What is an easement?
An easement is a right possessed by the owner or occupier of land which grants him the right to beneficial enjoyment over another person’s land which does not belong to him. Such a right is granted to the owner of a land to entitle him to fully enjoy his rights in his own property. Therefore there are certain rights in an immovable property which are connected to the enjoyment of another immovable property without which the property may not be conveniently and fully held and enjoyed. For example right of way, sunlight, water, sewage etc. [i]
Under the Roman Law if an owner of a piece of land was absent from the country for 20 years and more and another person had possession of such land during the period, on the lapse of this period of 20 years, possession would mature into ownership and give a good title to the person in possession. Thus under the Roman Law and subsequently under the English Law, the doctrine of prescription was resorted to, not only to establish easements but in respect of other proprietary rights also.
Acquisition of Easements by Prescription
Prescription connotes the effect of lapse of time in creating new rights and destroying old rights. The term easements by prescription implies to the acquisition of a title or right by the owner of a property in a manner prescribed by law. A person may acquire property or certain rights over a property by showing that he or she has been in possession of the property or enjoying rights for a long period of time. Therefore if a person after long, uninterrupted and continuous possession or use over certain rights over immovable property is required to prove his title it would create hardship and would result in injustice. Hence law recognizes an easement by prescription. [ii]
Section 15 of The Indian Easement Act 1882 states that in order to acquire a prescriptive right of easement in respect of access and use of light or air to and for any building or support from another person’s land it must have been peacefully enjoyed as an easement without interruption for twenty years. A right of way or any other easement it must have been peacefully and openly enjoyed as an easement as of right without interruption for twenty years. [iii]
The principle described in the doctrine of prescription is to give legal recognition to rights and titles which have been enjoyed for a long time. Even if enjoyment of such right or title was wrongful in its inception, the law considers it expedient not to disturb such enjoyment. The law recognizes this right to prove the origin of title or it would create unnecessary hardship to a person.[iv]
A, the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. B, the defendant proves that A on one occasion during twenty years has admitted that the user was not of right and asked his leave to enjoy the right. The suit will be dismissed because the right of way has not been enjoyed ‘as of right’ for twenty years.
Doctrine of lost grant
The presumption involved under this doctrine is that there was a grant of the right in the past but such a grant was lost. Thus such a right is presumed to have had a legal origin and the Court presumed that such acts were done and those circumstances existed which were necessary to create a valid title. The doctrine is used in cases where the enjoyment cannot be otherwise reasonably accounted for. [v]
Dalton v. Angus:[vi] The court observed that the doctrine of lost grant was invented as a means to an end. The presumption cannot be displaced merely by showing that actually and there was no such grant in the past. This doctrine can be availed of for acquiring an easement as a separate mode, independently of the provisions of a statute.
Essentials of Easement by Prescription
The enjoyment should be without violence and should not be subject to frequent quarrels or physical or legal obstruction by the owner. No easement by prescription can accrue under a non-peaceful enjoyment.
The requirement of open enjoyment means that the servient owner should have either an actual knowledge of the exercise of the easement by the dominant owner or he should have had the means of such knowledge in which case constructive knowledge can be attributed to him.
As an easement
If a right claimed is not an easement such right cannot be acquired by prescription. For example, the right enjoyed under a contract like a lease cannot be said to have been enjoyed as an easement.
As of right
This expression means that the enjoyment of the easement should be without violence, without stealth and also it should be without permission. This implies that the easement should be enjoyed as of right.
The easements should have been enjoyed without interruption which must have been caused by some kind of obstruction caused by an act of the servient owner. As a consequence of such interruption, the enjoyment of the easement should cease to have effect. The dominant owner must have had notice of the fact of obstruction and of the person making or authorizing such an obstruction. It is not necessary that some oral or written notice should be given by the servient owner to the dominant owner.
For twenty years
Only a period of uninterrupted enjoyment of twenty years will establish an easement by prescription. The period of twenty years is extended to thirty years if the servient tenement belongs to the Government. [vii]
In the case of Manikkan V. Kamala[viii], the Court held that if branches of a tree overhang the neighbouring land, no right can accrue over the land over which they hand. The owner of such a tree acquires no right whatsoever over the land of the neighbour, only because the branches of the tree extended over the neighbouring soil for a continuous length of time. No right can arise by prescription to continue a nuisance.
Section 16 of the Act provides that when any land upon, over or from which an easement has been enjoyed or derived has been held under or by the virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term is to be excluded in the computation of above mentioned period of twenty years in case the claim is within three years next after determination of such interest or terms, resisted by the person entitled on such determination, to the land. [ix]
Thus section 16 provides some relief to the owner of the servient tenement when the latter is in possession of one who has only a limited interest in it. In such cases, the period of his possession is excluded because under such circumstances he may not be in a position to resist attempted prescription.
Rights that cannot be acquired by prescription
Under section 17 the following four rights cannot be acquired by prescription-
- A right which would tend to the total destruction of the subject of the right, or the property on which if the acquisition were made, liability would be imposed
- A right to the free passage of light or air to an open space on the ground
- A right to surface- water not flowing in a stream and not permanently collected in a pool, tank or otherwise.
- A right to underground water not passing in a defined channel.[x]
Frequently asked questions
What are the kinds of easements?
Easements can be acquired by the following ways-
1. By grant
2. By necessity
3. By quasi-necessity
4. By prescription
5. By lost grant presumed from immemorial user
6. By custom
7. By transfer of dominant heritage
8. By legislation
9. By operation of the doctrine of acquiescence
Who is a dominant owner and a servient owner?
The land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier of such land is called as the dominant owner.
The land on which the liability is imposed is called servient heritage and the owner or occupier of the land is called servient owner.
Edited by Sakshi Agarwal
Approved & Published – Sakshi Raje
[i] The Indian Easement Act 1882, Section 4
[iii] The Indian Easement Act 1882, Section 15
[iv]N.H.Jhabvala , The Indian Easement Act 1882 2018
[v] Aditya AK , Ayodhya Verdict: Adverse Possession and the Doctrine of Lost Grant, 10 November 2019, https://www.barandbench.com/columns/ayodhya-verdict-adverse-possession-and-the-doctrine-of-lost-grant
[vi] (1881) 6 AC 740
[vii]M. Ratanchand Chordia AndOrs. vs KasimKhaleeli (1964) 1 MLJ 293
[viii] AIR 1987 Ker. 72
[ix] The Indian Easement Act 1882, Section 16
[x] The Indian Easement Act 1882, Section 17