CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001

FEBUARY-2019
TOPIC: “IMPOSITION OF EASEMENT’’
FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILMENT OF THE
COURSE TITLED

TRANSFER OF PROPERTY ACT

PROPOSAL SUBMITTED BY

NAME:RITESH KUMAR

ROLL NO:1963

SEMESTER:2ND

SESSION:2018-2023

COURSE:BA.LLB(Hons)
SUBMITTED TO

DR..VIJAY KUMAR VIMAL

FACULTY OF TRANSFER OF PROPERTY ACT

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 DECLARATION

I here by declare that the project entitled “George eliot’s Novel-Felix Holt ”submitted by me at
CHANAKYA NATIONAL LAW UNIVERSITY is a record of bona fide project work carried
out by me under the guidance of our mentor DR. VIJAY KUMAR VIMAL.I further declare
that the work reported in this project has not been submitted and will not be submitted ,either in
part or in full, for the award of any other degree or diploma in this university or in any other
university.

------------------------

RITESH KUMAR

ROLL NO: 1963

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 ACKNOWLEDGEMENT
It is a fact that any research work prepared ,compiled or formulated in isolation is inexplicable to
an extend .This research work although prepared by me is a culmination of effort of a lot of
people who remained in veil, who gave their intense support and helped me in the completion of
the project.

Firstly I,am very grateful to my subject teacher Dr. vijay kumar vimal without the kind support
and help to whom the completion of this project was a herculean task for me.He donated his
valuable time from his busy schedule to help me to complete this project .I would like to thank
his for her valuable suggestion towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and encouragement
which helped me in completion of this project .I am also thankful to the library staff of my
college which assisted me in acquiring the sources necessary for the compilation of my project .

Last but not least,i would like to thank the almighty who kept me mentally strong and in good
health to concentrate on my project and to complete it in time .

I thank all of them!

--------------------------

(RITESH KUMAR)

ROLL NO:1963

B.A.LLB(HONS)

SESSION :2018-2023

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CONTENTS

1. Introduction………………………………………………………………………..................
 Aims and objectives………………………………………………………………....
 Hypothesis…………………………………………………………………………..
 Research questions………………………………………………………………….
 Research methodology……………………………………………………………...
 Sampling method …………………………………………………………………..
 Sources of data collection ………………………………………………………….
 Mode of citation ……………………………………………………………………
2. Mode of acquisition of easement …………………………………………………………..
3. Remedies under easement ………………………………………….........................................
4. Trespass under easement and defenses………………………………………………………..
5. Conclusion and suggestions………………………………………………………………...

Bibliography

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 1.INTRODUCTION

In a situation where immovable property is involved, there are certain rights connected
to the enjoyment of such immovable property, without which rights, such property
may not be conveniently and fully held and enjoyed. Such rights are called easement.

Black’s Law Dictionary defines an easement as a “right of use over the property of another.”
Easements are generally limited to a specific purpose and do not impose an obligation on the
landowner or confer special rights to the holder of the easement beyond its stated purpose.

Easements are an important part of our modern lives. They are often used for reserving: · Land
for electrical and other utility lines; · Above and below ground storm water drainage systems; ·
Passage of motor vehicles over certain roadways; · Sidewalks in our cities and villages; and ·
Hiking trails.Easements can also be used for: · Maintenance of buildings that abut a lot line; ·
Preservation of architecturally significant buildings; · Conservation of scenic views, wildlife
corridors and other natural resource values; and · Protection of land for farm or open space purp

Principles of Easements:- Ownership of a piece of property can be described as a “bundle of

rights.” These rights include, but are not limited to, the right to occupy, use, lease, sell and
develop the land. An easement involves the exchange of one or more rights from the landowner
to someone who does not own the land. Easements have been used for years to grant
governments, utilities and conservation organizations certain specific but limited property rights.
An easement grants the holder certain rights for specified purposes while the ownership of land
remains with the property owner. An easement may apply to the entire property or to a portion of
it; it may be in the form of an agreement, deed restriction or covenant. An easement does not
prohibit selling the land or passing it on to heirs. It does require each successor to honor the
restrictions specified in the easement1. Although the landowner (the grantor) continues to
manage his or her property, it is up to the party holding the easement (the easement holder) to
keep records of the easement and to monitor the land to make sure that no violations occur.2

2
1. http://www.lawyersclubindia.com 04-03-19,4:50 pm

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Conservation Easement:- A conservation easement, sometimes called a restrictive covenant, is a
voluntary, legal agreement between a landowner and another party which either restricts the
development of a tract of land or a portion of it, or imposes affirmative obligations on the
landowner imposes affirmative obligations on the landowner.

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 AIMS AND OBJECTIVES

1. The researcher tends to throw some light on the principles of easement.

2. The researcher tends to throw some light on the use of easement in modern life.
3. The researcher tends to throw some light on the different types of easement.

HYPOTHESIS

The researcher presumes that:

1. Unlike a lease, an easement does not give the holder a right of "possession" of the
property
2. An easement involves the exchange of one or more rights from the landowner to someone
who does not own the land.
3. An easement grants the holder certain rights for specified purposes

RESEARCH QUESTIONS

1. What is easement?
2. What are the various uses of easement?
3. What are the main differences between easement and lease?

RESEARCH METHODLOGY

The researcher use both doctrinal and non-doctrinal research methodlogy

. SAMPLING METHOD

Researcher has used purposive and convenient method of sampling due to paucity of time and
various limitations while doing research

METHODS OF DATA COLLECTION

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The methods of data collection is based on observation interview and questionnaire.

SOURCES OF DATA COLLECTION

The research is based on both primary and secondary sources of data

MODE OF CITATION

The researcher have followed a uniform mode of citation throughout the course of this project.

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 2. MODE OF ACQUISITION OF EASEMENT

The development of human civilization has begun when people started living in groups, in
realization of the each individuals’ private rights with mutual benefits within the society. Hence,
the right of easement dates back to the period of recognition of private property in a definite
society. Such a right, arises out of certain aspects of morality, which permits a third person to
enjoy certain benefits in relation to the property, on which he has, neither ownership nor
possession. With due progress in the society, the legislation has given deference to the easement
rights, which makes it necessary for us to have a line of thinking on it.

Easement Meaning and Definition Easement[i] 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 other land not his own3. 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 the
dominant owner. The land on which the liability is imposed is called the servient heritage and the
owner or occupier of such land is called the servient owner. Modes of acquisition of easements:
There are several methods by which easements may be acquired. They are:

19 Modes of acquisition of easement Express grant Implied grant Presumed grant Acquisition
by prescription Customary easement Transfer of dominant heritage Imputed grant Statute The
various modes of acquisition of easement are explained in detail in the following paragraphs. 1.
Express grant: The most direct method of creating an easement is by express grant. Express
easements are created by a written agreement between landowners granting or reserving an
easement. An express easement is created by a deed or by a will. Thus, it must be in writing.
Express easements must be signed by both parties and are recorded with the deeds to each
property. An express easement can also be created when the owner of a certain piece of property
conveys the land to another, but saves or reserves an easement in it. This arrangement is known
as an "easement by reservation." Similar to a deed of a property it must contain the name of the
property owner which is requesting the easement, as well as the owner of the property where the

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easement is to be created. Once created, the witnessed process will consist of the easement being
signed by the grantor, giving his or her consent and permission for the use of land. In addition,
the easement must be notarized and furthermore conveyed to the owner it has been granted to.
Example of it would be an individual who requests access to build a walkway on his neighbour's
property. The grantor in this case can grant the easement for the length of their ownership over
the property to the grantee, not anytime longer. This specifies the life of the easement created
through an express grant

Sec. 8 to 11[ii] deal with the scope of the power to impose easements. The persons such as
Servient owners (sec.9) Lessor (sec.10) Mortgagor (sec.10) may impose easements on the
respective properties of servient heritage, leased and mortgaged subject to certain conditions
whereas a lessee cannot impose easement after the derogation of his rights under sec.11 of the
Act. In Booth v. Alcock[iii], it was ruled out that General words in a grant should be restricted to
that which the grantor had then the power to grant and will not extend to anything which he
subsequently acquire. So the easement granted could not continue after the expiration of servient
owner’s interest. Sec 12[iv] states that “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 person in possession of the same.” An easement is also acquired by a coowner. The
permission of other coowner is not necessary in this case. But a lessee cannot get such a right. In
England, easement could be created only be a deed. In the absence of writing, the grantee could
only have a revocable bare license[v]4. An easement can be made orally in India. Easements in
writing require registration under Indian registration Act[vi]. 2. Implied grant: Even when no
document or agreement has created an express easement, an easement right may still be
understood (or "implied") by a situation or circumstances[vii]. To create an easement by
implication, three requirements must be met:

The easement must be at least reasonably necessary to the enjoyment of the original piece of
property. The land must be divided (or "severed"), so that the owner of a parcel is either selling
part and retaining part, or subdividing the property and selling pieces to different new owners.
The use for which the implied easement is claimed must have existed prior to the severance or

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sale. Implied easements are not recorded or explicitly stated until a court decides a dispute, but
reflect the practices and customs of use for a property. Courts typically refer to the intent of the
parties, as well as prior use, to determine the existence of an implied easement. a) Easement by
prior use: An easement may also be created by prior use. Easements by prior use are based on the
idea that land owners can intend to create an easement, but forget to include it in the deed. There
are five elements to establish an easement by prior use:

1. Common ownership of both properties at one time

2. Followed by a severance

3. Use occurs before the severance and afterward

4. Notice

1. Not simply visibility, but apparent or discoverable by reasonable inspection (e.g. the hidden
existence of a sewer line that a plumber could identify may be notice enough)

5. Necessary and beneficial 1. Reasonably necessary 2. Not the "strict necessity" required by an
easement by necessity[viii]. The easement by necessity and quasi easements have been referred
under sec.13[ix]. b) Easement by necessity: Clauses (a),(c),(e) of Sec.13[x] explains easement by
necessity. Similar to an easement implied by prior use, in property law, an easement implied by
necessity[xi] is created only when a landowner divides her land among two or more owners. But
an easement by necessity arises only when that division of land causes a newly divided parcel of
land to no longer have access to a public street, regardless of whether some of the owner’s land
had previously been used to access that portion before the division of the land[xii]. A person
claiming an easement by necessity must prove the following: Severance of unity: One of the
parties has divided her land and transferred part of it to the other party. Loss of access: The
division of the land caused the claimant’s land, whether the parcel retained by the grantor or the
parcel granted to the grantee, to no longer have a legal right of access to a public street.
Necessity: At the time the property was severed, the claimant’s land didn’t border a public street
or have any other existing easement over private land to get to a public street. This is the only
kind of “necessity” for which one may have an easement by necessity[xiii]

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But even if these conditions are met, some courts have held that the easement isn’t implied if the
parties have otherwise indicated their intent not to create an easement — such as the grantee’s
acknowledging in the purchase agreement that the land he’s buying doesn’t have access to a
public street. In Hero Vinoth (Minor) v. Seshammal[xiv], court held that an easement by grant
does not get extinguished under Section 41 of the Act which relates to an easement of necessity.
An easement of necessity is one which is not merely necessary for the reasonable enjoyment of
the dominant tenement, but one where dominant tenement cannot be used at all without the
easement. The owner of the servient land can specify the location of the easement by necessity
over her land. But if she doesn’t do so within a reasonable time after severance, the dominant
tenant can choose the access route over the servient land. The grantee can choose only one way
when there are more than one ways[xv].This doctrine rests upon absolute necessity and not the
mere convenience[xvi]. The easement by necessity exists only over land that was divided over
either the grantor’s or the grantee’s land and only when the division itself cut off access to a
public street. An easement by necessity is terminated when the necessity no longer exists. This
occurs when other access becomes available[xvii]. c) Quasi easements: A quasi easement is
almost always appurtenant to property. In other words, once the easement is created, it is
attached to one property and burdens other property, and will exist regardless if mentioned in
deeds to the property. A quasi easement will exist when there is: 1)an existing use at the time of
a division and grant, 2) the use was apparent of the division and grant, and 3) the use continued
for the benefit reasonable comfort and enjoyment of a property after the division and
conveyance[xviii]

When it comes to the quasiservient tenement, apparent and continuous easements are capable of
acquisition on a severance of tenements by the grantor under an implied reservation as ruled out
in Pyer v. Carton case[xix] and sec.13(d)[xx]. No express reservation is necessary as in English
law. In cases of way of necessity, reciprocal easements, simultaneous conveyances[xxi].
Whereas in case of quasi dominant tenement, when the owner of an entire property grants part of
that property as it is then used and enjoyed, he is presumed by law to grant everything which is
essential to the use and enjoyment of quasidominant tenement similar to those in English law as
ruled in Wheeldon v. Burrows[xxii].

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4.Presumed grant: In England, it is possible to acquire easements by long usage under the
common law of prescription (based on user since time immemorial), under the Prescription Act
1832 or under the doctrine of lost grant[xxiii]. Under this doctrine, use of a right for 20 years
gives rise to a presumed grant. It is assumed that there has been an express grant of the easement
but that it has been lost. English law, however, only allows for the acquisition of easements by
prescription in the case of fee simple (freehold) land. The earliest reported decision on this
subject is Lewis v. Price[xxiv]. In Dalton v. Angus[xxv], two adjoining houses had been built
each on the extremity of its owner’s soil. One of the houses was converted into coach factory
openly. Twenty years after the conversion, the other house was pulled down so that the
plaintiff’s coach factory would lose the support and it sank and fell. The plaintiff claimed the
right of support under the doctrine of lost grant and succeeded in the appeal. The court held that
no prior grant is required to apply this doctrine. In India, there is absolutely no proviso
prescribing Doctrine of lost grant as a mode of acquisition of easement but is accepted judicially
as the Indian Easements Act is not exhaustive. Sec.21 of Limitation Act prescribes the minimum
period of twenty years to 4. Acquisition by prescription: An easement by prescription is one that
is gained under principles of a legal concept known as "adverse possession", under which
someone other than the original property owner gains use or ownership rights to certain
property[xxvii]. Section 15[xxviii] provides for the acquisition of the right of easement by
prescription. Prescription means acquisition of a right or title by user of possession had during
the period and in the manner prescribed by law. A man who cannot show any other title may
acquire property or certain rights by showing that he has been in possession of the property or
enjoying rights for a very longtime[xxix]. Conditions for Acquisition of Easement rights by
prescription: A scrutiny of Section 15 reveals that the following conditions should exist before an
easement can become absolute by prescription : There must be a preexisting easement which
must have been enjoyed by the dominant owner (Nec precario), The enjoyment must have been
peaceable (Nec Vie), The enjoyment must have been as of right (Nec Clam), The enjoyment
must have been as an easement, The right must be enjoyed openly, In Krishna Narain Agarwal v.
Carlton Hotel (P) Ltd.[xxx], The Supreme Court has laid down that to establish the clause under
Section 15, continuous user of 20 years as of right to do the act complained of in assertion of a
title, peaceably and openly must be made out. (6) The enjoyment must have been for a period of
twenty years, This period is of sixty years when the servient heritage belongs to the Government.

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Till this period of twenty years has elapsed the right remains an inchoate one, and no court will
protect an inchoate right.The right becomes absolute only when questioned in the court. In M.
Jadavji v. S.S. Randidas[xxxi], it was held that if somehow the enjoyment, whatever its duration,
ceases and no suit is initiated within two years of the cessation thereof the enjoyment has lost all
efficacy for the purpose of acquiring an easement. (7) The enjoyment for 20 years must have
been without interruption. In Ram Sahai v. ManSingh[xxxii], it has been held that the fact that
the mode of enjoyment was changed from time to time during the period of twenty years does
not cause an interruption within Section 15 where the change in the mode of enjoyment is due to
an act on the part of the dominant owner himself. All the above 7 ingredients of an easement
right must be proved to have been present during the whole of the prescriptive period of 20
years. In Chapsibhai v. Purushottam[xxxiii], it was held that if the owner of a dominant tenement
has during the period of prescription, exercised rights on the footing that he is the owner but
which he later on claims as an easement over a servient tenement, then, his exercise of those
rights is not exercised as an easement and he must fail in a claim for an easement. Where the
easement is enjoyed under the pretext of life interest or other exceeding three years, such period
is excluded from the computation of the said period of twenty years as under sec.16 of the
Easements Act. In Bankey Lal v. Kishan Lal[xxxiv], it has been held that a right of way may be
acquired by prescription if it is exercised openly and with the knowledge of the owner of the
servient tenement, but a right to commit a nuisance cannot be acquired by prescription no matter
how often the act of nuisance is repeated.

4.In Tulasamma v. Nandula Buchairamiah [xxxv], It has been held that once the easement is
acquired by prescription, there is no scope for issuing a mandatory injunction to put an end to the
mode of enjoyment which has given rise to the easement. Rights which cannot be acquired by
prescription: Section 17 of the Indian Easements Act, 1882 provides for the rights which cannot
be acquired by prescription. These are as follows : A right which would tend to the total
destruction of the subjectmatter 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 of
ground. A right to surface water not flowing in stream and not permanently collected in a pool,
tank or otherwise. A right to underground water not passing in a defined channel. 5. Customary
Easement: Sec.18[xxxvi] “Customary easement. An easement may be acquired in virtue of a
local custom. Such easements are called customary easements.” A customary easement is not an

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easement in the true sense of that expression. It is not annexed to the ownership of a dominant
tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement;
it is recognized and enforced as a part of the common law of the locality where it obtains. A
customary easement arises in favour of an indeterminate class of persons such as residents of a
locality or members of a certain community, and though not necessarily annexed to the
ownership of land, it is enforceable as a right to do and continue to do something upon land or as
a right to prevent and continue to prevent something done upon land. Sanction for its
enforceability being in custom, the right must satisfy all the tests which a local custom for
recognition by courts must satisfy[xxxvii]

In Rup Chand v. Sh. Daulatu[xxxviii], it was held that the right of using the edges
(mainds) of each other’s fields for going to their respective fields by the agriculturists is a
customary right of easement and not a right of easement which is to be acquired by
prescription or by necessity. Customary easements are acquired by virtue of local custom.
Prescriptive easements are acquired on proof of peaceable enjoyment for twenty years.
No fixed period of enjoyment is necessary for customary easements. A customary
easement belongs to those land owners of an ascertained class, caste or community who
for the time being happen to own lands within that particular area or locality where the
custom prevails. A prescriptive easement, on the other hand, is not limited to a particular
locality, it can be enjoyed wherever land can be found. A customary easement must
satisfy all the essentials of a custom, viz., it must be ancient, reasonable, continuous and
certain. But prescriptive easements need not be reasonable. Other modes of acquisition:
Transfer of dominant heritage: Dominant heritage transferred by the act of the parties or
by the operation of law carries the incidental easement rights with it under sec.19[xxxix].
A has certain land to which a right of way is annexed. A lets the land to B for twenty
years. The right of way vests in B and his legal representative so long as the lease
continues[xl]. Imputed grant: Easements are established by proof of immemorial
enjoyment and created by the operation of doctrine of acquiescence when the servient
owner actively encourages the dominant owner to exercise a right[xli]. Statute: By
legislation easements may be created. Indeed even the rights which do not have the
characteristics of the easement may be statutorily declared to be easements. Conclusion:
3/12/2019 Modes of acquisition of easement From the analysis, we are able to understand

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the various modes of acquisition of easements such as express grant, presumed grant,
prescriptive etc., and the differences between them. The claim for easementary rights can
legally take place through any of these forms and the principles can also be borrowed
form other legal systems, to assist the process. Though the provisions of the Act are not
apparent about the application of these principles and certain doctrines, judicial
interpretation clears all the ambiguity. The study of easement is important even in
layman’s context, so as to have his common rights established with respect to a person’s
property. Apart from the legislation, it is in the hands of the judiciary to prevent such
abuses. The reliance on English law also adds to our strength.

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 3.REMEDIES UNDER EASEMENT

The current majority position - l label the American rule - is that the proper remedy for 'abuse' or
'misuse' of an easement is an injunction. In this Article, argue that courts should move away
from this position and adopt instead a rule permitting courts to award damages when two
conditions are met: (1) when the dominant tenant's servicing of nondominant land does not pose
an unreasonable burden on the servient estate; and (2) when the cost to the dominant tenant of
ceasing his servicing of nondominant land is substantially greater than the benefit to the servient
tenant.

Call this the Brown rule after the Washington Supreme Court case, Brown v. Voss, where it
found its most prominent statement. A remedy of damages instead of an injunction, under these
circumstances, fits well with earlier case law, builds on courts' equitable authority and
concomitant case law, accords with the broader movement in property law from property to
contract concepts and remedies, and is more efficient and fair.

first review the history of easements and argue that, at least in the United States, the common
law rule was that courts would enjoin a dominant tenant's use of an easement to service
nondominant land. Only in the relatively rare circumstance where legitimate use of a dominant
estate could not be separated from abuse of the easement, courts would permanently enjoin - in
effect, extinguish - use of the easement. The common law did not authorize courts to extinguish
an easement in the normal course, simply because of its abuse by the dominant estate holder.

However, that there was much confusion among courts, counsel, and scholars on what the proper
remedy was. This resulted from the continued influence of English law in this area.
Consequently, I will label the remedy of an injunction for abuse of an easement the American
rule, and the rule that requires forfeiture for abuse of an easement I will label the English rule.

Recently, the American rule has been challenged. Some courts have ruled that, instead, the
proper remedy under certain conditions is damages. I argue below that this movement in the
courts, exemplified by Brown, is consistent with and further supports claims that property law

17
has been moving away from property-based concepts and remedies and toward contract-based
concepts and remedies. I will also show that there is in the United States a broader tradition than
is commonly realized of courts employing their equitable discretion to grant damages instead of
injunctive relief. Lastly, I will argue that damages is more efficient and fair than injunctive relief,
at least under the two conditions I outlined above

As a general rule, an easement holder has a right to do "whatever is reasonably convenient or

necessary in order to enjoy fully the purposes for which the easement was granted," as long as he
or she does not place an unreasonable burden on the servient land. Conversely, the owner of the
servient land may make any use of that land that does not unduly interfere with the easement
holder's use of the easement. What constitutes an undue burden depends upon the facts of each
individual situation. The concept of reasonableness includes a consideration of changes in the
surrounding area, as well as technological developments.

If a court determines that a servient estate is unduly burdened by an unreasonable use of the
easement, the servient estate holder has several potential legal remedies. These include court
orders restricting the dominant owner to an appropriate enjoyment of the easement, monetary
damages when the easement holder exceeds the scope of his or her rights and injures the servient
estate, and in some cases extinguishment of the easement. Likewise, remedies exist for
interference by the servient owner. Interference with an easement is a form of trespass, and
courts frequently order the removal of an obstruction to an easement. If interference with an
easement causes diminution in the value of the dominant estate, courts may also award
compensatory damages to the easement holder.

Transferability

In general, an easement appurtenant is transferred with the dominant property even if this is not
mentioned in the transferring document. But, the document transferring the dominant estate may
expressly provide that the easement shall not pass with the land.

Because easements in gross are treated as a right of personal enjoyment for the original holder,
they are generally not transferable. However, several states have enacted statutes designed to

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facilitate the transfer of easements in gross. The transfer of easements in gross for commercial
uses such as telephones, pipelines, transmission lines, and railroads is often permitted.

Other Legal Issues to Consider

Courts generally assume easements are created to last forever, unless otherwise indicated in the
document creating the easement. Despite this, an individual granting an easement should avoid
any potential legal or interpretive problem by expressly providing that the easement is
permanent. Although permanent easements are the norm, they can be terminated in a number of
ways. Easements of limited duration are commonly used to provide temporary access to a
dominant estate pending the completion of construction work.

An easement may also be terminated when an individual owning the dominant estate purchases
the servient estate, or when the holder of an easement releases his or her right in the easement (in
writing) to the owner of the servient estate. Abandonment of an easement can also extinguish the
interest, but as a general rule just not using an easement doesn't constitute abandonment. Under
some circumstances, misuse or the sale of a servient estate may terminate an easement. Finally,
condemnation of an easement by a public authority, or condemnation of the servient estate for a
purpose that conflicts with the easement, terminates an existing easement.

Let an Attorney Ease Your Easement Concerns

The prevalence of easements and their non possessory nature creates a unique set of
considerations when creating, interpreting, and implementing an easement. It's essential to have a
basic understanding of the manner in which they're created, their scope and transferability, and
how they're terminated. A real estate attorney with easement experience can help set you on the
right path.

There are two issues to consider when faced with excessive use of an easement.

The first is whether the excessive use can be severed from the proper use. The usual remedy for
excessive use is not the obstruction of the use altogether, but an injunction to restrain use other
than that permitted by the easement. Where, however, it is impossible to sever the "proper" use
from the excessive use, the burdened owner may prevent any use of the right. An example of

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where the courts have held that it is not possible to sever the excessive use is where a right to
drain clean water is being used to drain both clean water and foul water.

The second is to what extent the court will go beyond the grant of an injunction, and permit the
dominant owner to take practical steps to prevent the excessive user. The High Court ruled in
this case that if an injunction prohibiting any use that was outside the scope of the grant were an
effective remedy, a court would not normally grant a declaration sanctioning steps to prevent any
use of the right. However, where an injunction would not be an adequate remedy, such a
declaration might be granted if it were considered proportionate, just and appropriate.

Where, as here, the burdened owner wishes to take such steps before the case is heard by the
court, it is only advisable to do so after seeking appropriate advice. In this case, following
consultation with the emergency services, the claimant arranged the concrete blocks so as to
prevent vehicular access to the site, while at the same time allowing for wheelchair and stretcher
access.

Important case law: Ashdale Land and Property Company Limited v Maioriello

The claimant had sold a field which formed part of its land, together with the benefit of a right of
way over an unmade up road which gave access to the main road. The right of way was
expressed to be in connection with the use of the field for agricultural purposes only, with or
without vehicles, farm machinery and animals.

Some time later, the field was bought by gypsies. Lorries, cars and vans were driven along the
road, including for the transportation of building materials to create hardstanding for caravans.
This constituted a breach of the terms of the easement, and was causing damage to the road as
well as possible reduction in value of the properties along the road.

The claimant obtained several injunctions restricting the gypsies' use of the road, including an
interim injunction which prohibited any vehicles from passing along the road to the field. All
were ignored. The claimant decided to take self-help measures and erected four large concrete
blocks at the end of the road where it abutted the field.

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The gypsies continued to use the road for pedestrian access, but also then started to park their
vehicles on the road, as they could not reach their land. This also constituted a breach of the
easement, since the right granted was to pass along the road, not to stop on it.

The claimant sought a declaration that it was entitled to obstruct all access to the field from the
road. It argued that the usual remedy of injunctive relief had been tried and found to be seriously
wanting because the court's orders had been repeatedly ignored, and it was not practicable to
enforce the orders through the initiation of criminal proceedings.

The gypsies submitted that it would be wholly disproportionate for the claimant to be permitted
to obstruct all access to their land. This would prevent them from using the field for agricultural
purposes, and would seriously depreciate its value.

However, the court agreed that the only way for the claimant to prevent the trespasses on the
road was to obstruct all access to the field. Previous court orders had been breached repeatedly,
and if access for vehicles was permitted, gypsies would return to the site. The gypsies had
purchased the land for use as a caravan site and had no genuine intention to use the land for
agricultural purposes. The court therefore made the declaration sought by the claimant.

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 4.TRESPASS UNDER EASEMENT AND DEFENSES

Blocking access to someone who has an easement is a trespass upon the easement and creates a
cause of action for civil suit. For example, putting up a fence across a long-used public path
through private property may be a trespass and a court may order the obstacle removed. Turning
off the water supply to a downstream neighbor may similarly trespass on the neighbor's water
easement.

Open and continuous trespassing upon an easement can lead to the extinguishment of an
easement by prescription (see above) if no action is taken to cure the limitation over an extended
period.

In cases of trespass, there are some defenses available to the defendant to justify the trespass.
However, ignorance or mistake of law or fact is not an excuse for trespass[i].

One of the defenses is the title and possession of the property[ii]. To invoke this defense, the
person must have the actual ownership of property along with the title. The person in actual
possession has the right to maintain an action for trespass against all persons other than the
original owner[iii]. Thus, a trespass is privileged if the defendant is a bonafide purchaser, and
has an ownership claim over the property.

An action for trespass may not be entertained where the defendant has acquired a right of
easement. An easement is the right to use the real property of another without possessing it. But
the defendant is liable, if s/he exceeds or misuses the extent and scope of the right. In Phillips v.
Jacobsen, the court observed that an easement granted in general terms must be construed to
include any reasonable use which is lawful and is contemplated by the court.

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 The statute of limitations is a defense that is ordinarily asserted by the defendant to defeat an
action brought against him/her after the appropriate time has elapsed. The defendant has to
prove the entitlement to limitations.

The doctrine of estoppel is an important defense to the action of trespass. Estoppel arises when a
person who had a duty to speak or act, intentionally or negligently made another through his/her
action or silence to believe in the existence of a fact that does not exist, and another acted by
relying on such an act or omission[iv]. The doctrine of estoppel is not applicable if the defendant
has consented to it.

Apart from the defenses above mentioned, there are some exceptions. Infancy is not considered
as a defense for the liability of trespass. The plaintiff’s conduct and contributory negligence can
be taken into consideration to determine if a trespasser was entitled to enter a land to claim
chattel. However, it is not a ground for defense.

An action will not amount to trespass if it is privileged. People who commit trespass may not be
liable if they have a legal defense for their actions. A trespass may occur only when the holder
of the privilege acts unreasonably or unnecessarily. Following are some of the privileges
enjoyed by a trespasser:

 Necessity is a privilege against trespass. A defendant is excused from liability for trespass to
land if the action is strictly necessary to prevent public disaster. The action is not liable if it is
for the benefit of the defendant or a third person. But if they cause any damage while on the
property, they could be held liable for any losses. For example, A, an aviator, while carefully
and skillfully operating his/her airplane makes a forced landing on B’s field in the reasonable
belief that it is necessary to do so for the protection of himself/herself and his/her plane. A is not
liable for his/her mere entry, but s/he is subject to liability for any harm thereby caused to B or to
B’s buildings, crops or other belongings.
 An action will not amount to trespass if the defendant enters another’s property to abate any
public or private nuisance. Any public nuisance which causes harm can be abated and it will not
amount to trespass. The act of the defendant must be reasonable for the purpose of abating a

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 private nuisance. A public officer who is authorized to abate public nuisance is privileged to
enter any person’s land for the same purpose at a reasonable time and manner[v].
 Consent is another common privilege in trespass. A defendant’s action is privileged if the entry
to the land is with the consent or license of the person who has a rightful and legal possession of
land. Consent can be implied from custom, usage or conduct. The action becomes trespass if it
is beyond the scope of the consent or license. The acts of the defendant should not exceed or
conflict with the purposes of the consent. Privilege of consent has to be established by the
defendant. A person who enters a public area in a reasonable time and manner has the implied
consent of the owner and his/her action does not amount to trespass. Consent will not be
considered as a privilege to trespass if it is obtained by fraud, misrepresentation or under
compulsion[vi].
 A law enforcement officer performing his/her duty in a reasonable manner without causing any
harm is privileged to commit a trespass. A law enforcement officer is privileged to make an
entry to arrest or summon up an already arrested person. Acts of persons like union agents,
firefighters, physicians, conservator, power companies and telephone companies are justified
under the reason of authority.
 Where a person, with the prior consent of the landowner enters the latter’s land to remove or fix
any personal property, enjoys the privilege of trespass. One is privileged to enter other’s land for
the purpose of removing a chattel at a reasonable time and manner without causing any damage.
A person is privileged to enter other person’s land to demand the return of his/her property which
is placed or left on the other person’s land. Moreover, a person can enter another person’s land
to return a thing. A landowner is privileged to remove another’s personal property which is
placed on the land illegally. S/he can exercise this privilege once defendant fails to comply with
the landowner’s notice to remove the same[vii]. Landowner shall use due care to remove things
that are wrongfully on his/her land. S/he is privileged only when the action is within the control
and extent over the trespassing item as is necessary to remove it. Finally, the harm caused while
exercising the privilege should be reasonable and necessary.

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 5.CONCLUSION AND SUGGESTION

An easement is a right which the owner or the 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 other land not his own. An
easement is the right to use the real property of another without possessing it. Easements are
helpful for providing pathways across two or more pieces of property or allowing an individual
to fish in a privately owned pond. Traditionally the permitted kinds of uses were limited, the
most important being rights of way and rights concerning flowing waters. The easement was
normally for the benefit of adjoining lands, no matter who the owner was, rather than for the
benefit. .

Easements frequently arise among owners of adjoining parcels of land. Common examples of
seasements include the right of a property owner who has no street front to use a particular
segment of a neighbor's land to gain access to the road, as well as the right of a Municipal
Corporation to run a sewer line across a strip of an owner's land, which is frequently called a
right of way.Easements can be conveyed from one individual to another by will, deed, or
contract, which must comply with the Statute of Frauds and can be inherited pursuant to the laws

Restrictive easement is a condition placed on land by its owner or by government that in some
way limits its use, usually regarding the types of structures which may be built there or what may
be done with the ground itself.

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 BIBLIOGRAPHY

1. http://www.lawyersclubindia.com
2. https://indiankanoon.org/doc/82950642/
3. https://indiankanoon.org/doc/82950642/
4. http://www.legalservicesindia.com/article/481/Easement-restrictive-of-certain-rights.html
5. https://www.lexology.com/library/detail.aspx?g=3bf8e2bb-2a6c-4e26-8749-
9ec4a95f3abe
6. https://en.wikipedia.org/wiki/Easement
7. https://en.wikipedia.org/wiki/Easement#Trespass_upon_easement
8. https://www.cga.ct.gov/2017/pub/chap_822.htm

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