The Indian Easement Act

Indian Easement Act, 1882 1.

Introduction: The Indian Easement Act came into force on 1 st July 1882, with the object of defining and amending

the law relating to Easements and Licenses It is the right enjoyed by the owner or the occupier of  the land, to enjoy his own land by e!ercising certain rights o"er some other land not belonging to him 2.

Mean Meanin ing g and and Defi Defini niti tion on of Ease Easeme ment nt:: Easementary #ight is a $ri"ilege anne!ed to some to be enjoyed o"er some $ro$erty% it is a right

which a $erson claims o"er a land which is not of his own S.4 of the Indian Easement Act, 1882 &  An Easement is a right which the owner or the occupier of  the certain land possesses, as such for the beneficial enjoyment of that land, to do and continue to do  something, or to prevent and continue to prevent something being done, in or upon, or in respect of  certain other land not his own. 'ominant and ser"ient heritages and owners : The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, heritage, and the owner or occupier  occupier  thereof the servient owner. owner.  'ominant (eritage and owner  – '( is the land for the beneficial enjoyment of the right e!ist  – The owner or the occu$ier of such land is ')  *er"ient (eritage and )wner *( is the land on which the liability is im$osed  –  – *) is the owner of such land Essentia !onstituents of S.4: a. "ight ight:: It is a legal right, which although at the time of its ince$tion would ha"e been illegal but

has now ac+uired the legal character after the e!$iration of the $rescribed $eriod A right always in"ol"es two $arties&  – erson of inherence ie the $erson on whom a legal right "ests, 'ominant owner%  – erson of incidence ie the $erson who ha"e a co-relati"e duty, *er"ient owner owner #. $wner $wner or the the occup occupier ier of of the cert certain ain %and: %and: In the section the term owner and occupier are mentioned se$arately s e$arately i. $wner includes the $resent owner and the subse+uent owner, e!am$le& buyer, donee etc ii. $ccupier means the $erson who is not the owner but is the occu$ier, e!am$le& lessee etc c. %and: As $er E!$lanation to *. “the expression land includes the things permanently attached  to Earth. The e!$ression attached to Earth has not been e!$lained in the Act, so its meaning has been defined in */ of the Transfer of ro$erty Act, 1882, it includes&  – #ooted in the Earth, as in the case of Trees and *hrubs%  – Embedded in the Earth in case of 0alls and uilding% 1

 – Attached to what is so embedded for the $ermanent beneficial enjoyment of that to which it is attached d. &eneficia En'o(ment: Easementary right is that right which is $ossessed by the dominant owner to enjoy the dominant heritage better than he otherwise would ha"e done As $er the e!$lanation to *. “the expression beneficial enjoyment includes!  – )ossi#e !on*enience: or e!am$le right to way, right to fetch water from the neighbour3s

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land etc "emote Ad*antage: or e!am$le right to light, right to air E*en a mere amenit(: The sco$e of the definition is left o$en by the legislature for the

inter$retation by the judiciary e. +o do and continue to do, or to pre*ent or continue to pre*ent: The right of Easement has  been classified into& i  Positive Easement: This right enables the dominant owner to ma4e acti"e use of the ser"ient tenement It confers on him a right to do some act u$on the ser"ient heritage in ii

the absence of an easement, would be a nuisance or a tres$ass  Negative Easement: The right restricts the owner of the *er"ient (eritage, but merely restrict him from ma4ing a certain use of his $ro$erty in a certain manner which would im$air the easement enjoyed by the dominant owner for the beneficial use of the dominant

heritage f. “To do something”: It includes remo"al and a$$ro$riation by the dominant owner, for the  beneficial enjoyment of the dominant heritage, of any $art of the soil of the ser"ient heritage, anything growing or subsisting thereon g. $n certain and ot -is $wn: The most essential constituent of the easement is that an easementary right cannot be e!ercised by a $erson on his own $ro$erty, the right is a"ailable to a $erson on the $ro$erty which belongs to other $erson To sum u$&  – Easement is a ega right%  – #ight which rests with the Owner or the occupier ;  – or the #eneficia en'o(ment of the land%  – )ositi*e right and negati*e right  – )n the $ro$erty not his )05 Illustration&  – A, as the owner of a certain house, has a right of way thither o"er his neighbour 3s land for   $ur$oses 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 neighbours 3s land, and to ta4e

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water for the $ur$oses of his household out of a s$ring therein This is an easement A, as the owner of a certain house, has the right to conduct water from 3s stream to su$$ly the fountains in the garden attached to the house This is an easement

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ature of Easementar( "ights:

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S.0 of the Indian Easement Act:  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. !ontinuous Easements:  – 0hose enjoyment is, or may be, continual without the act of man  – or E!am$le& #ight to light, #ight to air  – A continuous easement is one, the use of which is uninterru$ted, without the

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inter"ention of the human act% The test of continuousness is when due to the easementary right the *( has been  $ermanently altered in such a way in order to e!ercise the easement

Illustration& A right anne!ed to 3s house to recei"e light by the windows without obstruction by his neighbour A This is a continuous easement 

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Discontinuous Easements: It3s a 4ind of easement which needs the act of man for its enjoyment or e!am$le& #ight of way, #ight to fetch water from the *( or discontinuous easement the act of man is essential% #Act of $an% means the act which should necessarily be done on the *( Illustration& 6b7 A right of way anne!ed to A3s house o"er 3s land This is a discontinuous

easement Apparent Easement:  – The e!istence of which is shown by some $ermanent sign which, u$on the careful ins$ection by a com$etent $erson, would be "isible to him Illustration& #ights anne!ed to As land to lead water thither across s land by an a+ueduct and to draw off water thence by a drain The drain would be disco"ered u$on careful ins$ection by a $erson con"ersant with such matters These are a$$arent easements  onapparent Easement:  – It is the 4ind of Easement which does not ha"e any sign Illustration& A right anne!ed to As house to $re"ent  from building on his own land This is a non-a$$arent easement

S.  of the Easement Act:  An easement may be permanent, or for a term of years or other limited 

 period, or subject to periodical interruption, or exercisable only at a certain place, or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence

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or become void or voidable on the happening of a specified event or the performance or non"  performance of a specified act. As $er *9 the Easements can be di"ided into three categories& a

ermanent easement%

 b

Limited Easement&

c

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Limited as to its duration or subject to $eriodical interru$tion%

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Enjoyment as to a certain $lace, certain times, for a $articular $ur$ose% :onditional Easement& :ondition can be im$osed as to is&

 – :ommencement%  – ecoming "oid or "oidable on the ha$$ening of certain s$ecified e"ent% or on the  $erformance or the non-$erformance of certain s$ecified act S.3 of Indian Easement Act:  Easements are restrictions of one or other of the following rights

&namely'!"  Exclusive right to enjoy! &a' The exclusive right of every owner of immovable property &subject to any law for the time being  in force' to enjoy and dispose of the same and all products thereof and accessions thereto.  (ights to advantages arising from situation! &b' The right of every owner of immovable property &subject to any law for the time being in force' to enjoy without disturbance by another the natural advantages arising from its situation. Illustrations&

 – The e!clusi"e right of e"ery owner of land in a town to build on such land, subject to any munici$al law for the time being in force

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 – The right of e"ery owner of a house that his $hysical comfort shall not be interfered with materially and unreasonably by noise or "ibration caused by any other $erson

 – The right of e"ery owner of land to so much light and air as $ass "ertically thereto

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!reation of Easements: S.8 to S.1 a. &( 5rant: It is the Easement by consent of the ser"ient owner;occu$ier In this where the ser"ient owner 

e!$ressly agreed and ga"e $ermission to use s$ecific $ro$erty for the beneficial enjoyment of the dominant heritage This is an e!$ress grant of easement from ser"ient occu$ier to dominant occu$ier The e!tent of  such grant is to the e!tent to which he may transfer his interest in the heritage on which the liability is to be im$osed The *er"ient )wner while ma4ing the e!$ress grant of the easement should 4ee$ notice of the two things&  – That the im$osition the utility of the e!isting easement is not reduced%  – 0ithout the consent of the dominant heritage, the ser"ient owner cannot grant easementary right to such an e!tend which would lessen the utility of e!isting dominant owner Illustration&  – A is a tenant of 3s land under a lease for an une!$ired term of twenty years, and has  $ower to transfer his interest under the lease A may im$ose an easement on the land to

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continue during the time that the lease e!ists or for any shorter $eriod  A,  and : are co-owners of certain land A cannot, without the consent of  and :,

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im$ose an easement on the land or on any $art thereof A has, in res$ect of his house, a right of way o"er 3s land  may grant to :, as the owner of a neighbouring farm, the right to feed his cattle on the grass growing on the way& )ro*ided that A3s right of way is not thereby obstructed

The lessor or mortgagor can im$ose easement but when the following conditions are fulfilled&

 – It derogates with the rights of the lessee or in case of the mortgage renders the security  –

insufficient :onsent of lessee or mortgagee is re+uired only in the case when easement granted is to ta4e effect before the e!$iration of the term of lease or mortgage

#. &( ecessit( and 6uasi ecessit(: * 1/6a7, 6c7, 6e7 contem$lates about Easement by 5ecessity

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 5ecessity mentioned under these clauses is not an ordinary necessity but an absolute one In order  to claim easement of necessity, it must be shown that it is one without which the $ro$erty retained u$on a se"erance cannot be used at all It should not be the con"enient mode of enjoying the  $ro$erty Easement by necessity arise when one $ro$erty is se"ered into two $arts either because of  transfer, be+uest or $artition and two $ro$erties are so situated that one cannot be enjoyed without e!ercising a $articular $ri"ilege in or u$on other $ortion S.1/ 7a:  )f an easement in other immovable property of the transferor or testator is necessary for 

enjoying the subject of the transfer or be*uest, the transferee or legatee shall be entitled to such easement; or  7c  )f an easement in the subject of the transfer or be*uest is necessary for enjoying other 

immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or  7e +here a partition is made of the joint property of several persons! if an easement over the share

of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to  such easement. Illustrations

 – A sells  a field then used for agricultural $ur$oses only It is inaccessible e!ce$t by $assing o"er A3s adjoining land or by tres$assing on the land of a stranger  is entitled to a right of  way, for agricultural $ur$oses only, o"er A3s adjoining land to the field sold

 – A, the owner of two field, sells one to , and retains the other The field retained was, at the date of the sale, used for agricultural $ur$oses only, and is inaccessible e!ce$t by $assing o"er  the field sold to  A is entitled to a right of way, for agricultural $ur$oses only, o"er 3s field to the field retained *1/6b7, 6d7, 6f7 contem$lates about Easement by