Saji Koduvath, Advocate, Kottayam.
“An easement is a Right”
- It is a right possessed by the owner of a (dominant) land.
- It is to use the (servient) land, of another for a specific thing.
- It must be for the beneficial enjoyment of the (dominant) land.
Easement Does Not Confer Ownership or Possession
- No Ownership is bestowed in the (servient) land (AIR 2004 All 359; AIR 1925 Bom 335).
- No Possession obtained in the (servient) land. (2011 (2) KLT 605; AIR 1925 Bom 335)
- No Interest is created in the (servient) land. (2003 (1) KLT 320; AIR 1954 All 393).
Easement is Well Recognised; but Circumscribed by Law
- Easement is a limited right to ‘use’or ‘enjoy‘ another’s land.
- It is to do, or to prevent to do, some specific thing.
- It is to be exercised in a way least onerous to the ‘another’s land’.
- It is not a right to build and enjoy.
- The right gained cannot be enlarged.
- An easement of way to a particular property cannot be extended to another property by the dominant owner; easement for residential purpose cannot be enlarged for an industrial purpose.
- Servient owner can use his land in any manner (without disturbing enjoyment of the easement).
According to ‘Katiyar on Easements’:
- Easement is not a right to land or exclude owner.
- It is not a right to permanent occupation.
- It does not confer exclusive right of user/enjoyment.
- And, it is not a corporeal interest in land.
Easement – Definition under the Indian Easements Act
SECTION 4 of the Indian Easements Act defines Easements as under:
- “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.”
Salient Limitations of Easement under the Indian Easements Act
- The owner of a land only ‘uses’or ‘enjoys‘ another’s land, as easement (Sec. 31)
- Only ‘enjoyment’ of soil or things ‘subsisting’ thereon (Explanation in Sec. 4).
- for limited enjoyment of (a) land & (b) advantages arising from its situation: S. 7
- the right is to be exercised in a way least onerous to the ‘another’s land’: S. 22
- secure full enjoyment, but cause as little inconvenience: S. 24 2017(2) KLT 63
It is Not a right to:
- tend to total destruction of servient tenement: S. 17 (2003 (1) KLT320)
- make additional burden: S. 23
- make constructions in, or cultivate upon: (2003 (1) KLT 320).
- prevent servient owner to use: S. 27 : 2003 (1) KLT 320
- enlarge purpose of, or accustomed, user: S. 28
- substantially increase an easement: S. 29
- prevent servient owner from obstructing excessive ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
- increase burden by making permanent change in do. tent: S. 43
- capable of forming grant – No easement, if Not capable of forming grant (without document or registration): 1987 (2) KLT 1037.
No easement if:
- right claimed is incidents of ownership.
- servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj 265. It must also be with proper animus as to easement: AIR 1973 Mad 173.
The word ‘Servient’ is derived from ‘Serve’
Sec. 4 Explains Dominant and Servient Heritages and Owners as under:
- “Dominant and Servient Heritages and Owners: The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.”
Therefore, the person who claims the easement is the ‘dominant owner’ and his land is ‘dominant land’; and the land upon which the right is claimed is ‘servient’ (a word derived from ‘serve’) land and its owner is ‘servient owner’.
Easement is acquired; not arise out of ‘Express Permission’
Sec. 12, Easements Act states that an easement is acquired (under grant, partition or prescription) by the owner of an immovable property. Section 12, Indian Easements Act, 1882 reads as under:
- 12. Who may acquire easements-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.
- One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
- No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.
It is observed by the Apex Court in Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103, that the claimant of easement (prescription) should plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement.
Methods of Acquisition of Easements
The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are, as pointed out in Ramkanya Bai v. Jagdish, AIR 2011 SC 3258, the following:
- easements by grant: a grant by the owner of the servient heritage
- easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
- easements by prescription: acquired by peaceable and open enjoyment, without interruption for twenty years and
- customary easements: acquired by virtue of a local custom.
For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.
Is profit-a-prendre incompatible with Easement
Explanation in Sec. 4 reads:
- “…’to do something’ includes removal and appropriation .. of any part of the soil .. or anything growing or subsisting thereon ..”
From Explanation in Sec. 4 it is clear that easement included appropriation of certain tangible material things. They are made clear by the Illustrations to various sections. Eg.
- Illustn.-(d) of S.4 speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.
- Illustn.- (b) of S. 22 states cutting thatching- grass.
- Illustn.- (a) of S. 24 refers to easement to lay pipes.
Hence, it is clear: Easement is not a mere ‘Privilege’ (as in English Law); but, it includes:
- limited (legally-recognised) enjoyment /user/interest in serviant heritage, and
- a right for (expressly-recognised) profit.
Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right on land. And it does not allow maintaining a substantial interest over the servient land. No profit-a-prendre in gross, ie. for the benefit of individuals (primarily because, it comes out from the ‘Explanation’ of the Definition of Easement). On a close look, it can be seen that it is definitely related to ‘user’ of servient land, by people living in a locality.
No right to build-and-enjoy
Easement is a Right for ‘enjoyment’ of things ‘subsisting’. It is a Right for limited enjoyment, and advantages arising from its situation; and it does not allow to build-and-enjoy. It is further clear from Sec. 7 which indicates that easement is only a right for limited enjoyment of (a) land and (b) advantages arising from its situation.
“In or upon, or in respect of, certain other land not his own”
Easement is a right upon land of another; not his own. It is a Right to do something in or upon land of another. Even if the easement involves ‘construction’, it should be of another; because, Sec. 4: Explanation reads: “land” includes also things permanently attached to earth.
If the subsisting-construction is made by, or it belongs to, dominant owner, no doubt, there will be no easement. [1987 (2) Ker LT 1037 (Bund); AIR 1915 PC 131 (Jetty); AIR 1971 SC 1878].
Easement Not Allows to ‘Enjoy’ After Making a Construction.
Though the right allowed by the Easement Act is limited only to ‘enjoy’ things subsisting, as shown above, it is clear that it does not allow to ‘enjoy’ after making a construction. It is further clear from the Scheme of the Act.
- S. 4 An easement is a ‘right which the owner or occupier of certain land possesses’ “as such”
- S.4: Illustn. (d): Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring .
- S. 7: Only a right for limited enjoyment of (a) land & (b) advantages arising from its situation. (It is stated: Easements are restrictions of (a) Exclusive right (of owner) to enjoy immovable property, (b) Rights to advantages arising from its situation)
- S. 12 An easement is acquired by owner an immovable property.
- S. 17: Not a right – to tend to total destruction of the servient tenement. (2003 (1) KLT 320)
- S. 21 An easement must not be used for any purpose not connected with enjoyment of the dominant heritage.
- S. 22: Exercise easement – least onerous to servient tenement (Illustn.- b: can cut thatching- grass, not to destroy plants)
- S. 23: Not to make additional burden (Illus.- b: not to advance eaves; Illus.- d: not another pollution)
- S. 24: Secure full enjoyment, but cause as little inconvenience. Illus. (a) easement to lay pipes
- S. 27: Servient owner is entitled to use – consistent with easement
- S. 28: Easements of necessity, Right of way, Other prescriptive rights not to enlarge purpose, accustomed user etc.
- S. 29: Dominant owner Cannot substantially increase an easement
- S. 31: If excessive user – servient owner may obstruct the user.
- S. 43: Permanent change in the dominant heritage and the burden increased – easement is extinguished
Taken from: What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
- What is “period ending within two years next before the institution of the suit”?
- Is the Basis of Every Easement, Theoretically, a Grant
- Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
- Can an Easement-Way be Altered by the Owner of the Land?
- Village Pathways and Right to Bury are not Easements.
- Custom & Customary Easements in Indian Law
- ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition