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Chapter 9: Easements:

9.1
Definition: 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 which is not his own.

9.2 Dominant and Servient Heritages and Owners:

1. The land for the beneficial enjoyment of which the right exists is called the Dominant
Heritage, and the owner or occupier thereof is called the Dominant Owner.
2. The land on which the liability is imposed is called the Servient Heritage, and the owner or
occupier thereof is called the Servient Owner.

Explanation

1. The expression “land “also includes things permanently attached to the earth.
2. The expression “beneficial enjoyment” includes also possible convenience, remote
advantage, and an amenity there-in.
3. The expression “to do something” includes removal (and appropriation) by the dominant
owner of entire or any part of the soil of the servient heritage or anything growing
thereon or subsisting thereon.

9.3 Easements is a burden a Servient Owner is forced to bear by

Grant
Custom
Prescription

1. Grant
An easement can be acquired by grant. The deed may be separate or the grant may be
included in a deed relating to the dominant heritage.

For example, X sells his land to Y and by the same deed he may grant a right of way to Y for
this land through another land of his.

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A grant is given by an agreement executed by a grantor in favor of a grantee for a

consideration (Money). The grant becomes effective when the grantee has the right to
enter upon the grantor's land.

2. Custom
Easement by virtue of custom is a legal right acquired by the power of law through
continuous use of a land over a long period of time.
Example: By the custom of a certain village every cultivator of a village land is entitled, as
such, to graze his cattle on a common pasture (“Gairan” in Marathi). A person X having
become the tenant of a plot of uncultivated land in the village starts cultivating that plot and
he thereby acquires an easement to graze his cattle in the common pasture in accordance
with this custom.

3. Prescription.
Prescription means getting a right by continuous assertion of the right, which has been in use
for a long period of time.

According to the Indian Easements Act, the inhabitants of a building enjoying the access and
use of air and light as a right continuously for over 20 years have the right to them without
any condition or restriction. So if an adjacent land owner were to plan a building that would
obstruct the light reception of any of such a Dominant Owner, the Dominant Owner could
prevent the construction of such a building by exercising his Easement Right.

9.4 Characteristics essential to an Easement

The following six characteristics are essential for an Easement. (a)
There must be a dominant and servient tenement.
(b) An easement must accommodate the dominant tenement.
(c) The rights of easement must be possessed for the beneficial enjoyment of the dominant
tenement.
(d) Dominant and servient owners must be different persons.
(e) The right should entitle the dominant owners to do and continue to do something or to
prevent and continue to prevent something being done, in or upon, or in respect of, the
servient tenement.
(f) The something must be of a certain or well defined character and be capable of forming
the subject matter of a grant.

Herein I will discuss two easements

• Right to Access of Light • Right to Access of Air

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9.5 RIGHT TO ACCESS OF LIGHT

By common law the owner of land has no right to light. Anyone may build up his own land
regardless of the fact that his doing so involves an interference with the light which would
otherwise reach the land and building of another person
The right to light is nothing more or less than the right to prevent the owner or occupier of an
adjoining tenement from constructing or placing on his own land anything which has the
effect of illegally obstructing or obscuring the light of the dominant tenement. It is in truth no
more than a right to be protected against a particular form of nuisance. However an action
in a court for the obstruction of light which has in fact been used and enjoyed for twenty
years without interruption or without written consent cannot be sustained unless the
obstruction amounts to an actionable nuisance. This light enjoyed for twenty years is called
Ancient Light.
An owner of ancient light is entitled to sufficient light, according to the ordinary notions of
mankind, for the comfortable use and enjoyment of his house as a dwelling-house, if it is a
dwelling, or for the beneficial use and occupation of the house, if it is a warehouse, a shop, or
other place of business.
The right of light is an easement and may be acquired as follows,

a) By grant

b) By prescription. The dominant owner does not by his easement obtain a right to all the
light he has enjoyed. He obtains a right to so much of it as will suffice for the ordinary
purposes of inhabitancy or business according to the ordinary notions of mankind, having
regard to the locality and surroundings.

c) By reservation on the sale of the servient tenement. If a vendor of land desires to reserve
any right in the nature of easement for the benefit of his adjacent land which he is not
parting with, he must do it by express words in the deed of conveyance, except in the case
of easement of necessity.

1. Nature of Easement of light

The easement of light is a negative easement or a species of negative easement and may be
defined as a right which a person may acquire, as the owner or occupier of a building with
windows or apertures, to prevent the owner or occupier of an adjoining piece of land from a
building or placing upon the latter’s land anything which has the effect of “illegally”
obstructing or obscuring the light coming to the building of the owner of the easement.

2. Extent of easement of light

An easement of light does not consist of a right to have a continuance of all the light which
has previously come to the window of the dominant tenement.

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The rule that the easement of light does not give to the dominant owner a right to all the
light coming to the window of the dominant tenement applies whether the easement is
based upon the doctrine of prescription at common law or is claimed under the provisions of
the Prescription Act 1832. A nuisance is however committed by interference of light coming
to the dominant tenement if it results in a substantial privation of light sufficient to render
the occupation of the house uncomfortable and to prevent the owner from carrying on his
accustomed business as beneficially as he formerly did.

3. Indian Law
No damage suit is substantial unless it materially diminishes the value of the dominant
heritage, or interferes materially with physical comfort of the plaintiff, or prevents him from
carrying on his accustomed business in the dominant heritage as beneficially as he had done
previous to instituting the suit. In considering the sufficiency of light, the light coming from
other quarters should be considered. The extent of a prescriptive right to the passage of light
and air though a certain window is provided for by s. 28(c) of the Indian Easements Act. An
easement of light to a window only gives a right to have buildings that obstruct it removed so
as to allow the access of sufficient light to the window.

In cases of light, “Court ought not to interfere by way of injunction when obstruction of light
is very slight and where the injury sustained is trifling, except in rare and exceptional cases
and where, the defendant is doing an act which will render the plaintiff’s property absolutely
useless to him unless it is stopped in such a case, inasmuch as the only compensation, which
could be given to the plaintiff, would be to compel the defendant to purchase his property
out and out, the court will not in the exercise of its discretion compel the plaintiff to sell his
property to the defendants by refusing to grant him an injunction and awarding him damages
on that basis.

In some cases a mandatory injunction will also be granted. Court will grant such injunction
where a man, who has a right to light and air which is obstructed by his neighbor’s building,
brings his suit and applies for an injunction as soon as he can after the commencement of the
building, or after it has become apparent that the intended building will interfere with his
light and air. But the court should be satisfied that a substantial loss of comfort has been
caused and not a mere fanciful or visionary loss.

If plaintiff has not brought his suit or applied for an injunction at the earliest opportunity, and
has waited till the building has been finished, and then asks the Court to have it removed, a
mandatory injunction will not generally be granted.

9.6 RIGHT TO ACCESS OF AIR:

An owner or occupier of land or building has no natural right to free passage of air to his
tenement over adjoining open land. He has no natural right to prevent his neighbor from

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using his land in such a way as to obstruct that free passage air. A right to air through a
particular aperture in a house or building on the dominant tenement can be acquitted by
prescription as an easement or by express grant.

A right to the general passage of air not flowing in any defined channel may be the subject of
express grant or covenant, but is not capable of being claimed either by a prescription in
common law or by grant or under the Prescription Act 1832. Such claim is too vague and
indefinite to be recognized in law.

1. Indian Law
Access and use of air to and for any building may be acquired under the Indian
Easements Act if it has been peaceably enjoyed without interruption for twenty years. The
right to air is co-extensive with the right light. The owner of house cannot by prescription
claim to be entitled to the full and uninterrupted passage of a current of wind. He can claim
no more air than which is sufficient for sanitary purposes. There is no right as a right to the
uninterrupted flow of south breeze as such. There is no easement for free access of wind. In
this country a man who has enjoyed a right of air more or less pure and free will is reasonably
protected against any interference. The conditions here are different from those existing in
England, so far as air is concerned. In England more light is needed than here: whereas more
air is needed here than England.

2. Infringement of the right

The right to the purity of air is not violated unless it interferes materially with the ordinary
comfort of human existence. It is only in rare and special cases involving danger to health, or
at least something very nearly approaching it, that the Court would be justified interfering on
the ground of diminutions of air.
But under the Indian law where the easement disturbed is a right to the full passage of air to
the opening in a house, damage is substantial if it interferes materially with the physical
comfort of the plaintiff, though it is not injurious to his health. The Calcutta High Court has
held that obstruction in cases not governed by Easement Act must be such as to cause what
is technically called a nuisance to the house, in other words, to render the house unfit for
ordinary purposes of habitation or business.

9.7 Classification of Easements:

Let us first discuss a few examples and arrive at a conclusion whether these can be called
easements or not.

1. The owner “X” of a house when buying his piece of land from “Y” had included in his
agreement that he would have a right of way across Y’s land as he had no direct access to
his land. This is an Easement

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2. The same owner “X” also when purchasing his piece of Land from “Y” had included in the
agreement that he would take water for the purposes of his household from a well in Y’s
land. This is an Easement.
3. A owner of a plot “X” has been staying in a house built on a plot of land for 25 years and
now the owner of an adjacent plot wants to construct a building 5 floors and the side
margin is such that the natural light that would generally be illuminating the living room
of “X’s” House is depleted. X can exercise his easement right and go to court against the
construction of such a building. This action that may be taken must be within the time the
construction of the ground floor of the structure. This is an Easement
4. A dedicates the right to use a certain piece of his own land for the purposes of passing
through to go to some other place. As there is no specific dominant owner, there is no
easement right existing either. This is not an Easement.

a. Continuous and Discontinuous Easements.

A Continuous easement is one whose enjoyment is or may be continual without the act of
man.
A Discontinuous easement is one that needs the act of man for its enjoyment.
1. Right of Ancient Light is a Continuous Easement.
2. Right of Way is a Discontinuous Easement.

b. Positive and Negative Easements.

Right to Ancient Light is a Negative Easement in the sense that it prohibits the adjacent
Land Owner to build upon his land any structure that would hinder with this light. Right
to Way is a Positive Easement and is to be exercised as such

c. Apparent and Non Apparent Easements.

An Apparent Easement is one the existence of which is shown by some permanent sign,
which, upon careful inspection by a competent person, would be visible to him.
A non-apparent easement is one that has no such sign.

1. A is drawing water from a well in B’s Land by means of an underground aqueduct which
could become visible only to a person who is conversant with such matters on careful
inspection. This is an Apparent Easement.

2. A right annexed to A’s house to prevent B from building on his own land because that
affects his ancient light. This is a Non-Apparent easement.
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d. Customary Easements.

An easement may be acquired in virtue of a local custom. Such easements are called
Customary Easements.

Example: By the custom of a certain village every cultivator of village land is entitled, as such,
to graze his cattle on a common pasture. A person X having become the tenant of a plot of
uncultivated land in the village starts cultivating that plot and he thereby acquires an
easement to graze his cattle in the common pasture in accordance with this custom

e. Easement for limited time or on condition.

An easement may be permanent, or for a term of years or for other limited period, or subject
to periodical interruption, or exercisable only at a certain place, or at certain times, or
between certain hours, or for a particular purpose, or on condition that it shall commence or
become void or voidable on the happening of a specified event or the performance or
nonperformance of a specified Act.

f. Easement restrictive of certain rights. Easements are restrictions of one or the other of
the following rights (namely):
1. Right to enjoy exclusively -The exclusive right of every owner of an immovable property
(subject to any law for the time being in force) to enjoy and dispose of the same and all
products thereof and accessions thereto.
2. Rights to advantages arising from a situation. The right of every owner of immovable
property (subject to any law for the time being in force) to enjoy without disturbance by
another the natural advantages arising from its situation.

The rights above referred to are as follows.

a. The Right to construct upon your land restrictive to municipal bye laws.
b. The Right that air passing over your land is not polluted by others.
c. The Right that the physical comfort enjoyed while using your land is not interfered with
unreasonably by noise and pollution and vibration caused in another land by some other
persons
d. The Right to enjoy so much air and light as will pass from vertically above over your land.
e. The Right of your land in its natural conditions that shall have the support naturally
rendered by the subjacent and adjacent soil of another person.

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3. Right of every owner of Land of Water within his own limits which naturally passes or
percolates by, over or through your and shall not before so passing or percolating, be
unreasonably polluted by other persons.
4. Right of every owner of Land of Water to collect and dispose within his own limits of all
water under the land which does not pass in a defined channel and all water on its
surface which does not pass in a defined channel.
5. Right of every owner of Land of Water that the water of every natural stream which
passes by through or over his land in a defined natural channel shall be allowed by other
persons to flow within such owner’s limits without interruption and without material
changes in quantity, direction. force or temperature; The right of every owner of land
abutting on a natural lake or pond into or out of which a natural stream flows, that the
water of such lake or pond shall be allowed by other persons to remain within such
owner’s limits without material alteration in quantity or temperature.
6. Right of every owner of Upper Land that water naturally rising in, or falling on such land,
and not passing in defined channels, shall be allowed by the owner of adjacent lower land
to run naturally thereto.
7. Right of every owner of Land abutting on a Natural Stream, lake or pond to use and
consume its water for drinking, household purposes and watering his cattle and sheep:
and right of every such owner to use and consume the water for irrigating such land.

Assignments
1. Define Easements. Explain Servient and Dominant Heritage.
2. How do easements become the right of the Dominant Owner?
3. What are the characteristics essential to an Easement?
4. Explain the concept of Ancient Light or Easement of Right to Light.
5. Explain the concept of Easement of Right to Air.
6. Write Short Notes on in about 100 words each giving examples
a. Continuous and Discontinuous Easements.
b. Positive and Negative Easements.
c. Apparent and Non Apparent Easements.
d. Customary Easements.
e. Easement restrictive of certain rights.
f. Easement for limited time or on condition.
g. Easement restrictive of certain rights.

Chapter 9 Easements