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property_law:easement:definition

Definition of Easement

Section 4 of The Indian Easements Act, 1882: “Easement” defined.

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.

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.

Explanation. In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.

Illustrations

(a) A, as the owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoyment of the house. This is an easement.
(b) A, as the owner of a certain house, has the right to go on his neighbour B 's land, and to take water for the purposes of his household, out of a spring therein. This is an easement.
(c) A, as the owner of a certain house, has the right to conduct water from B 's stream to supply the fountains in the garden attached to the house. This is an easement.
(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B 's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C 's tank, or timber out of D 's wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees in E 's land. These are easements.
(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement.
(f) A is bound to cleanse a water course running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement.

Scope

The definition of an easement given in this section includes profits a prendre appurtenant to land and perhaps is also intended to include other forms of easements besides those recognised by the English law.

Occupier

The right of easement can be exercised or enjoyed not only by the owner of the dominant heritage but by any one who is lawfully in possession of the same, for instance, the lessee. By section 12, an occupier can also acquire an easement on behalf of the owner of the immovable property for the beneficial enjoyment of which the right is created. The occupier has also a right to maintain a suit for the disturbance of an easement. But occupier does not include a trespasser.

As such

Namely ; as being an owner or occupier of the land.

For the beneficial enjoyment of the land

An easement is not a right which belongs to the dominant owner personally. It is only enjoyed by him in virtue of his ownership of the dominant heritage. If he sells the land he parts with the right as well.

To do and continue to do

The right of easement does not consist in doing any particular act once or twice or a given number of times but generally. A may have B’s permission to go on B’s land once or twice but such right over B’s land does not amount to an easement. But to do and continue to do something does not mean the incessant or constant doing of the thing. Use perpetually recurring at certain or uncertain intervals is sufficient. The dominant owner should have a right to use an indefinite number of times. When the right consists in doing and continuing to do something e.g. a right of way, or of drawing water, or of grazing cattle, or of taking fish, the easement enjoyed is an affirmative one; but when the right consists in preventing and continuing to prevent something being done, e.g., preventing one’s neighbour from building a wall above a certain height, the easement enjoyed is negative.

In or upon, or in respect of

Doing something in the land of another would be doing such acts as conducting water through pipes laid in land to one's garden from one’s neighbour’s tank, while doing something upon the land of another would be doing such acts as walking, driving, discharging water, etc. In respect of, means in relation to. These words are not used in the English definition of an casement. There the words used are in or over, which correspond to the words in or upon. Are these words then used to include something in the Indian definition which is not included in the term easement according to English law ? Are the profits of the land enjoyed by doing something in respect of the land, and are these words intended to include them?

Again, there are some easements which are not enjoyed by doing or preventing something being done in or upon the land of another but by doing something on one’s own land which affects the land of another. For example, every owner of land has a right that his land, in the natural condition, shall have the support naturally rendered by the subjacent soil of another.1) Now a person may acquire a right of easement to remove the layer of his subjacent soil so as to cause subsidence of the surface of upper land. Here he does something only on his own land but also something in respect of the land of another.

Certain other land not his own

An easement is a right in re alieno solo (in the land of another). It is a definite right substracted from the indefinite rights of user and exclusion which reside in the owner of the servient heritage. No person can have an easement in land of which he himself is the owner. Nulli res sua servit. If the two heritages are owned by the same person he has a right as owner to use each in whatever manner he finds most convenient to himself, and he may make the one tenement servient to the other simply because it is his own; in whatever manner, therefore, he exercises his right, he exercises it in his capacity of owner of the soil, and the right he exercises is not an easement but a proprietary right incident to the ownership of land.

Heritages

According to the Explanation attached to this section, lands, houses and other things permanently attached to the earth are tenements or heritages.

Servient

The term is used because land is held in bondage, i.e., it is liable to be used for the advantage of the other.

Possible convenience, remote advantage

An easement must be an advantage to the dominant heritage but a right which apparently is not such but may under certain circumstances become so, can be acquired as an easement under the Act. For example, a person uses two different ways for going from his house to the public road; one over his own land and the other, not so convenient, over the adjoining land of his neighbour which he may be using occasionally and this latter may be safer and more convenient for him to use, say, when Hindu-Muhammadan riots take place. Such a right of way may be acquired as an easement.

Mere amenity

Amenity means pleasantness of the situation and probably was intended to include a right to an unobstructed view or a prospect, but English law does not recognise such a right as it throws the burden on a very extensive area of land and the Indian Courts have followed the English law2) on this point.3)

F. Peacock in his learned treatise on the law of easements thus expresses his opinion on the use of these words in the definition of an easement. “The words possible convenience, remote advantage, or even a mere amenity, included in the term beneficial enjoyment appear to open the door to other forms of easements besides those recognised by the English law. What these forms of easements may be, is a matter which is open to question, no cases having arisen on the subject. It is to be regretted that none of the illustrations to the section throws any light upon the possible application of such words, and the matter must therefore remain in doubt until set at rest by judicial or legislative authority.”

Removal and appropriation … subsisting thereon

Examples of such easements are given in illustration (d) to the section. Such rights under English law are called profits a prendre and are regarded as distinct from easements. Under English law an easement is not a right which allows the dominant owner to take any thing except water from the soil of the servient heritage.

Illustrations (a), (b) and (c) are examples of easements both under the English and the Indian law. Illustration (d) gives examples of easements which are called profits a prendre under English law. Illustration (e) is not one of an easement because here the right vests in the public irrespective of the ownership of any land. It is what is called a right in gross and not appurtenant. Besides here A dedicates to the public the right to occupy the surface of the land for the purpose of passing and repassing, while in the case of an easement the occupation remains with the owner, of the servient heritage subject to the easement. Illustration (f) is not one of an easement. By the definition of an easement the servient owner is required only to acquiesce in the acts of the dominant owner which an ordinary owner could prevent and in some cases to abstain from doing something which an ordinary owner could do but can never be required to do something for the benefit of the dominant heritage. In other words, his duty is only negative and not a positive one.4) Here he is required to do certain thing for the benefit of the lower riparian owner, hence this cannot be an easement.

Analysis of the section

Three ingredients are necessary for the existence of a right of easement, namely;

  1. Two separate heritages or parcels of land, one, for the beneficial enjoyment of which the right exists, and the other on which the liability is imposed,
  2. the dominant and servient heritages must be distinct from each other and must belong to separate persons, one person should not be the owner of both,
  3. the nature of such right must be “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 belonging to the owner of the right.”

The right can be exercised or enjoyed either by the owner or the occupier of the heritage which benefits by the right. The heritages need not be contiguous but may lie at a distance from each other, as in the case of an easement to graze cattle.

Difference between English and Indian Law

According to English law an easement is a privilege without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.

Goddard: Thus according to English law a right of easement does not entitle the dominant owner to take out of the servient tenement any corporeal thing except water, as water is not a part of the soil of the servient tenement or of the produce of it. But Indian law includes profits as well. Under English law such rights are called profits a prendre and are considered as distinct from easements. They are defined as rights appurtenant to land which are supplemented by the light to enjoy the profits of the land over which they are exercised.

Illustrations of Easements

  1. Roofs of shops are land within the meaning of the expression as used in section 4, and easements such as the right of drying clothes can be acquired over them.5)
  2. A right to take water through another’s land for the more beneficial enjoyment of one’s land, even though it be after purchasing such water, is an easement.6)
  3. A right to have trees overhanging a neighbour’s land is not an easement.7)
  4. An owner of upper land has a right to allow the surface water to flow away in the usual course of nature upon the lower lands of his neighbour but he cannot do this, however, by an artificial discharge upon his neighbour’s land unless he has acquired an easement.
  5. A right to a prospect cannot be acquired as an easement as it throws a burden on a large space of ground.8) For the same reason a right, to a free access of breeze cannot be acquired as an easement.9)
  6. A person can acquire an easement of the nature of a right of way over the passage for the use of the sweeper who is a Municipal servant, provided he can prove that the passage has been used, as of right, by the Municipal sweeper for the necessary period.10)
  7. A right to go on a neighbour’s land and erect a scaffolding there for the purpose of plastering the walls is an easement but such an easement cannot be treated as an easement of necessity simply because the two properties were once owned by a common owner. It was also held that if a right comes within the four corners of the statutory definition of an easement, whether it be a new one or a novel one, the Court is bound to give effect to it.11)
  8. A right to go on to a neighbour’s land to gather the fruits that fall there from a portion of a tree alleged to belong to the plaintiff is a right unknown to law and is not an easement within the meaning of section 4. Such a right cannot be acquired by prescription. This case is similar to case No. 7 and other reasons for not recognising such a right as easement may be that as a right to have trees overhanging a neighbour’s land cannot be acquired as an easement hence such a right cannot be an accessory thereto. Moreover, the neighbour has a right at any time to lop off the overhanging branches from which the fruits fall and put an end to the right.
  9. An exclusive right of fishery is an interest in immovable property and may be acquired by twelve years adverse possession involving an ouster of the rightful owner. But a mere right to fish not excluding the rightful owner is a profit a prendre and falls with the definition of easement and may be acquired only by twenty years uninterrupted enjoyment under section 15.12)

    Julkar is a water right, a right to the produce of the water, such as fish. When these rights are not appurtenant to other heritages, they are not easements. Also when these Julkar rights entitle their holder to all the profits derivable from a river, lake, or other water, subject to no restriction in favour of the owner of the bed, they cannot be called easements. The Julkar right of fishery in small and shallow rivers, the beds of which are recognized as the property of the claimant himself, is unquestionably a right of property.

  10. Pleadings: If the plaintiff had enjoyed the right of user of land, for such a period as is sufficient to confer on him a right by prescription, the circumstance that in a previous suit he had erroneously stated that he was the owner, would not deprive him of the right of easement which had acquired.13) Rights of ownership and easement are incompatible, but they may be claimed alternatively in a suit.

Important Questions for Judiciary Exams

  1. Define “easements”. State how they are acquired.
  2. Enumerate the conditions essential to a valid easement.
  3. State whether the following are easements, and if so, why so; or if not, why not; and if easements, of what kind?
    1. The right of A, as owner of land, to walk across B.’s compound.
    2. The right of A, as owner of land, to have his land supported by B’s land.
    3. The right of A to enjoy undisturbed a particular view from the window of his house.
    4. The right of A. to enjoy uninterrupted south-breeze through the windows of his house.
    5. The right of A to have branches overhanging his neighbour’s land.
    6. The right of Mohammedans to celebrate in the Moharram on another’s land.
  4. Is writing essential under the Indian law to the valid imposition of an easement?
  5. How can easements be acquired by the operation of the doctrine of acquiescence? “Acquiescence to deprive a man of his legal rights must be in the nature of a fraud”. Explain and amplify.
  6. State concisely showing the different senses in which the term ‘easement’ is used in law.
  7. Distinguish between;
    1. an easement and a profit a prendre,
    2. an easement and prescription.
  8. A builds his house in such a way that he entirely blocks up two windows of his neighbour B’s house. These windows afforded B a good prospect. Can B sue to restrain A from building his house? Give reasons.
  9. Comment on the following statements;
    1. no easement consists in faciendo.
    2. nulli res sua servit.
  10. Does a suit lie to enforce:
    1. a prescriptive right to a prospect, or
    2. a claim to the use of percolating water not accustomed to run in a definite channel State your reasons.
  11. Define easement. How does it differ from profits a prendre, and what is the analogy between the two ? Has the distinction drawn in English law between them been adopted by the India Legislature?
1)
Vide ill. (e) to Sec. 7
2)
Campbell v. Mayor
3)
Vide Thambi Cherian v. Babu, 2015 (3) KLT 314
4)
Vide section 27
5)
45 I. C. 585
6)
31 Mad. 532
7)
Beharilal v. Ghisalal, 24 All., 499
8)
Thambi Cherian v. Babu, 2015 (3) KLT 314
9)
36 C. L. J., 406
10)
Ramchandra v. Anar
11)
Official Trustee v. Sabbhai
12)
Hill and Company v. Sheoraj Rai
13)
Chedamilal and another v. Shib Charan


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Created on 2021/03/24 08:21 by LawPage • Last modified on 2021/04/09 22:26 (external edit)