Meaning and Nature of Easements

The concept of easement has been defined under Section 4 of

The Indian Easements Act, 1882. According to the provisions of
Section 4, an easementary 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
this 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’ denotes
convenience, advantage or any amenity or any necessity. The
owner or occupier 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 Serviant Owner and the land on which such a liability is
imposed to do or prevent something, is known as the Servient
Heritage.

ESSENTIAL ELEMENTS OF EASEMENTS

1. Dominant and Servient Heritage

For the enjoyment of right of easement, necessary existence of

two properties i.e dominant and servient heritage is a must.
This is because as per the definition, it is the right exercised by
the owner or occupier of one land for enjoying the benefit of
his/her land, over the land of some other person. Dominant
and servient heritage cannot be one. Thus, the existence of
two properties and that to be separate from each other is
essential.
2. Separate owners

For exercising the right of easements, owners of the two

properties shall be different and not a single person.

3. Beneficial Enjoyment

The object of easements is that the dominant owner enjoys it

in a way which includes express and implied benefits.

4. Positive or Negative

Easements can be both positive or negative. Former refers to a

right through which the dominant owner does some act to
exercise the right over the land of the servient owner.
Whereas, the latter denotes an act of prevention. In a negative
easement the dominant owner prevents or restricts the
servient owner from doing certain act or acts.

In a right of easement an owner of dominant heritage can do

an act or prevent the servient owner from doing something but
he cannot bind the servient owner to do something for him.

The easementary right exists only when two heritages are

adjacent to each other. It is a right in rem, which means a right
available against the whole world. Easement as a right is
always annexed to the dominant tenement. It is a right of re-
aliena which means a right over a servient tenement and no on
one’s own land.

CLASSIFICATIONS OF EASEMENTS

Section 5 of the The Indian Easements Act, 1882 classifies the

easements as follows–

Continuous or Discontinuous

Continuous easements are the one whose enjoyment may be

continued without the intervention of any human conduct or
act of a man. There is no interference by a man and it adds
special quality to the property. While, on the other hand, right
of easement for the enjoyment which an interference of a man
is required is known as discontinuous. In this kind of
easement, it is necessary that a human act is done on the
servient heritage.

Apparent or Non- Apparent

An apparent easement is one the existence of which can be

seen through a permanent sign. It can be visible by a careful
examination and on reasonable foresightedness. It is also
known as express easement. An inspection is required to check
the existence of a right. For example- There is a drain from A’s
land to B’s land and from there it led to an open yard. This can
be visible through a clear inspection and is an apparent
easement.

Whereas, a non-apparent easement is just opposite of what

apparent easement is. This kind of easement is not visible
through an inspection. There is no permanent sign as such.
The right is in use but is not visible and thus, is known as an
invisible easement. For example, A’s right annexed to A’s land
to prevent B from building on his own house.

Another example to explain non-apparent easement is that the

right to stop construction over a certain height.
 LIMITATIONS OF EASEMENTS
An easementary right may be permanent or for a period of
years or for a limited term. It can also be subjected to
periodical interruption or may be exercisable at a particular
place, between certain hours and for a certain or particular
purpose. This right can also be granted on a condition that
such a right shall become void or voidable on happening of
some event or non performing of some act. These limitations
or conditions which regard to the right of easement has been
specified under Section 6 of the Act.

RESTRICTIVE EASEMENTS
Section 7 specifies that the easements are restrictive of certain
rights which are as follows-

• Exclusive right to enjoy

• Right to advantages arising out of the situation

PROFIT A PRENDRE
According to The Indian Easements Act, 1882, profit a prendre
is a part of the definition of easements. An instance to explain
the concept is, a right to take earth from the land of the other
person for making an earthenware is a profit a prendre. This is
basically a profit made out of the land of the other
person. Other examples of profit a prendre-

• Right of fishery
• Right to take fruits of trees in the season
This is the right which is exercised on the land appurtenant to
the dominant heritage. Hence, there shall be the existence of
two heritages i.e. dominant and servient. The owner of the
dominant heritage exercises this right on the property of the
servient owner. Profit a prendre is a right to do something on
the land of servient tenement for more beneficial enjoyment of
the dominant heritage.
 MODES OF ACQUISITIONS OF EASEMENTS
Express Grant

The easement can be acquired through express grant made by

inserting the clause of granting such a right in the deed of sale,
mortgage or through any other form of transfer. This involves
expressing by the grantor of his clear intention. If the value of
the immovable property is Rs.100 or above then it compulsory
for it to be in writing and duly registered.

Implied Circumstances

Easementary right can be acquired in implied circumstances in

the following ways-

Easement of Necessity

Section 13 of the act deals with this. This consists of the

circumstances where the owner or occupier cannot use his
property without exercising the right of easement over the
servient heritage. Thus, absolute necessity is the test and the
convenience.

When a joint property is partitioned amongst various

coparceners and if right of easement over one share of the
property is essential for the enjoyment of the share of the
other coparcener then latter shall be entitled to easement.

Quasi Easements

In the case of a person transferring his property to another

person then-
 • If an easement is continuous, apparent and necessary to
enjoy, then in such a case the transferee shall be entitled
to it,
• If such an easement is continuous, apparent and
necessary to enjoy the said property, the transferor has a
right to such easement over property transferred by him
• In case of partition of the property of the joint family, if an
easement is continuous, apparent and necessary to enjoy
the share of one coparcener over the other coparcener,
then he is entitled to such a right of easement.

Ea se me nt s are quasi as those are ari sing out of

circumstances,i.e. When common properties are converted into
tenements by way of sale, mortgage, partition or through any
other form of transfer. In such a case, there is an implied grant
of right of easement.

Prescriptive Easements

Section 15 provides for this type. Following are the requisites-

• Right must be definite and certain,

• Right must have been independently enjoyed without any
agreement with the servient owner,
• Must be enjoyed openly, peacefully and as of a right
without any interruption for a continuous period of 20
years and in respect of any government land the period of
non-interruption shall be 30 years.
Customary Easements
An easement right can be acquired by virtue of a local custom.
This is known as customary easements. Section 18 of the Act
provides for it. For example- people living in a particular city or
town having a right to bury the dead in a particular area or
riparian right to use water.
 CHAPTER 8
CONCLUSION
The Indian Easements Act, provides for the whole concept of
right of easements and its regulation in India. Easement as
defined under Section 4 of the Act is a right enjoyed by the
owner of the dominant heritage over the heritage of servient
owner for the beneficial enjoyment of his own land. It not only
defines what actually easements consist of but also provides
with its classification. Easements can be prescriptive,
customary, quasi and of necessity.

Thereafter, modes of acquiring easements has been provided

under Section 7 of the said Act according to which it can
acquired through an express grant or is in certain
circumstances considered to be an implied right. If easement is
to be acquired through the express grant then such a clause
has to be specifically mentioned in the deed of sale, mortgage
or any other deed in accordance with the mode of transfer.
Easements is a right in rem, that is, it is available against the
whole world. It can be subject to limitations as well and can be
restrictive too. Easements can be both positive and negative.
Whereas, on the other hand licenses can only be positive in
nature.

Further, the Act talks about the provisions regulating the

suspension, extinction and revival of the easements. Also, how
easements is different from licenses has been discussed. The
article also explains the concept of licenses along with its
essentials. License can be revocable as mentioned in the Act
and irrevocable as mentioned under Section 60 of the Act.
They can also be transferred according to Section 56 of the
Act. It is a right in personam which is not available against the
whole world but is granted personally.