As a common example of an easement we may take that of an owner of a piece of land having a right of way over the land of his neighbour. From the example we see that for the existence of a right of easement it is necessary that there should be two separate pieces of land, one in virtue of the ownership of which the easement is enjoyed and the other over which the easement is exercised. These lands are called the dominant and servient heritages respectively. They must be quite distinct from each other and belong to separate persons, for if one person, is the owner of both he can, as owner, exercise rights over one of them for the benefit of the other and there is no necessity of recognizing any separate right as easement. Similarly, a person who, though not an owner, is in possession of both properties, cannot have an easement, for he also as a person in possession can use one for the benefit of the other.
An easement exists for the beneficial enjoyment of the dominant heritage it cannot be detached from it and made a right in gross (personal) . This principle has been recognized in India by section 6 of the Transfer of Property Act which enacts that an easement cannot be transferred apart from the dominant heritage.
An easement, in respect of the dominant heritage is an addition to the rights of ownership while, in respect of the servient heritage, it is a definite right of user subtracted from the full rights of ownership of the servient owner. It restricts the servient owner from some ordinary use of his property but this restriction is well-defined and limited, for subject to such restriction the servient owner can still use his property in any manner he likes. For example, if a person, in respect of his house, has a right to walk across his neighbour’s field, he can walk only across a defined path and not wherever he pleases and the servient owner has the right to use his field in any manner he pleases provided it does not interfere with the lawful exercise of the right of way along the specific path.
An easement is a right in rem i.e., a right not only available against the servient owner but against the world at large even though it arises out of a contract. For example, if a trespasser enter the land of the servient owner and interfere with the lawful enjoyment of the easement by the dominant owner, the dominant owner, can maintain an action for its disturbance against the trespasser.
A person who possesses an easement over another’s property has a right to put that property to some definite use or to enjoy it in a particular manner but he has neither the ownership nor the possession of it. For instance, a person who possesses a right of way over some property is not in possession of that property, he possesses only a right of passing and repassing over it. He has no power even to exclude a trespasser from it (as long as the trespasser does not obstruct his right to passage) . Hence an easement is an incorporeal thing although the property over which it is exercised is corporeal, i.e., tangible.
An easement is negative right requiring the servient owner either to acquiesce in the exercise of or to refrain from doing something (e.g., building on his land) and not a right imposing any positive duty on him. There could be no easement in faciendo. For instance, if a person, in respect of his house, has acquired a right of support, the servient owner should not pull down the support so as to cause damage to the house of the dominant owner, but if the support get out of repairs or falls down it is not the duty of the servient owner to repair or rebuild it.
If the exercise of an, easement benefits also the servient land the servient owner does not acquire any e3asement in respect of it. The servient owner cannot insist that it should be continued even though its discontinuance may result in some damage to him. The easement exists for the benefit of the dominant heritage alone and the dominant owner may abandon it whenever he pleases, provided due notice is given to the servient owner in cases where sudden discontinuance is likely to cause damage to his land.
Easements are restrictions of the ordinary rights of property but a right the exercise of which destroys all the ordinary uses of property cannot be an easement. For instance, a right to flood the whole land of another, or a right to drive cattle straggling promiscuously through the whole land of another cannot be acquired as an easement.
An easement according to English law, is a right which the owner of one tenement has over the tenement of another person by which he can compel, the owner of that other tenement to suffer something to be done or to refrain from doing something which he would otherwise be entitled to prevent or to do. It gives to its owner no right of property in the servient tenement and no right to take any of the produce of the soil of the servient tenement (Blyth) ; but according to Indian law the dominant owner is also entitled to remove and appropriate for the beneficial enjoyment of his heritage any part of the soil of the servient heritage or anything growing or subsisting on it. Such rights, under English law, are called profits a prendre and are treated as distinct from easements.