Easement: Concept, Essential, Types | Explained

The article lays down an overview of the topic of the easement, envisaged under property law. It brings forward not only the origin of such a right but also the manner of its treatment in the common law. Further, the article has tried to differentiate amongst various concepts of property law that might appear to overlap and create confusion for a better understanding of the subject matter.

It also explains the difference between dominant and subservient heritage. The article also sets out the requirements for classifying a valid easement, the nature and duration of the easement, along with the different types of easements.

Introduction

The easement provides a privilege to the common people or any other entity to trespass upon or to take land owned by some other person into use. The word ‘easement’ finds its origin in the Latin term called ‘aisementum’, which means “privilege, convenience or comfort”.

Later around the 15^th century, it emerged as a legal right to use something by the one who is not the owner of the same. When an interest arising from a non-possessory property is granted to the easement holder so that he/ she can use the land possessed by some other person, is known as an easement.

Easement is a right that enables a person to use a property, even when he/ she is not the owner of the property. Such a right is granted by the owner of the property for the purpose of water, light, water, egress/ ingress and passage, to name a few. Merely giving the easement right for some particular reason does not imply that the person with such easement rights can use the land according to his wishes.

The ownership of the land is not passed along with the easement rights. The owner of the property still remains the same. An easement provides limited use of the land, whereby the legal title of the property remains with the original owner itself.

There must exist a written agreement for providing a legal easement containing the exact location as mentioned in the deed of the property. However, an oral agreement for the creation of easement right is also in practice and cannot be held up by the court. The problem arises with respect to the easement right in a situation where the crossed property gets sold to the one who is not interested to give the easement right under any implied easement and cannot get held up in court.

I. Easement in law

The Easement Act in India can be dated back to 1882 which provided the public at large with the right to an easement. It puts easement under the list of the rights provided to the people and states that the easement is that right whereby the land is possessed by the owner or some other occupier of the land for its beneficial use in a way that allows him to perform and continue to perform or to prohibit and continue to prohibit something that is being done on a certain piece of land that is not owned by him.[1]

None of the English Laws gives a proper definition of the easement. However, Lord Esher had thrown light on the concept, in the matter of Metropolitan Railway v. Fowler[2] and explained it as that right which a person can exercise over a land which is not under his ownership.

Further, the English court gave an introduction of this right by stating that there are a limited number of rights which got recognised by the common law whereby an owner of the land was in the capacity to obtain some rights on the property of another and these rights are known as profits and easements. For instance, the easement exists in the form of right of water, right of light and right of way.[3] There does not exist any exhaustive list of the easement right.

II. Distinction of Easement from various other concepts of Property Law

As stated earlier, Easement is a right that enables a person to use a property, even when he/ she is not the owner of the property. The owner of the easement right is in a situation where certain rights are conferred on him but not the right to possession exclusively. The common law and many other jurisdictions treat the easement as a property right, per se.

The right granted to make use of the land for a particular purpose is known as easementary rights. It does not provide the holder of such a right with a right to use the property and not to possess it, whereas a lease provides the leaseholder with the right to possess the land for a particular time period.

Further, the license provides a lesser scope of rights and allows a person to do something that is even more limited on the property possessed by another person. For instance, the right to park your car in someone else’s property with his permission is a kind of license. It is easy for the owner of the property to terminate a license then of terminating the easement provided.

Another distinction between easement and license is that the easement finds its link with the benefits arising from a piece of land and not from a particular person. This brings us to an inference that even if the legal title of the land gets transferred from one person to another, the easement right cannot be terminated, and the easement holders can freely enjoy their right over the land.

There exists another right related to the land known as profit- a prendre. As held by the Court in the matter of Chundee Churn Roy v. Shib Chunder Mundul,[4] that the profit- a- prendre implies to the right to remove and take into use any fragment of the soil that belongs to some other person or some other thing that is attached to the soil or that is growing on the soil with an objective of gaining all the profits arising from the land, with a right to take trees, stone, gravel and so on.

Dominant and Servient Heritage

The one who does not hold the title of the property over which he is exercising his easement right is known as the dominant tenement while the owner of the property is known as the dominant owner as he is the one who can control how to use that particular land even when he is not in possession of the land.

On the other hand, the original owner of the property who is not capable to create objections for the use of his property by others is known as servient tenement and such an owner is known as servient owner since he is the one who is required to follow the requirements for the convenience of the dominant owner.

III. Essentials of Valid Easement

For an easement to be valid in the eyes of the law, it has to fulfil certain conditions, which are as follows:

1. It should get imposed upon some corporeal property
2. It is a right to the land per se but merely to use and enjoy the land
3. It should be comprised of two other features namely, first, the dominant tenement, by virtue of which the right is enjoyed and second, the servient tenement, by virtue of which it submits to the dominant tenement.

The last element is missing in the ‘easement in gross’ and thus, it does not fall under the list of types of easements. However, the ‘appendant’ or ‘appurtenant’ forms the kinds of easements. Both Indian law and common law do not recognize the presence of easement in gross since it does not take the dominant and servient heritage into consideration.

Further, it is of utmost importance to look at not only the manner in which the easement got created but also at all of its substantive characteristics. The Court of Appeal had come forward and laid down all the essentials that should be fulfilled for the classification of a valid easement.

In the matter of Re Ellenborough Park,[5] whereby the Court had to make some decision on the question whether the people can use a park for their enjoyment around which their houses are built. The Court had laid down certain essentials for the easement, such as:

1. There must be an existence of a servient tenement and a dominant tenement
2. Such an easement must have some dominant tenement
3. Different persons should be in the ownership of both the dominant and servient tenement
4. The subject matter of the grant should be formed by virtue of such an easement.

Moreover, the Indian Court in the matter of C Mohammed v. Ananthachari,[6] had laid down two more essentials of the right viz., first being the creation of beneficial enjoyment of the dominant servient by the easement and second being the entitlement of the dominant owner to perform and continue to perform or to prohibit and continue to prohibit something relating to the servient tenement by virtue of the easement. However, the court had time and again denied to accept the vague and wide scope of the easementary rights.

IV. Nature and Duration

The duration of an easement has been prescribed by the Indian Easement Act, 1882 as the easement can be for a limited time, for couple of years or permanent in nature or can be as per the different periodical interruption which can be exercised at a particular place only or at a particular time or for a particular purpose or on the existence of a prior condition that such a right will be commenced or become void when a particular event will take place or will not take place.[7]

The Act goes on to describe the nature of the easements[8] and states that the easements work as a restriction on the following rights:

1. Right to advantage that gets arisen from the situation: the right that enables all the owners of any kind of immovable property to use it for their enjoyment without getting disturbed by another person and using the natural advantage that arises from such a situation.
2. Right to enjoy: every owner of any kind of immovable property is always granted with the right to exclusively use that property and to dispose of all the products thereof and any accession thereto.

V. Types of Easements

There are certain types of easements that have to be taken into consideration. There are various types of easements that range across the country. Some of them are as follows:

1. Positive or affirmative: these are the kinds of easements that authorise the dominant owner to commit certain acts. For instance, the right of an aqueduct, right of drawing water from the spring, right of way to name a few, and negative easement is that which restricts or limits the right granted to the servient owner over the property that belonged to him such as the easement which prohibits a person to construct a building that causes obstruction of the ancient lights.
2. Continuous: the easements which can be enjoyed by the person continuously and without any kind of obstruction by anyone such as the right to access the light and discontinuous easement is the one which comes into existence only when a fresh act is conducted for exercising those rights such as a right of drawing water, right of way to name a few.
3. Apparent: the easement which exists by virtue of the existence of visible external signs for getting that right exercised such as a right to dam up a watercourse and non- apparent easement is the one that arises even when the signs mentioned above are absent such as the limitation applicable on the height of a building, right to get lateral support from the property and so on.

---

[1] Section 4 of the Indian Easement Act, 1882

[2] [1892] 1 QB 165

[3] 8, Practical Law, Megarry and Wade, Thomson Reuters, para 27-001

[4] (1880) ILR 5 Cal 945

[5] [1955] EWCA Civ 4

[6] AIR 1988 Ker 298

[7] Section 6 of the Indian Easement Act, 1882

[8] Section 7 of the Indian Easement Act, 1882

---

1. Property Law
2. Transformative Constitutionalism