MODES OF ACQUISITION OF EASEMENTS

Presented by SREERESHMI P S IInd Sem LL.B

INTRODUCTIONAn easement is a right to use or enter on to the real property of another without possessing it. The easements rights are called in Roman law as jura in re aliena(i.e,right in the property of another)These rights are also called as servitudes ,in roman law as jus in re aliena(i.e,duty in the property of another) Easements are helpful for providing pathways across two or more pieces of property. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.

IllustrationA ,as the owner of a certain house ,has the right to go on his neighbour B’s land and to take water for the purpose of his house hold activities-its an easement

DEFINITIONSection 4 of Easements Act,1882 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.

ESSENTIAL ELEMENTS OF EASEMENTS

There must be a dominant and a servient tenement;The easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit;The dominant and servient owners must be different persons;The right claimed must be capable of forming the subject-matter of a grant;

CLASSIFICATION OF EASEMENTSPublic and Private easementsPositive and negative easementsApparent and non- apparent easementsContinuous and Discontinuous easementsAppurtenant and in gross easementsFloating easementStructural encroachmentWay leave

WHO MAY ACQUIRE EASEMENTSAccording to Section 12 of The Indian Easements Act, 1882 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.

One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.

No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.

MODES OF ACQUISITION OF EASEMENTS

MODES OF ACQUISITION OF EASEMENTS

Grant Prescription Operation of Law Easement of Necessity Quasi easement Court decision Customary easement Imposition Transfer Easement by prior use

GRANT

It may be granted or reserved in a deed or other legal instruments by the servient owner. The grant may be express or implied from the circumstances and conduct of the parties to the easement or it may be presumed from long user or it may be inferred from some usage prevailing in the locality.

PRESCRIPTIONAccording to Section 15 of the Act ;

where the access and use of light or air and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years.

And where support from one person’s land or things affixed thereto, has been peaceably, received by another person’s land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years,

And where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years,

The right, to such access and use of light or air, support, or other easement, shall be absolute.

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested

.

ESSENTIALS:According to section 15 of the easements Act to acquire the

prescriptive right the following conditions shall be fulfilled; The right claimed must be certain The right claimed must have been enjoyed by the claimant It must have been enjoyed independently of any agreement

with the owner of the land The enjoyment must be

Peaceable As an easement Open As of right With out interruption By person claiming title there of For a period of 20years ending within two years before

the suit incase the right is claimed

Illustration A suit is brought in 1883 for obstructing a right of way.  The

defendant admits the obstruction but denies the right of way.  The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto, as an easement, and as of right, without interruption, from Ist January, 1862, to 1st January, 1882.  The plaintiff is entitled to judgment.

Cases : Harischandra Prasad v.Krishnamurthy, Heeralal v.Ramjeevan,Punitdas v. Kandalal Das

CUSTOMARY EASEMENT

Section 18 of the Act deals with Customary easements. An easement may be acquired in virtue of a local custom.  Such easements are called customary easements. A valid customary easement must be possessed of the same characteristics as a valid custom.

IllustrationBy the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbor’s privacy.  A builds a house in the town near B’s house.  A thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of A’s house which are ordinarily excluded from observation, and B requires a like easement with respect to A’s house.

OPERATION OF LAW By Estoppel By statute By Special Statutory proceedings

EASEMENT OF NECESSITYEasement without which the property cannot be enjoyed at all. An easement of necessity is an easement which the law creates by virtue of doctrine of implied grant on the severance of the common ownership of the tenements to meet the necessity of a particular case.

IllustrationA lets a house to B for a particular business.  B has no access in them other than by crossing A’s land.  B is entitled to a right of way over that land suitable to the business to be carried on by B in the house.

Cases : Karunakaran v. Janaki Amma,State of Gujarat v. Harilal Moti Lal

Easement of necessity cannot be claimed in absence of severance of tenements

Krishnamaraju v. MarrajuGovind Bhatta v. Rambhatta

QUASI EASEMENTSQuasi easements are conveniences to which an owner subjects are part of his property for the benefit of another.Quasi easement meant for better use and convenience of the dominant tenement.Quasi easements exists in the property even before the property divided in to two or more parts.

IllustartionA sells B a house with windows overlooking A’s land.  The light passing over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect.  Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land for takes it subject to the burdens to which it was subject in A’s hands.

COURT DECISION

IMPOSITION Imposition is a voluntary creation of a right. Every owner of land

having a transferable interest in it, can impose over it an easement to the extent of his own right.

Illustration

     A is tenant of B’s land under a lease for an unexpired term of twenty years, and has power to transfer his interest under the lease.  A may impose an easement on the land to continue during the time that the lease exists or for any shorter period.

TRANSFERSection 19 Of Easements Act provides, Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or revolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place.

  Ram’s car

Hari’s LAND – servient tenement

Ram's LAND – dominant tenement

SOLD TO

Vishal

EASEMENT BY PRIOR -USE

An easement may also be created by prior use. There are five elements to establish an easement by prior use: Common ownership of both properties at one time Followed by a severance Use occurs before the severance and afterward Notice Necessary and beneficial

Illustartion

A owns two lots. One lot has access to a public street and the second is tucked behind it and fully landlocked. A's driveway leads from the public street, across the first lot and onto the second lot to A's house. A then sells off the first lot but forgets to reserve a driveway easement in the deed.

A originally had common ownership of both properties. A also used the driveway during this period. A then severed the land. Although A did not reserve an easement, the driveway is obviously on the property and a reasonable buyer would know what it is for. Finally, the driveway is reasonably necessary for a residential plot;

Here, there is an implied easement.

TERMINATION OF EASEMENTS

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