GAYA 824236

SCHOOL OF LAW AND GOVERNANCE

Project Work on the topic-

Easement and Easementary Rights

Date of Submission- 21st April, 2021

Submitted to – Dr. Pallavi Singh

Assistant Professor,

School of Law and Governance,

Central University of South Bihar

Submitted by-

Chetan Kumar

Semester- VI, Section- „B‟

B.A. LL.B. (2018-23)

E. No. - CUSB1813125028.

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 ACKNOWLEDGMENT

I owe the sense of deep gratitude towards my Almighty God for showing his blessings
throughout the completion of this project in this difficult situation of COVID-19 pandemic.

I take extreme pleasure in expressing my profound gratitude towards my professor

Dr. Pallavi Singh (Assistant Professor, Law), for her guidance and constant support during
the completion of this project.

I would also extend my gratitude towards my family, friends and colleagues who have helped
me a lot with their abilities. This research would have been impossible without the support of
above mentioned peoples.

TABLE OF CONTENTS

Topics Page No.

1. Abstract--------------------------------------------------------------------------------------- 03
2. Introduction---------------------------------------------------------------------------------- 03
3. Historical Background---------------------------------------------------------------------- 03
4. Dominant and Servient Heritage---------------------------------------------------------- 04
5. Requirement of Valid Easement---------------------------------------------------------- 05
6. Imposition, Acquisition and Transfer of Easement------------------------------------- 06
6.1 Imposition of Easement---------------------------------------------------------------- 07
6.2 Acquisition of Easement--------------------------------------------------------------- 08
6.3 Easement of Necessity and Quasi Easement---------------------------------------- 09
6.4 Customary Easement------------------------------------------------------------------- 10
6.5 Transfer of Easement------------------------------------------------------------------- 10
7. Extinction, Suspension and Revival of Easement--------------------------------------- 10
7.1 Extinction of Easement----------------------------------------------------------------- 11
7.2 Suspension of Easement---------------------------------------------------------------- 13
7.3 Revival of Easement-------------------------------------------------------------------- 13
8. Conclusion------------------------------------------------------------------------------------ 14
9. Bibliography---------------------------------------------------------------------------------- 15

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 EASEMENT AND EASMENTARY RIGHTS

1. ABSTRACT:

The Easement Act, 1882 has been enacted to define and amend the law relating to Easements
and Licenses. The author in this project has dealt about Easement only. The author has
primarily explained about meaning and nature of easement, imposition, acquisition and
transfer of easement, extinction, suspension and revival of easement and at last the author has
concluded the topic. This project tends to expound the provisions related to the above stated
topics in easy and simple words.

Keywords: Easements, land, rights, property, dominant, servient, heritage, Act, etc.

2. INTRODUCTION:

The term „easement‟ has been derived from the Latin word „aisementum‟ which means
“comfort, convenience or privilege”. Easement is a legal right in which the owner of a
property is entitled to use such property not his own. In simple words, it refers to the
right which a man sometimes has over one piece of land by reason of his ownership of
another. Easement is defined in Section 4 of The Indian Easements Act, 18821 (hereinafter
referred to as Act). According to the provision of Section 4 of the Act “an easement 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 own”. In
Metropolitan Railways Co. v. Fowler2, Lord Esher MR defined the term easement as “an
easement is some right which a person has over land which is not his own”.

3. HISTORICAL BACKGROUND:

The origin of right of easement can be traced from early days of mankind. When people
started living together, the concept of ownership of immovable property originated and then,
the right of easement has emerged as the consequence of right of ownership of immovable
property. The earlier traces of easement can be seen in Halhed Gentoo Code, the translation
of ancient Hindu laws from Sanskrit into Persian by Brahmin scholars, under the direction of
then Governor General Warren Hastings during 1773-75. The provisions of this code states

1
Act No. 5 of 1882.
2
[1892] 1 QB 165.

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that the person has right of easement with respect to his privacy, light, air and passage to
discharge the water3.

In Roman law, the notion of easement was understood as an umbrella term called as
‘servitudes’. According to Merriam Webster Dictionary, servitude means a right by which
something (such as a piece of land) owned by one person is subject to a specified use or
enjoyment by another. Servitudes can be bifurcated into two categories, namely, Rural
Servitudes and Urban Servitudes.

In India, the right of easement existed, even before British era, in one form or another. During
the British Period, this concept developed according to English principles. However, the first
enactment which recognised the right of easement in India is the Limitation Act of 1871. This
Act was later replaced by the Limitation Act of 1877. As the civilization grew and
development took place, finally, The Indian Easements Act, 1882 was passed which repeals
all the previous enactments. This Act also corrected the glaring lacunas in the previous
enactments.

4. DOMINANT AND SERVIENT HERITAGE:

The existence of two properties is necessary for the enjoyment for the right of easement i.e.
Dominant and Servient Heritage. The landowner who will benefit from the property which is
not his own and over which he has a right is called dominant heritage and the owner of
dominant heritage is called dominant owner. The land on which the liability is imposed is
servient heritage and the owner/occupier of it is called servient owner. The dominant and
servient heritage cannot be one4.

The Servient owner cannot object the dominant owner for the enjoyment of his property. It is
immaterial that whether servient owner likes it or not, he has to abide by the rules and
requirements of the dominant owner. Servient owner cannot do anything to his land which
adversely affects the dominant owner. The servient owner cannot alienate his land separately.
However, the dominant owner has the responsibility to preserve the easement while
exercising his right over the servient heritage.

3
Karthik Shiva, Law of Easements : A Brief Overview of the Indian Easements Act, 1882, academia.edu (April
10th 2021, 08:00 PM)
https://www.academia.edu/23567468/Law_of_Easements_A_Brief_Overview_of_the_Indian_Easements_Act_
1882.
4
Diva Rai, An Overview: Law of Easements in India, IPLEADERS, (April 11th 2021, 06:00 AM)
https://blog.ipleaders.in/an-overview-law-of-easements-in-india/.

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The servient owner is not obligated to do any act for the beneficial enjoyment of the
dominant owner. He is not liable to construct a path or do repair works in case of damage to
the path. He is free to use the servient heritage in any manner which he likes. The only
requirement is that it should not hinder the enjoyment of dominant heritage.

The concept of easement and dominant and servient heritage can be understood with the help
of this figure. In the figure, PQRS is the dominant heritage and RSTU is servient heritage.
„A‟, the owner of the house, is dominant owner and „B‟ is the servient owner. Here, „A‟ has
the right of easement over B‟s property to reach the main road which is necessary for the
beneficial enjoyment of the dominant heritage. „B‟ is bound to give the way to „A‟.

5. REQUIREMENTS OF VALID EASEMENT:

In the case of Re Ellenborough Park5, Sir Raymond Evershed MR, stated four essential
requirement for the valid easement:-

i. Dominant and Servient Heritage-

There must be dominant and servient heritage i.e. two plots of land because as per the
definition it is the right exercised by one person (dominant owner) for the beneficial
enjoyment of his property over the land of some other person (servient owner) Dominant and
servient heritage cannot be one.

ii. Separate Owners-

5
[1955] 3 All ER 667.

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The dominant and servient property or land both must be owned and occupied by the
different persons.

iii. The right must accommodate the dominant heritage-

Accommodation means the right give the benefit to the dominant heritage rather than a
mere personal benefit to the dominant owner. In Moody v. Steggles6, there was a claim that
the dominant owner wanted to have the right to right to advertise his pub by hanging a sign
board (which shows direction to the pub) on X‟s house (servient heritage). The court held that
dominant owner has right to hang the sign board bearing its name on X‟s premises
accommodated the dominant heritage and not just the business.

In Hill v. Tupper7, the dominant heritage was situated beside a canal (servient heritage). He
claimed that his right to operate boats on canal amounts to his right of easement. However the
court rejected his contention and held that his right to operate boats on the canal did not
accommodate the dominant heritage but instead gives merely a personal benefit to him.

iv. Right is capable of forming subject matter of grant-

This sub-rule states that any right which is only recreational in nature is not an easement.
This sub-rule comprises of many rules like the easement should not be such that it deprives
the servient owner of his possession or ownership of his land, the right of easement must not
be expressed in terms which are too wide/vague, etc8.

In India, there are two more essentials to create a valid easement, firstly, the easement must
be for the beneficial enjoyment of the dominant heritage and secondly, the easement shall
entitle the dominant owner to do or continue something or to prevent or continue to prevent
something in respect of servient heritage. This was held in the case of C. Mohammed v.
Ananthachari9.

6. IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENT:

Chapter II of the Act deals with Imposition, Acquisition and Transfers of easements. The
provisions related to imposition of Easement have been dealt in Sections 8 to 11 of the Act.

6
[1879] 12 Ch D 261.
7
(1963) 2 H & C 121.
8
Easements: The right is capable of forming the subject-matter of a grant, DIGESTABLE NOTES (April 11th
2020, 10:00 AM) https://digestiblenotes.com/law/land/content_requirements.php.
9
AIR 1988 Ker 298.

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Acquisition of Easement has been incorporated in Section 12, 15, 16 and 17 of the Act of the
Act. Sections 13 and 14 talk about necessary and quasi easements. Section 18 deals with
customary easement. Transfer of easement is dealt in Section 19. All these provisions have
been dealt in detailed manner.

6.1 Imposition of Easements:

The provisions stated under sections 8 to 11 of Chapter II of the Act deals with imposition of
easements. Section 8 states that any person who has right over the property can impose an
easement over the property to the extent of his right to transfer that property. In simple words,
if a property is owned, possessed or occupied by someone and that right gives him the power
to transfer that property or part of the property then he can also impose easement on that
property till the time that his transferrable rights on the property or part of the property exists.
Eg- A is a tenant in B‟s property for 20 years. A has power to sublet the property. A can
impose easement until his own right as tenant exist. The easement will comes to an end as
soon as A‟s right of tenant ceases to exist. So, the golden rule is that ‘if you can transfer,
you can impose’.

Section 9 talks about the limitation on imposing easement as a servient owner. It talks about a
scenario when there is an easement already imposed on a certain land and the servient owner
(i.e. the owner of that land) wants to impose another easement on that land in favour of
another person. He can do that. But he needs to make sure that this new imposition does not
in any way lessen the utility or hamper the previous easement in any way. If it does he needs
to inform the dominant owner of the previous easement and take his consent.

Section 10 talks about the imposition of easement by lessor and mortgage. The lessor and
mortgagor can impose the easement on the property even when the property is under lease or
mortgage. The reason behind this is that a lessor or a mortgagor has the right to transfer the
property and by the virtue of this they get the right to impose the easement. But they have to
make sure that such imposition in no way derogates the rights of lessee or mortgagee. If it
does then they have to take consent from them. However under mortgage, mortgagor has to
make sure that such imposition in no way reduces the value of the security to an extent that it
becomes insufficient with respect to whatever amount mortgagee owe to mortgagor. If it does
then mortgagor needs consent from mortgagee.

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Section 11 talks about the imposition of easement by the lessee. A lessee can impose the
easement in the property provided that his rights are transferrable in nature. Such imposition
in no way derogates the rights of lessor of that property or the superior proprietor of the
property. Such easement comes to an end with the ending of the right of lessee over that
property.

6.2 Acquisition of easements:

Section 12 talks about who can acquire an easement. An easement right can be acquired by
the owner or the occupier of the property for the beneficial enjoyment of which the easement
is granted. Eg- the easement right to take water is granted by the owner of property A for the
beneficial enjoyment of property B. Now, the owner of property B or such person who is
currently in possession of property B shall acquire that right. If the owners of the dominant
heritage are more than one, then, any one of them can acquire the easement right with or
without the consent of the other parties. A lessee cannot for the beneficial enjoyment of his
own property acquire an easement on his leased property10.

 Acquisition by Prescription [S. 15]:

If someone enjoys an easement right for 20 years continuously and without any interruption
he acquires absolute and enforceable right over the easement. Explanations of this section
states that if the right is being enjoyed as a result of the contract between the dominant and
servient owner and in that contract it is mentioned that such right is not granted as an
easement or if granted as easement it is granted for a limited period, then, such a right can
never be acquired by prescription.

 Exclusion in favour of reversioner of servient heritage [S. 16]:

A reversioner is a person in favour of whom an interest in the property is created and after
such interest is over the property reverts back to the original owner or in his absence to his
legal heirs. Suppose the property of X is the subject of an easement right. Now, X created
life interest in favour of Y in that property and after Y‟s death, the property will revert back
to X. So, according to section 16, the period for which the property remains with Y, is
excluded from the calculation of time period of continuous and uninterrupted uses of that

10
Poorvaja Raghupathy, Modes of acquisition of Easement, LAWyersclubindia, (April 13th 2021, 7:00 PM)
https://www.lawyersclubindia.com/articles/modes-of-acquisition-of-easement-
7790.asp#:~:text=Modes%20of%20acquisition%20of%20easements%3A&text=Express%20grant,Acquisition
%20by%20prescription.

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particular easement right for which the property was the subject. In this example, the
enjoyment by Y must be the period at least three years for the exclusion to take effect.

 Rights which cannot be acquired by prescription [S. 17]:

Section 17 provides some easements that can never be acquired by prescription don‟t matter
for how long they have enjoyed continuously and uninterruptedly.

a) If the easement right causes or can cause total destruction of the easement right then
that kind of easement can never be acquired by easement.
b) Easement right of free passage of light and air to an open ground can never be
acquired by easement.
c) The right to use free flowing water not flowing to a particular stream or collected in
any place permanently or right to use underground water not flowing to a particular
channel can never be acquired as easement.

6.3 Easement of Necessity and Quasi Easement [S.13]:

Section 13 talks about easement of necessity and quasi easement. If an immovable property is
transferred and the easement right is absolutely necessary on another immoveable property of
the transferor without which the transferred property will not be enjoyable at all, then the
transferee shall be entitled to such easement. Similarly, if the transferor, transfers the piece of
immovable property to another person on whom the easement is absolutely necessary for the
beneficial enjoyment of another property of the transferor, the transferor will be entitled to
such easement. After partition if the easement is absolutely necessary on the share of one of
them for enjoyment of share of another of them, then the later will be entitled to such
easement.

In the leading case of Hero Vinoth v. Seshammal11, it was held that an easement would last
only as long as the absolute necessity existed and a legal extinction could not apply to an
acquisition by grant. If a right of way was provided to a particular dominant owner, it could
not be extinguished merely because such owner had other alternative way12.

11
MANU/SC/2774/2006.
12
Shivanand Singh, India: A glance over Easementary Rights, MONDAQ.COM, (April 14th 2021 10:30 PM)
https://www.mondaq.com/india/land-law-agriculture/227658/a-glance-over-the-easementary-rights.

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If an apparent13 or continuous easement14 is necessary for enjoying the transferred property
the same way as it was being enjoyed when it was transferred, then the transferee shall be
entitled to such an easement. When an apparent or continuous easement is necessary on the
transferred property to enjoy another property as it was being enjoyed at the time of the
transfer, then the transferor shall be entitled to such easement. If the easement is apparent or
continuous, the easement must be kept in the same way, in the same position to enjoy the
piece of land as it was being enjoyed at the time of the partition.

Section 14 basically says that the servient owner has the right to set out the path for the
dominant owner to use in case of the right to way, provided that it should be convenient to
dominant owner(s). Failing to which, entitle the dominant owner(s) to set out the convenient
path for themselves to take through servient heritage to get access to their property15.

6.4 Easement acquired by custom [S. 18]:

An easement many be acquired by the virtue of local custom. Such custom is called
customary easement. Suppose it is the custom of the particular village that all the cultivators
of that village graze their cattles in the particular pastures. Then, A buys a plot of land in that
village. Now, by means of custom A will acquire the easement right to graze his cattle on that
particular pasture.

6.5 Transfer of easement [S. 19]:

When the dominant heritage is transferred by sale, gift or operation by any means the
easement right linked to that dominant heritage is also passed to the new owner. Therefore,
the easement right is not a personal right but it is a right which is enjoyed by the virtue of
being the legal owner of the dominant heritage.

7. EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS:

The provisions related to extinction, suspension and revival of easement is dealt in Chapter V
of the Act. The extinction of easement is dealt in Sections 37 to 47 of the Act. Section 49 and
51 of the Act incorporates the provisions related to suspension and revival of easements
respectively.

13
An apparent easement is an easement which is visible. A neutral person just by seeing the scenario can
understand the existence of easement.
14
Easement that exists without any human interference is continuous easement.
15
Supra Note 4.

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 7.1 Extinction of Easements:

Sections 37 to 47 of the Indian Easement Act, 1882 provides for the manner of extinction of
Easements:-

Dissolution of right of servient owner [S. 37]-

When the right of the servient owner over the servient heritage ceases to exist because of a
cause which preceeds the time period of the imposition of the easement right any easement
right that has been imposed on the particular property by the servient owner will also ceases
to exist. However, there in one exception that when a property is sold as a part of mortgage
deed and the easement right is imposed by the mortgagor as per the provisions of the section
10 in that case the easement right will not cease to exist16.

By release [S. 38]-

When the dominant owner emancipates the easement in favour of servient owner, then the
rights of easement is extinguished. Such release may be express or implied made. Eg- A
(dominant owner) has right to drainage through B‟s yard (servient owner). A authorises B to
build the wall on his premises to such a height that it blocks the drainage. B builds it, the
easementary right of A ceases to exist.

By revocation [S. 39]-

An easement is extinguished when the servient owner, in exercise of a power reserved in this
behalf, revokes the easement.

Expiry of time or happening of event [S. 40]-

When the easement existed for a specified period or where the existence of easement depends
upon the happening of some event, the after such specified time period or after happening on
such event, the right of easement shall extinguish.

Termination of necessity [S. 41]

16
Akash Bunial, INDIAN EASEMENT ACT, 1882|EXTINCTION OF EASEMENT | Section 37, 38, 39, 40 &
41(English)|Lawve it!, YOUTUBE.COM (April 15th 2021, 10:04 AM) https://youtu.be/Eiu66mkFKRg.

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When the necessity comes to an end, the easement also ceases to exist. Eg- A uses B‟s
premises to reach main road. Afterwards, A purchased a part of B‟s land. The necessity
comes to an end so the easement also terminates.

Useless Easement [S. 42]-

An easement is extinguished when it becomes useless or incapable of being beneficial at any

time or under any circumstances to the dominant owner, then the easement ends.

Permanent Change in Dominant Heritage [S. 43]-

When there is a permanent change in the dominant heritage and it increases burden on the
servient heritage, then the easement stands terminated. Eg- The dominant owner has right of
way through servient heritage. In an earthquake, the dominant heritage is cut off, the right of
easement ceases to exist.

Permanent alteration in servient heritage by the superior force [S. 44]-

The easement ceases to exist when it is permanently altered by the superior force in such
manner that the dominant owner could no longer enjoy the easement. If the right of way is
also destroyed by the superior force, then, the dominant owner is entitled to his right of way
over the servient heritage.

By destruction of either heritage [S. 45]-

After the destruction of either heritage, the easement terminated as existence of two
properties is one of the essentials of a valid easement.

By unity of ownership [S. 46]-

The easement ends when the owner of both dominant and servient heritage is one person as
separate ownership is one of the essentials of a valid easement. Eg- A, as the owner of a
house has a right of way over B‟s field. A mortgages his house, and B mortgages his field to
C. Then C forecloses both mortgages and becomes thereby absolute owner of both house and
field. The right of way is extinguished17.

By non-enjoyment [S. 47]-

17
Illustration (a) of Section 46, The Indian Easement Act, 1882.

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If an easement is not enjoyed by the dominant owner for the continuous period of 20 years
then the easements ceases to exist. If the dominant owner registers a declaration under Indian
Registration Act, 187718 (Act No 3 of 1877) showing his intention to retain the easement,
then such easement shall not be terminated until 20 years elapse from the date of such
declaration.

The provision of section 48 of the Act states that if any easement is extinguished then all
other rights which are accessory to it also ceases to exist.

7.2 Suspension of Easement [S. 49]:

When the dominant owner becomes entitled to the possession of the servient heritage even
for the limited interest or when the servient owner becomes entitled to the possession of the
dominant heritage even for the limited interest, the easement is suspended19. Eg- A, the
dominant owner, has right of way over B‟s land (servient heritage). Afterwards A takes B‟s
land on rent, then, A becomes the occupier of B‟s land. In such scenario, the easement is
suspended. In nutshell, it can be said that if the dominant and servient owner become one
person, then, the easement is suspended.

7.3 Revival of Easement [S. 51]:

Section 51 of the Act provides for the revival of easements. This section mentions the
conditions when the easements can be revived.

i. It states that when the easement is extinguished by the destruction of either of the
heritages (Sec. 45), then the easement shall be revived when the destroyed heritage
will be restored before the expiry of 20 years or where the dominant building is
destroyed, it will be rebuild before the expiry of 20 years.
ii. When the easement is extinguished by the unity of ownership (Sec. 46), the easement
shall be revived when the transaction where the unity of ownership was produced is
set aside by the decree of the court of law or when the unity of ownership ceases to
exist due to any other cause.
iii. If the easement is extinguished due to any other cause, then the easement can be
revived only when the cause of it is removed before the right is extinguished under
section 47 of the Act (i.e. before 20 years).

18
Now the Registration Act, 1908 (Act No. 16 of 1908).
19
Section 49, The Indian Easement Act, 1882.

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 8. CONCLUSION:

The concept of easement is as old as the concept of property itself. Section 4 of the Easement
Act defines the term „easement‟. Easement is such right which the owner of the property
enjoys over the property which is not his own for the beneficial enjoyment of his own
property. The roots of the easement have traces since the beginning of the human civilization.

The laws of easement are necessary to tackle the modern problems related to property and to
maintain peace and harmony in the society. The importance of the concept of easement can
be seen in the case of landlocked piece of land. A landlocked piece of land is not accessible
without trespassing in other person‟s property. Therefore, an easement is absolutely
necessary in such situations.

Chapter II of the Easement Act also deals with imposition, acquisition and transfer of
easements. Impositions means how and when the easement can be created. Acquisition talks
about how an easement can be acquired while transfer of easement states that when the
dominant heritage is alienated, servient heritage is also deemed to be alienated. In other
words, servient heritage cannot be sold separately from dominant heritage.

Furthermore, Chapter V the Easement Act provides provisions for extinction, suspension and
revival of the easement. Sections 37 to 47 of the Act deals with extinction of easement. It
states the manners in which the easement ceases to exist. Section 49 and 51 of the Easement
Act deals with suspension of easement and revival of easement respectively.

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 9. BIBLIOGRAPHY:

Articles

 “Law of Easements: A Brief Overview of the Indian Easements Act, 1882” by

Karthik Shiva
https://www.academia.edu/23567468/Law_of_Easements_A_Brief_Overview_of_the
_Indian_Easements_Act_1882.
 “India: A glance over Easementary Rights” by Shivanand Singh,
https://www.mondaq.com/india/land-law-agriculture/227658/a-glance-over-the-
easementary-rights .
 “Modes of acquisition of Easement” by Poorvaja Raghupathy
https://www.lawyersclubindia.com/articles/modes-of-acquisition-of-easement-
7790.asp#:~:text=Modes%20of%20acquisition%20of%20easements%3A&text=Expr
ess%20grant,Acquisition%20by%20prescription.
 “Easements: The right is capable of forming the subject-matter of a grant” at
Digestible Notes, https://digestiblenotes.com/law/land/content_requirements.php.
 The Indian Easements Act, 1882, https://legislative.gov.in/sites/default/files/A1882-
05.pdf.
 “Law of Easements: A brief overview of the Indian Easements Act, 1882” by Anurag
Kandu.

Internet Sources

 www.manupatrafast.com
 www.mondaq.com
 www.digestablenotes.com
 www.academia.edu
 www.lawyersclubindia.com
 https://legislative.gov.in/
 www.youtube.com
 www.lawfinderlive.com

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