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November 2002 : Page No.

13

Easements
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 elses property.
There are several acres of sprawling agricultural lands for which water has to come
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 anothers
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 landowner who cannot enjoy his own land over which another owner has
a right 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 has 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
anothers 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 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 favor of the grantee for a
consideration. The grant becomes effective when the grantee has the right to enter upon
the grantors 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 power 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 his 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 type 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 purchaser of the plot has to
execute a separate deed in favor of the seller 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
between the dominant owners premises and 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 in to 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 at random 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 denied to them because of a multistory building
nearby.
Haphazard constructions are now a thing of the past. Presently, buildings are
constructed in a well-planned manner. Leaving minimum space 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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