CREATION OF EASEMENT

FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE

TRANSFER OF PROPERTY ACT

NAME:  Rahul Raj

COURSE: B.B.A., LL. B (Hons.)

ROLL NO: 1845

SEMESTER: 3RD Semester

SUBMITTED TO: DR. B.R.N. SARMA

I would like to thank my faculty whose guidance helped me a lot with structuring my
project. I will also like to thank my teacher for providing an interesting and important
topic.

I owe the present accomplishment of my project to my friends, who helped me

I would also like to extend my gratitude to my parents and all those unseen hands that
helped me out at every stage of my project.

Thanking You,

Rahul Raj,

3rd Semester,

B.B.A. LLB (HONS.)

Method of Research

The researcher has adopted a purely doctrinal method of research. The researcher has
made extensive use of the library at the Chanakya National Law University and also the
internet sources.

Aims and Objectives

The aim of the project is to present an overview of the ‘Creation of easement’ through
qualified information.

Limitations

The presented research is confined to a time limit of one month and this research
contains doctrinal works, which are limited to library and internet sources and
empirical research.
 Contents

1. Introduction
2. Requirements of valid creation
3. Types of easements
4. Creation of easements
5. Case laws
6. Critical analysis
7. Conclusion
8. Bibliography
 Introduction
The term ‘easement’ comes from the Old Latin word ‘aisementum’ meaning “comfort,
convenience or privilege” and it developed into “a legal right or privilege of using something
not one's own" from the early 15c. An easement is the grant of a nonpossessory property
interest that grants the easement holder permission to use another person's land. In simple
terms, it refers to the right which a man sometimes has over one piece of land by reason of
his ownership of another. According to Section 4 of the Indian Easement Act, 18821 defines it
as follows: “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.”

Easements are nowhere defined in English law. Lord Esher in Metropolitan Railway v.
Fowler defines it as “some right which a person has over land which is not his own”. The
English Court introduces them by saying: The common law recognised a limited number of
rights which one landowner could acquire over the land of another; and these rights were
called easements and profits. Examples of easements includes rights of way, rights of light
and rights of water2. There is no closed list of easements, as there is of servitudes in some
civil law jurisdictions.

HISTORICAL BACKGROUND OF EASEMENTS

The concept of easement can be traced to antiquity and it is said that easement is as old as the
concept of property itself. The earliest reference of easements is found in Halhed Gentoo
Code which is a compilation of the ancient Hindu laws in force during the period 1773 -1775
in India under the direction of Warren Hastings. From the code it appears that a person had a
right of easement in respect of privacy, light, air and discharge of water through drains. The
ancient Hindu law text ‘Vivada Chinthamani’ also makes a reference to the concept of
easements. Hamilton’s edition of the Hedaya digest shows that a right in the nature of a waste
land is acquired by one who digs a well in the waste land that no one shall dig within a
certain distance of it so as to disturb the flow of water. It also recognises other easmetary
rights which include the right to water for irrigation and the right to discharge water on the
1
Ibid
2
(Megarry and Wade, para 27001).
terrace of another. The concept of easements were known as by an umbrella term called as
‘servitudes’ in Roman law which was broader than the former. Praedial Servitudes was the
Roman law equivalent of Easement relating to immovables.

Servitudes were divided into two types namely., (a). Rural Servitudes (Right of way for man,
passage for animals, etc.,) (b). Urban Servitudes (Right to support to buildings, Right to
Light, etc.,).

Servitude is a device that ties rights and obligations to ownership or possession of land so that
they run with the land to successive owners and occupiers. The whole bundle of rights which
constitute the complete ownership of property was called as dominium, servitudes were
regarded as fragments of dominium severed from the original stock and granted to some
person other than the original proprietor in restriction of the latter’s absolute ownership. It
was referred to as ‘servitudes’ because the property, over which they exercised, became
subject to a sort of slavery, as it were for the benefit of the dominant owners. The notion of
easements during its early days in England was an admixture of Roman, Saxon, Danish and
Briton Law. In this period, the remedy for disturbance of an easement lay by action for
damages in law or a suit for injunctions in equity. After the abolition of the equity courts by
virtue of the Judicature Act, 1873 both remedies were available in the Courts.
 REQUIREMENTS OF A VALID EASEMENT

The essential features of an easement, in the strict sense of the term, are therefore these:

(a) It is an incorporeal right; a right to the use and enjoyment of land not to the land itself;

(b) it is imposed upon corporeal property;

(c) it requires for its constitution two distinct tenements the “dominant tenement” which
enjoys the right, and the “servient tenement” which submits to it.

This last characteristic excludes from the category of easements the so called “easements in
gross, such as a right of way conferred by grant independently of the possession of any
tenement by the grantee. The true easement is an " appendant " or " appurtenant " easement,
not an “easement in gross”. Both the Indian as well as the English Law of easements does not
recognize the concept of ‘easements in gross’ as they do not comprise of the dominant and
servient estate. In order to assess the validity of an easement it is essential to look both at its
substantive characteristics and at the way in which it has been created.

The characteristics that are necessary for the validity of an easement has been laid down by
the decision in Re Ellenborough Park. The Court of Appeal had to decide the status of a right
for residents to use a garden in the middle of a square around which their houses were built.
That case gave rise to the four well known characteristics of easements viz.,

(1) there must be a dominant tenement and a servient tenement;

(2) the easement must accommodate the dominant tenement;

(3) the dominant and servient tenements must be owned by different persons; and

(4) the easement must be capable of forming the subject matter of a grant.

In India, there are two more requirements namely that the easement should be for the
‘beneficial enjoyment’ of the dominant tenement and that the easement should entitle the
dominant owner to do or to continue to do something, or to prevent or to continue to prevent,
something in or upon or in respect of the servient tenement.3

3
C. Mohammed v. Ananthachari
The courts have from time to time rejected claims to easements on the ground that the right
would be too wide and vague. In Hunter v Canary Wharf Limted, although the right to
television reception was not pleaded as an easement, the House of Lords nonetheless
considered the issue. Lord Hoffmann concluded that such a right should not be recognised as
it would place a burden on a wide and indeterminate area. As already pointed out there must
be a dominant owner and a servient owner, it must be for the advantage of the dominant
owner, it may be permanent or temporary, or for a limited period of time or seasonal or for a
specified event or out of necessity, the owners must be two different persons and it must be
capable of forming the subject matter of a grant. The Indian law relating to Easements
includes profitaprendre provided it is supported by a dominant and servient heritage (profita-
prendre appurtenant). This is to be contrasted with the English Law wherein profitaprendre
and easements are separated. However, the Indian position is such that it does not recognize
profitaprendre in gross.
 TYPES OF EASEMENTS

There are several classifications of easements which is to be noted. The types of easements
varies from country to country. Some of the notable types are enumerated herein. They are
divided into

(a) affirmative or positive, those which authorize the commission of an act by the dominant
owner, e.g. rights of way, a right to draw water from a spring, rights of aqueduct, and
negative, when the easement restricts the rights of the servient owner over his own property,
e.g. prevents him from building on land so as to obstruct ancient lights (cf. also the right to
the support of neighbouring soil);

(b) continuous, of which the enjoyment may be continual without the interference of man,
e.g. access to light, and discontinuous, where there must be a fresh act on each occasion of
the exercise of the right, e.g. a right of way, or right to draw water;

(c) apparent, where there are visible external signs of the exercise of the right, e.g. a right to
dam up a watercourse, and nonapparent, where such signs are absent, e.g. a right to lateral
support from land, a prohibition to build above a certain height.

The Indian Easement Act, 1870 expressly codifies several types of easements, their effects
and the extent to which they extend and when they cease.
 EASEMENTS BY PRESCRIPTION

Prescription means getting a right by continuous assertion of the right, which has been in use
for a long period of time. Thus, to establish in a Court of law, a right of easement by way of
prescription, the following criteria are to be satisfied: a). There must be a pre existing
easement which must have been enjoyed by the dominant owner; b). The enjoyment must
have been peaceable; c). The enjoyment must have been as an easement; d). The enjoyment
must have been as of, right; e). The right must have been enjoyed openly; f). The enjoyment
must have been for a period of twenty years; g). The enjoyment for 20 years must have been
without interruption; and h). The period of twenty years must have ended within a period of
two years immediately preceding the date of suit claiming such easement. The first seven
points were specifically pointed out by the honourable High Court of Kerala in Krishnan v.
Nanukuttan 4.

However, if such enjoyment is based on an agreement between the parties, which states
expressly or impliedly that the enjoyment is not as an easement, the principle of Section 15 of
the Easements Act will not apply. Further, in order to constitute an interruption, there should
be a cessation of enjoyment by an obstruction created by a person other than the claimant,
and the claimant should not have acquiesced to the same. Also, if a person enjoys the benefit
under a life interest or an interest fixed at a period of over three years, then that period will be
excluded from the calculation of the twenty years according to Section 16 of the Easements
Act.

Section 17 of the Easements Act provides that the following easements cannot be acquired by
prescription:

(a). An easement that imposes a liability on the property or would lead to the total destruction
of the property;

(b). A right to the free passage of light or air to an open space of ground;

c). A right to surface water not flowing in a stream and not permanently collected in a pool,
tank or otherwise;

d). A right to underground water not passing in a defined channel.

4
[ ILR 1986 (1) Kerala 526 ]
 EASEMENT OF NECESSITY

An easement of necessity is implied only where the right is essential for the use of the land
granted or retained. The question is not whether it is necessary for the reasonable enjoyment
of the land but whether the land can be used at all without the implied grant or reservation. A
claim will only be successful where the land is “absolutely inaccessible or useless” without
the easement. The most obvious example of a situation in which an easement of necessity
may be implied is where a grantor conveys an entire plot of land except for a piece in the
middle, which is completely surrounded by the part conveyed. Unless the reservation of a
right of way over the land granted is implied, the land in the centre would be completely
landlocked. An easement of necessity will not, however, be implied merely because it makes
it more convenient to use the land.

An easement of necessity is coextensive with the necessity, as it existed when the easement
was imposed. These easements arise on the severance of tenements. They are said to be
created by implied grant. To take a concrete example, if the owner of a certain field, who
irrigates his entire field by taking water from a well situated within field, sells a part of the
field not containing the well, but retains the part containing the well, the question would
naturally arise whether the purchaser has right to take water from the vendor’s well to irrigate
his part. If the parties have settled this question by specific mention in the deed of
conveyance, their common intention as so expressed must be given effect to. But if the deed
of conveyance contains no reference to this point, law would grant to the purchaser of the
part heritage an easement in favour of the said part heritage to take water from the well
situated in the other part heritage retained by the vendor.

According to the case of Muhammad Ramzan v. Naseer Beg5, the plaintiff must not only
prove existence of right of easement at the time of transfer of property to him but also such
right being necessary for enjoying transferred property.

5
[1980 CLC 1555]
 Creation of easement
The title to easement may be by grant, by custom, by prescription or necessity. An easement
can be acquired by grant. A grant is given by an agreement executed by a grantor in favour of
a grantee for a consideration. The grant becomes effective when the grantee has the right to
enter upon the grantor's land. The deed of easement 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
such land for another land of his.

Grant is given by an agreement executed by the grantor in favour of the grantee for a
consideration. The grant becomes effective when the grantee has the right to enter upon the
grantor’s land. Easement by virtue of custom is a legal right acquired by the operation of law
through continuous use of a land over a long period of time. Therefore, the right of way
continues to exist by grant, prescription or by virtue of custom. Easements, which are the
subject matters of agreement between the parties, are for right of way, right to air and light.
Some easements are acquired by grant and others prescription and custom. Creation of an
easement does not mean transfer of property.

In the same manner, surrendering an easement right does not imply transfer of property.
Easement can be made, altered and released. Easement right cannot be created or modified
orally. It must be in a written form. However, easements by prescription and custom need not
be in writing. A deed of grant must clearly mention the purpose of which easement is granted.
By the deed of grant the subservient owner gives full and free right to the dominant owner
and his successors a passage wide enough for movement of people and vehicles between the
dominant owner's premises and the public road against a price consideration.

In Moody v Steggles6 the grant of a right to fix a signboard to the adjoining property
advertising the public house which constituted the dominant tenement was held to comprise
an easement.

6
 [(1879) 12 Ch D 261]
 In the case of Maniyam Krishnan And Anr. vs Maniyam Nanukuttan 7 the court stated that
Easement of necessity arises on the severance of tenements. The rationale or the legal basis of
this kind of easement can be traced to the creation of an implied grant Really, easement of
necessity is an easement, which under particular circumstances the law creates by virtue of
the doctrine of implied grant to meet the necessity of a particular case. As far as the Indian
Law is concerned, the contours of this doctrine of implied grant to create an easement of
necessity are well delineated in the section itself. It has to be remembered that it is
an easement which is not merely necessary for the reasonable enjoyment of the dominant
tenement, but one without which that tenement cannot be used at all. Vide Aldridge v.
Wright8, and Union Lighterage Co. v. London Graving Dock Co.9 It has to be remembered
that an easement of necessity arises where normally both the dominant and servient
tenements have been in common ownership so that the creation of an easement by
implication of law may be said to be the outcome of the former jointness of the two
tenements. The disposition which causes a cessation of the common ownership that gives rise
to the creation of an easement, may be of either tenement, or a simultaneous disposition of
both tenements.

Hon'ble Allahabad High Court in the case of Digambar Singh Vs. Birendra Singh10 has been
pleased to hold that if prior to partition the land is irrigated then the party gets a right of
easement and can even seek injunction against the party through whose land the flow of
water is there.

Hon'ble Karnataka High Court in the case of Baburao Yashvantrao Jadhav Vs. Shamrao
Khandi Jadhav11 has laid down that, if a party has no other passage to approach his land, then
the party can claim easement of necessity.

This section is the statutory recognition of the principle of English common law relating to
acquisition of easement by prescription with some modifications. Prescription as a source of
right in English law is generally described as being applicable only in situations where the
servient owner could' be regarded as having acquiesced in the user. The authoritative
statement on this matter is made' by Fry, J. in his advice to House of Lords is Dalton v.
Angus12.
7
[AIR 1986 Ker 75 ]
8
[(1929) 2 KB 117 CA]
9
[ (1902) 2 Cb 557]
10
[AIR 1930 Allahabad 313]
11
[AIR 1992 Karnataka 181],
12
(1881) 6 AC 740
The learned Judge observed:-- "In many cases .first, the doing of some act by one man upon
the land of another; secondly, the absence of right to do that act in the person doing it; thirdly,
the knowledge of the person affected by it that the act is done; fourthly, -the power of the
person affected by the act to prevent such act either by act on his part or by action of the
Courts; and lastly, the abstinence by him from any such interference for such a length of time
as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the
act being done."

In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd.13, the Supreme Court has laid down that
to establish the claim under Section 15 of the Easements Act, continuous user of 20 years as
of right to do the act complained of in assertion of a title, peaceably and openly must be made
out The only point the learned counsel for the appellants wants to emphasise is that the user,
even if for the required period is proved, it is not a user as of right The enjoyment of the act
complained of as of right contemplated by Section 15 of the Indian Easements Act is the
same requirement of user necprecarion of English Common Law.

. In England, the presumption of long user being as of right is readily drawn because the
social conditions and the nature of the landed property there are such that landowners are
particularly jealous of their exclusive right over the land. In India, such rigid and jealous
views of the exclusiveness of the landed property do not prevail and very often an owner of a
piece of waste land never raises any objection to the passage of strangers over such land. The
English Law on this point can be understood clearly from Moody v. Steggles14. Fry, J.
observed : --

"Where there has been a long enjoyment of property in a particular manner it is the habit, and
in my view, the duty of the Court, so far as it lawfully can, to clothe the fact with right."

CASE LAWS

13
[ 1969 SCD 1105]
14
[ (1879) 12 Ch D 261 ]
 C. Mohammed vs Ananthachari15

In this case The Courts below held that there cannot be any easement by prescription as the
plaintiff admitted that the disputed property belongs to him. The only question to be
considered is as to whether a plea of ownership and a plea of easement can be advanced
alternatively in a suit. Ownership and easement right are inconsistent and cannot co-exist in
the same person. Section 4 of the Easements Act16 defines 'Easement' as follows:

"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." An easement is a privilege, without profit, which the owner of one tenement has a
right to enjoy in respect of that tenement in or over the tenement of another person, by reason
whereof the latter is obliged to suffer or refrain from doing something on his own tenement
for the advantage of the former. The following six characteristics are essential lo an easement
: --

(1) There must be a dominant and servient tenement:

(2) An easement must accommodate the dominant tenement;

(3) The right of easement must be possessed for the beneficial enjoyment of the dominant
tenement;

(4) Dominant and servient owners must he different persons:

(5) The right should entitle the dominant owner 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; and

(6) The something must be of a certain or well-defined character and be capable of forming
the subject matter of a grant.

As existence of both a dominant tenement and servient tenement is essential to the creation
and existence of an easement it is difficult to conceive of a position where a person can claim

15
[AIR 1988 Ker 298]
16
Indian Easement act , 1870
easement by prescription when he owns both the tenements. It may be permissible in the
plaint to advance an inconsistent plea of ownership and easement alternatively, but it is
necessary that the plaintiff should press one of them only either at the stage of evidence or a
subsequent stage. When the dominant and servient tenement are in the ownership and
possession of the same person acts done by him on the servient tenement are clearly referable
to his possession of that tenement and hence there cannot be any easement by prescription,
As P.W. 1 has admitted that the property, through which he claims right of way be longs to
him it is difficult to accept his case that he has prescribed easementary right in the property.
P-W. 1 deposed that the demolished bund belongs to him absolutely. He claims ownership
under a sale deed and stated that he is prepared to produce the same before the court. In view
of the above testimony of P.W. 1 the Courts below were justified in dismissing the
suit17.There is no merit in the Second Appeal and hence the same was dismissed. No costs.

CRITICAL ANALYSIS

17
https://www.casemine.com/judgement/in
An easement involves a right to use the other's land, a real covenant the right to insist that the
other perform a land related duty, and an equitable servitude the right to control the use to
which the other may put his land. Examples are, respectively, a right of way to cross over a
neighbour’s land, a right that a neighbour share the cost of maintaining a boundary fence, and
a right that a neighbour not use his land for commercial purposes. The ownership of an
easement is a mere right which confers certain rights over the land in question, but never any
exclusive right to possession. In common law, an easement came to be treated as a property
right in itself and is still treated as a kind of property by most jurisdictions. In some
jurisdictions, another term for ‘easement’ is equitable servitude, although easements do not
have their origin in equity. An easementary right is often described as the right to use the land
of another for a special purpose. Unlike a lease, an easement does not give the holder a right
of "possession" of the property, only a right of use. It is distinguished from a licence that only
gives one a personal privilege to do something even more limited on the land of another. An
example of a license is the right to park a car in a parking lot with the consent of the parking
lot owner. Licences in general can be terminated by the property owner much more easily
than easements. Easements also differ from licences in that most easements (“easements
appurtenant”) are attached to and benefit another parcel of land, not a specific person. This
means that a property that enjoys an easement over another will continue to enjoy the
easement even if the property gets transferred to a different owner.

A profitaprendre refers to the right to remove and appropriate any part of the soil belonging
to another, or any other thing growing upon or attached to the soil for the purpose of the
profit to be gained from the property, thereby acquired, that is, for example, a right to take
gravel, stone, trees and so forth18.

Historically, the common law courts would enforce only four types of easement: the right of
way (easements of way), easements of support (pertaining to excavations), easements of
"light and air", and rights pertaining to artificial waterways, although this is not so now.
Traditionally, it was a right that could only attach to an adjacent land and was for the benefit
of all, not a specific person; this is also no longer true in many jurisdictions.

CONCLUSION

18
Chundee Churn Roy v. Shib Chunder Mundul.
An easement is a legal right to occupy or use another person’s land for specific purposes. The
use of the land is limited, and the original owner retains legal title of the land. A legally
binding easement must be made in writing, the exact location stipulated in the property’s
deed. Easements most commonly grant utility companies access for the purpose of installing
and maintaining power, phone, and cable lines, as well as for water drainage purposes.

An easement may also be granted to allow the owner of a neighboring property to install an
access driveway. In most cases, even when the land in question changes hands, the easement
remains in effect and subsequent owners are required to allow the easement owner to
continue using the land as specified. 

An easement holder is entitled to do whatever is reasonably necessary to fully utilize the

Reasonable use of an easement may change over time as the property evolves and technology
improves. If the court finds that use of an easement is not reasonable, and that the property
owner is unduly burdened by the use, it can restrict the easement holder’s easement rights,
or award the property owner damages. Conversely, if the court finds that the property owner
is interfering with an easement, it may order the property owner to stop the action or remove
any obstruction.
When considering a real estate transaction, easements must be taken into consideration,
including the feasibility of transferring an easement. Some types of easements are transferred
when a property changes hands, others are not. For example, an “appurtenant easement”
remains part of the property, while “easements in gross” are considered rights of personal
enjoyment granted by the original property owner. These types of easements may include
access for camping, hunting, and fishing, among other activities. If the property in question
changes hands, it is up to the new owner whether to continue to grant the easement.

Putting it simply, the difference between an appurtenant easement and an easement in gross is
that the appurtenant easement is for the benefit of the land, while an easement in gross only
benefits the individual to whom it is granted.

BIBLIOGRAPHY
BOOKS
Transfer of property act, by Mulla
Transfer of property act, by Justice M.L. Singhal

Websites
www. Lexisnexis.com
https://lawgic.info

https://legaldictionary.net/easement/