Detail of EASEMENT

EASEMENT


INDIAN EASEMENTS ACT, 1882


WHAT IS EASEMENT

          Word " an easement" has been defined under Section 4 of the Indian Easement Act, 1882 as follows :

                        "An easement is a right which the owner or occupier of certain land possesses, as such for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain another land not his own."

            According to Salmond, "easement is that legal servient which can be exercised on some other piece of land for the benefit of a piece of land."

            According to Peacock, "Easement is such a privilege without profit which an owner of dominant heritage receives from the owner of the land due to which owner of that property cannot exercise his complete rights or does nothing for the advantage of the earlier occupiers."

            In Copeland v. Greenhalf, it was held that easement is a right and it must relate to doing of an act upon or in respect of certain other lands which is not his own. It is clear that for constituting an easement the subject-matter of the right must be definite, certain and specific.

            In K. Kolandaisamy Gounder v. Manickan, it was held that an easement is a privilege by which owner of one tenement has the right to enjoy over the tenement of another.

Origin and development of easement

            The easement is a right which originated when the human race wildlife, established organised society and started living in cities and villages. Thus, the origin of the easement can be traced from the beginning of human civilisation. As soon as it was experienced that everybody should have an exclusive right to possess property immediately the theory based on equity was also propounded that the welfare of the public lies in using their property in a way so as not to affect the property of another.

            The origin of rights relating to the easement may be traced from the time of the development of civilisation when man began to live in one place and naturally began to treat towards his comforts. After some time an idea began to arise in his mind that he should exercise his right in such a way that they should not come in the way of others. For example, nobody should pour water on the land of others, should not make any construction towards other's land, should not pass through the land of others, should not open windows towards the of others, etc. The aforementioned restrictions on the use of rights alone are called easements.

            Rights relating to easement have been in practice in India since ancient times. These rights were recognised during Hindu and Muslim periods also. After the rule of Britisher's law relating to easement took a new turn. In India, English law relating to easement was applied.

            In 1871, the Limitation Act was passed in which rights relating to easement were recognised. After some time only in 1877, another Act was passed which superseded the earlier Act, 1871. This Act for the first time provided legal rights relating to the person and the rights of easement relating to property were ascertained. This Act was not retrospective in nature. It does not affect rights acquired prior to 1891.

            In Deenkar v. Ganapati, it was held that "the word 'easement' has originated from France. While applying principles of equity in cases of privileges word "easement" have been used in English common law but in principle and practice the Indian Easement Act is different from the principles of common law, particularly in cases of interpretation of nature of licenses."

            This Act was extended to Uttar Pradesh, Bombay, and Delhi in 1891 and to Madhya Pradesh, Madras, and Koorg in 1892.

Difference between customary right and customary easement

          Difference between customary right and the customary easement is as follows:-

                        (i) Customary right is related to a particular class of people or to a    particular place whereas customary easement is an easement in personam.

                        (ii) Customary right is a complete right, it can be acquired by any person    whereas customary easement is used for  the beneficial enjoyment of the       property, i.e., it is related to dominant heritage.

DOMINANT AND SERVIENT HERITAGE AND OWNERS

          The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier, therefore, is called the dominant owner; the land on which the liability is imposed is called the servant heritage, and the owner or occupier thereof 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 purpose of his household, out of a spring therein. This is an easement.

            (c) dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing.

            The right is not an easement.

            Thus, an easement is a privilege without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person.

ESSENTIALS OF EASEMENT

          The following are the essentials of easement:-

1.      Dominant and servient heritage;

2.      Two separate properties;

3.      Right over immovable property;

4.      Beneficial enjoyment of property;

5.     Easement must be attached with the property; and

6.      Easement must be right in rem.

7.      Easement belongs to the determinate person and not to fluctuating body.

    Main Characteristics of easement.- Main characteristics of the easement are as follows:-

            (i) It is an incorporeal right.- Easements are generally incorporeal rights while land on which such rights are based is corporeal property. These rights have no separate existence because they are related to land.

            (ii) It is right in rem.- Easements are ordinarily available against the  entire world, hence they are considered as right in rem.

            (iii) It may be positive as well as negative.- Easements may be positive as well as negative. In positive easements, the dominant owner does something on the property of servient owner whereas in the negative easement, servient owner is stopped to do something.

            (iv) It must be for beneficial use of property.- Generally, the easement must be for the beneficial use of the property. The main object of the easement is that the owner of the dominant heritage may use and enjoy it in a better manner. Words "better use and enjoyment" is a very wide term and it includes express and implied benefits and comforts. In the case of Re Allen Bari, Re David Powell v. Madison, it was held that if residents of any house for better use of their house for sitting and sleeping purposes, such use shall be considered to be "for better use" by the residents.

            (v) New easements may be created.- According to the change in facts and circumstances, easements may also change and new easements may be created.

            (vi) Dominant and servient heritage.- For the existence of easement two kinds of properties, i.e., dominant and servient heritage is necessary. Dominant heritage means that for whose beneficial enjoyment rights are exercised and land on which liabilities are imposed is considered to be servient heritage. For example, it X  as the owner of his house has the right of entry on the land of his neighbour and to take water from the hand pipe for his domestic use, house of X is dominant heritage and land of Y is servient heritage.

            (vii) Dominant and servient heritage must be separate.- For exercise for an easement, it is necessary that dominant and servient heritage must be separate. Hence, if both are not separate no easement arises. Moreover, for the existence of easement, it is also necessary that owners of dominant and servient heritage must be different.

            In Radhika Narain and others v. Smt. Shundra Devi and others, it was held that for the existence of easement it is necessary that obligation of its use must be on the ownership of any person who is not the owner of the dominant heritage.

EASEMENT IS A RIGHT TO THE LIMITED USE OF

LAND WITHOUT POSSESSION

            It is well settled that settled that easement is a right and it must relate to doing of an act upon or in respect of certain other lands which is not his own. However, for constituting an easement the subject-matter of the right must be definite, certain and specific.

            It is held by the Allahabad High The court in Mumtaj Ali v. Mohd. Sarif, the use of the land for the purpose of sitting and sleeping by the plaintiff will amount to a right of easement entitled to be protected by law.

            An easement is a privilege without profit and possession which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person.

EASEMENT AND CUSTOMARY RIGHT

            An easement belongs to a determined person in respect of his or their land. A fluctuating body of persons like the inhabitants of the locality cannot claim an easement. Easements are private rights while customary rights are public rights annexed to the place in general.

            Customary easement and customary right-Distinction of.-Customary easement vests in the dominant tenement; not in the particular person or a group of persons, unless they are rightfully in possession of the dominant tenement in question. A customary right, on the other hand, is claimed by a person or by a group of persons on the basis of the custom recognised by the community as a whole. From the very nature of has got to be pleaded and provided in the usual manner, indicated by the Evidence Act. The object of proof and the mode of proof are entirely different in two cases. Failure to appreciate this distinction would result in the illegal decree.

DISTINCTION BETWEEN EASEMENTS

AND NATURAL RIGHTS

            The easement is a specific right subtracted from the general rights constituting ownership of one property and attached to the ownership of another property. An easement is a restriction of a natural right. An easement must be distinguished from natural rights. The natural rights are those incidents and advantages which are provided by nature for the use and enjoyment of a person's property.



CREATION OF EASEMENT

            Sections 8 to 19 of the Easements Act lay down the various modes for the creation of the easement. These are as follows:-

1.      Creation of easement by the grant. (Sections 8 to 11)

2.      Creation of easement by Custom or tradition. (Section 18)

3.      Creation of easement by prescription. (Section 15)

4.      Creation of easement by necessity. (Section 13)

   1. Creation of easement by grant.- According to Section 8 of the Easements Act, an easement may be imposed by anyone in the circumstances and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.

Illustrations

            (a) A is tenant of B's land under a lease for the unexpired term of twenty years and has the power to transfer his interest under the lease. may impose an easement on the land to continue during the time the lease exists or for any shorter period.

            (b) A is a tenant for his life of certain land with remainder to absolutely. A cannot unless with B's consent, impose an easement thereon which will continue after the determination of his life interest.

            (c) A, B and C are co-owners of certain land. cannot, without the consent of B and C impose an easement on the land or on any part thereof.

INTERPRETATION OF WORD "IMPOSE"

            The word "impose" in Section 8 cannot be taken only to mean the imposition of easement by the direct action but it also includes to "impose" by omission to take steps to prevent acquisition by prescription.

            No particular words are necessary for grant.- Where the grant is oral the question whether it is a grant of an interest in land or an easement or a mere license is a question of fact to be determined by the Court from the words used and the circumstances under which they were used.

PRESUMPTION AS IMPLIED GRANT

            The question of whether a grant can be implied or not would only arise in a case where there is no express grant. The absence of an express grant would negative an implied grant is quite untenable. If there is no express specification of the easement of any right but if it is mentioned in the deed that a specific area has been left for a road to the access to the house sites and the remaining plots were sold. The road was being used by the plaintiffs as access to their plots, it can easily be inferred that the road was left for the purpose of the access even though it was specifically stated in the deed. 

TRANSFER OF EASEMENT WITH DOMINANT TENEMENT

            Once an easement has become legally appurtenant to a dominant tenement, it will ipso-facto pass on a conveyance of that dominant tenement.

SERVIENT OWNERS (SECTION 9)

            A servient owner can impose an easement on the servient heritage but the imposition should not lessen the utility of any existing easementIt would lessen the utility only when imposed if that had been consented by the dominant owner. The right to impose such easement is also subject to the provision of Section8 of the Act which states that an easement may be imposed in the circumstances and to the extent, in and to which he may transfer his interest in the heritage on which liability is to be imposed.

WHO MAY ACQUIRE EASEMENT

            According to Section 12 of the Act, an easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any the person in possession of the same.

            One of the two or more co-owners of immovable property may, as such with or without the consent of the others, acquire an easement for the beneficial enjoyment of such property.

            No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.

            A right of the easement could not be granted to the plaintiff if the plaintiff claimed the land over which he claimed a right as belonging to him. The question of animus was a question of fact. A person claiming to be the owner of the land had the animus of an owner and not the animus of a person exercising a right of easement over the land of another. Although, the right of the easement could be claimed in the alternative if the plaintiff primarily claimed to be owner also in the alternative pleaded that in case he was not proved to be the owner of the land and the defendant was held to be owner thereof then in that event a right of easement might be granted to him as he had been flowing water and doing other acts of the easement.

            2. Creation of easement by custom or tradition.- According to Section 18 of the Easements Act, an easement may be acquired by virtue of local custom, such easements are called customary easements.

Illustrations

            (a) By the custom of a certain village, every cultivator of village land is entitled as such, to graze his cattle on the common pasture. A, having become the tenant of a plot of uncultivated land in the village breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom.

            (b) By the custom in a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbour's privacy. builds a house in the town near B's house. thereupon acquired an easement that B shall not open new windows in his house so as to command a view of the portion's of A's house which are ordinarily excluded from observation and B acquired a like easement with respect to A's house.

            A practice does not amount to custom.- From the nature of things, a custom is something the originator of which is known to none by certainty. Ex-hypothesis, therefore, the plaintiff cannot claim to have started a custom. But, the practice cannot lead to the legal consequence to which a custom leads.

            Customs-What it means?- Custom is one which is claimed by a particular class of the inhabitants of a locality and not any individual as of personal rights.

            3. Creation of Easement by prescription.- In terms of Section 15 of the Easement Act, where the access and use of light or air and for any building have been peaceably enjoyed therewith, and an easement, without interruption, and for twenty years, hence, the right of easement is created by prescription rather use.

Illustrations

            (a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstructions but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title therein, as an easement and as to right without interruption, from 1st January 1862 to 1st January 1882. The plaintiff is entitled to the easement.

            (b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time, the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed "as of right" for twenty years.

            In this case, the appellant continuously using a pet in dispute without any objection for more than 20 years. It raises a presumption in favour of the appellant/plaintiff. It was held that the plaintiff acquired elementary right by way of prescription.

            But, in Puri Municipality v. Sradhamani Devi, wherein suits land used for sweepers passage by the municipality to clean public latrine and there is no express behest from the owner of the privy. It was held that the municipality cannot claim an easement by prescription over the suit land.

            It is a settled view that the easement by prescription cannot be claimed where the plaintiff had put forward specifically, a claim of title to the property and failed to establish that his care cannot fall back on his claim of acquisition of an easement by prescription.

            4. Creation of Easement by necessity.- Section 13 of the Easements Act deals with the easements by necessity and quasi--easements.

            Easement of necessity means that easement, without which enjoyment of any segregated property is impossible. Thus, if a property is so adjacent or situated that the owner of that property cannot enjoy that property without enjoying the other property, in case the property is segregated, the owner of the property is allowed to enjoy those easements which are necessary to him. This is called easement of necessity.

            An easement of necessity being an easement without which a property cannot be used at all and not being merely necessary to the reasonable enjoyment of the property a plaintiff cannot claim on the ground of necessity a right of way over the land of another where another mode of access to his property exists.

            According to Clause (a) of Section13 of the Easement Act, if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transferor bequest, the transferee or the legatee shall be entitled to such easement.

            According to Clause (c) of Section13 of the Easement Act, if an easement in the subject transfer or is necessary for enjoying  other immovable property of the transferor or testator, the transferor or the legal representative for the testator shall be entitled to such easement.

            According to Clause (e) of the Easement Act, if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement.

            In the case of State v. Hiralal, it was held that "for easement of necessity it is  essential that first, it should fall within the definition of "easement" under Section 4 of the Act. Unless it does not come within this definition and does not fulfill the requirements of easements, it would not be proper to consider whether it is an easement of necessity or not and when falls within the definition of easement only, then it would be good to consider that it is related to what kind of easement and whether it is an easement of necessity or not."

            In Govind Bhatt v. Marumala Rama Bhatt, it was held that "the criteria of easement of necessity is "highly essential" and it can be claimed only when it is highly essential. Although it is a question of fact whether an easement is an easement of necessity or not."

            In Sukhdev v. Kedarnath, it was held by Allahabad High Court that "easement of necessity is such an easement without which property cannot be used at all. Hence, it is an easement which is necessary only for the use of the property."

TEST OF EASEMENT OF NECESSITY

            It was held that mere inconvenience or convenience is not the test of easement of necessity, however, it arises where normally both dominant and servient tenements have been in common ownership. So that the creation of an easement by implication of law may be said to be the outcome of the former jointness of the two tenements. The disposition which causes a cessation of the common ownership that gives rise to creation of an easement, may be of either tenement or simultaneous disposition of both tenements.

            It is to be noted that easement of necessity is an easement without which the property cannot be used and it cannot be merely one for the reasonable enjoyment of the property and considering the question of easement of necessity, convenience is not the test but absolute necessity.

            In Mathu v. Varied, it was held that an easement of necessity cannot be there in the absence of severance of tenements.

            It is well settled that the easement by necessity cannot be claimed on availability of alternative way.

 


WHAT IS QUASI-EASEMENT?

            Quasi easement means such easements that are not essential but whose existence is implied. In other words, it can be said that quasi the easement is not highly "essential" but it is deemed to be necessary for the reasonable enjoyment of the property after its being separated from the main property.

            According to Clause (b) of Section 13 of the Easements Act, if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or lessee shall unless a different the intention is expressed or necessarily implied, be entitled, to such easement.

            According to clause (d) of Section 13 of the Easements Act, if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor or legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled, to such easement.

            According to Clause (f) of Section 13 of the Easements Act, if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, the shall, unless a different intention is expressed or necessarily implied, be entitled, to such easement.

            Apparent and continuous easements which are necessary for the enjoyment of the dominant tenement in the State in which it was enjoyed at the time when it was severed from servient tenement are called quasi-easements. Before such severance they are only the ordinary rights of property and assume the character of rights of the easement on such severance only provided they fulfil certain specified conditions, namely:-

1.      They are apparent;

2.      They are continuous; and

3.      They are necessary for the enjoyment of the tenement for which they are claimed.

Difference between easement of necessity and quasi easement

Different between easement of necessity and quasi the easement is as follows:-

      (i)            In case of easement of necessity, the easement is deemed to be highly essential whereas in case of quasi casement it is deemed to be necessary for the reasonable enjoyment of the dominant heritage.

   (ii)            In case of easement of necessity, its purpose is highly necessary  whereas in case of quasi easement, its purpose is not highly necessary but it is only relative.

 (iii)            In case of easement of necessity, the two properties are vested only in one person and thereafter segregated whereas in case of quasi easement after segregation of properties its continuous use in not necessary.

 (iv)            In case of easement of necessity, it is not considered to be necessary that they should be continuous and apparent whereas in case of quasi easement it is considered to be necessary that they should be continuous and apparent.

Acquisition of Easement

            Under Section 15 of the Indian Easement Act, 1882, provisions for acquisition by prescription have been given. According to which,-

               (i)            When the access and use of light or air and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty ears; and

             (ii)            where support from one person's land or, things affixed thereto, has been peaceably received by another person's land subject to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years; and

          (iii)            where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption; and for twenty years,

the right, to such access and use of light or air, support or other easements shall be absolute.

            Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested

Illustrations

            (i) A suit is brought in 2010 for obstructing a right of way. The defendant admits the obstruction but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and so of right, without interruption from Ist January 2009 to 1st January, 2010. The plaintiff is entitled to the easement.

            (ii) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed for the right of way has not been enjoyed "as a right" for twenty years.

CUSTOMARY EASEMENT

            According to Section 18 of the Easement Act, 1882 an easement may be acquired by virtue of local custom. Such easements are called customary easements.

            Essentials.-The following are essentials of a valid custom :-

1.      Immemorial Antiquity;

2.      Reasonableness;

3.      Continuity;

4.      Peaceful enjoyment; and

5.      Certainty.

            Proof of custom.- In the view of the Supreme Court decision in Munnalal v. Raj Kumar, it is well settled that where a custom is repeatedly brought to the notice of the Courts of a country, the Courts may hold that  custom is introduced into the law with necessity of proof of each individual case. Such a custom has been recognised and can certainly be regarded as affording corroboration of the evidence of the witnesses who have deposed to the same in another case.

            In Prabhawati Devi v. Mahendra Nath Singh, it has been held that there is no hesitation in taking judicial notice to customs and holding that in absence of any evidence to the contrary, that such custom is well established and prevailed in that area.

            Burden of proof.- In Chidambara v. Vedayyathevan, it has been held by the Madras High Court that the burden of proving customary right is upon the defendant who claims the right of way over the land of someone else.

Difference between easement and licence

Difference between easement and licence are as follows :

            (i) An easement can be acquired by acceptance or constructive or negative enjoyment or grant or law whereas licence is granted by consent only.

            (ii) Easement is related to any immovable property whereas licence is a personal right and it has no relation with property.

            (iii) Easement is transferred with transfer of property whereas licence cannot be transferred.

            (iv) Easement may be both positive as well as negative right whereas licence is only a positive right.

            (v) In the case of easement, transferee is bound to recognise it whereas, in case of licence, a person is not bound to recognise licence to whom property is transferred.

            (vi) Easement creates an interest in the immovable property whereas licence does not create any interest in the immovable property.

            (vii) In case of easement, dominant owner or person having property can institute a suit in his name whereas in case of licence, licensee cannot institute any suit in his name.

        In Tanauv Gulam v. Collector of Bombay, it was held that due to enactment of provisions relating to licences in the Indian Easement Act, 1882, it cannot be said that licences are included in the easement.