In the previous article I have considered what easements are but to fully understand their nature it is also essential to see what they are not and for this purpose I propose to compare and distinguish them from other similar rights which persons may possess in the property of others as well as with the right of property itself.
An easement is a right which a person possesses in the land of another. When a person acquires an easement over some property he does not thereby acquire any right whatever to any property in it. His right is rather an adverse or a restriction to the full rights of Ownership. For instance, if A, as owner of a house, acquires a right of way over the field of B, he does not acquire any property in the field, he cannot prevent B from making any use of his field so long as he does not interfere with A’s exercise of his right of way and though A’s right of walking over B’s field is similar to B’s right of walking over his own field but A can use the field only for purposes for which he has acquired the easement, while B can use it for all lawful purposes. We way say that A’s right over B’s field is definite and restrictive while B’s right over his own field is indefinite and exclusive.
It is an essential characteristic of an easement that it does not involve the possession of the land over which it exists. This is the difference between an easement and a lease. A lease of land confers the right of possession and enjoyment without the ownership of it, while an easement over land gives the right of use without either the ownership or the possession of it. There are two distinct methods by which I may acquire a road across another man’s property. I may agree with him for the exclusive possession of a defined strip of the land, or I may agree with him for the use of such a strip for the purpose of passage, without any exclusive possession or occupation of it. In the first case I acquire a lease ; in the second an easement (Salmond). Brides an easement is a right appurtenant to land while leases are not ancillary to the enjoyment of other lands of the lessee.
There are certain rights which attach to land as incident to ownership, and as inherent in land ex jure naturae. They are not acquired, they are possessed by the owner of land simply because he is the owner of it. For example, every owner of land has a right that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of his neighbour. These rights are not easements but being appurtenant to land resemble easements and are sometimes termed as “natural easements ” as distinguished from easements proper which are then termed ”artificial easements.“
Easements are not given to every owner of land but are created by specific human acts or incidents. They are acquired restrictions. of the complete rights of ownership, while natural rights are themselves part of the complete rights of property. Easements also arise from the restrictions of these natural rights but in such a case the natural right is not extinguished but only suspended and revives on the extinction of the easement. Easements are rights in addition to the ordinary and natural rights of property.
An easement is also to be distinguished from a license. A license is merely a permission granted for doing some thing upon the land of the grantor which would in the absence of such permission be unlawful. A license is not appurtenant to any land and except in certain cases, can be revoked at the pleasure of the grantor. An easement is attached to land and, except when a right is reserved in this behalf, cannot be revoked by the grantor. A license is not transferable except when it is to attend a place of public entertainment but an easement passes along with the transfer of the dominant heritage.
The distinction between easements and profits a prendre is peculiar to English law. According to it the dominant owner is not entitled to take anything from the soil of the servient heritage except water. Such a right is distinct from an easement and is called a profit a prendre. The definition of an easement given in section 4 of the Indian Easements Act includes profits also within the meaning of that term.
A customary right is a public right belonging to no particular individual but to all those who inhabit a particular locality or belong to a class of persons entitled to the benefit and is not appurtenant to any land. An easement is a private right belonging to some particular individual or individuals in respect of his or their land. For example, a right to burn the Holi or to have horse-races on another’s land is a customary right because such right belongs to the public of a certain place and not to any particular individuals, moreover, it is not annexed to any land. On the other hand, a customary easement, for instance, an easement of privacy, though based on custom, is not a customary right as every owner of a house in a particular locality has a right, in respect of his house, that his neighbour shall not, by opening new windows, invade his privacy and the right is his private right not shared with others.
Note: A right of a section of the Mohammedan Community in a village to bury their dead in the field of another has been held to be a customary right and not an easement but this right resembles the right of a tenant who, according to the custom of a village, by cultivating land in that village acquires a right to graze his cattle on the common pasture. Vide ill. (a) of S. 18. For, we can similarly argue that every Mohammedan by occupying a house in a certain village, in respect of his house, acquires a right to bury his dead in a particular field. If it is said that such right is not an advantage to the occupation of a house, the answer is that “beneficial enjoyment” also includes “possible convenience” and “remote advantage”, and it is certainly convenient to the occupant of a house to be able to bury his dead somewhere not far from his house.
An easement is a right which the owner or the occupier of certain land posses as such for the beneficial enjoyment of that land. A right which is not connected with or is not a benefit to the property for which it is claimed is not an easement. A public right of way is a right in gross and not an easement. A right to catch fish in another’s tank is not an easement unless the fish when caught is used for the benefit of the occupants of a dominant heritage. Similarly a right to dig stones from another's quarry will be an easement when only so much is taken as is needed for the dominant estate and not when it is taken for selling. Hence, where a so-called easement has no connection with the enjoyment of a particular heritage it is a right in gross, i.e., a personal right and not an easement. An easement can never be in gross and this expression which is sometimes used in respect of easements is a misnomer.