The Indian Easements Act, 1882 defines the concept of easement under section 4. According to Section 4 of the Indian Easements Act, 1882, easement is a right of the owner or occupier of the land that enables the person to enjoy the land. The section 4 of the Easements At, 1882 provides the definition of easements as “ a right which the owner or occupier of certain land possesses as such for the beneficial enjoyment of that land, to do and to continue to do something or to prevent and continue to prevent something being done in upon or in respect of certain other land not is own”. In the case of an easement, there is absence of conveyance and this disqualifies it from being called a transfer of property. With easement rights the person gets to enjoy the benefits of the land. In the absence of this right, the owner is not in a position to enjoy the rights of the land.
The interpretation of easement also includes the right or capacity to act or not refrain the activities or stop the activities or opting to stop the activities continually in a different land, which does not belong to him, so that he can continue to enjoy the land in his ownership. Here, the understanding of the word ‘land’ includes all the things fixed to the earth. The understanding of the term ‘beneficial enjoyment’ is that it means necessities, amenities, convenience and other advantages.
The Easement Act in India can be dated back to 1882. This allowed all the citizens to exercise the right to an easement. This makes easement come under the bracket of the rights granted to the citizens. It tells that the right of easement allows the possessor of the land or citizens who occupy the land for enjoying the benefits of the land. This ownership allows the people who own or occupy to do the activities or continue to do or to not allow or to opt to continually forbid some activities done on the concerned land that does not belong to the person. Law requires the fulfilment of certain conditions for the qualification of a valid easement. In this context the possessor of the land or the person who is presently occupying the land, according to law, is called as the Dominant Owner. The concerned land for which there are easementary to protect the benefits is called Dominant Heritage.The person or the possessor on whom there is an imposition of the liability is called as the Serviant Owner. The land concerned in the above situation on which there is an imposition of liability is called as Servient Heritage.
Section 5 of the The Indian Easements Act, 1882 deals with the classification of easements. Easements can be classified as continuous and non continuous. Continuous easements can be defined as the ones that can be enjoyed without any human intervention and any action on the part of a human. This is seen as a special quality to the property. Whereas, in discontinuous easements human interventions is necessary to enjoy the right of easement. The right of easement which is discontinuous requires the owner to perform certain actions on the land of the other person. The right of easement can also be classified as apparent or non – apparent. An apparent easement has certain permanent signs to prove its existence. Reasonable foresightedness and thorough examination shows these signs. The other name for this type of easement is express easement.
Essentials of Easement
Law requires fulfilment of certain conditions for a valid easement. One essential is that there has to be a dominant and a servient heritage. This is an important and mandatory condition. For a person to enjoy or have the right of easement there has to be two properties called dominant and servient heritage. There has to an owner who imposes the liability and another person on whom it is imposed. There has to be a property on which the liability is imposed and a property for the enjoyment of which the liability is imposed. The presence of dominant heritage and servient heritage is the first and a compulsory element of easement. The heritage or property which is vested with certain privileges is called dominant heritage, and the person who owns the property is called the dominant owner. The property being subjected to certain liabilities is called as servient heritage. According to the definition, the possessor for his own benefit exercises the right of easement over another person. These concepts of dominant and servient heritage are opposites and cannot be one. This makes it a must for two completely different properties to exist in order to claim a right of easement. This understanding makes us deduce the requirement of two different owners for the right of easement. The right of easement is not required if the owner is one person. There have to be two people, so that the owner gets to exercise the right of easement over another.
The goal of right of easement is to benefit the dominant owner. It is to enable him to enjoy the land he owns. Expressed benefits and implied benefits are included in it. The right of easements can be either positive or negative or both. Positive easement right refers to an act through the performance of which the dominant owner gets to exercise over servient owner. Negative easement involves an act performed to prevent something or the act of preventing itself. This involves the restriction or forbidding the servient owner to do certain things. One important thing to be understood here is that the dominant owner does not have the right to ask or legally bind the other person to do something. Another mandatory condition is the adjacent existence of the concerned heritages. The right of easement is also a right in rem. The right of easement is claimable against the entire world. The right of easement is tied to the dominant tenement. The right of easement is also a right of re-aliena. It is a right that exists over a servient tenement and is not applicable to one’s own land. Another mandatory element is separate existence of both these properties. They have to be separate and owned by different people as an easement is not granted or vested on the happening of one property in two properties.
Section 4 explains this concept using these words “Which is not his own”. In the casw case Radhika Narayan VS. Chandra Devi, the High Court of Delhi said that the beneficial enjoyment should be on the land of a person who is not the owner or possessor of the occupied property for an easement to exist. This is essential for an easement to exist.
Another essential element is using easement as a status of power of land. It means that the person or dominant should exercise the right of easement as a status of power. It can be exercised only by the owner. As easement is attached to the property, without there is no easement. It is also necessary that the owner uses it for his own beneficial enjoyment. He has to utilise the right of easement to derive beneficial enjoyment from his property. Here the term ‘beneficial enjoyment’ can be interpreted as things like facilities, profits etc. In the case of Ramchandra VS. Diwakar, the High Court of Madhya Pradesh declared that the easement can be awarded only to the actual owner and not others.
The right of easement can be enjoyed only by the dominant owner and not by serivitude owner. It is not available to others.Another important essential of easement is that it is tied to the respective property. The right exists only if the property exists. It is related to the property and is not dependent on the person. It is transferred to another person after the transfer of property. Any act committed as a part of his right (owner of the property) is a positive easement. Any action or other things being forbidden by the owner is a negative easement. The right of easement is not only available against the owner of the adjacent land but against everyone. The dominant owner has the right to sue other if they interfere in the beneficial enjoyment of his land. Remedial action is available for such interferences. In the case of Mohammad VS. Anantehari, the High Court of Kerala gave out the essentials of an easement. According to the judgement dominant heritage and servient heritage is necessary, land has to be used for the beneficial enjoyment of the owner, it is necessary that the properties are owned by different people, the owner’s right of action and prevention, easement has to be definite and clear, and finally accommodation of easement along with the dominant property. In Laxman Patnayak VS. Cuttack Municipal Council, the court gave the three essentials of easements. They are: two different kinds of properties namely dominant heritage and serivient heritage have to exist, the properties to be owned by different people, and beneficial enjoyment as the motive to exercise the right of easement by the owner.