easements (property law)

8/12/2019 Easements (property law)

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EASEMENTS & THEIR CHARACTERISTICS

AMITY UNIVERSITY

LUCKNOW U.P.

SUBMITTED BY: SUBMITTED TO:

NEHA PUNDEER MR. ANKITWASTHI


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ACKNOWLEDGEMENTS

I NEHA PUNDEER student of, B.A;LL.B Sem- 4 of AMITY LAW SCHOOL, LUCKNOW

would like to pay my sincere gratitude towards my faculty Mr. ANKIT AWASTHI for giving methis topic where I could enhance my knowledge & learn several new things.

This assignment could not see the light of the day without his immense help, support &

guidelines.

I would also like to extend my thanks to all my friends who helped in some way or other all the

way long to complete this assignment.

Thank you!

NEHA PUNDEER


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TABLE OF CONTENTS

Introduction Definition Dominant & Servient Owners Nature & chracteristics of Easements A)- Easement is Appurtenant to Land B)- Easement is a right over the Land of Another C)- Dominant & Servient Owners should be different persons D)- Easement should be Beneficial to Dominant Owner


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TABLE OF CASES

Ambaram v. budhalal Biharilal v. Ashutosh G. Satyanarayan v. G. Venkatarao Harrisv. De Pinna Kilogour v. Gaddes Raja venkata rao v. Raja sitaramchandra rao Traders & miners ltd. V. Dhirendra nath Udit singh v.kashiram Nrittakumari dasi v. puddomoni


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INTRODUCTION

A Servitude is a right either to use a thing belonging to another in some definite way or toprevent the owner thereof making some particula use of it. The property over which such a right

is availed was called the Res Serviens or Serien Tenement. InEnglish law servitudes arenown as Easements. Easements are helpful for providing pathways across two or more pieces

of property or allowing an individual to fish in a privately owned pond. An easement is

considered as a property right in itself atcommon law and is still treated as a type of property inmost jurisdictions.

An easement is the grant of a nonpossessory property interest that grants the easement holderpermission to use another person's land. There are different kinds of easements. If an easement

appurtenant is granted, it involves two pieces of land, where one serves as the servient tenement

that bears the burden, and the other the dominant tenement, which benefits from the grant of the

easement and has permission to use the servient land in some manner.

The rights of an easement holder vary substantially among jurisdictions. Historically, thecommon law courts would enforce only four types of easement:

1. Right-of-way (easements of way)2. Easements of support (pertaining to excavations)3. Easements of "light and air"4. Rights pertaining to artificial waterways

Modern courts recognize more varieties of easements, but these original categories still form the

foundation of easement law.

The most common type of easement is the right to travel over another person's land, known as a

right of way. In addition, property owners commonly grant easements for the placement of utilitypoles, utility trenches, water lines, or sewer lines. An easement may be for an identified path or

for use at any reasonable place.

Easements can be created in a variety of ways. They can be created by an express grant, by

implication, by necessity, and by adverse possession. Easements are transferrable and transfer

along with the dominant tenement.

Additionally, easements can also be terminated. An easement can be terminated if it was createdby necessity and the necessity ceases to exist, if the servient land is destroyed, or if it was

abandoned.

....
http://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Right-of-way_%28transportation%29http://en.wikipedia.org/wiki/Right-of-way_%28transportation%29http://en.wikipedia.org/wiki/Common_law


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DEFINITION

English Law: Goddards Definition: a privilege, without profit, which the owner of one

tenement has 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 forthe advantage of the former.

Indian Law: the nature of an easement is explained in Sec-4 of the Indian Easements Act, 1882.

The sec. runs as follows-

Sec-4. Easement defined: 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 & continue to do something,

or to prevent & continue to prevent something being done, in or upon, or in respect of, certain

other land not his own.

The Indian Easements Act no doubt makes no distinction for the purpose of acquisition byprescription between the right of easement strictly so called & the right which under the English

common law is called a profit-a-prendre.

By the explanation to sec-4 the expression to do something includes removal &

appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, ofany part of the soil of the servient heritage, or anything growing or subsisting thereon. An

easement being a right which is superadded to the ordinary common law incidents of the

ownership of a dominant tenement, & which connotes a corresponding burden on a servient

tenement, can only be created by grant, or by statute.

An apparent exception to this rule is a customary easement. But a customary easement is not an

easement in the true sense of that expression. It is not annexed to the ownership of a dominanttenement, & it is not exercisable for the more beneficial enjoyment of the dominant tenement; it

is recognised & enforced as an art of the common law of the locality where it obtains. A

customary easement arises in favour of an indeterminate class of persons such as residents of alocality or members of a certain community, & though not necessarily annexed to the ownership

of land, it is enforceable as a right to do & continue to do something upon land or as a right to

prevent & continue to prevent something being done upon land. Sanction for its enforceabilitybeing in custom, the right must satisfy all the tests which a local custom for recognition by courts

must satisfy.


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Dominant & Servient Heritages & Owners

The land for the beneficial enjoyment of which the right exists is called the dominant heritage, &

the owner or occupier thereof the dominant owner; the land on which the liability is imposed is

called the servient heritage, & the owner or occupier thereof the servient owner.

Explanation:in the frist & second clauses of this sec., the expression land includes also thingsattached to the earth: the expression beneficial enjoyment includes also possible convenience, to

remote advantage, & even a mere amenity; & the expression to do something includes removal

& appropriation by the dominant owner for the beneficial enjoyment of the dominant heritage.

Of any part of the soil of the servient heritage or any thing growing or subsisting thereon.

Illustrations:

a) A, as the owner of certain house, has a right of way thither over his neighbour Bs landfor purposes connected with the beneficial enjoyment of the house. This is an easement.

b) A, as the owner of a certain house, has the right to go on his neighbour Bs land , & totake water for the purposes of his household out of a spring therein. This is an easement.

c) A, as the owner of a certain house, has the right to conduct water from Bs stream tosupply the fountains in the garden attached to the house. This is an easement.

d) A, as the owner of a certain house & farm, has the right to graze a certain number of hisown cattle on Bs field, or to take, for the purpose of being used in the house, by himself,his family, guests, lodgers & servants, water or fish out of Cs tank, or timber out of Ds

wood, or to use, for the purpose of manuring his land, the leaves which have fallen from

the trees on Es land. These are easements.

e) A dedicates to the public the right to occupy the surface of certain land for the purpose ofpassing & re-passing. The right is not an easement.

f) A is bound to cleanse a water course running through his land & keep it free fromobstruction for the benefit of B, a lower reparian owner. This is not an easement.

Therefore it is clear that an easement as understood in Indian Lawis wider in scope than the

corresponding English conception.


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NATURE & CHARACTERISTICS OF EASEMENT

It is necessary to note the characteristic features of an easement for there are other rights closelyresembling an easement which, however, are not easements. On a transfer of property all

easements connected therewith pass to the transferee without any specific grant1inferior rights,

e.g. a license, a personal covenants as between adjoining owners, though closely relating to aneasement, do not pass by a mere transfer of the property. It is thus of a great practical importance

to distinguish an easement from other rights.

[A]- Easement is Appurtenant to Land: An easement is a right which the owner or occupier of

certain land possesses as such i.e., as such owner occupier of the land.

Thus the essential feature of an easement is that it is possessed by a person in respect of his

enjoyment of a particular piece of land to which it is appurtenant. There can be no easement ingross, i.e., irrespective of ones enjoyment of some tenement.

Illustration: In an action of trespass defendants justified under a right of way supposed to have

been conveyed to them by S. S himself claimed under a conveyance containing the following

words: with all ways. Particularly the right & privilege to & for the owners & occupiersof the premises conveyed& all person having occasion to resort thereto of passing & re-passing

for all purposes in, over, along& through a certain road. The defendants purchasers of the

premises for S claimed the right of way over the road for their own purposes:Held: [1]- The right granted by the conveyance to S was not restricted to a user of the road for

purposes connected with the enjoyment of the premises conveyed to S. A vendor cannot create

rights not connected with enjoyment of the land & annex them to it.[2]- The right claimed by the defendant not being limited to purposes connected with the

use & enjoyment of the premises could not pass to a grantee as an easement appurtenant to it...

Dominant Tenement: since easements are annexed to the ownership of some land, they are

regarded as extensions of the ordinary rights of ownership in the land for the beneficialenjoyment of which they exist. The land to which they are thus appurtenant is called the

dominant tenement & the person entitled to exercise them by virtue of his interest in thedominant tenement is called the dominant owner.

It is clear that according to sec- 4 of the Indian Easements Act the position in India is that

here can be no easement in regard to an incorporeal right.This characteristic of an easement to attach itself to a tenement is called appurtenance, & the

easement is said to be appurtenant to the dominant tenement.

1- sec-8. TPA, 1882; Sec-9 Indian Easements act, 1882; sec- 62[1], law of Property act, 1925


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[B]- Easement is a Right over the Land of Another:

Servient Tenement: An easement is a right. to do & continue to do something or to prevent& continue to prevent something being done, in or upon, or in respect of certain other land not

his own.. easement is not a personal right of the owner but attaches to the dominant tenement.

The property hearing the burden of the easement is called the servient tenement & its owner oroccupier is called the servient owner.

Right of the Dominant Owner: since an easement imposes an obligation only on the service

tenement & not on the servient owner personality, it is not a jus in personam, but a jus in rem.It is a necessary characteristic of an easement that it should be right not merely to do or prevent

from being done some single oe isolated act, but should extend over a period of time, though not

continuously, to a repetition of the act when occasion arises.

Right should be Definite: the right claimed as an easement should not be vague, indefinite or

incapable of definition. Thus a right to the free current of air floating over the whole of the

tenement & not in respect of some defined channel, such as a ventilator in a building, is not aneasement.2The right claimed as an easement should generally be one which might have been

made the subject matter of a deed of grant.

Devolution of the Right: an easement attaches to the dominant & servient tenements as suchpermanently binding the land over which it is exercisable & permanently continuing as a benefit

to the land for the advantage of which it exists. For this reason it follows the tenements into the

hands of whosoever may from time to time become the dominant or servient owner. Theoccupier of the dominant tenement, even though he may be a tress-passer is entitled to exercise

any easement attached to it.3

Obligation on Servient Owner: the obligation imposed on a servient owner is to submit thecommission of some act on his tenement by the dominant owner or to refrain from committing

some act himself. The servient owner is under no obligation to do any positive act himself.

An easement should not deprive the servient owner wholly of his right to use his land & ousthim from his tenement altogether.

4This is because an easement involves a curtailment, without

amounting to a nullification of the servient owners rights.

....

2- Harrisv. De Pinna {1863}

3- Raja venkata rao v. Raja sitaramchandra rao {1940}

4- Biharilal v. Ashutosh AIR 1925 Cal. 788


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[C]- Dominant & Servient Owners should be Different Persons: A right of easement involves

an extension of the rights of ownership of the dominant tenement & a curtailment of the ordinary

rights of the owner of the servient tenemnet. The two tenement should belong to different ownersfor one servient cannot have an easement in respect of ones own land. An easement is some

right which a person has over land which is not his own but if the land is his own, if he has an

interest in it, then this right is not an easement. One cannot have easement over his own land. If aperson has ownership, obviously the inferior right of easement merges in it.

Landlord & Tenant: since unity of ownership prevents the acquisition of an easement, it

follows that a lessee cannot by user for any length of time acquire an easement in favour of theland occupie dby him as tenant as against the land belonging to his landlord.

A Full Bench of the Allahabad High Court followed this decision in Udit Singh v. Kashiram5

Tenant of Site Building a House: when the tenant of the site builds a house upon it the questionarises whether he can as against his landlord acquire as easement of light & air or of support for

that house. It is submitted with respect that the view of the Bombay High Court in Ambaram v.

Budhalal

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is that the tenant does not become the owner of the house for more than the leaseholdinterest. He may have a right to remove the materials of the house & may be regarded as the

owner of the same.

Presumption of Grant: in some cases the rights of the lessees to easements against the lands oflandlords were recognised, but were rested on the footing of a term in the original contract of

tenancy or of a presumption of grant from immemorial user.

Tenants of the Same Landlord: a tenant cannot by prescriptive use acquire a easement against

another tenant of the landlord7a lessee cannot have an easement in favour of the land comprised

in his lease as against other land of his lessor. Further, the Indian Easement Act provides that-

no lessee of immovable property can acquire for the beneficial enjoyment of other immovableproperty of his own, an easement in or over the property comprised in his lease8

Co- Sharers: a co-sharer cannot acquire by use a right of easement against other co-sharersbecause no person can have an easement in the land which he himself own. Thus where a person

who has already completed twenty years user becomes a co- sharer, he cannot claim any right of

easement. This is because an easement cannot co-exist with ownership9

5- ILR 14 All. 185

6- AIR 1943 Bom. 443

7- Kilogour v. Gaddes [1904}

8- sec-12 para 3

9- traders & miners ltd. V. Dhirendra nath AIR 1944 Pat 261


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[D]- Easement should be Beneficial to the Dominat Owner:

Beneficial Enjoyment:it is essential to the validity of an easement that it should conduce to the

beneficial enjoyment of the dominant tenement10

Explanation to sec- 4 of the easements act makes it clear that beneficial enjoyment by way of

doing something on the servient tenement includes-

removal & appropriation by the dominant owner, for the beneficial enjoyment of the dominant

heritage, of any part of the soil of the servient heritage on anything growing or subsisting

thereon.

Easement is an interest in property. Dominant owner however has no right or title to servient

tenement.

Ornamentation & Prospect: in Nrittakumari Dasi v. Puddomoni11

an easement right for the

projection of an ornamental cornice over the servient heritage was negatived by the CalcuttaHigh Court on the ground that-

one fundamental principle of the right to an easement is that it confers some benefit on the

person who claims it, & does not serve merely a purpose of ornamentation.

The decision is applicable in provinces where the Easements act is not in force. Where the act

applies it must be borne in mind that-

beneficial enjoyment includes also possible convenience, remote advantage & even a mere

amenity12

An easement for ornamnetation or prospect may well be within the scope of sec-4 of theeasements act. But the better view seems to be that such a right is not an easement & may be

acquired only under a covenant or agreement.

10- Gale on Easements [10

thed.]. 490

11- ILR 30 Cal-503

12- G. Satyanarayan v. G. Venkatarao AIR 1963 A.P. 131


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BIBLIOGRAPHY

Introduction to Property Law by Subbarao Transfer of Act by Pollock & Mulla Wikipedia Reports of Law Journals on property law Lexis Nexis.com Lawsutra.com

easements (property law)

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