PROJECT WORK

DR. B.R. AMBEDKAR NATIONAL LAW UNIVERSITY

SUBJECT – PROPRTY LAW

TOPIC – EASEMENT

SUBMITTED BY:
NAME – MOHIT KUMAR
ROLL NO.- 2201070
BATCH AND COURSE – 2027 AND BA.LLB.
SUBMITTED TO:
NAME – DR. RENU SHARMA
 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to
my teacher DR. RENU SHARMA who gave me the golden
opportunity to complete this project work. I came to know
about so many new things while working on the project.

I am greatly indebted to the various writers, jurists, and all

others from whose writings and works I have taken help
to complete this project.

MOHIT KUMAR
2201070

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 INTRODUCTION

An easement represents a significant legal interest in property, granting the owner of one parcel
of land (the dominant owner) the right to utilize an adjacent property (the servient owner) in
specific ways for the benefit of their own land, such as accessing rights of way, light, support,
air, or water. It's important to differentiate easements from profits, which entail the right to
enter another's land and extract naturally occurring resources, like grazing rights. Typically, an
easement denotes the privilege to use land that isn't owned by the user. Section 26 of the
Limitation Act, 1908 delineates the procedures for acquiring the right to an easement over time
through consistent use or other legally recognized means..

WHAT IS AN EASEMENT?

The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882.
According to the provisions of Section 4, an easementary right is a right possessed by the owner
or occupier of the land on some other land, not his own, the purpose of which is to provide the
beneficial enjoyment of the land. In other words, an easement is a right given to another person
or entity to trespass upon land that person or entity does not own. Easements are used for roads,
for example or given to utility companies for the right to bury cables or access utility lines.
Landlocked home owners sometimes pay for an easement to cross the land of another to reach
their home. It can be understood through below mentioned illustrations –

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 Ram being the owner of certain land or house has a right of way over Sita’s house,
adjacent to his house, to move out of the street. This is known as right of easement.
 A voluntary dedication of right a person Madhav to the public for passing or repassing
over a surface of certain land is not a right of easement.
 Keshav’s right to go on his neighbour Radha’s household for fetching water from the
well for the purpose of his own household is a right of easement. Here, the way to the
well is through Radha’s land only. Hence, Keshav has an easementary right to pass
through Radha’s household.

This right is granted because, without it, an occupier or owner would be unable to fully
enjoy their own property. It encompasses the authority to perform or continue certain
actions, or to prohibit or continue to prohibit certain actions, concerning another piece
of land not owned by the individual, for the enhancement of their own land's enjoyment.
Easements are attached to the land itself and are ubiquitous, with nearly every property
possessing one. It's crucial to examine public records for easements, especially if a
potential buyer intends to install a swimming pool, as building on top of an easement is
prohibited. Easements by prescription are obtained through five years of hostile, open,
and conspicuous use. For instance, a person could claim a prescriptive easement by
consistently crossing another's land without permission for five years.

The term 'land' encompasses all permanent fixtures attached to the earth, while
'beneficial enjoyment' refers to the convenience, advantage, amenity, or necessity
derived. The individual referenced as the owner or occupier in the provision is termed
the Dominant Owner, and the land benefiting from the easement is designated the
Dominant Heritage. Conversely, the owner subject to the liability is termed the Servient
Owner, and the land on which the obligation is imposed to perform or prevent certain
actions is termed the Servient Heritage.

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 ORIGIN OF EASEMENT

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

In the words of Salmond, easement is that legal servient which can be exercised on some other
piece of land specifically for the beneficial enjoyment of one’s own land. Right of easement is
basically a form of privilege, the integral part of which is to do an act or prevent certain acts
on some other land for enjoyment of one’s own land.

CONDITIONS FOR EASEMENT

Section 26 of the Limitation Act outlines the regulations concerning the acquisition of easement
rights. As per this section, the right to easement pertaining to the enjoyment of light, air, way,
watercourse, use of water, or other easements shall be considered absolute and irrevocable if it
has been continuously enjoyed for 20 years in the case of private property or 60 years in the
case of public property. However, this utilization or enjoyment must meet specific essential
criteria, which are delineated as follows:

 Peaceably: Enjoyment of easements must not be by force stealth or violence of any

sort.

 Openly: Easement must be open and not by stealth or surreptitiously or in disguise.

 As of right: The enjoyment must be rightful for both the parties and not unfair.

 Without interruption: This means without any obstruction on the part of the person

against when the easement is claimed. Easements may be enjoyed whenever the situation

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 demands, not necessarily at all times. Non users of easements have no right to interrupt

in this case.

However, the right acquired by section 26(1) will be extinguished if there is any interruption
for 2 years. So, if any such right is acquired and subsequently obstructed, the person acquired
it must file a suit within 2 years claiming such a right.

REQUIREMENTS OF EASEMENT

The essential features of an easement, in the strict sense of the term, are these:

(a) It is an incorporeal right; a right to the use and enjoyment of land not to the land itself

(b) it is imposed upon corporeal property

(c) it requires for its constitution two distinct tenements the "dominant tenement" which enjoys
the right, and the "servient tenement" which submits to it.

The final characteristic mentioned above excludes what are known as easements in gross, such
as a right of way granted independently of the possession of any property by the grantee.

A genuine easement is considered "appendant" or "appurtenant," distinct from an "easement in

gross." Both Indian and English law regarding easements do not recognize the concept of
"easements in gross" since they lack the presence of dominant and servient estates.

To evaluate the validity of an easement, it's crucial to consider both its substantive attributes
and the method of its creation. The criteria necessary for the validity of an easement have been
established by the decision in Re Ellenborough Park. In this case, the Court of Appeal was
tasked with determining the status of residents' right to use a garden situated in the middle of a
square surrounded by their houses. This case established the four well-known characteristics
of easements, namely:

(1) there must be a dominant tenement and a servient tenement;

(2) the easement must accommodate the dominant tenement;

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(3) the dominant and servient tenements must be owned by different persons; and

(4) the easement must be capable of forming the subject matter of a grant

In India, there are two more requirements namely that the easement should be for the
“beneficial enjoyment” of the dominant tenement and that the easement should entitle the
dominant owner to do or to continue to do something, or to prevent or to continue to prevent,
something in or upon or in respect of the servient tenement. (C. Mohammed v.
Ananthachari1) The courts have from time to time rejected claims to easements on the ground
that the right would be too wide and vague. In Hunter v Canary Wharf Limited2, although
the right to television reception was not pleaded as an easement, the House of Lords nonetheless
considered the issue. Lord Hoffmann concluded that such a right should not be recognised as
it would place a burden on a wide and indeterminate area.

As previously emphasized, the presence of both a dominant owner and a servient owner is
essential. The easement must be advantageous to the dominant owner and can be permanent,
temporary, seasonal, or for a specific event or out of necessity. Additionally, the owners must
be distinct individuals, and the easement must be capable of being the subject of a grant.

Indian law regarding easements encompasses profit à prendre, provided it is supported by

both a dominant and servient heritage (profit à prendre appurtenant). This differs from
English law, where profit à prendre and easements are treated separately. However, Indian
law does not recognize profit à prendre in gross.

CREATION OF EASEMENTS

The title to an easement can be acquired through grant, custom, prescription, or necessity. An
easement may be obtained through grant, which involves an agreement executed by a grantor
in favor of a grantee in exchange for consideration. The grant becomes valid when the grantee
gains the right to access the grantor's land. The deed of easement can be separate, or it may be
included within a deed relating to the dominant heritage. For instance, if X sells land to Y, the
same deed may also grant Y a right of way over another piece of land belonging to X.

1
C. Mohammed v. Ananthachari, AIR 1988 KERALA 298
2
Hunter v Canary Wharf Ltd, [1997] UKHL 14

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Easement by custom is a legal right acquired through the continuous use of land over an
extended period. Therefore, the right of way may persist through 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 grants and others
prescription and custom. Creation of an easement does not mean transfer of property. Int eh
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 sunservient owner given full and free and 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

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(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
vary 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 (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 nonapparent, 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.

Easement By Prescription

Prescription means getting a right by continuous assertion of the right, which has been in use
for a long period of time. Thus, to establish in a Court of law, a right of easement by way of
prescription, the following criteria are to be satisfied:

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a). There must be a preexisting 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.

The High Court of Kerala, in Krishnan v. Nanukuttan as reported in ILR 1986 (1) Kerala 526,
specifically outlined seven points. If the enjoyment of an easement is based on an agreement
between parties, expressly or impliedly stating that it's not an easement, Section 15 of the
Easements Act doesn't apply. To constitute an interruption, there must be a cessation of
enjoyment due to obstruction by someone other than the claimant, and the claimant must not
have acquiesced to it. If someone benefits from an easement under a life interest or an interest
lasting more than three years, that period is excluded from the twenty-year calculation under
Section 16 of the Easements Act.

Section 17 of the Easements Act stipulates that certain easements cannot be acquired by
prescription: (a) those imposing a liability on the property or causing its total destruction; (b)
rights to free passage of light or air to an open ground; (c) rights to surface water not flowing
in a stream and not permanently collected in a pool, tank, or otherwise; (d) rights to
underground water not passing in a defined channel.

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Easement Of Necessity

An easement of necessity is implied when the right is crucial for the use of the granted or
retained land. The focus isn't solely on whether it's necessary for the reasonable enjoyment of
the land, but rather if the land can be utilized at all without the implied grant or reservation.
Successful claims are only made when the land is "absolutely inaccessible or useless" without
the easement. An example illustrating this is when a grantor conveys a plot of land except for
a central piece completely surrounded by the conveyed part. Without implying a reservation
of a right of way over the granted land, the central land would be entirely inaccessible.
However, an easement of necessity won't be implied just for making land use more
convenient. These easements are coextensive with the necessity as it existed when the
easement was established, typically arising upon the separation of tenements, created by
implied grant.

For instance, if a field owner sells a portion of their land without the well used for irrigation,
but retains the part with the well, a question arises regarding the purchaser's right to use the
well. If the parties address this issue in the conveyance deed, their expressed common
intention prevails. However, if the deed is silent on this matter, the law grants the purchaser
of the land an easement to access water from the retained well. According to the case of
Muhammad Ramzan v. Naseer Beg, 1980 CLC 1555, the plaintiff must not only demonstrate
the existence of the easement right at the time of property transfer but also its necessity for
enjoying the transferred property.

QUASI EASEMENTS

The principle of quasi easement is that where the one portion of the property has been
dependent on another portion for necessary advantages and the former portion is alienated, the
denial to the grantee of the enjoyment of similar advantages would be to deprive his new
acquired property of utility and benefit of his bargain. A quasi easement will not come into
existence if it is expressly excluded by the terms of the grant or are inconsistent with the
intention of the parties.

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 TERMINATION, SUSPENSION AND REVIVAL OF EASEMENTS

Generally, mere nonuse does not end an easement. One or more of the following factors may
also have to be present:

Extinction by dissolution of right of servient owner:

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 servant, the easement is estinguished. For example, A
transfer Sultanpur to B on condition that he does not marry C, B impress an easement on
Sultanpur. Then B marries C, B's interest in Sultanpur ends, and with it the easement is
extinguished.

Agreement to terminate by grantor and the grantee of the easement:

An easement is extinguished when the dominant owner releases it, expressly or impliedly, to
the servient owner. Such release can be made only in the circumstances and to the extent in and
to which the dominant owner can alienate the dominant heritage. An easement may be released
as to part only of the servient heritage. Similarly, as per section 39 of the Indian Easements Act,
1870 an easement is extinguished when the servient owner, in exercise of power reserved in
this behalf, revokes the easement

Expiration of the time allowed for the easement:

An easement is extinguished where it has been imposed for a limited period, or acquired on
condition that it shall become void on the performance or nonperformance of a specified act,
and the period expires or the condition is fulfilled.

Abandonment or expressed intent to discontinue use of the easement:

A continuous easement or a discontinuous easement is extinguished when it totally ceases to

be enjoyed as such for an unbroken period of twenty years. With respect to a continuous
easement, from the day on which its enjoyment, lays obstructed by the servient owner or
rendered impossible by the dominant owner, and, in the case of a discontinuous easement, from
the day on which it was last enjoyed by the person as a dominant owner:

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Merger where one person buys both dominant and servient tenement:

An easement is extinguished when the same person becomes entitled to the absolute ownership
of the whole of the dominant and servient heritages, For example, A, as the owner of a house.
has a right of way over B's field. A mortgage his house, and B mortgages his field to C. Then
C forecloses both mortgages and becomes thereby absolute owner of both house and field. The
right of way is extinguished.

Extinction by end of necessity in case of easement by necessity:

An easement of necessity is extinguished when the necessity comes to an end. For example, A
grant B a field inaccessible except by passing over A's adjoining land, B afterwards purchases
a part of that land over which he can pass to kxis field. The right of way over A's land which B
has acquired is extinguished.

Extinction by Destruction of Subject Matter:

An easement is extinguished when either the dominant or the servient heritage is completely
destroyed. For example, A has a right of way over a road running along the foot of a seacliff.
The road is washed away by a permanent encroachment of the sea. A`s easement is
extinguished.

Suspension of Easement:

An easement is suspended when the dominant owner becomes entitled to possession of the
servient heritage for a limited interest therein or when the servient owner becomes entitled to
possession of the dominant heritage for a limited interest therein. For example A has a right of
way of B's land obtains for lease his land, the easementary right of way is suspended during
this period.

Revival of Easements:

An easement extinguished under Section 45 revives (ii) when the destroyed heritage is, before
twenty years have expired restored by the deposit of alluvion; (b) when the destroyed heritage

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is a servant building and before twenty years have expired such building is rebuilt upon the
same site, and (c) when the destroyed heritage is a dominate building and before twenty years
have expired such building is rebuilt upon the same site and in such a manner as not to impose
a greater burden on the servant heritage. An easement extinguished under Section 46 revives
when the grant or bequest by which the unity of ownership was produced is set aside by the
decree of a competent court. A necessary easement extinguished under the same section revives
when the unity of ownership ceases from any other cause. A suspended reassessment revives if
the cause of suspension is removed before the right is extinguished under Section 47.

CONCLUSION

The Indian Easements Act lays down the framework for understanding and governing
easements in India. Easement, as defined in Section 4 of the Act, refers to the right enjoyed
by the owner of the dominant property over the property of the servient owner for the
beneficial use of their own land. This section not only elucidates the components of
easements but also categorizes them into prescriptive, customary, quasi, and of necessity.

Subsequently, Section 7 outlines the methods of acquiring easements, stating that they can be
obtained through an express grant or implied under certain circumstances. When acquired
through an express grant, the deed of sale, mortgage, or other transfer documents must
explicitly mention the easement clause. Easements are rights in rem, meaning they are
enforceable against the entire world, but they can also be subject to restrictions and
limitations, either positive or negative. Licenses, in contrast, are solely positive and can be
distinguished from easements.

The Act further delves into provisions governing the suspension, extinguishment, and revival
of easements, while also discussing the disparities between easements and licenses. It
elucidates the concept of licenses, detailing their essential features. Licenses can be either
revocable, as stated in the Act, or irrevocable under Section 60. They can also be transferred
according to Section 56, constituting rights in personam, which are not enforceable against
the entire world but are granted personally.

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 BIBLIOGRAPHY

 SCC ONLINE

 Manupatra

 blog.ipleaders.in

 Indian Kanoon

 readcube.com

 traceyourcase.com

 legum.app

 aaptaxlaw.com

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