Modes of acquisition of easement

 Easement is the right of owner to enjoy his land and use it

as he desires.
 Easement can be acquired in 7 ways.
 The right of the easement can be imposed by Owners,
Lessors, Mortgagors. Easement is governed by the
provisions of the Indian Easement Act, 1882
Introduction:
 The development of human civilization has begun when
people started living in groups, in realization of the each
individuals’ private rights with mutual benefits within the
society. Hence, the right of easement dates back to the
period of recognition of private property in a definite society.
Such a right, arises out of certain aspects of morality, which
permits a third person to enjoy certain benefits in relation to
the property, on which he has, neither ownership nor
possession. With due progress in the society, the legislation
has given deference to the easement rights, which makes it
necessary for us to have a line of thinking on it.
Easement - Meaning and Definition
Easement 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. 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 servient heritage and the owner or occupier of such
land is called the servient owner.
Modes of acquisition of easements:
There are several methods by which easements may be
acquired. They are:
 Express grant
 Implied grant
 Presumed grant
 Acquisition by prescription
 Customary easement Transfer of dominant
heritage Imputed grant
 Statute
The various modes of acquisition of easement are explained in
detail in the following paragraphs.
1. Express grant:
 The most direct method of creating an easement is by
express grant. Express easements are created by a written
agreement between landowners granting or reserving an
easement. An express easement is created by a deed or by
a will. Thus, it must be in writing.
 Express easements must be signed by both parties and are
recorded with the deeds to each property. An express
easement can also be created when the owner of a certain
piece of property conveys the land to another, but saves or
reserves an easement in it. This arrangement is known as an
"easement by reservation."
  Similar to a deed of a property it must contain the name of
the property owner which is requesting the easement, as
well as the owner of the property where the easement is to
be created. Once created, the witnessed process will
consist of the easement being signed by the grantor, giving
his or her consent and permission for the use of land. In
addition, the easement must be notarized and furthermore
conveyed to the owner it has been granted to.
 Example of it would be an individual who requests access
to build a walkway on his neighbour's property. The grantor
in this case can grant the easement for the length of their
ownership over the property to the grantee, not anytime
longer. This specifies the life of the easement created
through an express grant.
 Sec. 8 to 11[ii] deal with the scope of the power to impose
easements.
The persons such as
Servient owners (sec.9),
Lessor (sec.10) Mortgagor (sec.10) may impose
easements on the respective properties of servient heritage,
leased and mortgaged subject to certain conditions whereas a
lessee cannot impose easement after the derogation of his
rights under sec.11 of the Act.
 In Booth v. Alcock[iii], it was ruled out that General words in
a grant should be restricted to that which the grantor had
then the power to grant and will not extend to anything
which he subsequently acquire. So the easement granted
 could not continue after the expiration of servient owner’s
interest.
o Sec 12[iv] states that “An easement may be acquired by the
owner of the immovable property for the beneficial
enjoyment of which the right is created, or on his behalf, by
any person in possession of the same.”
o An easement is also acquired by a co-owner. The
permission of other coowner is not necessary in this case.
But a lessee cannot get such a right.
o In England, easement could be created only be a deed. In the
absence of writing, the grantee could only have a revocable
bare license[v]. An easement can be made orally in India.
Easements in writing require registration under Indian
registration Act[vi].
2. Implied grant:
Even when no document or agreement has created an express
easement, an easement right may still be understood (or
"implied") by a situation or
circumstances[vii]. To create an easement by implication, three
requirements must be met:
The easement must be at least reasonably necessary to the
enjoyment of the original piece of property. The land must be
divided (or "severed"), so that the owner of a parcel is either
selling part and retaining part, or subdividing the property and
selling pieces to different new owners.
The use for which the implied easement is claimed must have
existed prior to the severance or sale. Implied easements are not
recorded or explicitly stated until a court decides a dispute, but
reflect the practices and customs of use for a property. Courts
typically refer to the intent of the parties, as well as prior use, to
determine the existence of an implied easement.
a) Easement by prior use:
An easement may also be created by prior use. Easements by
prior use are based on the idea that land owners can intend to
create an easement, but forget to include it in the deed.
There are five elements to establish an easement by prior use:
>
Common ownership of both properties at one time Followed by a
severance Use occurs before the severance and afterward
Notice
Not simply visibility, but apparent or discoverable by reasonable
inspection (e.g. the hidden existence of a sewer line that a
plumber
could identify may be notice enough)
Necessary and beneficial Reasonably necessary
Not the "strict necessity" required by an easement by
necessity[viii].
The easement by necessity and quasi easements have been
referred under sec.13[ix].
b) Easement by necessity:
Clauses (a),(c),(e) of Sec.13[x] explains easement by necessity.
Similar to an easement implied by prior use, in property law, an
easement implied by necessity[xi] is created only when a
landowner divides her land among two or more owners.
But an easement by necessity arises only when that division of
land causes a newly divided parcel of land to no longer have
access to a public street, regardless of whether some of the
owner’s land had previously been used to access that portion
before the division of the land[xii].
A person claiming an easement by necessity must prove the
following:
Severance of unity: One of the parties has divided her land and
transferred part of it to the other party.
Loss of access: The division of the land caused the claimant’s
land, whether the parcel retained by the grantor or the parcel
granted to the grantee, to no longer have a legal right of access
to a public street.
Necessity: At the time the property was severed, the claimant’s
land didn’t border a public street or have any other existing
easement over private land to get to a public street. This is the
only kind of “necessity” for which one may have an easement by
necessity[xiii].
But even if these conditions are met, some courts have held that
the easement isn’t implied if the parties have otherwise
indicated their intent not to create an easement — such as the
grantee’s acknowledging in the purchase agreement that the
land he’s buying doesn’t have access to a public street.
In Hero Vinoth (Minor) v. Seshammal[xiv], court held that an
easement by grant does not get extinguished under Section 41
of the Act which relates to an easement of necessity. An
easement of necessity is one which is not merely necessary for
the reasonable enjoyment of the dominant tenement, but one
where dominant tenement cannot be used at all without the
easement.
The owner of the servient land can specify the location
of the easement by necessity over her land. But if she doesn’t do
so within a reasonable time after severance, the dominant
tenant can choose the access route over the servient land.
The grantee can choose only one way when there are more than
one ways[xv].This doctrine rests upon absolute necessity and
not the mere convenience[xvi]. The easement by necessity exists
only over land that was divided over either the grantor’s or the
grantee’s land and only when the division itself cut off access to
a public street.
An easement by necessity is terminated when the necessity no
longer exists. This occurs when other access becomes
available[xvii].
c) Quasi easements:
A quasi easement is almost always appurtenant to property. In
other words, once the easement is created, it is attached to one
property and burdens other property, and will exist regardless if
mentioned in deeds to the property. A quasi easement will exist
when there is: 1)an existing use at the time of a division and
grant, 2) the use was apparent of the division and grant, and 3)
the use continued for the benefit reasonable comfort and
enjoyment of a property after the division and conveyance[xviii].
When it comes to the quasiservient tenement, apparent and
continuous easements are capable of acquisition on a
severance of tenements by the grantor under an implied
reservation as ruled out in Pyer v. Carton case[xix] and sec.13(d)
[xx]. No express reservation is necessary as in English law. In
cases of way of necessity, reciprocal easements, simultaneous
conveyances[xxi].
Whereas in case of quasi dominant tenement, when the owner
of an entire property grants part of that property as it is then
used and enjoyed, he is presumed by law to grant everything
which is essential to the use and enjoyment of quasidominant
tenement similar to those in English law as ruled in Wheeldon v.
Burrows[xxii].
3. Presumed grant:
In England, it is possible to acquire easements by long usage
under the common law of prescription (based on user since time
immemorial), under the Prescription Act 1832 or under the
doctrine of lost grant[xxiii]. Under this doctrine, use of a right for
20 years gives rise to a presumed grant. It is assumed that there
has been an express grant of the easement but that it has been
lost. English law, however, only allows for the acquisition of
easements by prescription in the case of fee simple (freehold)
land.
The earliest reported decision on this subject is Lewis v.
Price[xxiv].
In Dalton v. Angus[xxv], two adjoining houses had been built
each on the extremity of its owner’s soil. One of the houses was
converted into coach factory openly. Twenty years after the
conversion, the other house was pulled down so that the
plaintiff’s coach factory would lose the support and it sank and
fell. The plaintiff claimed the right of support under the doctrine
of lost grant and succeeded in the appeal. The court held that no
prior grant is required to apply this doctrine.
In India, there is absolutely no proviso prescribing Doctrine of
lost grant as a mode of acquisition of easement but is accepted
judicially as the Indian Easements Act is not exhaustive. Sec.21
of Limitation Act prescribes the minimum period of twenty years
to establish this right[xxvi].
4. Acquisition by prescription:
An easement by prescription is one that is gained under
principles of a legal concept known as "adverse possession",
under which someone other than the original property owner
gains use or ownership rights to certain property[xxvii].
Section 15[xxviii] 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[xxix].
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 (Nec precario),
2.The enjoyment must have been peaceable (Nec Vie),
3.The enjoyment must have been as of right (Nec Clam),
4. The enjoyment must have been as an easement,
5.The right must be enjoyed openly,
In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd.[xxx],
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.
6.The enjoyment must have been for a period of twenty years,
This period is of sixty 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 right becomes absolute only when questioned
in the court.
In M. Jadavji v. S.S. Randidas[xxxi], 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 eeasement.
7.The enjoyment for 20 years must have been without
interruption.
In Ram Sahai v.
ManSingh[xxxii], 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.
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.

In Chapsibhai v.
Purushottam[xxxiii], 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.
Where the easement is enjoyed under the pretext of life interest
or other exceeding three years, such period is excluded from the
computation of the said period of twenty years as under sec.16
of the Easements Act.
In Bankey Lal v. Kishan Lal[xxxiv], 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 servient tenement, but a
right to commit a nuisance cannot be acquired by prescription
no matter how often the act of nuisance is repeated.
In Tulasamma v. Nandula Buchairamiah [xxxv], 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.
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 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. A right to the free
passage of light or air to an open space of ground.
A right to surface water not flowing in stream and not
permanently collected in a pool, tank or otherwise. A right to
underground water not passing in a defined channel.

5. Customary Easement:
Sec.18[xxxvi] “Customary easement. -An easement may be
acquired in virtue of a local custom. Such easements are called
customary easements.”
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 favour 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 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[xxxvii].
In Rup Chand v. Sh. Daulatu[xxxviii], it was held that the right of
using the edges (mainds) of each other’s 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. 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. 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.
Other modes of acquisition:
Transfer of dominant heritage: Dominant heritage transferred by
the act of the parties or by the operation of law carries the
incidental easement rights with it under sec.19[xxxix]. A has
certain land to which a right of way is annexed. A lets the land to
B for twenty years. The right of way vests in B and his legal
representative so long as the lease continues[xl].
Imputed grant: Easements are established by proof of
immemorial enjoyment and created by the operation of doctrine
of acquiescence when the servient owner actively encourages
the dominant owner to exercise a right[xli].
Statute: By legislation easements may be created. Indeed even
the rights which do not have the characteristics of the easement
may be statutorily declared to be easements.
Conclusion:
From the analysis, we are able to understand the various modes
of acquisition of easements such as express grant, presumed
grant, prescriptive etc., and the differences between them. The
claim for easementary rights can legally take place through any
of these forms and the principles can also be borrowed form
other legal systems, to assist the process. Though the
provisions of the Act are not
apparent about the application of these principles and certain
doctrines, judicial interpretation clears all the ambiguity. The
study of easement is important even in layman’s context, so as
to have his common rights established with respect to a
person’s property. Apart from the legislation, it is in the hands of
the judiciary to prevent such abuses. The reliance on English law
also adds to our strength.