What is Indian Easement Act, 1882 and its Importance?

The word 'easement' on the property means a third party, a company or an individual, has legal rights to use your property for a certain purpose.

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If you are willing to learn about the Indian Easement Act, read this write-up below.

To understand what is Indian Easement Act, you must first understand what easement is. Section 4 of the Indian Easements Act, 1882 clearly defines this concept of an easement. According to Section 4, an owner or occupier of land possesses an easement right on some other person’s land.

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The reason behind this explains it allows beneficial enjoyment of land. The court of law grants this right because, without the existence of an easement, any owner or occupier cannot enjoy their own property fully.

In short, it consists of a right to do or continue to conduct something. It can also be to prevent or to continue to prevent certain things associated with some other land. This land doesn’t belong to an owner and allows them complete enjoyment of their own land.

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So, now you know about the Indian Easement Act, let us learn about the essentials of an easement.

‘Land’ defines anything that is attached to the earth permanently, and the word ‘beneficial enjoyment’ of land signifies advantages, necessity, convenience, or any amenity on land. The importance of the Indian Easement Act include many. These are as follows:

• Dominant Heritage and Dominant Owner: While an owner or an occupier is called a Dominant owner, a land for the benefit of which this right exists is called Dominant Heritage. To ensure the enjoyment of easement, it is necessary to have a dominant owner and a heritage. One does this to ensure the right levied by an owner of one land enjoys benefits of their own land over someone else’s land.
• Servient Heritage and Servient Owner: Besides a dominant owner and a heritage, it is also necessary to have a servient owner and a heritage to ensure one imposes this right properly. Furthermore, an owner on whose property or land, one imposes liability is called a Servient Owner. Whereas a land on which one imposes such liability to prevent something is a Servient Heritage.
• Separate Owners: To apply this right of easement, one must ensure that the owners of these two properties are not the same but two different people.
• Beneficial Enjoyment: Another essential element of easement is beneficial enjoyment. Here, the objective of easements is to ensure that a dominant owner can enjoy it in an express or implied way.
• Positive or Negative: The easements can be both positive and negative, where positive indicates the right through which an owner acts so that they could imply right or access on the land of the servient owner. Negative defines an act of preventing when the dominant owner restricts or prevents a servient owner from performing or conducting certain acts. However, this right of easement signifies that an owner of a dominant heritage can conduct an activity or prevent a servient owner from doing an act. Well, they cannot force or compel a servient owner to act for them.

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Let us now get into more detail about the classification of the easement as per the Indian Easement Act 1882.

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Section 5 of the Indian Easement Act, 1882, classifies easements into two different types. These are as follows:

1. Continuous or Discontinuous Easement

Continuous easement defines as when an owner continues to enjoy these rights without the intervention of any other human and there is no conflict. Therefore, it adds a special feature, a quality to a land/property. 

On the other hand, an easement that has the intervention of another man is a discontinuous easement. Here a human needs to conduct any activity on a servient heritage itself.

2. Apparent or Non-Apparent

An apparent easement signifies the one whose existence is noticed through a permanent sign that can be easily visible to a competent person. This is also termed an 'express easement.' In such a case, you can inspect to check the existence of this right.

However, a non-apparent easement is one where this easement is not visible by any form of inspection. You will also not find any permanent sign. A perfect example of a non-apparent easement is when you receive the right to stop construction over a specific height.

You might find an easement right permanently applicable for a period of years or for only a limited time. There might be several interruptions or one might exercise it at a particular place, within specific hours, and for a specific purpose.

The court of law will grant this right under the condition that such right will be void if some events are happening on this property. All these limitations are clearly specified and mentioned under Section 6 of the Easement Act. You must proceed with an easement only after learning about all the conditions associated with this act.

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Profit a Prendre is a non-possessory right that falls under the definition of easements. It is a right to take earth from the land of any other person to make something profitable. In other words, using this right, one can remove the soil or a part of it from another person’s land. There are other various examples of profit a prendre which include:

• Right to pick and pluck fruits and flowers from trees during the season.
• Right of fishery in a pond, lake, or waterbody of another person.

Profit a Prendre explains the right to act on this land or property of a servient tenement to enjoy several benefits of a dominant heritage.

One imposes this right on land appurtenant to a dominant heritage, thus allowing the existence of two heritages – dominant and servient. Likewise, the owner of a dominant heritage imposes this right on the land of its servient owner.

There are several modes of acquisition under easements as per the Easement Act. They are as follows:

1. Express Grant

This is a direct mode of creating an easement where there is a written agreement/ deed or a will between landowners reserving or granting the right. In express grant, the things you must follow are:

• One must make sure that this easement is in writing and that both parties sign it.
• Additionally, you must ensure that they are in the records of each property.
• An easement of reservation, just like a deed of a property, must have the name of the owner who is requesting the easement. It must also contain the name of the property owner where this easement will be created.
• As one creates the easement, the grantor must sign it, allowing their consent and permission to use the land.
• The easement must be notarised and conveyed to the owner, too, that it has been granted as per law.
• Section 8 explains the scope of power to impose the easements. An easement can be imposed by anyone to the extent to which they are ready to transfer their interest in the heritage. However, a lessee cannot allow easement following the derogation of their rights. 
• The easement granted will not continue after the servient owner’s interest has expired. In case of multiple owners, one owner cannot impose an easement on the property without the consent of their co-owners. However, a lessee cannot hold such a right. 

2. Implied Grant

If there is no document or deed on an express easement, you can still impose easement rights depending on the situation. To create an easement through implication, you must meet the following requirements:

• The following easement must be essential for enjoying the original land or property.
• The property or land must be different or divided to ensure that the owner is either retaining or selling part or further dividing the land /property as well as selling pieces to other new owners.
• As one claims the implied easement, one must ensure that it existed before the land's sale or division.
• You must also keep in mind that easement of implication is not recorded until and unless a court identifies a dispute. However, it reflects the customs of the use of land/property.

Under the Implied grant, there are several sections which include these:

• Easement By Prior Use: You can also create an easement by prior use where land owners can create the easement but might not include it in their agreement. The elements to impose an easement by prior use includes:

  • Common ownership of two parties at a time.
  • Severance follows this.
  • Someone is using it before and after the severance.
  • It is visible by careful inspection.

• Easement By Necessity: This is explained in Section 13 of the Easement Act. Here, the land owner or the occupier cannot use their property/land without imposing this easement right on the servient heritage. Therefore, absolute necessity is convenient.

• Quasi Easement: In this easement, when a person is transferring their land/property to another person, this easement is continuous and necessary to enjoy. Moreover, the transferee will be entitled to the same. In addition, the transferor gets complete right to this easement over this property. Again, during this partition of a property of a joint family, the continuous, apparent easement ensures the share of one coparcener over the other. It is then that they enjoy such an easement right.

• Prescriptive Easement: This easement explains that this right must be certain and absolutely definite. You must enjoy it independently without any deed with the servient owner and as a right without any interruption for a continuous period of 20 years. If it is government land, the period of non-interruption must be 30 years.

• Customary Easement: You can impose easement right under any local custom. It totally depends upon the emotion and attachment of the people living in that certain town, city or area.

3. Presumed Grant

In India, there is no provision considering the doctrine of lost grants as a mode of acquisition of easement.  However, it is accepted judicially as the Indian Easements Act is not exhaustive. Section 21 of the Limitation Act, it requires a minimum period of twenty years to establish this right.

4. Acquisition by Prescription

An easement by prescription functions under principles of a legal concept such as "adverse possession". Under this doctrine, a person other than the original property owner gains use or ownership rights to a certain property.

Here, prescription means the acquisition of a right by the user of possession during the period and in the process prescribed by law. A person who cannot show any other right might acquire certain rights by implying that he has been in possession of the property or enjoying rights for a very long-time period. However, there are several conditions for the Acquisition of Easement rights by prescription.

5. Customary Easement

As per Section 18, an easement can be acquired by virtue of a local custom. Therefore, such easements are called customary easements. However, a customary easement is not connected to the ownership of a dominant tenement, and it is not applicable to the beneficial enjoyment of the dominant tenement. A customary easement applies in favour of an indeterminate class of persons. These include residents, members of a certain community, or residents of a locality.

6. Transfer of Dominant Heritage

Dominant heritage transferred by the operation of law carries certain easement rights with it. It is as per Section 19. For example, A has a land to which a right of way is annexed. A lets this land to B for 20 years. The right of way vests in B and his legal representative so long as the lease continues.

7. Statute

Easements might be created by legislation. Moreover, even the rights that do not have the characteristics of the easement might be statutorily declared to be easements.

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In the Easement Act, Sections 37 to 47 describe the modes of termination of easements. These are as follows:

• Termination of Servient Owner’s Right: When the Servient Owner loses his rights on the property then this easement right comes to an end. 

• Limited Time Period: When you acquire an easement upon specific conditions or for a definite purpose or for a specific time period, after fulfilling these conditions or purpose, the easement right expires.
• Termination of Necessity: If there is no necessity or the necessity expires, the easement of the same expires as well.
• Expiry by Release: The easement is expired when the dominant owner releases it in an expressed manner or an implied manner.
• Destruction of Heritages: When any of the heritages gets damaged or destroyed, the easement expires since it is essential for both these properties to exist so as to impose the right.
• Unity by Ownership: If a single person becomes the owner of both servient and dominant heritage, easement right terminates as well.
• Change in the Dominant Heritage: When the nature of a dominant heritage alters permanently as the tenement gets overburdened, then the easement right expires.