What an Easement Is
Chapter Forty-Eight
Syllabus topic 3.2, "Indian Easements Act, 1882"
Pages 252 to 258 of 378
In one line
An easement is a right one landowner has to do something on his neighbour's land, or to stop his neighbour doing something on it, for the benefit of his own land.
In exam wording: section 4 provides that 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.
Why the definition is built around two pieces of land
An easement is not a personal privilege. It exists because one piece of land needs something from another, and it belongs to whoever owns the land that needs it.
That is what the words "as such" carry. The right is held in the capacity of owner or occupier of the benefited land, and not as an individual. It follows that the right passes with the land when the land is sold, and that it cannot be detached and sold on its own, which is the rule in section 6(a) of the Transfer of Property Act, taught in [What May Be Transferred].
Sections 1 to 3: what the Act is, and what it leaves alone
Section 1 provides that the Act may be called the Indian Easements Act, 1882.
Section 2: savings. Nothing in the Act is deemed to affect:
(a) any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of water flowing, collected, retained or distributed in or by any channel or work constructed at the public expense for irrigation;
(b) any customary or other right, not being a licence, in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property; or
(c) any right acquired, or arising out of a relation created, before this Act came into force.
Clause (b) is the one that matters for a student, and it is the statutory home of two things this chapter has already met. A right possessed irrespective of other immovable property has no dominant heritage, so it is not an easement at all; and a customary right, such as a village right to draw water or to hold a fair on particular land, is preserved by the Act rather than governed by it. Section 18 then allows a customary easement, which is different: that is a right annexed to a dominant heritage by local custom.
What an Easement Is
Section 3 is a construction provision: references in any Act or Regulation to sections 26 and 27 of the Indian Limitation Act 1877, or to sections 27 and 28 of Act 9 of 1871, are to be read as made to sections 15 and 16 of this Act, which are the prescription provisions taught in [Acquisition of Easements, and Easement by Prescription].
The four essentials
One, a dominant and a servient heritage. The section supplies the vocabulary: the land for the beneficial enjoyment of which the right exists is the dominant heritage, and its owner or occupier the dominant owner; the land on which the liability is imposed is the servient heritage, and its owner or occupier the servient owner.
Two, the two must be different persons' land. The section says "certain other land not his own". A man cannot have an easement over his own land; what he has there is simply ownership, and the courts call it a quasi-easement when it looks like an easement in the making. Section 13 turns quasi-easements into real ones when the two plots are separated, and is taught in [Acquisition of Easements, and Easement by Prescription].
Three, the right must be for the beneficial enjoyment of the dominant heritage. A right that benefits the owner personally rather than his land is not an easement.
Four, the right must be to do something, or to prevent something being done, in, upon or in respect of the servient land.
The Explanation, which widens all three key words
The Explanation to section 4 is short and it repays memorising, because it defeats most of the arguments a beginner would make against a claimed easement.
"Land" includes things permanently attached to the earth. So a right over a building is within the Act.
"Beneficial enjoyment" includes possible convenience, remote advantage, and even a mere amenity. This is very wide. The claimant need not show that his land is unusable without the right; a mere amenity is enough.
"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 on it. So taking water, fish, timber or fallen leaves can be an easement.
The illustrations, and the two that are NOT easements
The Act gives six illustrations, and the last two are the instructive ones.
(a) A, as owner of a house, has a right of way over neighbour B's land for purposes connected with the beneficial enjoyment of the house. An easement.
(b) A has the right to go on B's land and take water for his household out of a spring there. An easement.
What an Easement Is
(c) A has the right to conduct water from B's stream to supply fountains in his garden. An easement.
(d) A, as owner of a house and farm, has the right to graze cattle on B's field, or to take water or fish from C's tank, timber from D's wood, or fallen leaves from E's land for manure. These are easements.
(e) A dedicates to the public the right to occupy the surface of land for passing and re-passing. This right is NOT an easement. There is no dominant heritage: a public right of way benefits everybody and no particular piece of land. It is a public right, 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. An easement obliges the servient owner to suffer something or to abstain from something; it does not oblige him to do something positive. A positive duty of that kind is a covenant or a customary obligation, not an easement.
Illustration (f) states the most important negative rule in the whole Act: there is no easement to compel the servient owner to act.
Profit a prendre
Profit a prendre is Law French for a profit to be taken, and it means a right to enter another's land and take something from it: soil, minerals, timber, grass, fish, or the produce of the land.
In English law it is not an easement. An easement there gives no right to take anything; a profit is a separate species of interest in land.
In India the position is different, and that is the examinable point. The Explanation to section 4 provides that "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. So a profit a prendre, if it is annexed to a dominant heritage and exercised for its beneficial enjoyment, is an easement under this Act.
Illustration (d) to section 4 is a list of profits treated as easements: a right to graze a certain number of cattle on B's field, to take water or fish out of C's tank, timber out of D's wood, or the fallen leaves from E's land to manure one's own.
The limit is the dominant heritage. A right to take produce that is not annexed to any land of the taker has no dominant heritage, so it cannot be an easement here either. It would be a licence under section 52 of this Act, or, if it is exercisable irrespective of any other immovable property, a right saved by section 2(b).
What an Easement Is
Section 6: an easement need not be permanent
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, or become void or voidable, on a specified event or on the performance or non-performance of a specified act.
So an easement may be conditional and limited in exactly the ways an interest under the Transfer of Property Act may be, and a right is not disqualified from being an easement merely because it is temporary or restricted.
Section 7: what an easement restricts
Section 7 approaches the subject from the other side, by naming the ordinary rights of ownership that an easement cuts down. Easements are restrictions of one or other of:
(a) The exclusive right to enjoy. The exclusive right of every owner of immovable property, subject to any law in force, to enjoy and dispose of it and all its products and accessions.
(b) Rights to advantages arising from situation. The right of every owner of immovable property, subject to any law in force, to enjoy without disturbance by another the natural advantages arising from its situation.
Section 7 then sets out those natural rights, which include the right to the support of the soil in its natural state and the right to the flow of a natural stream. The point for a student is that these belong to an owner without any grant: they are natural rights, incidents of ownership, and an easement is what happens when one owner acquires something beyond them at his neighbour's expense.
That gives the distinction an examiner looks for. A right to the support of your land in its natural state is a natural right and needs no acquisition. A right to have your building supported by your neighbour's land is an easement and must be acquired.
A worked example
Priya owns a bungalow with a garden at Sangamner. Her neighbour Rehan owns the field behind.
Priya has used a track across Rehan's field to reach the road for years. A right, held as owner of the bungalow, for its beneficial enjoyment, to do something on land not her own. An easement, and a right of way is illustration (a).
She draws water from a spring on Rehan's field for her household. An easement, on illustration (b), and the Explanation confirms that appropriating part of the produce of the servient land can be an easement.
What an Easement Is
She has a right that Rehan shall not build so as to block her windows. An easement to prevent something being done, which is within the definition.
She claims that Rehan must repair the track each year. Not an easement. Illustration (f) shows that an easement cannot impose a positive duty on the servient owner. Rehan must suffer her passage; he need not maintain the way.
She claims a right of way for the public over Rehan's field. Not an easement, on illustration (e): a public right has no dominant heritage.
She claims that her land is entitled to support from Rehan's soil in its natural state. That is a natural right under section 7, not an easement, and she need prove no acquisition. If she claims support for the weight of her new building, that is an easement and must be acquired.
Rehan grants her a right of way for ten years only, exercisable between six in the morning and eight at night. Perfectly good: section 6 allows an easement for a limited period, at certain times and between certain hours.
What it does NOT mean
An easement is not a personal right. It is held "as such", in the capacity of owner or occupier of the dominant heritage.
There is no easement over one's own land. The servient land must be "not his own"; before separation such a right is a quasi-easement.
An easement cannot compel the servient owner to act. Illustration (f). It obliges him to suffer or to abstain.
A public right of way is not an easement. Illustration (e): there is no dominant heritage.
Necessity is not required. "Beneficial enjoyment" includes possible convenience, remote advantage and even a mere amenity.
An easement need not be permanent or unrestricted. Section 6 allows limits of time, place, hours, purpose and condition.
A natural right is not an easement. Support for land in its natural state, and the flow of a natural stream, belong to ownership; support for a building must be acquired.
Distinctions
| Easement | Natural right, s.7 | Public right | Licence | |
|---|---|---|---|---|
| Dominant heritage | Required | Not applicable, it is an incident of ownership | None | None |
| How acquired | Grant, prescription, necessity or custom | Belongs to the owner without acquisition | Dedication to the public | Permission |
| Interest in land | Yes | Ownership itself | No | No |
| Example | Support for a building; a private right of way | Support for land in its natural state; flow of a natural stream | A public highway | Permission to sit in a cinema |
| An easement can | An easement cannot | |
|---|---|---|
| Require the servient owner to suffer something | Yes | |
| Require him to abstain from something | Yes | |
| Require him to do something positive | No, illustration (f) |
What an Easement Is
Quick revision
- Easement: a right the owner or occupier of land has, as such, for the beneficial enjoyment of that land, to do or to prevent something in, upon or in respect of other land not his own.
- Dominant heritage benefits; servient heritage bears. Their owners are the dominant and servient owners.
- Four essentials: dominant and servient heritages; different owners; for the beneficial enjoyment of the dominant heritage; a right to do or prevent something.
- Explanation: "land" includes things permanently attached; "beneficial enjoyment" includes possible convenience, remote advantage and a mere amenity; "to do something" includes taking part of the soil or its produce.
- Not easements: a public right of way (illustration e, no dominant heritage); a duty on the servient owner to act (illustration f).
- s.6: an easement may be permanent or limited in time, place, hours or purpose, or conditional.
- s.7: easements are restrictions on the exclusive right to enjoy and on the advantages arising from situation, which are natural rights needing no acquisition.
Test yourself
1. Define an easement and name the four essentials. 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. The essentials are a dominant heritage, a servient heritage belonging to another, a purpose of beneficial enjoyment of the dominant heritage, and a right to do or to prevent something.
2. Why is a public right of way not an easement? Because there is no dominant heritage. A public right benefits the public at large and not any particular piece of land, as illustration (e) to section 4 shows.
3. Can an easement require the servient owner to repair a drain? No. Illustration (f) shows that an obligation to do something positive, such as cleansing a watercourse, is not an easement. An easement obliges the servient owner to suffer or to abstain.
4. How wide is "beneficial enjoyment"? Very wide. The Explanation includes possible convenience, remote advantage and even a mere amenity, so the dominant owner need not show that his land is unusable without the right.
5. Distinguish a natural right from an easement, using support. The right to have land supported in its natural state is a natural right under section 7 and belongs to ownership without any acquisition. The right to have a building supported by a neighbour's land goes beyond the natural right and is an easement, which must be acquired.
What an Easement Is
6. Must an easement be permanent? No. Section 6 permits an easement for a term of years or other limited period, subject to periodical interruption, exercisable at a certain place, at certain times or between certain hours, for a particular purpose, or on a condition.
7. Can a person have an easement over his own land? No. The definition requires the servient land to be "not his own". A right of that kind exercised over one's own land before separation is a quasi-easement, which section 13 may convert into an easement when the plots pass into different hands.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.