In this article, we shall introduce ourselves to the Indian Easements Act, 1882. This Act is very important in combination with the Transfer of Property Act.
As the name itself suggests it is a mere right enjoyed by a person to utilize other’s property without owning it. Such rights are granted to the person enjoying the right, by the owner of the property and are generally granted for passage, ingress /egress, air and light, water, etc. The ownership of the property is not transferred, it remains with the original owner, only the right to utilize it is granted to another person. For Example: In housing complexes buyer of a flat is given the right to utilize the common passage, lift, terrace, etc.
Thus an easement is a legal right to occupy or use another person’s land for specific purposes. The use of the land is limited, and the original owner retains the legal title of the land. A legally binding easement must be made in writing, the exact location stipulated in the property’s deed. While an oral agreement for the creation of an easement may be made, it does not always hold up in court. An oral or implied easement can become a complicated situation in the event the crossed property is sold to someone who does not wish to grant easement rights under an implied easement and is not always held up in court. For the creation of an easement to be legally binding, the document must be filed with the County Recorder. Defining the exact location, nature, and purpose of an easement in a deed or other legal document creates an “express easement.” Salmond, an easement is that legal servient which can be exercised on some other piece of land specifically for the beneficial enjoyment of one’s own land. The right of the easement is basically a form of privilege.
The concept of the easement has been defined under Section 4 of the Indian Easements Act, 1882. 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 Heritage and Dominant Owner:
Section 4 of the Indian Easements Act, 1882, defines dominant heritage and dominant owner as “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.”
Servient heritage and Servient Owner:
Section 4 of the Indian Easements Act, 1882, defines servient heritage and servient owner as “the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.”
Explanation attached to the section says that
- 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.
The Illustrations given in Section 4 are
- A, as the owner of a certain house, has a right of way either over his neighbour B’s land for purposes 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 neighbour B’s land, and to take water for the purposes of his household out of a spring therein. This is an easement.
- 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.
- 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.
- A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and repassing. This right is not an easement.
- A is bound to cleanse a watercourse running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement.
Elements of Easement:
- There must be a dominant tenement or dominant heritage. 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. Thus there must be owner or occupier of certain land.
- There must be a servient tenement or servient heritage. The land on which the liability is imposed (vested) is called the servient heritage, and the owner or occupier thereof the servient owner. Thus there must be a right vested in such owner or occupier (as such owner or occupier) to do and continue to do something, or in respect of, some other land (servient heritage).
- A person cannot have an easement over his own land. A dominant heritage and servient heritage should not be owned by the same person, that is, there must be separate ownership. If two parcels of land are owned by the same person then an easement cannot be granted over his/her own lands. However, where a person owns separate parcels of lands in two capacities, for example, in the capacity as executor and the other as beneficial owner an easement may be granted as tenements are not owned by the same person with the same rights.
- The right must be for the beneficial enjoyment of the land of the person (the dominant owner). An easement must benefit the lands which are described as the dominant tenement, that is, it must have a natural connection with the estate being for its benefit. A right that benefits the registered owner is not an easement. The object of easements is that the dominant owner enjoys it in a way which includes express and implied benefits.
- The right, the subject of the easement, must be capable of forming the subject matter of a grant.
- Easements can be both positive or negative. Former refers to a right through which the dominant owner does some act to exercise the right over the land of the servient owner. Whereas, the latter denotes an act of prevention. In a negative easement, the dominant owner prevents or restricts the servient owner from doing certain acts or acts.
Note: Allowing a single act on servient land is not an easement, because easement assumes there is a continuation of the act.
Examples of Easement Which can Be Acquired Under the Indian Easements Act, 1882:
- Right of way for pedestrians or motor vehicles;
- Right to take water from a well or spring;
- Right of access and use of light;
- Right of air
- Right to maintain and service utilities;
- Rights of support and to take away;
- Use of a letterbox, lavatory, kitchen
The following rights are recognized as easements, even if there are no official documents or agreements:
- Aviation Easement – the right to use the airspace over a property, flying above a certain altitude, where needed for spraying of property or other agricultural purposes.
- Storm Drain Easement – the right to install a storm drain to carry rainwater to a river, wetland, or other body of water.
- Sidewalk Easement – the right of the public to use sidewalks in front of a public area.
- Beach Access Easement – the right for neighboring residents to access a public beach, even if the access crosses private property.
- Dead End Easement – the requirement for a landowner to grant the public access to the next public way, even if such access crosses on his property.
- Conservation Easement – the right of a land trust to limit development, usually done for the purpose of protecting the environment.
Characteristics of Easement:
- There must be two distinct tenements. a dominant tenement and servient tenement.
- The easement must accommodate the dominant tenement.
- The dominant and servient tenements must be owned or occupied by different persons.
- The easement must be capable of forming the subject matter of the grant for example, there must be a capable grantor or grantee.
- The easement must be of the known and usual kind, and not novel or fanciful.
- The easements are imposed upon the property of servient tenements, and not upon the owner personally.
- An easement cannot confer an exclusive use of the servient tenement, because this would pass the ownership
Profit a Prendre:
A profit a Prendre (French for ‘right of taking’) is a nonpossessory right that entitles one to go on the land of another and remove the soil or product of the soil from it. Remember that the servient tenement ‘serves’ the dominant tenement. For example, you may own property next to a stream. Your property may have a profit a prendre to fish the stream. As the owner of the property, you have the right to fish the stream. If you sell the property, then you lose the right and the new owner gets it because the right is transferred with the land.
According to The Indian Easements Act, 1882, profit a prendre is a part of the definition of easements. The Act provides to do something on the servient heritage which includes the right of removing and appropriating for his own use, any part of the soil of the servient heritage or anything growing on or attached to or subsisting upon the servient heritage. This privilege of taking away something from the land of another is known as profit-a-prendre. Example: a right to take earth from the land of the other person for making an earthenware is a profit a prendre. This is basically a profit made out of the land of the other person. Other examples of profit a prendre are:
- The right of fishing from another’s pond (without excluding the owner);
- The right to take fruits of trees in the season from another’s yard;
- The right to take stones from another person’s land to mend his own road;
- The right to planting rice on another’ land for the purpose of transplantation;
- The right of the owner of a farm to graze a certain number of his cattle on his neighbour’s field;
- The right of a person to take water or timber from another’s land;
- The right of a person to take leaves falling his neighbour’s land for use as manure of his own land.
The owner of the dominant heritage exercises this right on the property of the servient owner. Profit a prendre is a right to do something on the land of servient tenement for the more beneficial enjoyment of the dominant heritage.