EASEMENT

By V. Sonal Jain- III [Link] LLB (Hons)- ‘C’ Section

HB21120
INTRODUCTION:

An Easement is a right permitted by law to occupy or us another person’s land for a particular
purpose. The use of the land here is limited, and the original owner retains lawful title of the
land. A legally binding easement ought to be in writing, the exact location is stipulated in the
property’s deed. Easements commonly provides utility companies access for the purpose of
installing and maintaining power, phone and cable lines, as well as for water drainage purposes 1.
The term easement I derived from the Latin word ‘aisementum’ which means comfort,
convenience or privilege, and later on developed into a legal right or privilege of using
something not one’s own. The concept of easement can be traced to antiquity and it is said that is
meant is as old the concept of property itself. The earliest reference of easement could be found
in Halhed Gentoo Code which is a compilation of ancient Hind law which was in force during
the period 1773-1775 under the directions of Warren Hastings. The term easement is nowhere
defined in English Law. Lord Esher in Metropolitan Railway V. Fowler 2 define easement as
“some right which a person has over land which is not his own.”3

In the words of a well renounced jurist Salmond, easement is a legal servient which can be
exercised on some other piece of land specifically for the beneficial enjoyment of one’s own
land. Right of easement is a form of privilege, the integral part of this privilege is to do an act or
prevent certain acts on some other land for enjoyment of one’s own land4.

Easement is a right, which the owner or occupier of certain land possess as such, for the
beneficial enjoyment of that land to perform and continue to perform something, or to avert and
continue to avert something being done, in or upon, or in respect of, certain other lands which is
not his own. The land for the beneficial enjoyment of which the right exists is known as the
dominant heritage and the owner or occupier of such land is called the dominant owner. The

1
Easement, Legal Dictionary (6/10?2019)
2
Metropolitan Railway V. Fowler, 1 Q. B 16 (EWCA: 1892)
3
Karthik Shiva, Law of Easement: A Brief overview of the Indian easement Act,1882
4
Diva Rai, An Overview” Law of Easements n Indi, Ipleaders
piece of land on which the liability is trusted upon is called the servient heritage and the owner or
occupier of such land is called the servient owner.

The concept of easement has been defined under section 4 of the Indian Easements Act,1882.
According to the provision of section, an easement right is a right possessed by the owner or
occupier of the land on some other land, not his own, the purpose of which is to provide the
beneficial enjoyment of the land. This right is granted because without the existence of his right
an occupier or owner cannot fully enjoy his own property. It includes the right to do or continue
to do something or to prevent or to continue to prevent something in connection with or in
respect of some other land, which is not his own, for the enjoyment of his own land.

The word ‘land’ refers to everything permanently attached to the earth and the words ‘beneficial
enjoyment’ denoted convenience, advantage or any amenity or any necessity. The occupier or
the owner referred to in the provision is known as the Dominant owner and the land for the
benefit of which the easementary right exists is called Dominant Heritage. Whereas the owner
upon whose land the liability is imposed is known as the servient owner and the land on which
such a liability is imposed to do or prevent something, is known as the Servient Heritage.5

HISTORICAL PERSPECTIVE:

Easement have a rich history in India, going way back to ancient times. The concept of
easements has been an essential part of property law in India for centuries. The Indian Easement
Act of 1882 formalized many of these principles and provided a structured legal framework for
easements. This act covers various types of Easements, such as rights of way, rights to light,
water and support, among others, it’s interesting to see how these laws have developed and
adapted over time to address the changing needs and rights of property owners.

The concept of easements has evolved over time through various legal precedents. Here's a
detailed history of easements through significant cases:

Easements have roots in English common law dating back to medieval times. Early precedents
established basic principles of easement rights, often centered around rights of way, water
access, and light and air.

5
Manohar Lal V. Jai Ram
The case of Bland v. Moseley (1566) 6is one of the earliest recorded precedents on easements. It
dealt with the right of a landowner to have water flow uninterrupted through a ditch on his land.
The court recognized the landowner's right to maintain the flow of water as an easement over the
neighboring property.

Next in the case of Moncrieff v. Jamieson (1877) 7which was a Scottish case, it established the
principle of prescription in easement law. It held that a prescriptive right could be acquired
through long and uninterrupted use, even if not expressly granted or documented.

Further, in the case of Manohar Lal vs Jai Ram (1966) the court recognized the right of way as
an easement and emphasized the importance of balancing the rights of both the servient and
dominant tenements. It set a precedent for the interpretation and application of easement rights
under Indian law.

Additionally, the case of Sukhdev Singh vs Bhagat Ram (1975) 8 dealt with the acquisition of
easement rights through continuous and uninterrupted use. The court held that such rights could
be acquired by prescription if certain conditions, such as openness, continuity, and necessity,
were met.

One of the most significant judgements on easement in India is N. D. Jayal v. Union of India 9. In
this case, the Supreme Court clarified the scope and applicability of easement rights,
emphasizing their importance in balancing private property rights with public interest.

The case of Dattatraya Govind Mahajan vs. Dattatraya Ramchandra Mahajan (2010) 10 dealt with
the right to light and air as easements. The court held that such rights could be acquired through
long and continuous enjoyment, even if not expressly granted.

In the case of M.C. Mehta vs. Union of India (2005) 11 the Supreme Court of India recognized the
right to a clean environment as an easementary right. It imposed restrictions on activities that
could harm the environment, establishing environmental easements.

6
9 Co Rep 58a
7
[2007] UKHL 42
8
AIR1975SC1331
9
(2004) 9 SCC 362
10
1977 AIR 915, 1977 SCR (2) 790
11
987 SCR (1) 819; AIR 1987 965
These cases represent key milestones in the development of easement law, shaping its
interpretation and application over time. They illustrate the evolution of easement rights from
medieval England to modern-day India, encompassing various aspects such as rights of way,
water access, environmental concerns, and the acquisition of easements through long and
uninterrupted use.

The starting place of easements is as historic as that of belongings of which they’re a

modification. Such rights have, from instances immemorial, been diagnosed via way of means of
each machine of regulation. Pardessus says herbal rights originated from the disposition of nature
and the needs of society; and in direction of time easements had been stipulated for via way of
means of non-public folks as count of utility, or maybe pleasure. In Roman regulation, that’s a
completely historic machine of regulation, those rights had been treated beneath the call of
servitudes.

A servitude is proper to the confined use of a chunk of land with out the ownership of it, for
example, a proper of manner over it. Servitudes, consistent with English regulation are of sorts
which can be outstanding as appurtenant and in gross. A servitude is appurtenant while the
proper of use belongs to a property or greater successfully to any man or woman who would
possibly threat to be the proprietor of that unique property; it’s far in gross while the proper of
use vests in a selected man or woman impartial of the possession of any property. In Roman
regulation those had been known as praedial and private servitudes respectively. The former of
those correspond to easements.

Under English not unusualplace regulation easements, had been diagnosed from very early
instances and even though there’s no direct proof how the regulation of easements originated and
advanced in England but it’s far obtrusive that the English regulation of easements is particularly
primarily based totally at the Roman regulation and so is the Indian regulation of easements
particularly primarily based totally at the English regulation. There is likewise clean proof that
easements had been recognized and diagnosed each via way of means of the Hindu and the
Mohammedan laws.

In India, beneath British rule, earlier than the passing of any enactments at the subject, withinside
the absence of any rule of regulation or a well-hooked up custom, the regulations of English
regulation regarding easements, being appeared as regulations primarily based totally on justice,
fairness and properly conscience, had been relevant, and via way of means of distinctive feature
of the Charters setting up the Supreme Courts and High Courts regulations of English regulation
had been immediately relevant to Presidency’ [Link] first Indian Act which expressly
diagnosed Easements become the Limitation Act IX of 1871. By segment 27 it supplied for the
purchase of an easement via way of means of its leisure as an easement, as of proper and with
out interruption for a length of twenty years. In 1882 the Indian Easements Act become
surpassed which paperwork a whole code at the regulation of Easements in India. In the primary
instance, it carried out handiest to Madras, the Central Provinces, and Coorg, and become
afterwards prolonged to Bombay and the North-Western Provinces and Others.

DEFEINITIONS:

An easement is a right given to another person or entity to trespass upon land that person or
entity does not own. Easements are used for roads, for example or given to utility companies for
the right to bury cables or access utility lines. Landlocked home owners sometimes pay for an
easement to cross the land of another to reach their home.

Easements run with the land. Almost every home has an easement. It is important to look for
easements in the public records, especially if a prospective buyer plans to put in a swimming
pool. A property owner cannot build on top of an easement.

Easements by prescription are acquired by hostile, open and notorious use for five years. For
example, rigid easements could be claimed by a person who travels across a parcel of land
owned by another and continuously for five years without the owner’s permission or consent.

In Gangi Reddy and Ors. vs. Sirigiri Reddy and Ors. (2007) 12, the Supreme Court of India
defined easement as "a right which the owner or occupier of a certain tenement possesses, as
such, for the beneficial enjoyment of that tenement, 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
tenements not his own." This definition emphasizes the essential characteristic of easements as
rights enjoyed by one property owner over another property for the beneficial enjoyment of their
own land.
12
(1927)29BOMLR856
LEGAL PERSPECTIVE:

Section 4 of the Indian Easement Act provides the definition of an easement, this section
provides the definition of an easement, which is a right enjoyed by one person over the
immovable property of another, which does not amount to ownership of the property. It can be
for the beneficial enjoyment of the property owned by the person entitled to the easement.

In the case of Ramanathan Chettiar v. Kalavathy Ammal 13, the court held that an easement
includes a right to do something, or to prevent something from being done, on or over another's
property. This broad interpretation helps in understanding the scope of easements under the Act.

While Section 5 of Indian Easement Act provides the Continuous and discontinuous easements it
distinguishes between continuous easements (easements that are used without the necessity of
any act being done for their enjoyment, like a right of way) and discontinuous easements
(easements that require active and specific acts for their enjoyment, like a right to light or
support).

Further, Section 6 of Indian Easement Act provides Easements of necessity. This section deals
with easements of necessity, which arise when a property is transferred in such a manner that the
transferee needs an easement for the beneficial enjoyment of the property but the transferor does
not grant it expressly. In such cases, the law implies the grant of easement of necessity.

In the case of Ramabai v. Balkrishna 14, the court held that an easement of necessity arises when
the property is transferred in such a way that the enjoyment of the property is practically
impossible without the easement. The court emphasized that the necessity must be real and
continuous.

Section 7 of Indian Easement Act deals with easements of quasi-easements, which are rights
similar to easements but are not easements strictly speaking. For example, a right to collect rent
or a right to way acquired by a person using another's property for a certain period without
objection.

13
AIR 1955 Mad 804
14
AIR 1964 Bom 21
Section 8 of the Indian Easement Act discusses easements that restrict the dominant owner's
rights over the servient property. It explains that a person entitled to an easement may have
restrictions imposed on his enjoyment of the easement for the purpose of benefiting the servient
owner.

Section 15 of Indian Easement Act states that any easement that is necessary for the beneficial
enjoyment of the dominant heritage is deemed to have been granted along with the dominant
heritage itself, even if not expressly mentioned in the deed of transfer.

In the case of Ram Sarup v. Gaya Din 15, the court ruled that if a particular easement is necessary
for the enjoyment of the dominant heritage, it is deemed to have been granted along with the
property itself, even if not expressly mentioned in the deed of transfer.

Section 18 of Indian Easement Act lists certain rights that cannot be acquired by prescription,
including rights to light or air, ways of necessity, and easements of a continuous and apparent
nature.

In the case of Abdul Gafoor v. Govt. of Mysore16, the court held that certain rights, like rights to
light or air, cannot be acquired by prescription under the Act. This decision clarified the
limitations on the acquisition of easements through long use.

Section 52 of the act outlines the various ways in which easements can be terminated, such as by
release, merger, expiration of limited period, or by way of abandonment.

In the case of Bhupendra Nath v. Hari Mohan17, the court discussed the various methods of
terminating easements as outlined in Section 52. The court emphasized that an easement can be
extinguished by abandonment only if there is clear and unequivocal conduct indicating the
intention to abandon the easement.

Section 60 of the act discusses licenses, which are permissions granted by one person to another
to do something on the grantor's property. It specifies the circumstances under which a license
can be revoked and when it becomes irrevocable.

15
AIR 1940 Oudh 169
16
AIR 1961 Mys 132
17
AIR 1956 Pat 164
In the case of Jagat Narayan v. Chandra Kishore18, the court discussed the revocability of
licenses under the Act. It held that a license becomes irrevocable if it is coupled with a grant or if
the licensee has acted on the faith of the license and incurred expenses.

JUDICIAL PERSPECTIVE:

The case of N.D. Jayal v Union of India19 is a landmark case in Indian jurisprudence concerning
the interpretation and application of easement rights. The case originated from a dispute over the
construction of a road by the Union of India, which would affect the land owned by N.D. Jayal.
The construction of the road would result in interference with Jayal's property rights, particularly
his right to access and use his land. The crux of the case revolved around the concept of
easement rights, which are rights enjoyed by one property owner over the property of another.
Easements typically include rights such as the right of way, right to light, right to air, etc. These
rights are essential for the proper enjoyment and use of land. The Supreme Court, in its
judgment, clarified the scope of easement rights and their importance in balancing the interests
of private property owners with the public interest. The court emphasized that while property
rights are important, they must be balanced against the broader societal interests, such as the
need for infrastructure development. The court highlighted the public interest in the construction
of the road, which would facilitate transportation and connectivity, benefiting the larger
community. It stressed that in such cases, the rights of individual property owners must yield to
the greater public good, as long as adequate compensation and alternative arrangements are
provided. In its ruling, the court emphasized the importance of providing fair compensation to
the affected property owners for any loss or interference with their property rights. It also
stressed the need for the government to explore alternative routes or arrangements that minimize
the impact on individual property owners while still achieving the public purpose. The judgment
in the N.D. Jayal case set an important precedent in Indian law regarding the interpretation and
application of easement rights. It underscored the judiciary's role in striking a balance between
private property rights and the broader public interest, particularly in cases involving
infrastructure development and urban planning.

18
AIR 1951 All 472
19
(2004) 9 SCC 362
Overall, the N.D. Jayal v Union of India case reaffirmed the significance of easement rights in
Indian law and established important principles for their interpretation and application in cases
involving conflicts between private property owners and public authorities.

In Kuttan Nair vs. Krishnan Nair (1964) 20, the court reiterated the definition of easement under
the Indian Easements. The definition provided in this case is consistent with the statutory
definition of easement and emphasizes the need for compliance with statutory requirements for
the creation of easement.

The court recognized the right to light and air as an easement and held that such rights could be
acquired through long and continuous enjoyment21. In Sukhdev Singh vs Bhagat Ram (1975)22,
the court held that easement rights could be acquired by prescription if certain conditions, such
as openness, continuity, and necessity, were [Link] Manohar Lal vs Jai Ram (1966), the court
recognized the right of way as an easement and emphasized the importance of balancing the
rights of both the servient and dominant [Link] Pundlik vs. Narayan (1899) 23, the court
held that an easement could be extinguished through non-user if the dominant owner failed to
exercise it for a specified period. In Gangi Reddy and Ors. vs. Sirigiri Reddy and Ors. (2007), the
court upheld the rights of the dominant owner and emphasized the need for compliance with
legal requirements in easement disputes.

S.M. Karim v. Bibi Sakina24 case, the Supreme Court held that the right to light and air, which
are essential for the proper enjoyment of property, constitute easementary rights. The court
emphasized the need to balance the rights of neighboring property owners to ensure proper
access to light and air.

In the landmark judgment of M.C. Mehta v. Union of India25 with the issue of environmental
easements, particularly the right to a clean environment. The Supreme Court recognized the right
to a healthy environment as a fundamental right under the Constitution and imposed restrictions
on activities that could harm the environment, thereby establishing environmental easements.

20
1968 AIR 1165, 1968 SCR (3) 163
21
Narayana Pattar vs. Keshava Bhat (1918)
22
AIR1975SC1331, [1975(30)FLR283]
23
2000(1) SCC 712
24
1964 AIR 1254 and 1964 SCR (6) 780.
25
987 SCR (1) 819; AIR 1987 965
Lakshmi Narain v. State of Uttar Pradesh 26 this case, the court clarified the scope of easement
rights related to water, such as the right to draw water from a common source or the right to
passage of water. The judgment emphasized the importance of equitable distribution and
reasonable use of water resources among neighboring landowners.

The court in a judgement affirmed the public's right to use public roads and highways as
easements of necessity and held that private property owners cannot obstruct or interfere with
such rights without lawful authority.27

INTERNATIONAL PERSPECTIVE:

Perspective of concept of Easement in England:

In England, there isn’t standalone “Easement Act” comparable to Indian Easement Act. Instead,
easement is primarily governed by common law principles and various statutes, including: Law
of Property Act 1925, Land Registration Act 2002, Highways Act 1980, Prescription Act 1832
and English courts have developed a rich body of case law that interprets and applies the
principles of [Link] established by judicial decisions play a significant role in
shaping easement law in England.

Easement in England can be created by express grant, implied grant, prescription, or necessity.
Easement can also be acquired by prescription through long and uninterrupted use, or by
necessity when it is necessary for the enjoyment of the dominant tenement. In the case of Harris
v. Flower (1904)28 the court affirmed the principle that easements could be acquired by
prescription through long and uninterrupted use, even if not expressly granted. Further, in the
case of Bakewell Management Ltd v. Brandwood (2004) 29the court clarified the test for
determining whether a right constituted an easement, emphasizing the need for it to be capable of
forming the subject matter of a grant.

Perspective of concept of Easement in United States of America:

26
1954 AIR 224, 1954 SCR 803
27
State of Rajasthan v. Basant Nehata
28
(1904) 74 LJ CH 127
29
[2004] UKHL 14
In the United States, there is no single federal easement act that governs easements nationwide.
Instead, easement law in the U.S. is primarily based on state laws, which vary from state to state.
Each state has its own statutes, common law principles, and precedents that regulate the creation,
interpretation, and enforcement of easements. Additionally, federal laws may apply to certain
types of easements, such as those related to federal land management or environmental
protection. Therefore, the legal framework for easements in the United States is decentralized,
with the specifics determined by individual state laws and federal regulations where applicable.

Tulk v. Moxhay (1848)30although this case has originated in England, it has been influential in
U.S. jurisprudence. It established the principle of "covenant running with the land," which is
similar to easements in the [Link], in the case of Dougherty v. Salt (1934) 31 which dealt
with the acquisition of easements by prescription in the U.S. The court held that continuous,
open, and uninterrupted use for the statutory period could establish an easement by prescription.

Perspective of concept of Easement in Australia:

In Australia, easement is governed by legislation at both the federal and state/territory levels, as
well as by common law principles. While there isn’t a single nation easement act, various laws
and statutes regulate the creation, interpretation, and enforcement of easements across the
country. These laws may differ between states and territories but generally follow similar
principles. In the case of Saxby Bridge Pty Ltd v. Hansen (2016) 32, the court considered the
scope of easements and the rights of the dominant owner. It emphasized the need to interpret
easement documents in accordance with their terms and the intentions of the parties.

Further, in the case of Western Australian Planning Commission v. O'Dwyer (2019) 33 addressed
the termination of easements and the circumstances under which an easement could be
extinguished. The court considered factors such as abandonment and inconsistency with the
dominant tenement's use.

CONCLUSION:

30
(1848) EWHC Ch J34.
31
227 N.Y. 200, 125 N.E. 94 (1919)
32
[2016] NSWSC 1197
33
[2017] HCA 7
In conclusion, easements are integral components of property law, serving to balance the
competing interests of landowners and facilitate the efficient use and enjoyment of land. Through
a comprehensive examination of easements, this paper has highlighted their significance in both
domestic and international legal frameworks.

Easements, as defined by various statutes and common law principles, encompass a wide range
of rights and restrictions pertaining to the use of land. Whether it be rights of way, rights to light
and air, or rights of support, easements provide essential mechanisms for landowners to access,
utilize, and protect their properties.

Throughout history, courts have grappled with complex legal issues surrounding easements,
resulting in a rich body of case law and legal precedents. From medieval England to modern-day
jurisdictions such as India, the United States, Australia, and others, easement law has evolved to
adapt to changing societal needs and property ownership patterns.

While each jurisdiction may have its own specific legal framework governing easements, certain
fundamental principles remain consistent. These include the requirements for the creation,
interpretation, and termination of easements, as well as the rights and obligations of both
dominant and servient landowners.

In today's dynamic legal landscape, easements continue to play a crucial role in urban planning,
infrastructure development, environmental conservation, and property rights disputes. As such, a
clear understanding of easement law is essential for legal practitioners, policymakers, and
property owners [Link] summary, this paper has shed light on the multifaceted nature of
easements, underscoring their importance in shaping the rights and responsibilities associated
with land ownership.

REFERENCES:

1. Journals:
a. Tracing Its Origins in Easement Law
b. A Study on Incidents of Easements
c. An Analysis on The Doctrine of Easement
d. Easement rights in India Archives
2. Books:
a. The Indian Easements Act, 1882
b. Law of Easements and Licences
3. Websites:
a. Manupatra
b. SCC Online
c. Wikipedia