1

SVKM’S

JITENDRA CHAUHAN COLLEGE OF LAW, VILE PARLE (MUMBAI).

TOPIC OF THE PROJECT –

INCIDENTS OF EASEMENTS – THE 11 RULES

SUBJECT –

THE TRANSFER OF PROPERTY ACT AND INDIAN EASEMENT ACT

NAME –

YASHI TANSUKH JAIN

DIVISION AND ROLL NO. –

C – 136

SUBMITTED TO –

PROFESSOR POORVA DIGHE

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ACKNOWLEDGMENT

In the accomplishment of this project successfully, many people have bestowed upon me
their blessings, guidance and support, I take this opportunity to express my gratitude to all of
them.

Primarily, I express my sincere thanks to Dr. Priya Shah, Principal, Jitendra Chauhan
College of Law for constant guidance and encouragement throughout my ongoing academic
course.

I express deep and sincere gratitude to Professor Poorva Dighe whose guidance, valuable
suggestions, very constructive instructions and kind supervision have contributed immensely
to the evolution of my ideas on this project.

Lastly, I will be forever grateful for the support extended by my parents, friends and
classmates and for being immensely helpful in various phases of completion of the project.
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TABLE OF CONTENTS

SR.NO. PARTICULARS PAGE NO.

1 AN OVERVIEW OF INDIAN 4-5
EASEMENTS ACT, 1882 –
 DEFINITION
 TYPES OF EASEMENTS
 WHO CAN IMPOSE EASEMENTS
 HOW EASEMENTS CAN BE
ACQUIRED
2 INCIDENTS OF EASEMENTS – THE 11 6 - 12
RULES
3 CONCLUSION 13
4 BIBILOGRAPHY 13
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AN OVERVIEW OF INDIAN EASEMENTS ACT,1882

Easements are rights enjoyed by the owner or occupier of land, to enjoy his own land by
exercising certain rights over some other land not belonging to him.

Definition of Easement ( Section 4 )

An easement is a right which the owner of the occupier of certain land possesses as such for
the beneficial enjoyment of that land, to do and to 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.1
In Halsbury's Laws of England, an easement is defined as, “a right annexed to land, to
utilise other land of different ownership in a particular manner or to prevent the owner of the
other land from utilising his land in a particular manner.2

Types of easements (Section 5)

1. continuous, i.e, one whose enjoyment is, or may be continued without the act of a man;

2. discontinuous, i.e one that needs the act of man for its enjoyment;

3. apparent, i.e, one the existence of which are shown by some permanent sign, which upon
careful inspection by a competent person, would be visible to him;

4. non apparent,i.e, one which has no such sign.

An easement may be-

• Permanent, or

• For a term of years, or

• Subject to periodic interruption,or

• Exercisable only at a certain place, or at certain times, or between certain hours, or for a
particular purpose, or

• Conditional

Easements are thus restrictions on-

1. The exclusive right to enjoy immovable property;or

1
The Indian Easements Act, 1882 – T.R Desai (2018 edition)
2
Halsbury Law of England – Easements Definition – Lexisnexis.in
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2. The right to enjoy the natural advantages arising from the situation of an immovable
property.

Who may impose easements ( Section 8 to 11)

1. A servient owner may impose on the servient heritage any easement that does not lessen
the utility of the existence is meant. But he cannot, without the consent of the dominant
owner, impose an easement of the servant heritage which would lessen such utility: S.9

2. A lessor can impose an easement that does not derogate from the right of the lessee: S.10

3. A mortgagor can impose an easement that would not render the security insufficient : S 10

4. A lessee cannot impose, on the property leased to him, any easement that would take
effect after the expiry of his own interest and in derrogation of the right of the lessor - S.11

How easements can be acquired ( Section 12)

An easement under the act may be acquired in any of the following 9 ways-

1. By grant - S.8

2. By necessity, when there is a severance if two tenements- S.13

3. By quasi-necessity, when there is a severance of two tenements - S.13

4. By prescription- S.15

5. By lost grant presumed from immemorial user.

6. By custom: S.18

7. By transfer of the dominant heritage : S.19

8. By legislation

9. By the operation of the doctrine of acquiescence.

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INCIDENTS OF EASEMENTS : THE 11 RULES

The right of easement give certain incidental rights, duties,benefits etc, both to the dominant
owner and servient owner. The rules relating to such incidental rights are dominated by the
terms of such agreement entered between dominant and servient owner relating to servient
heritage. However such terms of agreement cannot affect incidents arising out of customary
easements.

The 11 rules governing the various incidents of easements as given in section 21 to 31 are as
follows-

Rule 1 -

An easement must not be used for any unconnected purpose ( Section 21)

Under Section 21, an easement must not be for any purpose not connected with enjoyment of
the dominant heritage.

Illustrations to Section 21:-

• A, as owner of a farm Y, has a right of way over B's land to Y. Lying beyond Y, A has
another farm,Z, the beneficial enjoyment of which is not necessary for the beneficial
enjoyment of Y. He must not use the easement for the purpose of passing to and from Z.

• A, as owner of certain house, has a right of way to and from it. For the purpose of passing to
and from the house,the right may be used, not only by A , but by the members of his
family,his guest,lodges, servants,workmen,visitors and customers for this a purpose
connected with the enjoyment of the dominant heritage. So,if A lets the house, he may use
the right of way for the purpose of collecting the rent and seeing that the house is kept in
repair.

The Bombay High Court has held that a right of drawing water from a well for domestic
purpose does not include a right to take water for building purposes.( Esubai v. Damodar,16
Bom.552)3

Rule 2-

3
Esubai v. Damodar,16 Bom.552 – N.H Jhabvala – The Indian Easements Act ( 2018 Edition)
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The dominant owner must exercise his rights in a mode which is least onerous to the servient
owner(Section 22)

When the exercise of an easement can, without detriment to the dominant owner, be confined
to a determinate part of the servient heritage, such exercise is, at the request of the servient
owner, to be so confined.

Illustrations to Section 22

• A has right of way over B's field. A must enter the way at either end, and not at any
intermediate point.

• A has a right and annexed to his house to cut thatching grass in B's swamp. A,when
exercising his easement must cut the grass so that the plants may not be destroyed.

Rule 3-

The dominant owner can alter the mode and place of enjoying the easement, if this does not
impose any additional burden on the servient heritage .( Section 23)

Subject to rule 2( discuss above) , the dominant owner can from time to time alter the mode
and place of enjoying the easement, provided that he does not thereby impose any additional
burden on the servient heritage.

The only exception to this rule is that the dominant owner of a right of way cannot vary his

line of passage at pleasure, even though he does not thereby impose any additional burden on
the servient heritage.

Illustrations to section 23-

• A, the owner of a saw mill has a right to flow of water sufficient to work the mill. He may
convert the saw mill into a corn mill, provided that it can be work by the same amount of
water.

• A, has a right to discharge on B's land, the rainwater from the eaves of A's house. This does
not entitle A to advance his eaves if, by so doing, he imposes a greater burden on B's land.

• A, as an owner of a paper mill acquires a right to pollute a stream by pouring in the refuse,
liquor produced by making in the mill paper from rags. He may pollute the stream by pouring
in similar liquor produced by making in the mill paper by a new process from bamboos,
provided that he does not substantially increase the amount, or injuriously change the nature
of, the pollution.
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• Applying Section 23 it has been held that a person having a right of support to his beams
from his neighbour's wall has no right to alter the position of the beams in another part of the
neighbour's wall.

Rule 4-

The dominant owner may do all necessary acts to secure the full enjoyment of the easement,
but with as little inconvenience to the servient owner as possible. (Accessory Rights)
(Section 24)

Under Section 24, the dominant owner is entitled, as against the servient owner, to do all acts
necessary to secure the full enjoyment of the easement. However, such acts must be done at
such time and in such manner as, without detriment to the dominant owner, to cause the
servient owner as little inconvenience as possible. Also, the dominant owner must repair as
far as practicable, the damage caused by his acts to the servant heritage.

It may be noted that rights to do acts necessary to secure the full enjoyment of an easement
are called Accessory Rights.

Illustrations to section 24.

• A, as owner of certain house, has a right of way over B's land. The way is out of repair, or a
tree is blown and falls across it. A may enter on B's land and repair the way or remove the
tree from it.

• A, as owner of a certain field, has a

• right of way over B's field. A may remove rocks to make the way.

• A has an easement of support from B's wall. The wall gives way. A may enter on B's land
and repair the wall.

Section 24 defines "accessory rights" i.e rights which are incidental to an easement to which
they are accessory. They are sometimes called accessory,ancillary or secondary easements.
An accessory right is a right to do all the acts necessary to secure full enjoyment of an
easement.4

4
Accessory rights definition – https://www.legalcrystal.com/dictionary/definition/89188/accessory-right
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As observed In re Rao Nihal Karan, (AIR 1958 MP 341)5, Section 24 of the Act entitles a
dominant owner to do all the act that a necessary to secure the full enjoyment of the
easments. As the above illustrations show, the acts contemplated must be such as a necessary
to secure the full enjoyment of an easement properly belonging to him. If such dominant
owner causes any damage to the servient heritage, as might perhaps happen in the case of
repairing an underground pipeline, he must make good the damage.

The Madras High Court has held that a person has an easement to project the roof of his
house over the land of his neighbour, he also has the right to go on neighbour's land for the
purpose of preparing the roof. The Bombay High Court has however refused to follow the
Madras decision, adding that the doctrine of accessory right should be interpreted within its
narrow limits and that of the Madras case was followed, it would impose an unjust burden on
the servant heritage.

Rule 5-

The expenses necessary for the use of reservation of an easement must be borne by the
dominant owner. (Section 25).

Under this rule, the expenses incurred in constructing works, or making repairs, or doing any
other act necessary for the use or preservation of an easement must be defrayed by the
dominant owner.

Thus, in a case of the Bombay High Court, where the dominant owner of the first floor
repaired the ground floor to sustain the easement of support, the dominant owner was ordered
to bear the expenses. (Faidali v. Akbar Ali 41 B.L.R 387)6

Rule 6-

The dominant owner must pay compensation for any damage to the servient heritage arising
from want of repair. (Section 26)

Under Section 26, where an easement is enjoyed by means of an artificial work, the dominant
owner is liable to pay compensation for any damage to the servant heritage arising from the
want of repair of such work.

5
Re Rao Nihal Karan, (AIR 1958 MP 341) – https://indiankanoon.org/doc/249599/

6
Faidali v. Akbar Ali 41 B.L.R 387- N.H Jhabvala (2018 edition)
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Thus, it has been held that a man who carries water by means of an conduit pipe through his
neighbours land must keep the pipe in a repaired state. (John v. Pritchard, 1908 1 Ch. D.
630)7

Rule 7-

The servant owner is not bound to do anything for the benefit of the dominant heritage.
(Section 27)

S.27 provides that the servient owner is not bound to do anything for the benefit of the
dominant heritage, and he is entitled as against the dominant owner, to use the servant
heritage in any way consistent with the enjoyment of easement; but he must not do any act
tending to restrict the easement or to render it's exercise less convenient.

Illustration to S.27-

• A, the owner of a house, has a right to lead water through the B's land. B is not bound, as
servient owner to clear the water course or scour the sewer.

• A grants a right of way through his land to B as owner of a field. A may feed his cattle on
grass growing on the way, provided that B's right-of-way is not thereby obstructed; but he
must not build a wall at the end of his land so as to render the exercise of the right less easy
than it was at the date of the grant.

• A, in respect of his house is entitled to a certain quantity of light passing over B's land. B
must not plant trees so as to obstruct the passage to A's windows of that quantity of light.

Rule 8-

Easement are to be enjoyed to the extent provided for in section 28. With respect to the extent
of easement and the mode of the enjoyment the following sub rules are provided for in
(section 28).

Easement of necessity-

An easement of necessity is coextensive with the necessity as it existed when the easement
was imposed.

Other easements-

7
John v. Pritchard, 1908 1 Ch.D 630 – N.H Jhabvala (2018 Edition)
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The extent of any other easement and the mode of its enjoyment must be fixed with reference
to the probable intention of the parties and the purpose for which the right was imposed or
acquired.

In the absence of evidence as to such intention and purpose the following rules apply:

1. Right of way- a right of way of any one kind does not include a right of way of any other
kind.

2. Right to light or air acquired by grant- The extent of a right to the passage of light or to
a certain window door opening imposed by a testamentary or non testamentary instrument, is
the quantity of light or air that entered the opening at the time the testator died or the non
testamentary instrument was made.

3. Prescriptive right to light or air- the extent of a prescriptive right to the passage of light
or air to a certain window, door or other opening is that the quantity of light or air which has
accustomed to enter that opening during the whole of the prescriptive period, irrespective of
the purpose for which it has been used.

4. Prescriptive rights to pollute air or water- the extent of prescriptive right to pollute air
water is the extent of the pollution at the commencement of the period of user on completion
of which the right arose

5. Other prescriptive rights- the extent of every other prescriptive right and the mode of
enjoyment must be determined by the accustomed user of the right.

Rule 9-

The dominant owner can not substantially increase an easement.( Section 29)

S.29 provides that the dominant owner cannot by merely altering or adding to the dominant
heritage, substantially increase an easement

Where an easement has been granted or be created so that its extent is to be proportional to
the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the
easement is proportionately increased; and if a dominant heritage is diminished by the
dilvion, the easement is proportionally diminished.

Illustrations to S.29-

1. A, the owner of a mill, has acquired a prescriptive right to divert to his mill, part of the
water of a steam. A alters the machinery of his mill. He cannot thereby increase his right to
divert water.
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2. A, as the owner of a farm, has a right to take, for the purpose of manuring in his farm,
leaves which have fallen from the trees on B's land. A buys a field and unites it to his farm. A
is not thereby entitled to take leaves to manure this field after it has been united to his farm.

Rule 10-

When a dominant heritage is divided, the easement becomes annexed to each of the shares.
(Section 30)

Under section 30, a dominant heritage is divided between two or more persons, the easement
becomes annexed to each of the shares, but not so as to increase substantially the burden on
the servant heritage. In all such cases, however, such annexation should be consistent with
the terms of the instrument, decree or revenue proceeding under which the division was
made, and in the case of prescriptive rights, with the user during the prescriptive period.

Illustrations to S.30

1. A house to which a right of way by particular part is annexed is divided into two parts, one
of which is granted to A, the other to B. Each is entitled, in respect of his part, to a right of
way by the same path.

2. A, having in respect of his house and easement of light, divides the house into three
distinct heritages. Each of these continue to have the right to have its windows unobstructed.

Rule 11-

In case of excessive user of an easement, the servant owner can obstruct the user on the
servient heritage. (Section 31)

S.31 provides that in the case of excessive user of an easement, the servient owner may,
without prejudice to any other remedies to which he may be and entitled, obstruct the user,
but only on the servient heritage. However, such user cannot be obstructed when extraction
would interfere with the lawful enjoyment of the easement.

Illustration to S.31

A, having a right to the free passage over B's land of right to four windows, each measuring
six feet by four, increases their size and number. It is impossible to obstruct the passages of
the new windows without also obstructing the passage of light to ancient windows. B cannot
obstruct the excessive user.
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CONCLUSION

The right of easement is as old as the day when the human race, first emerging from
barbarism, adopted the custom of living together in towns, or living as each other's
neighbours, or respecting each other's right. The right of easement is a necessary consequence
of the right of ownership of immovable property. As soon as mankind arrived at the
determination that individuals are allowed exclusive ownership of the property, the very next
step was concurrence in the equitable principle that the good of public lay in enjoying one's
own property, so as not to disturb the enjoyment by one's neighbour of his own property. This
statutory principal appeared to be original foundation on which easements are based.

In India, before the British rule there was no uniform well defined body of law relating to
easements. No doubt there were a references, here and there, tour right a way or to a right to
light through a window, but these rules deferred from locality to locality, and were not
uniform even in one given locality. The British, therefore, sought to apply the English
common law of easements to cases arising in India. The decisions of English judges were
based on the footing that since there was no uniform local law of easements in India, they
were justified and borrowing the common law of England, as the same was based on justice,
equality and good conscience.

BIBILOGRAPHY

1. An overview : Law of Easements in India - https://blog.ipleaders.in/an-overview-

law-of-easements-in-india/#:~:text=The%20concept%20of%20easement
%20has,beneficial%20enjoyment%20of%20the%20land.
2. T. R Desai – The Indian Easements Act, 1882 ( 2018 Edition)
3. www.indiankanoon.com
4. https://www.academia.edu/33883770/THE_INDIAN_EASEMENTS_ACT_1882
5. N.H Jhabvala – The Indian Easements Act,1882 (2018 edition)