHT AND AIR FROM AND OVER THE PROPERTY OF THE ADJOINING OWNER (EASEMENT OF AIR
AND LIGHT)

2.

RIGHT TO ACCESS FROM THE ADJOINING OWNER'S LAND (EASEMENT OF WAY).

3.

RIGHT TO RUN AND MAINTAIN WATER AND DRAIN PIPES THROUGH THE NEIGHBOR'S LAND (EASEMENT OF DRAINAGE AND
WATER SUPPLY).

4.

RIGHT OF FLOW OF WATER (EASEMENT OF WATER COURSE)

5.

RIGHT OF SUPPORT FOR A BUILDING (EASEMENT OF SUPPORT).

WINDOW
Window

(1)

Right of way

(2)

(5)

(3)
Well

Basement

RETAINING WALL

MODES OF ACQUIRING EASEMENT

OUT OF THE VARIOUS MODES OF ACQUISITION OF THE EASEMENTS, THREE MODES ARE IMPORTANT.

1.

1.

BY GRANT;

2.

BY NECESSITY; AND

3.

BY PRESCRIPTION.

BY GRANT

AN EASEMENT MAY BE IMPOSED BY ANY ONE IN THE CIRCUMSTANCES AND TO THE EXTENT, IN AND TO WHICH HE MAY TRANSFER HIS INTEREST IN
THE HERITAGE, ON WHICH THE LIABILITY IS TO BE IMPOSED. EASEMENTS IMPOSED IN THIS MANNER ARE KNOWN AS EASEMENTS BY GRANT.
ILLUSTRATION
A IS THE TENANT OF B'S LAND UNDER A LEASE FOR AN UNEXPIRED PERIOD OF 20 YEARS AND HAS POWER TO TRANSFER HIS INTEREST UNDER THE
LEASE. HE MAY IMPOSE AN EASEMENT ON THE LAND TO CONTINUE DURING THE TIME THE LEASE EXISTS OR FOR ANY SHORTER PERIOD, SUBJECT TO
LEASE CONDITIONS.
2. BY NECESSITY
EASEMENT OF NECESSITY ARISES WHEN ONE PROPERTY IS SEVERED INTO TWO EITHER BY
.

SALE,

MORTGAGE,

PARTITION, ETC.

MODES OF ACQUIRING EASEMENT

AND THEY ARE SO SITUATED THAT ONE CANNOT BE ENJOYED WITHOUT EXERCISING A PARTICULAR PRIVILEGE IN OR UPON
THE
OTHER. SUCH PRIVILEGE IS KNOWN AS EASEMENT OF NECESSITY
I) COMPLETE PLOT PQTV BELONGS TO ONE OWNER.
II) LF PQRS IS SOLD, THE PURCHASER WILL HAVE A RIGHT OF WAY OVER LAND RSTV.
III) PURCHASER WILL HAVE RIGHT TO FETCH WATER FROM WELL IF THAT IS THE ONLY SOURCE OF WATER SUPPLY FOR THE
PLOT PRIOR TO SALE.
3.

BY PRESCRIPTION:

THE WORD PRESCRIPTION MEANS AN ACQUISITION OF A RIGHT OR TITLE BY CONSTANT USE OR POSSESSION FOR 20
YEARS, AND IF CLAIMED AGAINST THE GOVERNMENT, 60 YEARS AND IN THE MODE AND MANNER AS PRESCRIBED Y THE
EASEMENT ACT, 1882.

A PRESCRIPTIVE EASEMENT CAN BE ACQUIRED BY LONG USE, WHERE THE ACCESS AND USE OF AIR AND LIGHT TO AND
FOR ANY BUILDING HAVE BEEN PEACEABLY ENJOYED THEREWITH AS AN EASEMENT WITHOUT INTERRUPTION AND FOR 20
YEARS: AND WHERE SUPPORT FROM ONE PERSON'S LAND OR THINGS AFFIXED THERETO HAS BEEN PEACEABLY RECEIVED
BY OR BY THINGS AFFIXED THERETO, AS AN EASEMENT, WITHOUT INTERRUPTION, AND FOR 20 YEARS; AND WHERE A
RIGHT OF WAY OR ANY OTHER EASEMENT HAS BEEN PEACEABLY AND OPENLY ENJOYED BY ANY PERSON CLAIMING TITLE
THERETO AN EASEMENT, AND AS OF RIGHT, WITHOUT INTERRUPTION AND FOR 20 YEARS.

MODES OF ACQUIRING EASEMENT

However, it is necessary to obtain a declaratory order from the Court that Dominant owner is
entitled to the prescriptive easement claimed therein. The suit should be filed within two
years after the expiry of 20 years without the same the right will not be absolute however
long its use may be.

When the property over which the easement right claimed belongs to the Government, the
period of enjoyment has to 60 years and not 20 years.

Thus, to acquire easement by prescription it must be proved that:

(a) It has been enjoyed peaceably;

(b) As an easement.

(c) Without interruption; and

(d) For 20 years.

ESSENTIAL CONDITIONS FOR THE ENJOYMENT

OF EASEMENTS
o

Easement can be enjoyed by Dominant heritage only. If an easement is claimed over the right
of way, the same can be utilized by the Dominant owner, his family and servants and nobody
else.

In the enjoyment of the easement, the Sentient owner should be burdened as low as possible
A person having the easement rights of discharging rain water from the eaves of a roof
cannot increase the width of the said eaves projection.

A and B were the owners of adjacent fields and one mode of approaching B's field was by a
way which passed through As field. Bs field was used for agricultural purpose but lately he
converted his field into a timber yard and it was decided that B could not be merely altering
dominant heritage, substantially increase the easement.

The Dominant owner is entitled to all acts which are necessary for the proper enjoyment of
the easements, thus the Dominant owner can go to Servient heritage to repair the pathway
or to alter the drain line. But it is compulsory that the works should be made good and no
damage should he done to the Servient heritage. All the expenses of preservation of the

PRECAUTION TO PROTECT EASEMENT RIGHT

CAN BE OVERCOME BY TWO METHODS. .

1.

METHOD OF CO-OPERATION

2.

LEGAL ACTION

1. METHOD OF CO-OPERATION
.

IN THIS CASE THE JOINT MEASUREMENTS ARE TAKEN OF BOTH THE BUILDINGS AND NECESSARY PLANS PREPARED
SHOWING THE ANGLES OF LIGHT FOR THE VARIOUS WINDOWS OF THE NEIGHBOR.

BY MUTUAL AGREEMENT, THE NEIGHBOR MAY ALLOW CONSTRUCTION WORK TO THE ORIGINAL HEIGHT SO AS NOT TO
DECREASE THE ORIGINAL LIGHT ANGLES OF THE WINDOWS.

HE MAY ALSO ALLOW HIGHER CONSTRUCTION WORK TO THE ORIGINAL HEIGHT SO AS NOT TO DECREASE THE ORIGINAL
LIGHT ANGLES OF THE WINDOWS.

HE MAY ALSO ALLOW HIGHER CONSTRUCTION WITH THE NECESSARY SET BACKS.

THE ADVANTAGES OF THIS METHOD ARE:

(I)

SAVING IN TIME AND LEGAL COSTS.

(II)

POSITION AND SIZES OF WINDOWS CAN BE ALTERED DURING THE COURSE OF RE PLANNING OF THE BUILDING.

PRECAUTION TO PROTECT EASEMENT RIGHT

2. LEGAL METHOD

THIS METHOD SHOULD BE RESORTED TO WHEN THE METHOD OF CO--OPERATION FAILS. FOR THIS PURPOSE IT IS
NECESSARY:

(1) TO PREPARE THE PLANS OF BOTH THE BUILDINGS SHOWING THE POSITION OF THE WINDOWS TOGETHER WITH
THEIR LIGHT ANGLES.

(2) NECESSARY PHOTOGRAPHS OF THE BUILDINGS SHOULD BE TAKEN.

(3) PLANS OF THE NEW BUILDING SHOULD BE PREPARED TAKING CARE TO SEE THAT THE POSITION, SIZE AND PLANE
OF LIGHT ANGLES ARE KEPT THE SAME AS THOSE EXISTING ORIGINALLY AND NOT ALTERED AT ALL.

(4) THE CONSTRUCTION WORK SHOULD BE TAKEN IN HAND AFTER THE EASEMENT RIGHTS HAVE BEEN ESTABLISHED
AND NOT BEFORE.

THE PLANS, PHOTOGRAPHS, ETC., ARE SENT TO THE NEIGHBOR FOR HIS VERIFICATION AND CONFIRMATION. IF NO REPLY
IS RECEIVED WITHIN A STIPULATED TIME, PERIOD, THEN, THE PLANS BECOME FINAL AND BINDING AND THE WORK OF
DEMOLITION CAN BE PROCEEDED WITH. IF THE SAME IS OBJECTED TO, THE MATTER WILL BE REFERRED TO THE COURT
FOR ITS DECISION AND THE WORK OF DEMOLITION CAN BE PROCEEDED WITH AFTER THE COURT HAS GIVEN ITS
DECISION ON THE MATTER