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.
(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.
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.
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.
Namely ; as being an owner or occupier 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.
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.
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.
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.
According to the Explanation attached to this section, lands, houses and other things permanently attached to the earth are tenements or heritages.
The term is used because land is held in bondage, i.e., it is liable to be used for the advantage of the other.
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.
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.”
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.
Three ingredients are necessary for the existence of a right of easement, namely;
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.
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.
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.