Introduction
The Right of Easement has been in existence since time immemorial even back when the human race first emerging from cruelty and violence, embraced the custom of living as each other’s neighbors and respecting each other’s rights. It was crucial for the common good of the society to adopt the universal principle that an individual should fully and exclusively use and enjoy his property still so as not to interfere with neighbor’s legitimate enjoyment of his own property rights. This constructive principle is the original foundation on which easement rights are based upon.
Meaning and Definition of Easement Rights
In general terms, an easement is a right which is possessed by the owner or the occupier of a certain land for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something from being done, in or upon, or in respect of certain other land that is not his own.
In law, the term “easement” has been varyingly defined. It was first defined in the law dictionary “Les Termes de la Ley”.[1] Easement is said to be a privilege which the owner of one tenement has over the tenement of another. Easement has also been defined as a right which one person possesses to use the land of another for a specific purpose or a servitude which is imposed as a burden on the land. It is also said that Easement is a right which one proprietor has for some profit, benefit or lawful use out of or over the estate of another proprietor.
Salmond defines Easement as- “The servitude applied upon other parts of land for the benefit of a part of the land. It is not serviceable which is called benefit”.
According to Peacock– “Easement is a privilege without profit which a user gets from the owner of the property by which the owner is prohibited to exercise the right of absolute use”.
Illustration– Ram is the owner of a property, thus, he can construct anything on his property, but he cannot construct something that creates disturbance to his neighbor Shyam in using natural facilities like light, air etc. Getting air and sunlight is Shyam’s Easement right. Some other examples of the right to easement include the right of way, right to discharge rainwater, etc.
The Law of Easement in India is governed under the Easements Act, 1882. [2] Easement has been defined under Section 4 of the Indian Easements Act, 1882. According to the provisions of this section, an easement right is a right possessed by the owner or occupier of the land on some other land which is not his own, the purpose of which is to provide for the beneficial enjoyment of that land.
The Madhya Pradesh High Court in the case of Ramcharan v Ram Ashray [3] while defining the term Easement stated that it is the right of enjoyment of one’s property.
The word ‘land’ refers to everything that is permanently attached to the earth. The term ‘beneficial enjoyment’ means advantage, convenience, amenity or a necessity.
There are various methods by which easements may be acquired. They are provided under Section 7 of the said Act according to which an easement can be acquired through:
- Easement by Prescription (Section 15)
- Customary Easement (Section 18)
- Easement of Necessity
- Easement by Grant (Express or Implied)
Essential elements of Easement
Dominant and Servient Heritage-
The existence of two properties- dominant and servient heritage is essential for the enjoyment of the right of easement. Because as per the definition, it is the right exercised by the owner or occupier of a land for enjoying the benefit of that land over the land of another person. Owner or occupier in the provision is called as Dominant Owner and the land for the benefit of which the easement right exists is called as Dominant Heritage. While the owner upon whose land the liability is imposed is called as Servient Owner and the land on which the liability is imposed to do or prevent from doing something is called as Servient Heritage.
Dominant and Servient Heritage to be separate-
For exercising an easement right, the owner of the two properties must be different or separate. It is necessary that the servient and dominant heritage must be separate properties. No person can acquire a right of easement from his own property. Section 4 of the Easements Act, 1882 explicitly provides in the words “which is not his own”. The Delhi High Court in the case of Radhika Narayan VS. Chandra Devi [4] has also reiterated the same principle.
The use of Easement done for Beneficial Enjoyment-
An easement must be used for the beneficial enjoyment of the dominant property. This includes remote profits, facilities, etc. The object of easements is that the dominant owner enjoys the easement in a way which includes both express and implied benefits.
Right of easement attached to property-
The right of easement is a right which is attached with the property or land which is not related to the person and it accompanies the property. It is transferred after the transfer of property.
Non-availability of the easement to Servitude Owner-
The right of easement is available only to the Dominant owner and not to the Servient Owner. The Madhya Pradesh High Court in the case of Ramchandra VS. Diwakar [5], decided that an easement can be only used by the owner of the property.
Easement: Positive or Negative-
The right of easement may be either positive or negative. Positive easement refers to a right through which the dominant owner performs an act to exercise the right over the land of the servient owner. Whereas, negative easement denotes an act of prevention. In this case, the dominant owner restricts or prevents the servient owner from doing certain act/s.
Right-in-rem-
Easement is a right-in-rem, it means that the right is available not only against the servitude owner but also against the whole world. The right of easement is always annexed to the dominant tenement. Easement is a right of re-aliena which means that it is a right over a servient tenement and not over one’s own land.
In Nirmala Devi and Ors. v. Ram Sahai and Ors. [6], in view of the definition of Easement in Section 4 of the Easements Act, the Court laid down that the following are the pre-requisites in order to claim an easement right:-
(i) The right is in the owner or occupier of the estate as such;
(ii) It is for the beneficial enjoyment or consumption of that land;
(iii) It is to do/continue to do something or to prevent/continue to prevent something from being done;
(iv) That something is in or upon or in respect of certain other land or property; and
(v) Such other land is not his own
Classification of Easement Rights
Easements are classified under Section 5 of The Indian Easements Act, 1882 as follows:
Continuous or Discontinuous Easement:
The Right of Easement whose enjoyment may be continued without the intervention of any act of man is called Continuous Easement. There exists no interference of any human conduct here. Whereas, Discontinuous Easements are those for the enjoyment of which the interference of a man is required. In this type of easement, it is essential that a human act is done on the servient heritage.
Apparent or Non-Apparent Easement:
The easement whose existence can be seen through a permanent sign is called an Apparent Easement. It is visible on reasonable foresightedness and by a careful examination. It is also known as Express Easement. Here, an inspection is required to check and determine the existence of a right. Whereas, a non-apparent easement is not visible through an inspection. There is no permanent sign present as such. Non-apparent easements are also known as invisible easements as the right is in use but is not visible through an inspection.
Profits a Prendre
Profits a Prendre in French loosely translates to ‘right of taking’. This term is not expressly used in the Easements Act but is a part of the concept of Easement. It is the right to take from the soil of another person. The Dominant owner exercises this right on the Servient property for more beneficial enjoyment of the Dominant Heritage. It is basically a profit made out of the land of another person. For example, the right of fishery, right to take fruits of the trees in the seasons, etc.
Conclusion
The Indian Easements Act of 1882 deals with the concept of Easement Rights and its regulation in India. As defined under Section 4 of the said Act, An Easement is the right enjoyed by the dominant owner over the servient property for the beneficial enjoyment of his own land. It is the right to do and continue to do something or to prevent and continue to prevent something being done. The Easements Act also provides for the classification as well as modes of acquisition of Easements among other things.
References
[1] The Law Dictionary
[2] THE INDIAN EASEMENTS ACT, 1882
[3] AIR 2008 Madhya Pradesh 105
[4] A.I.R. 1981 Delhi 118
[5] A.I.R. 1957 M.P. 44
[6] AIR 2004 All 358
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