EASEMENT

(..16..)

EASEMENT[1]

(Ss. 4 to 7)

QUESTION BANK

Q.1 Define Easement. Explain different kinds of easement.

Q.2 Define easement and explain essentials of easement.

SYNOPSIS

  1. Introduction-
  2. “Easement” defined (S. 4)-

III. Essentials of easement-

(1) Dominant and servient heritage-

(2) Easement is an incorporeal right-

(3) Easement is imposed upon corporeal property and not upon owner-

(4) Easements are imposed for the beneficial enjoyment of immovable property-

(5) The right of easement and right of profit-

(6) Easements may be positive or negative-

(7) Easement is a right in rem-

(8) Easements are restrictive of certain rights (S. 7)-

 (a) Exclusive right to enjoy-

 (b) Rights to advantages arising from situation-

     Easements are restrictions-

     Section 7 laws down restrictions on the following rights viz-

     (a) Exclusive right to enjoy-

     (b) right to natural advantage arising from situation-

IV Kinds of easements (S. 5 and 6)-

(1) Continuous Easement-

 (2) Discontinuous easement-

 (3) Apparent easement-

 (4) Non apparent easement-

 (5) Permanent Easement-

 (6) Limited easement-

 (7) Conditional Easement-

 

Right to way

Right to light

Right to air

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. Introduction:-

          The right of easement is as old as civilization. Since the human being started to settle down than wander, the right of easement started. The right of easement is also known in some communities as “neighbour’s” right. In fact, the right of easement comes out of necessity for better enjoyment of the property. To lay down the right of easement, its extent and scope, The Indian Easements Act 1882[2] is enacted.

II. “Easement” defined (S. 4):-

          An easement is a right-

(i) which the owner or occupier of  certain land possesses, as such,

(ii) for the beneficial enjoyment of that (his) land,

(iii) -to do and continue to do something, or

      –to prevent and continue to prevent something being done,

(iv) in or upon, or in respect of certain other lands not his own[3].

          In short, the easement is a right of one land owner over others’ land for the beneficial enjoyment of his own land. An easement is a right in a public interest that suggests you “enjoy your own property and let others enjoy their properties”.

          The land for the beneficial enjoyment of which the right exists is called the dominant heritage[4], and the owner or occupier thereof is the dominant owner; the land on which the liability is imposed is called ‘servant heritage[5], and the owner or occupier thereof is the servant owner.

Illustrations

(a) A, as the owner of a certain house, has the right of way over his neighbour B’s land for purposes connected with the beneficial enjoyment of the (his) house. This is an easement.

(b) A, as the owner of a cetin house, has the right to go on his neighbour B’s land and to take water for the purposes of his household out of a spring therein. This is an easement.

(c) A, as the owner of a certain house, has the right to conduct water from B’s stream to supply the fountain in the garden attached to the house. This is an easement.

(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B’s field or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C’s tank or timber out of D’s wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E’s land. These are easements.

(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement.

(f) A is bound to cleanse a watercourse running through his land and keep it free from obstruction of the benefit of B, a lower riparian owner. This is not an easement.

          The explanation attached to the section explains the terms committed across in the section viz-

The expression “land” also includes things permanently attached to the earth.

The expression: “beneficial enjoyment” also includes possible convenience, remote advantage, and even a mere amenity.

The expression “to do something’ includes removal and appropriation by the dominant owner for the beneficial enjoyment of the dominant heritage, any part of the soil of the servient heritage, or anything growing or subsisting thereon.

III. Essentials of easement:-

    From the above definition and the illustrations thereunder, we may lay down the following essentials of easement:-

(1) Dominant and servient heritage[6]:-

          For the existence of a right of easement, two immovable properties are necessary viz dominant heritage for the beneficial enjoyment of which right is exercised and servient heritage, the property upon which right is exercised. For example, A, as an owner of a certain house, has the right to go on his neighbour B’s land and to take water for the purposes of his household out of a spring therein. This is an easement. In this case, A’s land is a dominant heritage, and B’s land is a servant heritage.

          Thus, this shows that there are two different properties and two different owners.         According to English law, these two properties should be adjacent; however, Indian law does not expect this. The use of the term “in respect of some other land” suggests that the properties need not be adjunct.

(2) Easement is an incorporeal right[7]:-

          An easement is an incorporeal right which exists on the corporeal property (i.e. servant heritage).

(3) Easement is imposed upon the corporeal property and not upon the owner:-

          Even though the right of easement is incorporeal, it is imposed upon corporeal property (i.e. servant heritage). It is imposed upon the related property and not upon the owner. The right of easement is imposed on servient heritage; therefore, the right exists even though the servient owner changes.

(4) Easements are imposed for the beneficial enjoyment of immovable property:-

          The essence of easement is that the right exists for the beneficial enjoyment of the dominant heritage. The object of the right is that the dominant owner must be in a position to enjoy his property better. The right comes out of necessity.

(5) The right of easement’ and right of ‘profit a prendre’:-

          A profit a prendre is a right vested in one man of entering upon the land of another and taking, therefore, a profit of the soil. It is a right to take a part of the soil or produce of the land.

           In England, the nature of the right of easement is that the easement must be used for the purpose of better enjoyment of one’s own property. The right of an easement does not confer any right of profit a prendre to the dominant owner in servient property. An easementary right is a non-profitable right which is incorporeal and exists only for better enjoyment of his own property.

          In India, however, the right of easement also includes the right of profit. The explanation in the section states that the right of beneficial enjoyment also includes possible convenience, remote advantage, and even a mere amenity. Illustration (d) to S.4 suggests different types of profits, which are easements under the Indian Easement Act 1882. It includes the right to graze cattle, take water or fish, timber, fallen leaves etc. Thus, profit a prendre is an easement in India. However, In English law, it is not an easement.

(6) Easements may be positive or negative:-

          The part of the definition suggests that the right of an easement may be positive or negative depending upon its nature. When the right of easement confers the right to do something on servient heritage, it is called a ‘positive easement’. Whereas negative servient is that in which the servient owner is stopped, prevented or restricted from doing something on his own land. Thus, the right of a way is a positive right, permitting the dominant owner to use the way. However, not collecting fallen leaves by the owner himself if the easement is in others’ favour is an illustration of the negative easement.

(7) Easement is a right in rem:-

          The right of easement is a right in rem. It is available against the whole world, i.e. against anybody who violates it. Thus, the person violating the right may be the servient owner, his agent, a trespasser, or an innocent purchaser.

(8) Easements are restrictive of certain rights (S. 7):-

Easements are restrictions:-

          In fact, every owner has the unfettered right to use, enjoy and disposal the property. However, S. 7 lays down certain restrictions on these rights. These restrictions are imposed in the public interest. Easements are reasonable restrictions to protect other person’s similar rights.

     Section 7 laws down restrictions on the following rights viz-

(a) Exclusive right to enjoy:-

          The owner of any land has the exclusive right to enjoy and dispose of the property and products thereof and accessions thereto. Thus, the right to receive air and sunlight, to make reasonable noise and vibration, etc.

          Illustrations (as mentioned below) (a) and (c) are illustrations of restrictions on the right of exclusive enjoyment.

(b) Right to natural advantage arising from the situation:-

          It is a right to enjoy natural advantages arising due to the situation of the property. The owner of such property has the right to enjoy the rights of the advantageous situation without any interference or obstruction. These are natural rights due to the situation of the property.

          Illustrations (b), (d) to (h) and (j) are examples of restrictions over natural advantages.

          Right to natural advantages arising from situations and easements related to that are explained in illustrations. The illustrations discussed above cover-

(i) Right to the unpolluted flow of air, light, etc.- Illustrations (b) and (d) explain it.

(ii) right of support- the right of support means that every owner has a right to take support from their neighbour. Similarly, he has also to provide support. Illustration (e) is explanatory of this right and easement thereto.

(iii) Riparian rights- Riparian owners are the owners whose land is situated at the bank of any natural fall or river. Illustrations (f), (h), and (j) explain the right and easement.

(iv) Surface water- Illustrations (g) and (i) relate to the right of surface water and easement thereto.

Illustrations

(a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.

(b) the right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.

(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibration caused by any other person.

(d) The right of every owner of land to so much light and air as pass vertically thereto.

(e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.

          Explanation- Land in its natural condition when it is not excavated and not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.

(f) The right of every owner of land that, within his own limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons.

(g) The right of every land owner to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.

(h) The right of every owner of land to that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows that the water of such lake or pond allowed by another person to remain within such owner’s limits without material alteration in quantity or temperature.

(i) The right of every owner of upper land that water naturally rises in, or falls on, such land, and not passing in defined channels, shall be allowed by the owner of the adjacent lower land to run naturally thereto.

(j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purpose of any manufacturing situated thereon; provided that he does not thereby cause material injury to other like owners.

     Explanation- A natural stream is a stream, whether permanent or intermittent, tide or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.

IV Kinds of easements (S. 5 and 6):-

     Ss. 5 and 6 lay down kinds of easements viz-

 (1) Continuous Easement:-

          A continuous easement is one whose enjoyment is or may be continued without the act of man. A continuous easement is an easement of continuous nature independent of any act of a man.

Illustration

A right annexed to B’s house to receive light by the windows without obstruction by his neighbour A. This is a continuous easement.

          Thus, the right to receive light and air, the right of drainage from another land, etc., are some other examples of continuous easement.

(2) Discontinuous easement:-

          A discontinuous easement is one that needs the act of a man for its enjoyment.

Illustration

 A right of way annexed to A’s house over B’s land. This is a discontinuous easement.

          The right of way, right to draw water, right of repair, etc., are some examples of discontinuous easement.

          An act of a man is the main test to distinguish between continuous and discontinuous easement.

(3) Apparent easement:-

          An easement is apparent if its existence is evidenced by some permanent and apparent sign. Such signs may be visible to an ordinary person, or some competent person may be required to inspect them.

Illustration

          Rights annexed to A’s land to lead water thither across B’s land by an aqueduct and to draw off water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matters. These are apparent easements.

          Thus, in other words, apparent easements are those easements of which existence appears from any permanent sign. Thus, doors, windows, drains, etc., are examples of apparent easement because they are visible. However, sometimes, an expert inspection is required to identify some permanent signs, e.g., underground drains that cannot be seen by the bare eye.

(4) Non-apparent easement:-

          A non-apparent easement is one that does not have a sign, as discussed in the apparent easement. It is also called an invisible easement.

Illustration

          A right annexed to A’s house to prevent B from building on his own land. This is a non-apparent easement.

(5) Permanent Easement:-

          A permanent easement is an easement of a permanent nature. Being permanent is a general rule of such type of easement.

(6) Limited easement:-

          A limited or temporary easement is an easement with limitations. It may be limited for a term of years or another limited period, subject to a periodical interruption, or exercisable only at a certain place, at certain times, between certain hours, or for a particular purpose.

(7) Conditional Easement:-

          An easement may be conditional. Such a condition may relate to the time of its commencement, or it may relate to making the easement void or viable upon the happening of a specified event or the performance or non-performance of a specified act.

*****

[1] उपभोग अधिकार [सुखभोग/ सुविधाधिकार ]

[2] Henceforth, the sections are mentioned from the Act.

[3] उपभोग अधिकार म्हणजे- एखादया मिळकत मालकाचा, त्याच्या मिळकतीचा चांगला उपभोग घेण्यासाठी, दुस-याच्या मालकीच्या मिळकतीत काहीतरी करन्याचा अथवा (त्या मालकास) काहीतरी करू न देण्याचा अधिकार होय.,

[सुखभोग एक अधिकार है-

(i) जो एक भूमि के स्वामी या अधिभोगी के पास है, जैसे,

(ii) उस (उसकी) भूमि के लाभकारी आनंद के लिए,

(iii) – करना और कुछ करना जारी रखना, या

-कुछ किया जा रहा रोकने के लिए और रोकने के लिए जारी रखने के लिए,

(iv) में या उस पर, या कुछ अन्य भूमि के संबंध में जो उसकी अपनी नहीं है|]

[4] उपभोग मिळकत [प्रधान स्थल /अधिष्ठायी संपत्ति]]

[5] उपभोग्य मिळकत [गौण स्थल / अधीन सम्पत्ती]

[6] उपभोग घेत असलेली मालमत्ता व ज्याचा वापर अपभोगासाठी केला जातो ती मालमत्ता

[7] अदृष्य [“सुखभोग” एक निराकार अधिकार है|]

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