EASEMENT BY PRECRIPTION

Submitted by

Siddheesh Yadav

Batch 2020-25, DIVISION-C, BBA.LL.B. (Group II), PRN-20010224213

Symbiosis Law School,

NOIDA

Symbiosis International (Deemed University),

Pune

In

September, 2022
Introduction
According to property law, the owner or possessor of the land
has the right to an easement, which enables him to use and
enjoy someone else's property that he does not own. The
owner is given the freedom to take full use of their own
property. So, a few immovable properties, such as sunshine,
right-of-way, water supply, sewage, etc., are necessary for one
to enjoy their own land. Roman law states that if a property
owner is away from the country for 20 years and the property
is in the possession of another person during that time, the
possession of the property will turn into ownership after the 20
years have passed, and the person in possession will acquire a
title to the property. These privileges were known as
servitudes. The idea of an easement was first introduced into
English law fairly early on. Despite the lack of clear indication
of where the English legal idea of an easement originated, it is
certain that it was founded on Roman law's rules. Hence,
Indian law which is very much influenced by English law is also
loosely based on Roman law.
Meaning
According to Section 15 of the Easement Act 1, a prescriptive
right of easement relating to access and utilization of light or
air to as well as any building or support from that other
person's land must have been continuously and peacefully
enjoyed for twenty years before it may be acquired. In other
words, a person must profit from another's property for at least
20 years without interruption in order to have a claim to an
easement by prescription.

Whereas “according to section 17 of the act the following four

rights cannot be acquired by prescription-

 A right which would tend to the total destruction of the

subject of the right, or the property on which if the
acquisition were made, liability would be imposed

1
Indian Easement Act,1882
  A right to the free passage of light or air to an open
space on the ground
 A right to surface- water not flowing in a stream and
not permanently collected in a pool, tank or otherwise.
 A right to underground water not passing in a defined
channel.”

The goal of the doctrine of prescription is to officially recognise

long-standing rights and titles. The law believes it is best not to
interfere with the enjoyment of such a right or title, even if it
was improper to exercise such right or title in the first place.
The need that one show the source of their title is recognised
by the law as it would put them in an undue difficulty. In
situations when the pleasure cannot be fairly accounted for, the
notion of lost gift is helpful. According to this idea, there is a
presumption that the right was once granted but that it was
afterwards lost. As a result, the Court assumed that the acts
and conditions required to establish a valid title had been
performed and existing, and that such a right had a legal basis.
Related Case Laws
The doctrine of lost grant was developed in the famous Dalton
v. Angus 2case in 1881 as a way of achieving a goal. It was
decided that establishing the absence of such a provision in the
past does not establish a presumption. This notion stands alone
and can be used without regard to any statutory requirements.
The Kerala High Court ruled in the seminal case of Manikkam v.
Kamala,19863 that if tree branches overhang the neighbouring
land, no claim can accrue over the ground over which they
hand. Only because the tree's branches continuously touched
the adjacent soil for a period of time does the proprietor of this
tree obtain any rights at all over the neighbor's land. A
prescription cannot grant a right to prolong a nuisance.
Analysis

2
Dalton v Angus, ((1881) 6 A. C. 740)
3
Manikkam v Kamala, AIR 1987 Ker 72
The phrase "easements by prescription" refers to a title or right
being acquired by a property owner according to legal
requirements. A person may obtain property or specific rights
across a property by demonstrating that they have had the
property or rights in question for an extended length of time.
Therefore, it would be difficult and unfair to ask someone who
has had long-term, uninterrupted, continuous possession or
use of specific rights on immovable property to provide proof of
his ownership. As a result, a legal easement is recognised by
prescription.
Dormant owner is the owner of the property known as
dominating heritage, which has the beneficial enjoyment right
present. While the property that bears an obligation is called as
servient heritage and its owner as servient owner.
The “essentials of easement by prescription are the following-
1. The enjoyment should be peaceful by nature. There
should not be any quarrel with the owner be it physical or
legal.
2. There should be open enjoyment of the property.
Meaning, the servient owner have actual knowledge that
there is an exercise of easement by the dominant owner.
3. The right that is claimed should be a right of easement for
a person to acquire prescription, for example rights given
in a rental agreement cannot be claimed to issue
prescription.
4. Easement should be enjoyed as a right meaning there
need not be any permission needed for the easement nor
there should be any violence for such enjoyment.
5. Easement should be there for beneficial enjoyment
without any interruption from the servient owner’s act. If
there is any such interruption, the easement would not
exist. The person enjoying the easement should be aware
of the interruption and also by whom such an interruption
is being made but it need not necessitate that there
should be a verbal or written notice.
 6. The period of uninterrupted enjoyment must be at least
20 years to enjoy the right of easement by prescription.
This time period is extended to 30 years if the servient
property is owned by the government.”

Conclusion
As a result, we get to the conclusion that an easement is a
right enjoyed by the owner of a specific property to enjoy
another person's property for his or her own benefit since it is
required to seek some pleasure of another person's property in
order to fully enjoy one's own property. This can include things
like sunshine, sewerage, right-of-way, etc. One of the types of
easements is easement by prescription, which indicates that if
a person uses someone else's property uninterrupted for 20
years or more, they have certain rights over it and that
possession eventually turns into an ownership title to prevent
the possessor from suffering injustice. Section 15 of the
Easement Act illustrates this. However, there are several
requirements that must be met before a person may enjoy this
right, such as that it be done in peace. Additionally, certain
rights are expressly excluded from this idea in section 17 of the
act like the right of underground water which does not pass
through a defined channel or the right to water on the surface
which is not a streaming body of water or collected in a tanker
or a right which would in the end result in the destruction of
the property in question or a right for sunlight or air to have
free passage in an open space on ground.