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INTRODUCTION By default a property owners attains the right of way

INTRODUCTION

By default a property owners attains the right of way, the right to air or right to light, the right to build, the right to the uninterrupted flow of water. All these are known as the examples of a property owner’s easement rights. The Indian Easement Act says that if a person has enjoyed these over a period of time, they have a valid right without any restriction, almost as though it were a privilege.

Sample this:
Ravish Menon built an independent house in the 1990s on a 1,200 square foot (sqft) of plot. Being one of the early ones to invest and construct in this particular area, Menon’s family enjoyed uninterrupted natural sunlight and air. In 2011, Kapil Singh and family moved to the adjacent plot and built a bigger house. Consequently, the construction blocked the light and air. Is there a legal remedy that Menon could turn to?

At a time when going vertical is the norm, such issues are common and this is exactly where the easement right comes into the picture.

What does the Easement Act say?
“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,” reads the Indian Easements Act, 1882.The Act mentions four typical scenarios that qualify as easements:
For example, A as the owner of a certain house, has a right of way over his neighbour B’s land for purposes connected with the beneficial enjoyment of the house. This is an easement.
A, as the owner of a certain house, has the right to go on his neighbour B’s land, and to take water for the purposes of his household out of a spring therein.This is an easement.
A, as the owner of a certain house, has the right to conduct water from B’s stream to supply the fountains in the garden attached to the house. This is an easement.
A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B’s field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C’s tank, or timber out of D’s wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E’s land. These are easements.

Owner is not bound to provide easement
The Act also mentions that a scenario where A is bound to cleanse a watercourse running through his land and keep it free from obstruction for the benefit of B, is not easement. An owner is also not bound to keep his land open for public use stating the right to occupy for purpose of passing and repassing. This doesn’t qualify as easement either. An easement is in no way a transfer of property. It could be made, altered or released as well and should always be in a written form, except when it has been enjoyed for a very long time without restrictions. A written document helps either party to challenge it in a court of law.
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 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 asdominium, 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.
DOMINANT AND SERVIENT HERITAGE

The landowner who will benefit from the property which is not his own and over which he has a right is called dominant tenement and the owner of such a land is called the dominant owner because the owner has control over the use of that particular land which he does not possess.

The actual landowner who cannot object to the other using his land is called servient tenement and the owner of such a land is called servient owner because he has to abide by the requirements and convenience of the dominant owner. In fact, whether he likes it or not, it is a burden brought to bear on him by grant, by custom or by prescription. He cannot do anything on his own land which affects the dominant heritage and he is bound to suffer for the advantage of the dominant owner.

Servient Heritage means an inherited property over which the dominant owners have a right to use it to their advantages. Dominant Heritage means inheriting a right over another’s property without owning it. According to Section 4 of the Indian Easements Act, 1882 “The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner? the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.”

X owns a piece of land. Y has the right of way over it. Here X is the servient owner and has the servient heritage. Y is the dominant owner and he has the dominant heritage. The dominant and servient owners have certain rights and obligations to maintain and preserve the easement. While exercising his right over the property of the servient heritage, the dominant owner has responsibilities to preserve the easement. His acts and deeds shall not put the servient owner into inconvenience. Being the actual user he shall rectify the damages if any caused by his acts at his own expense.

The servient owner is not obliged to do anything for the advantage of the dominant heritage. He has no liability whatsoever to construct a way for the use of the dominant owner or to carry out repairs in case of any damage to the passageway. As the holder of the property he is free to use the servient heritage in any manner he likes, but his acts shall not dilute the right of the dominant owner.

EASEMENTARY RIGHTS

An easement is a right which the owner of a property has to compel the owner of another property to allow something to be done, or to refrain from doing something on the survient element for the benefit of the dominant tenement. For example – right of way, right to light , right to air etc.

An easementary right is almost like a privilege, depriving which the owner of one tenement has a right to enjoy regarding that tenement in or over the tenement of another person, by reason of which the latter is obliged to suffer or abstain from doing something on his own tenement for the advantage of the former. Easementary right must possess the following essentials: