6/21/2017

EASEMENT
LAW OF TORT II
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TABLE OF CONTENTS
EASEMENT ............................................................................................................................... 2
Section 4 of Easements Act, 1882 ........................................................................................... 2
ESSENTIAL ELEMENTS OF EASEMENTS ................................................................. 2
CLASSIFICATION OF EASEMENTS ............................................................................... 2
Easements are either continuous or discontinuous, apparent or non-apparent. ............ 3
What is an Easement? ............................................................................................................... 3
DOMINANT AND SERVIENT HERITAGE.................................................................... 3
Types of Easement ...................................................................................................................... 4
Utility Easement.......................................................................................................................... 4
Private Easement ........................................................................................................................ 4
Easement by Necessity ............................................................................................................... 4
Prescriptive Easement ............................................................................................................... 5
Public Easement ......................................................................................................................... 5
Easement by Prior Use .............................................................................................................. 5
QUASI EASEMENTS .............................................................................................................. 5
Easement Rights ......................................................................................................................... 5
Transferring an Easement ........................................................................................................ 6
Duration of an Easement .......................................................................................................... 6
Trespass Upon an Easement..................................................................................................... 6
Terminating an Easement ......................................................................................................... 7
TERMINATION, SUSPENSION AND REVIVAL OF EASEMENTS ...................... 7
Customary easements ................................................................................................................. 8
Who may impose easements ...................................................................................................... 9
Who may acquire easements ..................................................................................................... 9
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EASEMENT
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 legal title of the land. A legally binding easement must be
made in writing, the exact location stipulated in the property’s deed. Easements most commonly grant utility
companies access for the purpose of installing and maintaining power, phone, and cable lines, as well as
for water drainage purposes.
An easement may also be granted to allow the owner of a neighboring property to install an access driveway.
In most cases, even when the land in question changes hands, the easement remains in effect and subsequent
owners are required to allow the easement owner to continue using the land as specified. To explore this
concept, consider the following easement definition.
The term ‘easement’ comes from the Old Latin word ‘ aisementum ’ meaning “comfort, convenience or
privilege” and it developed into “a legal right or privilege of using something not one's own" from the early
15c. An easement is the grant of a nonpossessory property interest that grants the easement holder
permission to use another person's land. In simple terms, it refers to the right which a man sometimes has
over one piece of land by reason of his ownership of another.

Noun
The right to use another person’s land for a designated purpose.

Origin
14th century Late-Middle English esement

Section 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 EASEMENTS
 Public and Private easements
 Positive and negative easements
 Apparent and non- apparent easements
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 Continuous and Discontinuous easements
 Appurtenant and in gross easements
 Floating easement
 Structural encroachment
 Way leave

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.

Illustrations
a) A right annexed to B's house to receive light by the windows without obstruction by his neighbour
A. This is a continuous easement.
b) A right of way annexed to A's house over B's land. This is a discontinuous easement.
c) Rights annexed to A's land to lead water thither across B's land by an aqueduct and to draw off
water thence by a drain. The drain would be discovered upon careful inspection by a person
conversant with such matters. These are apparent easements.
d) A right annexed to A's house to prevent B from building on his own land. This is a non-apparent
easement.

What is an Easement?
Easements are created when a property owner expresses language in a legal document. While an oral
agreement for creation of an easement may be made, it does not always hold up in court. This is referred to
as an “implied easement,” and often occurs when two neighbors simply agree that a driveway or other
access is necessary to one property across the other, with no legal documentation. This 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.”

DOMINANT AND SERVIENT HERITAGE

The landowner who will benefit from the property which is not his own and over which he has a right is
called dominant tenement and the owner of such a land is called the dominant owner because the owner
has control over the use of that particular land which he does not possess.
The actual landowner who cannot object to the other using his land is called servient tenement and the
owner of such a land is called servient owner 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. He cannot do anything on his own land which affects the dominant heritage and
he is bound to suffer for the advantage of the dominant owner.
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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.
According to Section 4 of the Indian Easements Act, 1882 “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.” 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.
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.

Types of Easement
There are several types of easement, each of which grants the holder specific use of the property. The type
of easement depends on the type of property involved, the relationship of the parties, and the specific use
for which the easement is granted.

Utility Easement
A utility easement is perhaps the most common type and it involves giving easement rights to a utility
company or the local municipality (city, county, or state) in general. These easements are typically
described in the property deed and include a map defining the area to which the utility or municipality is
entitled. In the case of a utility easement, the property owner can use the property however they choose, as
long as they do not interfere with the utility company or municipality’s use.

Private Easement
Private easements occur when a property owner sells an easement to an individual. This may be for a
number of reasons, including giving a neighbor driveway access, or sharing a sewer line or well with a
neighbor. Before granting a private easement, or purchasing a property that has this type of easement, it is
vital that the property owner or potential buyer review the documents carefully, as a private easement often
limits what the property owner can do on or around the defined area. For example, a property owner who
has granted a solar access easement to his neighbor may not be allowed to plant trees or construct buildings,
either of which would block sunlight, next to the easement

Easement by Necessity
Situations often arise when one property owner must cross another’s land for a crucial purpose, such as
accessing their land and home. A landowner cannot be denied access to his home or property, and this is
generally taken into account in the deeds when the land is originally divided. Although necessity creates a
right to an easement, it is imperative to ensure the exact location of an easement by necessity is recorded
on the deed.
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Prescriptive Easement
A prescriptive easement occurs when someone acquires easement over another’s land for a specific purpose.
This differs from easement by necessity as the person acquiring the easement only uses the property for a
set amount of time. Each state has specific statues that determine the length of time a person can use a
prescriptive easement, and whether the person holding the easement is required to pay a portion of the
property taxes on the land being used. A landowner may simply grant permission for the other individual
to use the property on a limited basis, but if access is denied, the individual must file a claim of easement
by prescription, allowing the court to make a ruling.

Public Easement
A public easement grants a certain defined area of land for public use. An example would be the granting
of public access of a portion of the landowner’s property for a park or touring.

Easement by Prior Use

An easement by prior use is based on a notion that, on occasion, landowners intend to form an easement,
but forget to include it within the deed. In this case, five elements are needed to establish an easement by
prior use:
1. Common ownership of both properties at any one time
2. A severance of the properties
3. Use of easement before and after the severance
4. Notice of the easement
5. The easement is for necessary and beneficial use
For example, Bob owns two separate lots, one of which provides access to a public street, the other sits
behind it. Bob’s driveway starts on the second lot and runs through the first lot to the public street. He sells
the street-adjacent lot and forgets to specify the driveway area as an easement in the deed. Most likely, the
court will determine Bob is entitled to an easement by prior use, as it is necessary for him to access his
property from the street.

QUASI EASEMENTS
The principle of quasi easement is that where the one portion of the property has been dependant on another
portion for necessary advantages and the former portion is alienated, the denial to the grantee of the
enjoyment of similar advantages would be to deprive his new acquired property of utility and benefit of his
bargain. A quasi easement will not come into existence if it is expressly excluded by the terms of the grant
or are inconsistent with the intention of the parties.

Easement Rights
An easement holder is entitled to do whatever is reasonably necessary to fully utilize the property for the
purpose for which the easement was created. His rights under an easement do not allow, however, the
imposition of an unreasonable burden for the property owner. The property owner may also use the land as
long as such use does not interfere with the purpose of the easement.
Reasonable use of an easement may change over time as the property evolves and technology improves. If
the court finds that use of an easement is not reasonable, and that the property owner is unduly burdened
by the use, it can restrict the easement holder’s easement rights, or award the property owner damages.
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Conversely, if the court finds that the property owner is interfering with an easement, it may order the
property owner to stop the action or remove any obstruction.
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.

Transferring an Easement
When considering a real estate transaction, easements must be taken into consideration, including the
feasibility of transferring an easement. Some types of easements are transferred when a property changes
hands, others are not. For example, an “appurtenant easement” remains part of the property, while
“easements in gross” are considered rights of personal enjoyment granted by the original property owner.
These types of easements may include access for camping, hunting, and fishing, among other activities. If
the property in question changes hands, it is up to the new owner whether to continue to grant the easement.
Putting it simply, the difference between an appurtenant easement and an easement in gross is that the
appurtenant easement is for the benefit of the land, while an easement in gross only benefits the individual
to whom it is granted.

Duration of an Easement
In general, if the legal easement does not specify the length of time the easement will be in effect, the courts
can assume it was created to last indefinitely. However, if the easement holder intends to use the land
permanently, the duration of an easement should be specifically stated in the recorded deed containing the
easement. In the case of an easement that specifies a termination date, the easement holder must stop use
of the land on or before that date, or seek permission to extend the duration of the easement from the
property owner.

Trespass Upon an Easement

Blocking a party who has an easement is considered “trespassing upon an easement,” an action for which
the easement owner has a right to file a lawsuit. For example, placing a fence across a public path that sits
on an easement may be considered trespassing upon an easement, even if the fence was placed by the
property owner. In this case, the easement holder can take the property owner to court, which may then
order the fence be removed.
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Terminating an Easement
The act of terminating an easement requires the approval of the court. For a property owner to terminate an
easement, at least one of the following facts must be proven in court:

 Both parties have agreed to the termination

 The easement has reached its expiration date
 The easement holder discontinued use the of property
 The need for the easement no longer exists
 The easement holder is creating a hostile use of the property
 The owner of an easement has died
If the property holder seeking to terminate an easement is unable to prove one or more of the required facts,
the court may order him to continue allowing the easement holder to use the land in question until these
facts can be proven.

TERMINATION, SUSPENSION AND REVIVAL OF EASEMENTS

Generally, mere nonuse does not end an easement. One or more of the following factors may also have to
be present:

Extinction by dissolution of right of servient owner:

When, from a cause which preceded the imposition of an easement, the person by whom it was imposed
ceases to have any right in the servient heritage, the easement is extinguished.
For example, A transfers Sultanpur to B on condition that he does not marry C, B impress an easement on
Sultanpur. Then B marries C, B’s interest in Sultanpur ends, and with it the easement is extinguished.

Agreement to terminate by grantor and the grantee of the easement:

An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient
owner. Such release can be made only in the circumstances and to the extent in and to which the dominant
owner can alienate the dominant heritage. An easement may be released as to part only of the servient
heritage. Similarly as per section 39 of the Indian
Easements Act, 1870 an easement is extinguished when the servient owner, in exercise of power reserved
in this behalf, revokes the easement.

Expiration of the time allowed for the easement:

An easement is extinguished where it has been imposed for a limited period, or acquired on condition that
it shall become void on the performance or nonperformance of a specified act, and the period expires or the
condition is fulfilled.

Abandonment or expressed intent to discontinue use of the easement:

A continuous easement or a discontinuous easement is extinguished when it totally ceases to be enjoyed as
such for an unbroken period of’ twenty years. With respect to a continuous easement, from the day on
which its enjoyment, was obstructed by the servient owner or rendered impossible by the dominant owner;
And, in the case of a discontinuous easement, from the day on which it was last enjoyed by the person as a
dominant owner:
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Merger where one person buys both dominant and servient tenement:
An easement is extinguished when the same person becomes entitled to the absolute ownership of the whole
of the dominant and servient heritages. For example, A, as the owner of a house, has a right of way over
B’s field. A mortgages his house, and B mortgages his field to C. Then C forecloses both mortgages and
becomes thereby absolute owner of both house and field. The right of way is extinguished.

Extinction by end of necessity in case of easement by necessity:

An easement of necessity is extinguished when the necessity comes to an end. For example,
A grant B a field inaccessible except by passing over A’s adjoining land, B afterwards purchases a part of
that land over which he can pass to his field. The right of way over A’s land which B has acquired is
extinguished.

Extinction by Destruction of Subject Matter:

An easement is extinguished when either the dominant or the servient heritage is completely destroyed. For
example, A has a right of way over a road running along the foot of a seacliff.
The road is washed away by a permanent encroachment of the sea. A’s easement is extinguished.

Suspension of Easement:
An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage
for a limited interest therein or when the servient owner becomes entitled to possession of the dominant
heritage for a limited interest therein. For example A has a right of way of B’s land obtains for lease his
land, the easementary right of way is suspended during this period.

Revival of Easements:
An easement extinguished under Section 45 revives (ii) when the destroyed heritage is, before twenty years
have expired restored by the deposit of alluvion; (b) when the destroyed heritage is a servant building and
before twenty years have expired such building is rebuilt upon the same site, and (c) when the destroyed
heritage is a dominate building and before twenty years have expired such building is rebuilt upon the same
site and in such a manner as not to impose a greater burden on the servant heritage. An easement
extinguished under
Section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by
the decree of a competent Court. A necessary easement extinguished under the same section revives when
the unity of ownership ceases from any other cause. A suspended easement revives if the cause of
Suspension is removed before the right is extinguished under Section 47.

Customary easements
An easement may be acquired in virtue of a local custom. Such easements are called customary easement.

Illustrations
a. By the custom of a certain village every cultivator of village land is entitled, as such, to graze his
cattle on the common pasture. A, having become the tenant of a plot of uncultivated land in the
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village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in
accordance with the custom.
b. By the custom of a certain town no owner or occupier o a house can open a new window therein so
as substantially to invade his neighbour's privacy. A builds 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 R acquires
a like easement with respect to A’s house,

Who may impose easements

An easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may
transfer his interest in the heritage on which the liability is so imposed.

Illustrations
a. A is a 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.
b. A is tenant for his life of certain land with remainder to B absolutely. A cannot, unless with B’
consent, impose an easement thereon which will continue after the determination of his life interest.
c. A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an
easement on the land or on any part thereof.
d. A and B are lessees of the same lessor, A of a field X for a term of five years and B of a field Y for
a term of ten years. A's interest under his lease is transferable; B's is not. A may impose on X, in
favor of B, a right of way terminable with A's lease.

Who may acquire easements

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.