Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:00:44 PM


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Easements’ Act, 1882

Easement is a story between two property owners and neighbors. There is a maxim in law that equity helps the vigilant and not the indolent and law making is based upon welfare of the people is supreme law. Easement is a warning to people that they must be vigilant in order to save their rights.

Indolent commits acquiescence, as it is assent to an infringement of rights, either expressed or implied, from conducts, by which the right to equitable relief is normally lost. It is a warning that no one may be allowed to use your property as passage or grassing field or pasture. No one should be allowed to use your property as a source of acquisition of light, air, and passage for water flowing. If there is no interference in trespass for consecutive twenty years, right of easement is acquired to the trespasser. Right of easement accrued after twenty years’ interference. It is not kind of ownership, it is just right of use of other’s land. Trespasser is called user and this right is called re aliena. This is also called accessory right. One who comes to your property with permission, if he is your friend, he is called licensee and if he is other than of your friend, he is called invitee. Easement is accrued by interference without permission. Dominant right of ownership is called re properia and owner is supposed vigilant whereas indolent property is called servient property. Easement is called in England servitude. Easement is burden on land being encumbrance. There are four main encumbrances on property, i.e., lease, servitude, trust, and securities. There are some other encumbrances like litigation, co-ownership, law limitations, and right of light, air, water flow, or ladder access.

Definition: An easement is a right which the owner or occupier of certain land possess, 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.

How the easement is acquired: Easement is acquired by prescription, custom, and grant either implied or expressed.

Easement is a right to use (right of user) another’s property for support water, grass, light, air, way, and drainage etc. Since this property gives service to dominant owner, so it is also called servient ownership.

There is no time limit in some easements like partitioning of a house, easement by necessity, personal/prescription easement, customary easement for all people. It should be very old, but in case of one or two years, it can be claimed as old.

Classes of easement: There are six general classifications of easement.

1.      Affirmative (positive) and negative easement: In the case of easement, dominant owner has positive easement because it entitles dominant owner to make active use of the servient tenement or to do something in the absence of an easements, i.e., nuisance or trespass. Negative easement relates to servient tenement. It is a restriction over the servient owner to exercise an ordinary right of ownership over his land.

(1)         Right of way.

(2)         Putting sign post.

(3)         Use of kitchen of neighboring house.

(4)         Use of washing place.

(5)         Drawing water from neighbor watercourse.

(6)         Right to bury dead body.

(7)         Grazing cattle on pasture.

2.      Apparent and non-apparent easement: Any sign or evidence of apparent on the servient tenement is apparent easement. Even the perception on careful inspection may create easement. An apparent easement means not only one which must necessarily be seen, but one which may be seen or known on a careful inspection by a competent person. If there is no evidence, or sign, or a competent authority makes no careful inspection, that is non-apparent easement.

3.      Continuous and discontinuous easement: Continuous easement is that which does not requires act of man for establishment. Its enjoyment, at present, or in future, becomes due without act of man. This act must be on servient tenement. Opening of shutter for letting light and air is not such act of man on the servient tenement. Discontinuous easement requires the act of man for its enjoyment. In case of right of way, every step of man is necessary for the enjoyment of easement and such step is on servient tenement. Light and air is continuous easements. Right of way for A over the land of B is discontinuous easement.

4.      Prescriptive and non-prescriptive easement: Prescriptive easement is easement where the access and use of light or air to and for any building have been peacefully enjoyed, as an easement, without interruption, for twenty years. Non-prescriptive easement does not require a period of twenty years’ enjoyment.

(1)            Grazing: Right to graze cattle over the land of another is established with enjoyment for the statutory period of twenty years as of right and without interruption.

(2)            Stacking manure: This easement can be acquired by stacking manure of wasteland.

(3)            Private nuisance: A right to create private nuisance has continuously been in existence for twenty years.

(4)            Profit-a-prendre: Profits, which come from rent, garden etc., are acquired by twenty years’ uninterrupted enjoyment.

(5)            Orchard: Village community can acquire this right after twenty years continuous enjoyment.

(6)            Repairing wall: Courtyard of neighbor can be used for the repairing and painting wall. Condition of twenty years enjoyment is there.

(7)            Fishery and ferry: The right is established on other’s property after twenty years enjoyment.

(8)            Right of privacy: This right should be proved right since the time immemorial.

Kinds of non-prescriptive easements:

(1)            Customary easement may be acquired by virtue of a local custom.

(2)            Necessity: Where one person transfers or bequeaths immovable property to another, that is necessity. Partitioning of a home may create easement by necessity for the use of common passage. Law creates the easement of necessity under the special circumstances by virtue of implied grant to meet the necessity of a particular use.

(3)            Quasi easement: Where immovable property possesses by operation of law.

5.      Easement for limited time or on condition: An easement may be permanent, or for a term of years, or other limited period, or subject to a periodical interruption, or exercisable only at a certain place, or at certain time, or between certain house, or for a particular purpose, or on condition that it shall commence or be come void or void-able on the happening of a specified event, or the performance of non-performance of a specified act.

6.      Subordinate easement: Servient owner may grant on servient heritage any easement that does not lessen the utility of the existing easement. This easement is granted with the consents of the dominant owner.

General kinds of easements: Following are the general kinds of easements:

1.      The “Lagan” right: This is a right to sit in worship on the ghat of a river.

2.      Passage of boats over waters belonging to other: The right to passage for boats in rainy season over water belonging to another property is an easement in Bengal.

3.      Discharging household water: The right to put drain and discharge ordinary household water on the neighbor’s land is an easement that is often the subject of litigation in towns.

4.      Discharge latrine water: Such a right is as in discharge of household water.

5.      Right to use another’s latrine: The right to use neighboring latrine in the country is regarded is an easement.

6.      Putting up scaffolding on neighbor’s land: Putting scaffolding on neighbors open space for paint the wall or plastering the wall also fall within the category of recognized easement.

7.      Putting advertisement placard or illuminations: The right to put advertisement placard or illuminations on neighbor’s building is an easement.

8.      Storing and threshing grain: The rights to store grain on another’s courtyard and to thresh them and otherwise use the courtyard can also an easement.

9.      Stocking manure: To stock manure on another’s land can also be right of easement.

10.  Putting rice seeds for transplantation: To go to another’s land to plant rice seedling there, let them grow, and then carry them to one’s own field for the purpose of transplantation could be the subject matter of an easement.

11.  Using roof for drying clothes: For the purpose of sitting or drying clothes, roof of another, can be used.

12.  Use of land for sitting and sleeping: Use of another’s land for sleeping and sitting is an easement. This is not personal right.

Who may impose easement: Impose means grant in the granter’s land. Impose is used to indicate grant upon his own land. Easement may be created either by express grant or implied grant. Anyone may impose easement, in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.

Following are the “any one” who may impose easement:

1.      Owner: An individual owner of land can create easement for any estate or interest. The owner of servient tenement can impose easement, by his unilateral act, on his property.

2.      Co-owner: One of the co-owners may impose easement, with the consents of other owners.

3.      Lessee: Any lessee or tenant can impose easement on the leased land for the un-expired period of his lease or for any shorter period.

4.      Permanent tenure-holder: The holder of permanent tenure can create an easement.

5.      Ostensible or quasi owner: If a person grants an easement upon the representation that he has the title to do so and he has not the title at the time of the grant. If he subsequently acquires it, the easement so granted attaches to the newly acquired property and the conveyance operates by way of estoppel against the denial of the right.

6.      Limited owner: Limited owners having temporary interests in land may grant easement rights, which might last during the continuance of their interests.

Who may acquire easement: An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.

1.      Owner or person in possession: Owner of dominant heritage or person in possession of the dominant heritage on the behalf of the owner may acquire an easement. Easement is acquired for the beneficial enjoyment of the dominant heritage. An occupier of land can acquire easement.

2.      Co-owner: Co-owner of tenement in joint ownership can acquire an easement, either by grant or by prescription and on behalf of the co-owners of the tenement, but independently of their consents, and for the beneficial enjoyment of the tenement.

3.      Trespassers: Dominant owner is the person who has dominant right over his own property and he has committed trespassing for continuous twenty years over the servient heritage and has acquired easement.

4.      Lessees: A lessee who is in possession of the dominant owner can acquire an easement for his lessor in a servient tenement. There can be no easement between landlord and tenant.

5.      Co-tenant: Tenant of land can acquire an easement on the property held by another tenant belonging to tenant of other than his own lessor.

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