JAMIA MILLIA ISLAMIA UNIVERSITY

PROPERTY LAW

CREATION AND ACQUISITION 0F

EASEMENT
SUBMITTED TO: -M. D QAZI USMAAN

SUBMITTED BY: - VAIBHAV SHARMA

BALLB(HONS)(S/F) (2ND YEAR)

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ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher M.D Qazi Usmaan who gave

me the golden opportunity to do this wonderful project on the topic Creation and Acquisition of

Easement, which also helped me in doing a lot of Research and I came to know about so many

new things I am really thankful to him. Secondly, I would also like to thank my parents and friends

who helped me a lot in finalizing this assignment within the limited time frame.

-Vaibhav Sharma

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TABLE OF CONTENTS

S.NO. TOPIC PAGE NO.

1.
ACKNOWLEDGEMENT 02

2. TABLE OF CONTENTS 03

3. HISTORICAL PERSPECTIVE(INTRODUCTION) 04

4. PRESENT PERSPECTIVE 12

5. MODES OF ACQUISITION OF EASEMENT

PRESCRIPTIVE AND CUSTOMARY 14

6. CONCLUSION 19

7. BIBLIOGRAPHY 20

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EASEMENTS

HISTORICAL PERSPECTIVE

Origin of the right of Easement.

The right of easement is a right as old as the day when human race first emerging from
barbarism, adopted the custom of living together in towns or living as others neighbors, or
respecting each others rights. It found it indispensable for common good to adopt the
general principle that an individual should enjoy his property, though fully and
exclusively, yet so as not to interfere with neighbors legitimate enjoyment of his own
property rights. This salutary principle appears to be the original foundation on which
easements are based.

Easements fit into the old category of incorporeal hereditaments; which places greater
emphasis on the right itself than the property in question --- in the words of Blackstone
their existence is merely an idea and abstracted contemplation. An Easement is a right
enjoyed by one landowner over the land of another, both plots are usually in close
proximity(Law Com CP 186). In order for an easement to be established, essential criteria,
which were listed in Re Ellenborough Park [1956], must be met:

(i) Dominant and Servant tenement

(ii) The right must accommodate the dominant tenement

(iii) Dominant and Servant owners are different persons

(iv) Right must be capable of forming the subject matter of a grant.

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(i) Dominant and Servant tenement

Nature of all incorporeal hereditaments is that there must be a land affected by the right:
The Servant land and more importantly, there must be land that is benefited by the right:
The Dominant land.

There is a real risk that easements can operate for the benefit of only one of two plots
owned by the dominant tenement: Nickerson v Barraclough [1981]. The right of way was
implied into a conveyance of land, as the purchaser already owned land adjacent to the
purchased, which the right of way would have benefited. It was held that the right of way
operated only to serve as a benefit for the land that was purchased and could not be used
for access to adjacent land. This serves to demonstrate the courts implementing a
strict/narrow judicial policy when regarding the purpose of an easement.

(ii) The right must accommodate the dominant tenement

The easement must benefit/affect the land directly and NOT the person who owns the land.
ACCOMODATE = CONFER SOME FORM OF DIRECT BENEFICIAL IMPACT

In terms for business use: - Moody v Steggles [1879] dominant owner had a right to
advertise his public house on the Servient land, bearing in mind that the Servient land was
situated in front of the public house; thus, the courts held that the sign was merely an
indication of its existence. the business was very closely connected to the land, and any
owner of the land would likely run a pub from the premises. Therefore, right connected to
the land. The right benefitted the land

Re Ellenborough Park [1956] a controversial case concerning the rights surrounding a

garden. CA had to determine whether the park sufficiently accommodated the park. The
right was recognised, as it passed the test. A crucial question that must be considered, is
that in present environment, the park was seen almost as a substitute for a garden,
therefore would the same reasoning apply for the use of a swimming pool, although most
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British homes would not have a swimming pool. It could be argued that a swimming pool,
is a more of a personal right belonging to the owner, than a right accommodating the land,
but can the same principle not be applied to a garden. Is a garden not perceived to be a
personal, right?

(iii) Dominant and Servant owners are different persons

Cannot have an easement over your own land: Roe v Siddons [1888]

Law Com 186 would allow the owners to be the same if the plots have different registered
titles, this would be in order to aid land development.

(iv)The right must be capable of being the subject matter of a grant

Easements are not a closed category; therefore, as long as the easement complies with the
above categories, there will be no bar to its recognition: Att-Gen of Southern Nigeria v
John Holt Ltd [1915] (recognised the right to storage).

Must be capable of a grantor (person giving the easement) and grantee (person receiving
the benefit of the easement).

Right must be sufficiently defined, therefore according to Re Ellenborough Park, must be

too wide or vague. This explains why a right to an unspoilt view (Williams Aldred Case
[1610] ----not enough to lie in grant), television reception (Hunter v Canary Wharf [1997])
have not been recognised. Although it was argued in these cases that the right to an unspoilt
view and a television reception was not a necessity, but just a matter of delight. It can be
suggested, that in this modern era, television reception is a means of necessity, and had the
home occupiers at the time knew of this potential process of urban development then this
may have impacted their decision when purchasing their homes. Likewise, in terms of the
unspoilt view, this would then affect the market price/value would be a disadvantage to the
owners.

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Rights that amount to exclusive possession of the Servant land. In vast majority of cases,
the dominant owner has a right to do something on the Servient land or something that
affects the land. Grigsby v Mellville [1972] Right to store items in a wine cellar was held
to not be an easement, as this amounted to exclusive possession thus depriving the Servient
tenement of use. Brightman J followed Copeland v Greenhalf and rejected this claim, on
the basis that it involved the whole beneficial use of cellar.

This was in contrast to Wright v Macadam [1949] ---CA viewed the right to use the coal
shed as an easement. In this case, the Servient owner seemed to be excluded, and thus it
hasnt been cited in Copeland.

Judge Baker QC in London Blenheim Estates v Ladbrokes considered these cases to be

consistent with each other, as he implemented that this matter must be one of
degree...small coal shed in a large property......exclusive use of the Servient tenement is
another.

In Moncrieff v Jamieson [2007], Lord Scott was dismissive of this analysis. It was held, the
right to park can be an easement.

Only significant problem that the CA did not address in this case was the extent to the
rights to park.

The question as to whether an individual can claim a right to park in a specific place, was
addressed in Batchelor, where 6 cars parked on the verge of a road excluded others from
parking too. CA held that this rendered the servient tenement with no reasonable use based
on the timings, and thus no easement was granted. It can be suggested that the courts
approach/reasoning in order to come to this conclusion, was rather unusual, as they looked
at the case in terms of the number of useful hours the servient could use the road, rather
than the quality of the user, which is what all other precedent focuses on.

However, in Moncrieff v Jamieson [2007], Lord Scottasserted that the statement of

principle was correct in Copeland, Batchelor was rejected and the no reasonable test was
also dismissed. Lord Neuberger expressed, that three factors persuaded him to not express a
firm conclusion. These were: that it was necessary to assess the degree of ouster of the
servient owner, Lord Scotts point was orbiter and thus nor fully argued and lastly, he
feared Lord Scotts analysis might lead to occupational licences becoming proprietary.

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Although, this section of the criteria is quite ambiguous, as Batchelor has not yet been
overruled (and therefore binding on lower courts), it can be suggested that the courts should
take a more relaxed approach to this area and place more emphasis on the nature of the
right than the impact on the servient owner. (Law Com CP 186).

Acquisition of Easements

1. Can acquire an easement by Statute

Express Grant/Reservation The document expressly grants or reserves an easement and

its status (legal or equitable) is determined by the statute/nature of the document. If it is
done by Deed, then it must comply with Law of Property Act 1925, s.52 (1)s.62 of Law of
Property Act 1925Ensures that any existing easements that benefit land are conveyed to the
new owner of the land without having to expressly include them in the conveyance itself.

A conveyance of land shall include and operate to convey. all liberties,

privileges, easements, rights and advantages, whatsoever, appertaining to reputed to
appertain to the land.

Scope of provision is quite wide requires land to appurtenant there has to be a

dominant and servant tenement

2. Can acquire an easement through Implied Grant/Reservation

Easement by necessity = an easement without which the dominant land cannot be used.

It has long been suggested that there should be access to a plot of land that is left
landlocked. Although this is not necessary for all landlocked plots, however there must a
transaction into which a right of way may be implied.

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Basis of necessity was considered in Nickerson v Barraclough [1981], and the questions
that arose was that, does a finding that there is no intention to create an easement (here
based on the express intention not to create an easement) prevent a successful claim to an
easement of necessity? Or are easements of necessity based on public policy (or is public
policy an aid to construction so as to make it easier to find that there is an easement of
necessity)?

CA held that easements of necessity are based on intention. A clearly expressed

intention not to grant an easement prevents an easement of necessity from arising.

Easement of Common Intention= an easement will be implied whenever required to

give effect to the intention of the parties as to the use of the land. (Must also exist at the
date of the transfer).

If a particular use is both intended and requires some right over the servient land, then
courts are willing to imply such a right.

Wong v Beaumont Property [1965] It was apparent that to continue the lawful use of
the restaurant, a ventilation system had to be installed. CA held this was necessary in
order for the restaurant to continue.

Overlap between necessity and common intention

Stafford v Lee [1992] addressed the issue of a right of access to a woodland through a
private road. Courts held there was a common intention when the land was going to be
used. Can also be argued that the owners of the woodland originally envisaged building a
house, therefore it was restricted for only necessity.

Rule in Wheeldon v Burrows (1878)

Conditions for the rule in Wheeldon v Burrows (1878) to operate are:

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Rights must not be mere personal convenience

Use must be continuous and apparent a right will be continuous and apparent if either it is
of a continuous and obvious nature (like the right to light), and if there is some feature on
the servient land which indicates that there is a right (right of way over a road).

Must be reasonably necessary for the enjoyment of the land -

Right must have existed at the date of the transfer This requirement does not have to be
taken literally, if a right has been exercised in the past, it may be taken to continue after the
grant.

Differences:

S.62 requires a conveyance by deed to create or transfer a legal estate, giving rise to a legal
easement. W v B may operate upon the creation or transfer of an equitable interest.

S.62 generally requires diversity of occupation of the dominant and servant tenements. W
v B only operates if there is common ownership and occupation of the dominant and
servant tenements, immediately before the sale or lease of the dominant land.

S.62 allows for a wider range of rights to pass as easements (easements and profits). W v
B applies to easements only.

3. Can acquire an easement through Prescription = acquiring an easement through long use
Law regarding Prescription is highly technical, artificial and out of date. Argument in
favour of Prescription, is that the law should give protection to a situation that has been
continued for a long time.

Prescription at Common Law Theory of this is that the right has been exercised from time
immemorial (1189). Major problem is that it can be rebutted by evidence that suggests that
the right could not have existed in 1189.

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By lost Grant In order to provide the above matter with a remedy, the courts decided to
presume a 20 years use grant that had been made and then lost. This was quite fictional,
however it was also powerful, although it was subject to certain limitation (such as it does
not operate if the owner of the servant land was legally incapable of granting an easement:
Oakley v Boston [1976].

Prescription Act 1832 Sets out to cure the problems with the common law Prescriptions.2
s.4 = require uninterrupted use for the 20 years prior to the claim in which the right is in
issue.

Lindley LJ required in Hollins v Vernay [1884], use is enough to carry in the mind of a
reasonable person who is in possession of the servient land, the fact that the continuous
right to enjoyment is being asserted, and ought to be resisted. s.3 easement of light
requires only 20 years of continuous use.

What amounts to an interruption?

s.4 provides that an interruption shall be disregarded unless it is submitted for a period of a year.
Davies v Du Paver [1953] Held that the period relied upon must be without interruption. A claim
may be defeated if there has been an interruption of easement and dominant owner has acquiesced
in that interruption for period of one year Extinguishment of Easements

Common Ownership If the same person becomes the owner and occupier of both dominant
and servant tenements, then easement will terminate.

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PRESENT PERSPECTIVE

What is Easement.

Easement as defined in Section 4 of the Indian Easements Act, 1882, 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.

An easement, as Austin describes it, is a fractional right; it is a definite right of user subtracted
or broken off from the indefinite right of user which resides in him or them who bear the
dominion of the subject. It is a simple or particular exception, accruing to the benefit of the party
in whom the right resides, from the power of user and exclusion, which resides in the owner of
the thing.

In Hiralal v. Loknath1,

It was held that the courts could not be allowed to create any new species of easements which
were formerly unknown to law, specially so if the novel easement claimed also constituted a
nuisance.

Dominant and Servant Heritages and Owners.

The land for the beneficial enjoyment of which the right exists is called the dominant heritage
and the owner or occupier of such land is called the dominant owner. The land on which the
liability is imposed is called the servant heritage and the owner or occupier of such land is
called the servant owner.

In Dharniwhar Sahu v. Bhagirathi Sahu2,

It has been held that as every easement right exists for the benefit of the owner of the dominant
tenement alone, it is inherent in the nature of the right that the owner of the dominant tenement

1
AIR 1961 Cal. 787.
2
AIR 1956 Orissa 89.
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may cease to exercise it if the right ceases to be beneficial. In such cases the owner of the
Servient tenement cannot insist on the continuance of the exercise of the easement, because the
exercise of the easement right does not create any reciprocal rights in the servient owner.
Essentials of a Right of Easement.

(1) There must be an owner or occupier of certain land.

(2) The right must be possessed by the owner or occupier of such land as such owner or
occupier.

(3) Right must be to do or continue to do something or to prevent or continue to prevent

something being done in respect of some other land.

(4) Right must be for the beneficial enjoyment of ones land.

In Hardayal v. Chotai3,

It has been held that it is common in villages as well as in towns, for the owner of well to allow
neighbors to draw water for domestic purposes, but this is a license which has nothing to do with
the beneficial enjoyment of any land.

(5) Servant heritage must be different from dominant heritage. Therefore there must be two
owners.

In Swapan Sinha v. Smt. Usha Rani Sahana4,

It has been held that the right of easement, becomes extinguished the moment when two
tenements become vested in one and the same person.

3
AIR 1963 All. 32.
4
2002(1) Civil LJ 328 (Cal.).
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MODES OF ACQUISITION OF EASEMENT

PRESCRIPTIVE AND CUSTOMARY

Acquisition by prescription.

Section 15 provides for the acquisition of the right of easement by prescription. Prescription
means acquisition of a right or title by user of possession had during the period and in the manner
prescribed by law. A man who cannot show any other title may acquire property or certain rights
by showing that he has been in possession of the property or enjoying rights for a very long
time.

The reason, why the law encouraged this mode of acquisition of easementary rights is that if a
man after long, continued and uninterrupted user, were required in every case to prove the origin
of his title, especially in the olden times when writing was not in vogue it would result in great
hardship and injustice to him. So the law, in order to safeguard the interests of persons claiming
title by long and immemorial user, invested them with a title on the natural presumption that such
user had a legal origin, which the person questioning could not legally dispute at an earlier date
when the evidence of such right might be forthcoming for no man could be presumed to allow his
own property to be used by any other man for such a long time without title.

Conditions for Acquisition of Easement rights by prescription.

A scrutiny of Section 15 reveals that the following conditions should exist before an easement
can become absolute by prescription :

(1) There must be a pre-existing easement which must have been enjoyed by the dominant
owner.

(2) The enjoyment must have been peaceable.

(3) The enjoyment must have been as of right.

(4) The enjoyment must have been as an easement.

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(5) The right must be enjoyed openly.

(6) The enjoyment must have been for a period of twenty years.

(7) The enjoyment for 20 years must have been without interruption.

All the above 7 ingredients of an easement right must be proved to have been present during the
whole of the prescriptive period of 20 years. The statutory period of 20 years must be proved to
have been completed within two years next before the institution of the suit wherein the claim to
such easement right is contested.

In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd.5,

The Supreme Court has laid down that to establish the clause under Section 15, continuous user
of 20 years as of right to do the act complained of in assertion of a title, peaceably and openly
must be made out. The enjoyment must not be permissive. What is permissive is that which
depends not on right, but on the will of another person.

In substance it means that the enjoyment should be without violence, without stealth and without
permission.

Enjoyment of right The first condition to acquire an easement by prescription is that the
claimant of the right must have actually enjoyed the right over the servient tenement. Actual user
does not mean continuous enjoyment for the whole period of twenty years. There may be
breaks in enjoyment but the break must be such as may be found consistent with a presumption
of continued enjoyment of the right. For example, a
person may be said to be in enjoyment of a right of way during a period of time, though he does
not actually use the way every moment. Mere non-user for a time of an easement, which the
owner might if he pleased to enjoy during every hour of that time, but which for some good
reason he does not care to enjoy is not necessarily discontinuance of the enjoyment of the right.
Peaceably In order that an easement may be termed as peaceful, it is necessary that the
claimants enjoyment of his right during the prescriptive period must be free from all kinds of
violence or physical force on his own part or on the part of the servient owner.

Openly Except in the case of easement rights of air, light or support, the enjoyment
must be open and manifest and clandestine. But it is not necessary that the servient owner
should have knowledge of the enjoyment of the right.

5
1969 SCD 1105.
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As of right A user as of right simply means a user in the assertion of a right. The true
meaning of the expression as of right is that the enjoyment or the right should not be secret or
by stealth or by sufferance or by leave and licence of another person. The word as of right
denote that it is not enough that the right is merely exercised but it should be exercised
consciously in assertion of the right claimed.

As an easement The claimant must have enjoyed the right as an easement. Where there is

unity of possession or ownership in the same person of both the tenements there cannot be any
enjoyment as an easement during the period of unity.

In Tulasamma v. Nandula Buchairamiah6,

It has been held that once the easement is acquired by prescription, there is no scope for issuing a
mandatory injunction to put an end to the mode of enjoyment which has given rise to the
easement.

Without interruption Interruptions are those stops in the continuity of a claimants user

which are caused by physical obstructions placed on the servant tenement by persons acting
adversely to the claimant and with a view to preventing his enjoyment of the right. Mere verbal
protests, however long continued or however vigorously expressed, if unaccompanied by any
physical obstruction cannot amount to interruptions.

In Ram Sahai v. Man Singh7,

It has been held that the fact that the mode of enjoyment was changed from time to time during
the period of twenty years does not cause an interruption within Section 15 where the change in
the mode of enjoyment is due to an act on the part of the dominant owner himself.

For twenty years In order to acquire an easement right by prescription, the right must have
been enjoyed as an easement and as of right for twenty years. This period is of thirty years
when the servient heritage belongs to the Government. Till this period of twenty years has
elapsed the right remains an inchoate one, and no court will protect an inchoate right. The

6
AIR 1949 Mad. 826.
7
AIR 1952, All. 398.
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claimant of an easement right cannot succeed merely by showing that he did enjoy the right for
the full period of 20 or 30 years, he must further prove that he continued to enjoy the right down
to a date which was within two years before the institution of the suit wherein the claim
relating to the alleged easement right was contested. In other words, no length of enjoyment by
itself gives under Section 15 an absolute right. The right becomes absolute only when
questioned and decreed in litigation.

In T.M. Jadavji v. S.S. Randidas8,

It was held that if somehow the enjoyment, whatever its duration, ceases and no suit is initiated
within two years of the cessation thereof the enjoyment has lost all efficacy for the purpose of
acquiring an easement.

Illustration A is the owner of a house and has enjoyed a right of way over Bs land from

January, 1924 to January, 1946. In January, 1946 B prevents A from exercising his right. A
bring a suit to establish his prescriptive right in 1949. A must fail, although his enjoyment of
right has been for 22 years but as he brought the suit more than two years after the interruption by
B, his enjoyment does not end within two years next before the institution of the suit.

In Chapsibhai v. Purushottam9,

It was held that an easement by prescription is in fact an ascertain of a hostile claim of certain
rights over another mans property and in order to acquire the easement the person who asserts
the hostile claim must prove that he had the consciousness to exercise that hostile claim on a
property which is not his own and where no such consciousness is proved he cannot establish a
prescriptive acquisition of the right.

Further it was held that if the owner of a dominant tenement has during the period of prescription,
exercised rights on the footing that he is the owner but which he later on claims as an easement
over a servient tenement, then, his exercise of those rights is not exercised as an easement and he
must fail in a claim for an easement.

In Santosh Kumar Banerjee v. Krishna Kumar Gupta and another10,

8
Saurashtra LR 183.
9
AIR 1971 SC 1878.
10
AIR 1985 Patna 124.
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It was held that where a person has pleaded ownership and has failed, he cannot subsequently
turn around and claim that right as an easement by prescription.
Right to commit nuisance cannot be acquired by prescription.

In Bankey Lal v. Kishan Lal11,

It has been held that a right of way may be acquired by prescription if it is exercised openly and
with the knowledge of the owner of the servant tenement, but a right to commit a nuisance cannot
be acquired by prescription no matter how often the act of nuisance is repeated.

Rights which cannot be acquired by prescription..

Section 17 of the Indian Easements Act, 1882 provides for the rights which cannot be acquired
by prescription. These are as follows :

(a) A right which would tend to the total destruction of the subject-matter of the right, or the
property on which, if the acquisition were made, liability would be imposed.

(b) A right to the free passage of light or air to an open space of ground.

(c) A right to surface water not flowing in stream and not permanently collected in a pool, tank or
otherwise.

(d) A right to underground water not passing in a defined channel.

Customary Easement.

A customary easement is not an easement in the true sense of that expression. It is not annexed to
the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment
of the dominant tenement; it is recognized and enforced as a part of the common law of the
locality where it obtains.

A customary easement arises in favor of an indeterminate class of persons such as residents of

a locality or members of a certain community, and though not necessarily annexed to the

11
AIR 1967 Allahabad 43.
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ownership of land, it is enforceable as a right to do and continue to do something upon land or as

a right to prevent and continue to prevent something done upon land. Sanction for its
enforceability being in custom, the right must satisfy all the tests which a local custom for
recognition by courts must satisfy.12

In Rup Chand v. Sh. Daulatu13,

It was held that the right of using the edges (mainds) of each others fields for going to their
respective fields by the agriculturists is a customary right of easement and not a right of easement
which is to be acquired by prescription or by necessity.

Illustrations

By the custom of a certain village every cultivator of a 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 village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle
in accordance with the custom.

By the custom of a certain town no owner or occupier of a house can open a new window therein
so as substantially to invade his neighbours privacy. A builds a house in the town near Bs 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 As house which are ordinarily excluded from observation
and B acquires a like easement with respect to As house.

Customary Easement and Prescriptive Easement distinguished.(CONCLUSION)

Customary easements are acquired by virtue of local custom. Prescriptive easements are acquired
on proof of peaceable enjoyment for twenty years. No fixed period of enjoyment is necessary for
customary easements. A customary easement belongs to those land owners of an ascertained
class, caste or community who for the time being happen to own lands within that particular area
or locality where the custom prevails. A prescriptive easement, on the other hand, is not limited
to a particular locality, it can be enjoyed wherever land can be found.

12
State of Bihar v. Subodh Gopal Bose, AIR 1986 SC 281.
13
AIR 1992 H.P. 6.
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A customary easement must satisfy all the essentials of a custom, viz., it must be ancient,
reasonable, continuous and certain. But prescriptive easements need not be reasonable.

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BIBLIOGRAPHY

Books
G.P. Tripathi
S.N. Shukla
Statute
Transfer of Property Act, 1882
Indian Easement Act, 1882
Websites
www.lawctopus.com
www.indiankanoon.com
www.scconline.com
www.manupatra.com

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