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property_law:easement:meaning-and-essentials

Easements: Meaning and Essentials

Easement is an encumbrance imposed upon an immovable property for the benefit of another immovable property belonging to a different owner. By its creation, easement is established either by law (in which case it is a legal easement) or by will of the parties (a voluntary easement).

For example, A may grant an easement appurtenant to the neighboring parcel of land, owned by B, allowing B to cross A's property each morning to reach his farm house. A owns the servient tenement, while B, who benefits from the easement, owns the dominant tenement. Because the easement belongs to the land and not a specific person, B will still be able to use the easement, if A sells his property to C. Similarly, if B sells his property to another landowner, that landowner will be able to use the easement.

Easement defined

Section 4: The concept of easement has been defined under section 4 of the Indian Easements Act, 1882. According to the provisions of section 4, “an easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land.”

Dominant and servient heritages and owners

The land for the beneficial enjoyment of which the right exists is called the dominant heritage. The owner or occupier of dominant heritage is called the dominant owner. The land on which the liability is imposed is called the servient heritage. The owner or occupier of servient heritage is called the servient owner.

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 on 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 word “easement” comes from the Latin term called “aisementum”, which means “privilege, convenience or comfort”.

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.” Salmond

An easement is a privilege or advantage, which one man may have in the lands of another.” John Bouvier

Easement is a privilege without profit which user gets from the owner of the property, by which the owner is prohibited to use the right of absolute use.” Peacock

Examples of easements

Easements frequently arise among owners of adjoining parcels of land. Common examples of easements include the right of a property owner who has no street front to use a particular segment of a neighbor's land to gain access to the road, as well as the right of a municipal corporation to run a sewer line across a strip of an owner's land, which is frequently called a right of way.

Following are some examples of easements:

  1. Right of way for pedestrians or motor vehicles;
  2. Right to take water from a well or spring;
  3. Right of irrigation;
  4. Right of light and air;
  5. Right of support of land.

Easement helpful in the enjoyment of dominant heritage

A right of easement subsists in order that the dominant owner may better enjoy the dominant heritage. The right must be in some way associated with the enjoyment of the dominant heritage. The characteristic that an easement must be for the beneficial enjoyment of the dominant heritage is also included in the expression ‘appurtenant to the dominant heritage’.1)

Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example to fish in a privately owned pond or to have access to a public beach. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.

As a general rule, an easement holder has a right to do “whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted” as long as he does not place an unreasonable burden on the servient land. On the other hand, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder's use of the easement.

Express and implied easements

An easement may be express, or it may arise by implication or by prescription.

Express easements

Express easements are created by a written agreement between landowners granting or reserving an easement. Express easements must be signed by both parties and are typically recorded with the deeds to each property.

Implied easements

An implied easement may be created only when two parcels of land were at one time treated as a single tract, or owned by a common owner. Accordingly, easements appurtenant may arise by implication while easements in gross may not. An easement is implied by existing use, if the easement is necessary for the use and enjoyment of one parcel of land, and the parties involved in dividing the tract into two parcels of land intended that the use continue after the division. An easement is implied by necessity when one parcel of land is sold, depriving the other parcel of access to a public road or utility.

Essential elements of easements

The ownership of an easement is a mere right which confers certain rights over the land in question, but never any exclusive right to possession. An easement allows a land owner, by virtue of its ownership of its land, to exercise rights over adjacent lands. These include rights of way, light and water. The Common Law recognizes an easement as enforceable by or against successors in title to the parties who originally created it.

There are certain essentials for the easement such as:

  1. There must be an existence of a servient tenement and dominant tenement.
  2. Such an easement must have some dominant tenement.
  3. Different persons should be in the ownership of both the dominant and servient tenement.
  4. The subject matter of grant should be formed by virtue of such an easement.

[In Re: Ellenborough Park, (1955) EWCA Civ 4]

In the present case, the court laid down the following essentials should be present in order to claim an easement right:

  1. easement right is in the owner or occupier of land as such;
  2. it is for the beneficial enjoyment of that land;
  3. it is to do or to continue to do something or to prevent or continue to prevent something being done;
  4. that something is in or upon or in respect of certain other land; and
  5. the other land is not his own.

[Nirmala Devi vs Ram Sahai, AIR 2004 All 358]

In the instant case, the Gujarat High Court has held the following essentials of an easement—

  1. There must be an owner or occupier of certain land.
  2. There must be a right vested in such owner or occupier (as such owner or occupier) to do and continue to do something, or to prevent and continue to prevent something done in, or upon, or in respect of, some other land.
  3. The right must be for the beneficial enjoyment of his land. Thus, if the right is not in any way connected with the enjoyment of the dominant tenement (property), it cannot be an easement.
  4. The other land in or upon which the right is to be exercised, must not be owned or occupied by him, but by some other person.

[Gopalbhai Jikabhai vs Vinubhai Nathabhai2)]

Dominant heritage and servient heritage

The first essential element of the easement is that there must be dominant heritage and servient heritage. The easement can only exist, if it is annexed to a piece of land. It cannot exist independently of the land which is benefited by it. It must also be connected to the land and improve its amenity, utility or convenience. An easement essentially involves the existence of two pieces of land – that is, the dominant and servient tenements. The dominant tenement is the land benefited by the easement and the servient tenement is the land over which the easement exists.

Dominant heritage and servient heritage to be separate

It is compulsory for an easement that the dominant and servant heritage must be separate properties. A dominant tenement and servient tenement should not be owned by the same person. There must be separate ownership. If two parcels of land are owned by the same person, then an easement cannot be granted over his own lands. The dominant and servient lands must be held under separate and distinct ownership. The only exception to this general rule is that an easement can exist, if there is a common owner of the two tenements and if the occupation of them is not common. A common example of this is where one person owns neighbouring land and is leasing part of the land to a tenant.

Beneficial for dominant tenement

Accommodation of dominant tenement: The easement must benefit the land of the dominant owner. Accordingly, there must be sufficient proximity between the dominant and servient tenement to allow a practical benefit to be conferred on the dominant lands. If the right confers a personal benefit only on the owner of the dominant tenement, this is not classified as an easement.

Subject matter of grant

The right contained in an easement must be capable of forming the subject matter of a grant. This means that every easement must be created by deed and relate to categories of properties which have been regarded over the centuries as been capable of being conveyed from one person to another. Where an easement already exists, whether by operation of law or otherwise, it is deemed to pass automatically on a conveyance under section 6 of the Conveyancing Act 1881. A deed must define precisely the nature of the easement granted or reserved, its nature and the way in which it has been exercised. A practical example is in relation to rights of way. The road or other area over which the right of way is being exercised must ideally be clearly identified by reference to a plan or map annexed to the deed.

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

1)
Nirmala Devi vs Ram Sahai, AIR 2004 All 358
2)
C/SA/208/2015 Gujarat High Court Judgment on 26 September, 2018


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Created on 2021/03/20 18:43 by LawPage • Last modified on 2021/04/09 22:26 (external edit)