There are several villages in the midst of agricultural
lands.There are houses surrounded by other houses.Inhabitants of these places
have one common disadvantage, they do not have direct access to the road. To
reach the public road they have to pass through someone else’s property.
There are several acres of sprawling agricultural lands for
which water has to flow through adjoining lands. In some remote areas people
collect water from a distant water body. To reach the water source they have to
walk over a long stretch of land, which does not belong to them.The owners of
such lands cannot deny use of their lands.The Easements Act of 1882 clearly
says that it is the privilege of the people to use the land out of necessity,
which the owners cannot deny.
Easement is right to use another’s property. It is a right,
which the owner of a particular land enjoys over an adjacent property, which he
does not possess. It is the right over a property belonging to someone else and
not to the person claiming easement.The landowner who will benefit from the
property which is not his own and over which he has a right is called dominant
heritage or dominant tenement and the owner of such a land is called the
dominant owner. Dominant because the owner has control over the use of that
particular land which he does not possess.
Whereas the actual landowner who cannot object to the other
using his land is called servient heritage or servient tenement and the owner
of such a land is called servient owner. Servient or subordinate because he has
to abide by the requirements and convenience of the dominant owner. In fact,
whether he likes it or not, it is a burden brought to bear on him by grant, by
custom or by prescription.X owns a piece of land. Y has the right of way over
it. Here X is the servient owner and has the servient heritage.Y is the
dominant owner and he has the dominant heritage.
Servient Heritage means an inherited property over which the
dominant owners have a right to use it to their advantages. Dominant Heritage
means inheriting a right over another’s property without owning it.The title to
easement may be by grant, by custom or by prescription.An easement can be
acquired by grant. The deed of easement may be separate or the grant may be
included in a deed relating to the dominant heritage. For example, X sells his
land to Y and by the same deed he may grant a right of way to Y for such land
for another land of his.
Grant is given by an agreement executed by the grantor in favour of the grantee for a consideration. The grant becomes effective when the
grantee has the right to enter upon the grantor’s land.
Prescription means getting a right by continuous assertion of
the right, which has been in use for a long period of time. According to the
Indian Easements Act, for example, the inhabitants of a building enjoying the
access and use of air and light as a right continuously for over 20 years have
the right to enjoy them without any condition or restriction.
Easement by virtue of custom is a legal right acquired by the operation of law through continuous use of a land over a long period of time.
Therefore the right of way continues to exist by grant,
prescription or by virtue of custom.The dominant owner has the right over the
property of the servient or subordinate owner. It is a privilege enjoyed by the
dominant owner over the property, which he does not own.The servient owner
cannot enjoy his own property. He cannot do anything on his own land and he is
bound to suffer for the advantage of the dominant owner.If at all the servient owner does something
on dominance own property, the dominant owner has the right to prevent it.
In an easement there must be a dominant owner and a servient
owner, it must be for the advantage of the dominant owner, it may be permanent
or temporary, or for a limited period of time or seasonal or for a specified event or out of necessity, the owners must be two different persons and it must
be capable of forming the subject matter of a grant.
There are several types of easement. Right of way, right to
air and light, riparian rights, right to build, right to uninterrupted flow of
water, are a few.Easements, which are the subject matters of agreement between
the parties, are for right of way, right to air and light. Some easements are
acquired by grant and others prescription and custom. We are dealing with
easements, which form subject matters of grant.
Creation of an easement does not mean transfer of property.In the same manner, surrendering an easement right does not imply transfer of
property. Easement can be made, altered and released.Easement right cannot be
created or modified orally.It must be in a written form. However, easements by
prescription and custom need not be in writing.
Right of Way
Private right to certain individuals by grant, rights to
certain classes of people like inhabitants of a village by custom and common
rights dedicated for the benefit of all, are three classes of rights of way.The
private right of way is the means of access to and from a dominant heritage by
way of grant. If a seller sells one of his adjoining properties to the
purchaser, the seller reserves the right of way for passage running across the
property sold. In this case the seller reserves the right of way in the sale
deed in favour of the purchaser.
If the purchaser has no right of way to access the road, the
seller will grant to the purchaser a right of way over his property. Here the
seller of the plot has to execute a separate deed in favor of the purchaser
granting a right of way. A right of way for the benefit of the public at large
is normally acquired by prescription.A private right of way can be either permanent or periodic or for a particular time during the day only, or seasonal
or for a limited time, for to and fro movement of human beings, cattle and
light vehicles.
The deed of grant must clearly mention the purpose for which
easement is granted. By the deed of grant the subservient owner gives full and
free right to the dominant owner and his successors a passage wide enough for
movement of people and vehicles in the dominant owner’s property to the public
road against a price consideration. To make matters very clear a map with the
properties and the passage marked in different colors must be annexed to the
document of grant.
The dominant and servient owners have certain rights and obligations to maintain and preserve the easement. While exercising his right
over the property of the servient heritage, the dominant owner has
responsibilities to preserve the easement. His acts and deeds shall not put the
servient owner into inconvenience. Being the actual user he shall rectify the
damages if any caused by his acts at his own expense.
The servient owner is not obliged to do anything for the
advantage of the dominant heritage. He has no liability whatsoever to construct
a way for the use of the dominant owner or to carry out repairs in case of any
damage to the passageway. As the holder of the property he is free to use the
servient heritage in any manner he likes, but his acts shall not dilute the
right of the dominant owner.
Air and Light
Easements of air and light arise only in the thickly
populated cities and towns. Earlier buildings were constructed close by often ignoring the conveniences of the nearby inhabitants.Virtually no space was left in
between the buildings hindering airflow and natural light to the smaller
houses.The inhabitants of houses who were getting fresh air and natural light
suddenly found these were denied to them because of a multistoried building nearby.Haphazard constructions are no more a rule of modern architecture. Presently,
buildings are constructed in a well-planned manner.Leaving minimum set backs
as prescribed between two buildings for free flow of air and natural light is
now mandatory.
Therefore, any one who comes into
possession of a servient heritage has to carry the burden of easement for all
times to come for the benefit and enjoyment of the person who comes into
possession of the dominant heritage. This sort of ‘master-servant’ relationship
cannot be severed as long as such properties co-exist.
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