Section 4 of Easement Act defines an Easement. An Easement is a right which the owner or occupier of certain land possesses for the beneficial enjoyment of that land, to do or to continue to do something, or to prevent or to continue to prevent something being done in or upon or in respect of certain other land not his own.
Land includes those things that are permanently attached. Beneficial enjoyment includes any convenience or advantage or any amenity.
The owner or occupier is the dominant owner and his land is the dominant heritage. The land on which the liability is imposed is called a servient heritage or tenament and the owner of that, is the servient owner.
Example: 'A' the owner of the house has a right of way over B's land. This is for the beneficial enjoyment of as house. This is an Easement.
Example: A is the owner of a house. He has a right of way over B's land to bring water from a stream. This is an easement.
An easement is a right which the owner or occupier of land possesses as such. Hence, the easement is always annexed to the dominant tenement.
An easement is a right over the servient tenement. There is no easement over one's own land.
Gale, a jurist points out that one of the essentials of an easements is that it should conduce to the beneficial enjoyment of the dominant tenement.
It means profits arising out of the soil of the dominent tenement, are also easements if annexed to the property.
Easements are classified by the Easement Act as follows:
Continuous easement: It is one whose enjoyment is or may be, continual without the act of man.
Example 1: A drainage from one land to another, A water channel from As land to B.
Example 2: A's right to receive light & an by windows without obstruction by his neighbour
Discontinuous easement: A discontinuous easement is one that needs the act of man for its enjoyment.
Example 1: A right of way annexed to A's house over B's land; Right of Refrains; Right to use staircase; Right to go to open yard, and, get water from a well.
Apparent easement: An apparent easement is one the existence of which is shown by some permanent sign. This would be visible on careful examination.
Example: There is a drain from A's land to B's land and from there it is led to open yard. This is apparent only by inspection; Artificial water-courses or openings for taking water.
Non apparent easement: Non apparent easement is one which has no permanent sign & hence not visible for inspection.
Example: A's right annexed to A's house, to prevent B from building on his own land. This is non-apparent.
According to the Easements Act the right to “Profits a Prendre” is part of the definition of Easement, e.g. Right to take earth from another persons land, for making eartherware is a profit a prendre. This is the “benefit made out of land” of the other person.
Right of a person to raise paddy seedlings on B's land, & after wards transplanting on his own land, was held a “profit a prendre”.
Example:- Right to fishery; Right to take fruits of trees during seasons like tamarind, mangoes etc.
The right is exercised on the “land appertenant”, to the dominant tenement. Hence, there should be dominant & servient heritages; it is dominant owner, who exercises this right of profit a prendre over the servient heritage. It is the right to do “something”, on the land of the servient tenement for the more beneficial enjoyment of the dominant heritage, by the dominant owner.
An Easement of necessity is an easement without which the property cannot be used at all. Convenience is not the test but absolute necessity is the test. When one person transfers immovable property to another, if an easement in other immovable property of the transferor is necessary for enjoyment the property transferred, the transferee is entitled to such easement.
When a partition is made of the joint property of several persons, if an easement over the share of one of them is necessary for enjoyment of share of the other coparcener the latter shall be entitled to such easement.
Example: In a partition A becomes the owner of an upper room on the I floor. B becomes the owner of the room immediately beneath it. A is entitled to the support from B's room as it is absolutely necessary for his safety.
As per Section 13 of Easement Act, when a person transfers immovable property to another then:
Easements are called 'quasi', as those arising out of circumstances i.e., when the common properties are converted into tenements by sale, mortgage partition etc. In such a case, there is an 'implied grant'. There is no express grant or transfer. Hence, in a sale or partition, even if there is no grant of such an easement, the courts construe that there is an implied transfer of an easement.
The leading case: Pyer Vs Carter
Section 15 of the Easement Act provides for the acquisition of prescriptive easement (Section 25 of the Limitation Act is also the same). The essential requisites for the acquisition are:
Computation of 20 years: This is a period ending within 2 years next before the institution of the prescriptive easementary suit. Mere enjoyment for over 20 years gives an inchoate (incomplete) right, but to acquire a prescriptive easement a suit must be filed and a decree obtained from the court.
As per Section 18 of Easement Act, An easement may be acquired by virtue of local custom such an easement is called customary Easement. A customary easement relating to sports and recreation or religious observations are well known. Right to ferry, Riparian right to use water, are examples.
Customary right of fisherman to fish in a river or sea. These easements arise out of local customs which are well established and be enjoyed by any owner of land situated in the locality. Hence, there will be a fluctuating body of persons enjoying this right. Courts take judicial notice of these easements. A claimed that his right of privacy was affected by B, who built a house with wide windows to command a view of the interiors of the house of A. Held, the local custom was confined to Zanana and did not apply to A.
Modes of Acquisition of Easements: The various modes of acquiring an easementary right are as follows: 1.
An easement is acquired by an express grant made in the deed of sale, mortgage or other transfers. The grantor uses express terms to convey his intention. If the value of the immovable property is above Rs.100/- it should be in writing and duly registered.
Easement of necessity is an easement without which the property cannot be used at all. When one person transfers his immovable property to another, if an easement in other immovable property of the transferor is necessary for enjoying the property transferred, the transferee is entitled to such easement.
When a person transfers immovable property to another then:
The modes of extinction of an easement are specified in Sections 37 to 47.
If the grantor ceases to have any right in the servient tenement because of some reason preceding the imposition of an easement, then the right extinguishes.
Example: A in 1960 let Sultanpur to B for 20 years. B in 1961 imposed an easement on the land in favour of C. In 1980, B's interest came to an end; with this, the easement given to C also extinquished.
When the easement is for a limited period or is acquired on a certain condition, the easement ends when the time expires or the condition fulfilled.
When the dominant owner releases the easement to the servient owner, the easement is extinguished. The release may be express or implied.
Example: A has a right to discharge water through the eaves to B's yard. A authorised 'B' build to such a height as not to discharge water through the eaves. B builds. The right is extinguished.
Easements of necessity become extinguished when the necessity comes to an end. Example: A grants' B' a land which has an easement of necessity of right to passage over as land. B later buys a part of the land of A over which he may pass to reach his land. The necessity ends. Hence, the easement also ends.
When the easement is incapable of being beneficial at any time and under any circumstances, it ends. Example: A grants a right to B, a doctor, the use of a dispensary. But, B takes sanyasa for ever. So not beneficial to him. Hence, the easement ends.
When there is a permanent change in the dominent heritage, with the increase of burden on the tenement, the easement terminates (subject to certain exceptions).
Example: A has a hut where he is living. He has a right of way over B's land. The hut is demolished and a mini-theatre is built. The right of way stands extinguished.
If by Vis Major reasons, the servient tenement is destroyed, the easement comes to an end.
Example: A has a right of way over B's land. Due to earthquake B's land is cut off and has become a crator. The easement ends.
If either the dominant or the servient is destroyed, the easement ends. The reason is there cannot be any easement without the two tenements.
If the servient & dominants become one, i.e., by purchase etc., the easement ends.
If the easement is not enjoyed for 20 years, the right extinguishes.
Here, when both the dominent & servient heritages become one, the easement is suspended.
Example: A has a right of way over B's land. A takes out B's land on rent for 2 years. The easement is suspended for 2 years.
When one person grants to another (or to definite number of other persons) a right to do or to continue to do, in or upon the immovable property of the grantor, something, which would be unlawful in the absence of such a grant, the right is called a licence.
The right should not amount to an easementary right or an interest in the property.
The essentials of licence are:
License is revoked in the following circumstances:
According to Section 56 of the Act, a license can be transferable under the following conditions-
Section 60 provides that license can also be irrevocable. If the license is coupled with a transfer of property and the transfer is in force, it cannot be revoked. This is subject to the agreement. Hence, the power can be reserved. The rule is that a bare license may be revoked but if coupled with a transfer of the property, then it is irrevocable.
A license coupled with an interest in a land is binding. A license coupled with profit a prendre is irrevocable, for example, Right to excavate earth and carry it to make earthen wares, right to cut and carry timber on payment of royalty.
If the licensee, has executed some work which is permanent in nature and has incurred expenses, the licence cannot be revoked and hence, is irrevocable. For example, there are two companies, namely X and Y having lands adjoining to each other. The agents were common who managed to put up the building and tank on X’s land for use by Y. License is irrevocable as the rule applied as was held in “Ramson V dyson”.