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History of easements

The origin of easements is as ancient as that of property of which they are a modification. Such rights have, from times immemorial, been recognized by every system of law. Pardessus says “ natural rights originated from the disposition of nature and the wants of society ; and in course of time easements were stipulated for by private persons as matter of utility, or even pleasure. ” In Roman law, which is a very ancient system of law, these rights have been dealt with under the name of servitudes.

A servitude is right to the limited use of a piece of land without the possession of it, for example, a right of way over it. Servitudes, according to English law are of two kinds which may be distinguished as appurtenant and in gross. A servitude is appurtenant when the right of use belongs to an estate or more correctly to any person who might chance to be the owner of that particular estate ; it is in gross when the right of use vests in a particular person independent of the ownership of any estate. In Roman law these were called praedial and personal servitudes respectively. The former of these correspond to easements.

Under English common law easements,, were recognized from very early times and although there is no direct evidence how the law of easements originated and developed in England yet it is evident that the English law of easements is mainly based on the Roman law and so is the Indian law of easements mainly based on the English law. There is also clear evidence that easements were known and recognized both by the Hindu and the Mohammedan laws.

In India, under British rule, before the passing of any enactments on the subject, in the absence of any rule of law or a well-established custom, the rules of English law relating to easements, being regarded as rules based on justice, equity and good conscience, were applicable, and by virtue of the Charters establishing the Supreme Courts and High Courts rules of English law were directly applicable to Presidency’ towns.

The first Indian Act which expressly recognized Easements was the Limitation Act IX of 1871. By section 27 it provided for the acquisition of an easement by its enjoyment as an easement, as of right and without interruption for a period of twenty years. In 1882 the Indian Easements Act was passed which forms a complete code on the law of Easements in India. In the first instance, it applied only to Madras, the Central Provinces, and Coorg, and was afterwards extended to Bombay and the North-Western Provinces and Oudh. It came into force on 1st July, 1882.

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