CHAPTER 1 EASEMENT

Easement defined:

S.4 of Easement Act defines an Easement. An Easement is a right which the owner or occupier of certain land possesses for the beneficial enjoyment of that land, to do or to continue to do something, or to prevent or to continue to prevent something being done in or upon or in respect of certain other land not his own Land includes those things that are permanently attached. Beneficial enjoyment includes any convenience or advantage or any amenity. The owner or occupier is the dominant owner and his land is the dominant heritage. The land on which the liability is imposed is called a servient heritage or tenament and the owner of that, is the servient owner.


Eg.: 'A' the owner of the house has a right of way over B's land. This is for the beneficial enjoyment of As house. This is an Easement. A is the owner of a house. He has a right of way over B's land to bring water from a stream. This is an easement.

Eg.: a) Right of way.

b) Right to nail fruit trees on neighbour's land.

c) Right to discharge rain water by an eave.

d) Right to bury the dead in a particular place.


Essential features:

i) Appertenance: An easement is a right which the owner or occupier of land possesses as such. Hence, the easement is always annexed to the dominant tenement.

ii) Right in re aliena: An easement is a right over the servient tenement. There is no easement over one's own land.

iii) Beneficial to dorninent owner: Gale, a jurist points out that one of the essentials of an easements is that it should conduce to the beneficial enjoyment of the dominant tenement.Further, Profits a Prendre, i.e., profits arising out of the soil of the dominent tenement, are also easements if annexed to the property.

Easements Classified:

Easements are classified by the Easement Act as follows:

i) Continuous or

ii) discontinuous

iii) Apparent & non apparent easements

i) Continuous easement: It is one whose enjoyment is or may be, continual without the act of man e.g. A drainage from one land to another, A water channel from As land to B;A's right to receive light & an by windows without obstruction by his neighbour.


ii) A discontinuous easement is one that needs the act of man for its enjoyment. A right of way annexed to A's house over B's land; Right of Refrains; Right to use staircase; Right to go to open yard, and, get water from a well.


iii) An apparent easement is one the existence of which is shown by some permanent sign. This would be visible on careful examination.

e.g.

1) There is a drain from A's land to B's land and from there it is led to open yard. This is apparent only by inspection.

2) Artificial water-courses or openings for taking water.


iv) Non apparent easement is one which has no permanent sign & hence not visible foi inspection.A's right annexed to A's house, to prevent B from building on his own land. This is non apparent.


Profits a prendre:

According to the Easements Act the right to "Profits a Prendre" is part of the definition of Easement, e.g. Right to take earth from another persons land, for making eartherware is a profit a prendre. This is the "benefit made out of land" of the other person.Right of a person to raise paddy seedlings on B's land, & after wards transplantingon his own land, was held a "profit a prendre".Right to fishery; Right to take fruits of trees during seasons eg. tamarind, mangoes etc. are examples.The right is exercised on the "land appertenant", to the dominant tenement.Hence, there should be dominant & servient heritages; it is dominant owner, who exercises this right of profit a prendre over the servient heritage.It is the right to do "something", on the land of the servient tenement for the more beneficial enjoyment of the dominant heritage, by the dominant owner.



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