3. Concept of easement
• THE INDIAN EASEMENTS ACT, 1882
S 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 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.
Dominant and servient heritages and owners.—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.
Explanation.—In the first and second clauses of this section, the expression “land” includes also things
permanently attached to the earth; the expression “beneficial enjoyment” includes also possible
convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes
removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage,
of any part of the soil of the servient heritage or anything growing or subsisting thereon.
4. The concept
• Easement is a non-possessory right
• The use of the facilities on the premise without any partake in the title and ownership
• It is a legal right to either occupy land owned by another person or use the facilities on land for
a specific purpose, while the legal owner retains the title.
• Even if the title is transferred, the subsequent owners continue to be the 'easement owner’ and
continue the use of the land
5. Illustrations
(a) A, as the owner of a certain house, has a right of way thither over his neighbour B’s land for
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 B’s land, and to take
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 B’s stream to supply the
fountains in the garden attached to the house. This is an easement.
(d) 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.
(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of
passing and re-passing. This right is not an easement.
(f) A is bound to cleanse a water course running through his land and keep it free from obstruction
for the benefit of B, a lower riparian owner. This is not an easement.
6. Essential of easements
• Dominant or servient heritage
• Existence of two properties; dominant and servient heritage is a must
• Separate owners
• Owners of the property must be separate- not single ownership
• Beneficial enjoyment
• The object of easements is that the dominant owner enjoys express and implied
benefits
7. Classification of easements
S. 5. Continuous and discontinuous, apparent and non-apparent, easements.—Easements are
either continuous or discontinuous, apparent or non-apparent.
A continuous easement is one whose enjoyment is, or may be, continual without the act of man.
A discontinuous easement is one that needs the act of man for its enjoyment.
An apparent easement is one the existence of which is shown by some permanent sign which, upon
careful inspection by a competent person, would be visible to him.
A non-apparent easement is one that has no such sign.
Illustrations
(a) A right annexed to B’s house to receive light by the windows without obstruction by his
neighbour A. This is a continuous easement.
(b) A right of way annexed to A’s house over B’s land. This is a discontinuous easement.
(c) Rights annexed to A’s land to lead water thither across B’s land by an aqueduct and to draw off
water thence by a drain. The drain would be discovered upon careful inspection by a person
conversant with such matters. These are apparent easements.
(d) A right annexed to A’s house to prevent B from building on his own land. This is a non-apparent
easement.
8. Explanation
• Continuous or Discontinuous easement
• The differentiating factor intervention of human act
• Continuous – for the enjoyment of which there is no need for human
intervention ; sunlight, air
• Whereas for discontinuous easement human act is necessary to enjoy the
easement – right of way
• Apparent and Non-apparent easement
• Differentiating factor is visibility
• Apparent visibility through some permanent sign; visible by a careful
examination – an underground aqueduct
• Not visible through inspection; right to stop construction over a certain
height
9. Acquisition of easements
• Express grant
• Implied circumstances
• S. 13. Easements of necessity and quasi easements
• S. 15. Acquisition by prescription
• S. 18. Customary easement.
