Law of Easement

0
189
Law of Easement

The Law of Easements u/s section 4 of the Easements Act,1882, describes easement as a pre-emptive right of a person. A right which the ‘original owner’ or ‘dominant possessor’ of a land has over another land, not his own, for the beneficial enjoyment of his own land or to do or continue to do something or to prevent something being done in respect of another land, not his own. The term ‘to do something’ includes any and every sort of eradication or appropriation prevented by the dominant owner on the soil of another land held by another called the ‘servient owner’ in such a case.

In other words, Easement is a right exercised by the third party upon the land of another person. Thus, the land for whose beneficial enjoyment this right exists is called the ‘dominant heritage’ while the land on whom the right is exercised is called the ‘servient heritage’. For instance, A owns a house alongside B whose house falls in the middle of A’s property and the main road. A here owns a right of easement to enjoy free passage between his house and the main road and can prevent B from appropriating or eradicating anything on his property to block A’s right to free passage. Although the right is exercised by A, it is not for A to exercise as a personal right. The right of easement is thus a right attached to the house i.e. it cannot be detached from it.

Although clause ‘c’ of section 4 prohibits the transfer of such right apart from the dominant heritage, in cases where the dominant heritage releases his right of easement in favour of servient heritage, this clause is inapplicable as it is then merely termed as an extension of the right and not a transfer.

Kinds of Easements

There are four different kinds of easements as classified by Section 5 of the Indian Easement Act:

  • Continuous Easement– As the name suggests, this kind is of a continual nature without an act done by a person. For instance, a right attached to B’s house to receive sunlight by the windows without interference from his neighbour.
  • Discontinuous Easement– It is opposite to what a continuous easement is as it requires an act by or of a person to be enjoyed. For instance, a right of way is attached to X’s house over Y’s land but X has to use the pathway in order to enjoy the discontinuous right of easement.
  • Apparent Easement– It is a right which needs a permanent sign and careful inspection for it to be visible and acknowledged. For instance, a right attached to A’s land to lead water into it for irrigation purposes through a drainage pipe on B’s land.
  • Non Apparent Easement– It is a right which needs no such sign. For instance a right attached to X’s land to prohibit Y from constructing.

Thus, an ‘apparent easement’ is a ‘positive easement’ which gives the dominant owner the extensive right over the servient owner’s land to do something while a ‘non-apparent easement’ is a negative right which gives the dominant owner the right to prohibit the servient from making any amendments to his own land.

Apart from the four kinds of easements, section 6 of the easements act classify easements into permanent and temporary ones, the former being enjoyed by the dominant owner without any obstruction while the latter holds a condition or a temporary time period for its continuous enjoyment.

Impositions on Easements

This section of the law of easements is variably covered by section 8-11 of the Easement Act. It explains who and in what circumstances can impositions be put upon easements. Section 8 for instance says that an imposition on an easement be placed by anyone whatsoever but to the extent to which the dominant owner transfers his heritage to the servient one. For instance, A, a tenant on B’s land can impose an easement upon the land for the period of tenancy. However, section 11 says that a lessee cannotimpose an easement on the leased property which will continue after the lease period. Similarly if there are two owners X and Y, X cannot impose an easement on the land without Y’s permission. Thus, even though section 8 gives out the idea of anyone imposing an easement, section 11 limits it to only those who have a transferable interest.

Further, under section 9 of the easement act, on the other hand says that a servient owner can impose an easement on his land to the extent that it affects the utility of the existing easement imposed by the dominant owner. For instance, if X the dominant owner has a right to way from Y’s land, Y cannot grant Z the right to construct on his land which will obstruct X’s right.

 Easementary rights lost & revived

This section deals with situations wherein easementary rights are either extinguished or revived by certain acts of the parties. For instance

1. When an imposition by a dominant owner is due to a cause and later on that cause which prompted the imposition ceases to exist, it is then the right of the owner on the servient land ceases to exist.

2. When the dominant owner releases its right in favour of the servient owner, expressly or impliedly but only to the extent which the dominant owner possesses over the servient owners land.

3. When the imposition by the servient owner is imposed in exercise of the power reserved by him, the easement is extinguished as soon as he revokes that power.

4. When an imposition has been imposed for a certain time period or on the fulfilment or non-fulfilment of a specified condition, an easement is extinguished the moment the period expires or the condition is fulfilled.

5. When the imposition had been placed to fulfil a necessity, the easement extinguishes the moment the necessity is fulfilled.

6. When the easement is no longer beneficial to the dominant owner, it is extinguished.

7. When due to a material alteration in the dominant heritage, the burden on the servient heritage is increased to an extent which cannot be levelled without impacting the beneficial enjoyment of the easement, the easement is extinguished unless in cases where the easement is of necessity or the alteration is minute.

8. When the servient owner alters the heritage to an extent that the dominant owner can no longer enjoy it, the easement is extinguished.

9. When either the dominant or the servient heritage is completely destroyed, the easement automatically is extinguished.

10. When the difference between the dominant and the servient owner ceases to exist, the easement also ceases to exist as in cases where the property is owned by an absolute owner.

11. When an easement is not enjoyed for a period of 20years or so, it ceases to exist i.e. it is extinguished.

12. When the easement extinguishes, the rights attached to the easement also cease to exist.

The above highlights the situations in which an easement ceases to exist. On the other hand an easement revives (a) when the easement hasn’t been enjoyed for 20 years but is restored by alluvion before the expiration of 20years. (b) when the servient heritage which was destroyed is now rebuilt at the same sitebefore an expiration of 20yrs. (c) when the dominant heritage which was destroyed is now rebuilt at the same site before an expiration of 20yrs.

An easement can be revived which was earlier extinguished under section 46 of the actif the decree by which the grant of ownership was given is set aside by a competent court. Similarly, a necessity easement which is extinguished under the very same section can be revived if the unity of ownership ceases to exist due to any other cause.

Illustrations

1. A grants B a right to drain out water from his land at any time you want. The right is not attached to B’s land. The right cannot be transferred.

2. A has a right of way over B’s property. B’s property catches fire and is completely damaged. The easement is therein extinguished.

3. A grants B a right of way over the pathway in front of his property. A later on grants this right to the public as well. The easement is not extinguished.

4. X and Y, owners of a land jointly own a land. X without Y’s permission grants a right of easement to A. The right isn’t a valid right.

5. A grants a right of easement to B to enjoy his house. B further grants this right of easement to C. C has no right of easement as this right is not transferrable.

Conclusion

The law of Easement as briefly explained in this article is thus a right which is not directly enjoyed by the owner himself but indirectly through another which gives light to the principle of dominant and servient owner’s heritage. Therefore, the Act legislated specifically known as the Indian Easement Act in detail profusely explains all the situations wherein the right of easement will be enjoyed, revoked, diminished, acquired, transferred etc.

Frequently Asked Questions

1. What does the term ‘easement’ mean?

It is a legal right granted owned by an owner over another’s land for the beneficial enjoyment of his land.

2. What is the difference between a ‘dominant owner’ and a ‘servient owner’?

A dominant owner is the one who exercises the right of easement over the servient owner’s land and reaps it’s benefits.

3. What does ‘easement by necessity’ mean?

It refers to the situation in which a right of easement is granted by a dominant owner to the servient owner out of necessity for a specific time period or for the fulfilment of a specific condition.

4. What does ‘beneficial enjoyment’ of the right of easement mean?

It refers to rights and benefits enjoyed by the dominant owner over the servient owner’s land as a right of easement.

5. What does extinguishing of an easement right mean?

It means that the right of easement enjoyed by the dominant owner over the servient owner’s land ceases to exist.

Edited by Shikhar Shrivastava

Approved & Published – Sakshi Raje