There are several villages in the midst of agricultural lands.There are houses surrounded by other houses.Inhabitants of these places
have one common disadvantage; they do not have direct access to the road.To
reach the public road they have to pass through someone else’s property.
There are several acres of sprawling agricultural lands
for which water has to flow through adjoining lands. In some remote areas
people collect water from a distant water body. To reach the water source they
have to walk over a long stretch of land, which does not belong to them.The
owners of such lands cannot deny use of their lands.
The Easements Act of 1882 clearly says that it is the
privilege of the people to use the land out of necessity, which the owners
cannot deny. Easement is right to use another’s property. It is a right, which
the owner of a particular land enjoys over an adjacent property, which he does
not possess. It is the right over a property belonging to someone else and not
to the person claiming easement.
The landowner who will benefit from the property which is
not his own and over which he has a right is called dominant heritage or
dominant tenement and the owner of such a land is called the dominant owner.
Dominant because the owner has control over the use of that particular land
which he does not possess.
Whereas the actual landowner who cannot object to the
other using his land is called servient heritage or servient tenement and the
owner of such a land is called servant owner. Servient or subordinate because
he has to abide by the requirements and convenience of the dominant owner. In
fact, whether he likes it or not, it is a burden brought to bear on him by
grant, by custom or by prescription.
X owns a piece of land. Y has the right of way over it.
Here X is the servient owner and has the servient heritage. Y is the dominant
owner and he has the dominant heritage.Servient Heritage means an inherited
property over which the dominant owners have a right to use it to their
advantages. Dominant Heritage means inheriting a right over another’s property
without owning it. The title to easement may be by grant, by custom or by
prescription.
An easement can be acquired by grant. The deed of
easement may be separate or the grant may be included in a deed relating to the
dominant heritage. For example, X sells his land to Y and by the same deed he
may grant a right of way to Y for such land for another land of his. Grant is
given by an agreement executed by the grantor in favor of the grantee for a
consideration. The grant becomes effective when the grantee has the right to
enter upon the grantor’s land.
Prescription means getting a right by continuous
assertion of the right, which has been in use for a long period of time.
According to the Indian Easements Act, for example, the inhabitants of a
building enjoying the access and use of air and light as a right continuously
for over 20 years have the right to enjoy them without any condition or
restriction.Easement by virtue of custom is a legal right acquired by the
operation of law through continuous use of a land over a long period of time.
Therefore the right of way continues to exist by grant, prescription or by
virtue of custom.
The dominant owner has the right over the property of the
servient or subordinate owner. It is a privilege enjoyed by the dominant owner
over the property, which he does not own. The servient owner cannot enjoy his
own property. He cannot do anything on his own land and he is bound to suffer
for the advantage of the dominant owner.If at all the servient owner does something on dominance own property,
the dominant owner has the right to prevent it.
In an easement there must be a dominant owner and a
servient owner, it must be for the advantage of the dominant owner, it may be
permanent or temporary, or for a limited period of time or seasonal or for a
specified event or out of necessity, the owners must be two different persons
and it must be capable of forming the subject matter of a grant.
There are several types of easement. Right of way, right
to air and light, riparian rights, right to build, right to uninterrupted flow
of water, are a few. Easements, which are the subject matters of agreement
between the parties, are for right of way, right to air and light. Some
easements are acquired by grant and others prescription and custom. We are
dealing with easements, which form subject matters of grant.
Creation of an easement does not mean transfer of property.In the same manner, surrendering an easement right does not imply transfer of
property. Easement can be made, altered and released. Easement right cannot be
created or modified orally. It must be in a written form. However, easements by
prescription and custom need not be in writing.
Right of Way
Private right to certain individuals by grant, rights to
certain classes of people like inhabitants of a village by custom and common
rights dedicated for the benefit of all are three classes of rights of way.
The private right of way is the means of access to and
from a dominant heritage by way of grant. If a seller sells one of his
adjoining properties to the purchaser, the seller reserves the right of way for
passage running across the property sold. In this case the seller reserves the
right of way in the sale deed in favor of the purchaser.
If the purchaser has no right of way to access the road,
the seller will grant to the purchaser a right of way over his property.Here
the seller of the plot has to execute a separate deed in favor of the purchaser granting a right of way. A right of way for the benefit of the public at large
is normally acquired by prescription.
A private right of way can be either permanent or
periodic or for a particular time during the day only, or seasonal or for a
limited time, for to and fro movement of human beings, cattle and light
vehicles.
The deed of grant must clearly mention the purpose for
which easement is granted. By the deed of grant the subservient owner gives
full and free right to the dominant owner and his successors a passage wide
enough for movement of people and vehicles in the dominant owner’s property to
the public road against a price consideration. To make matters very clear a map
with the properties and the passage marked in different colors must be annexed
to the document of grant.
The dominant and servient owners have certain rights and
obligations to maintain and preserve the easement. While exercising his right
over the property of the servient heritage, the dominant owner has
responsibilities to preserve the easement. His acts and deeds shall not put the
servient owner into inconvenience. Being the actual user he shall rectify the
damages if any caused by his acts at his own expense.
The servient owner is not obliged to do anything for the
advantage of the dominant heritage. He has no liability whatsoever to construct
a way for the use of the dominant owner or to carry out repairs in case of any
damage to the passageway. As the holder of the property he is free to use the
servient heritage in any manner he likes, but his acts shall not dilute the
right of the dominant owner.
Air and Light
Easements of air and light arise only in the thickly
populated cities and towns. Earlier buildings were constructed close by often
ignoring the conveniences of the nearby inhabitants. Virtually no space was
left in between the buildings hindering airflow and natural light to the
smaller houses. The inhabitants of houses who were getting fresh air and
natural light suddenly found these were denied to them because of a multistoried building nearby.
Haphazard constructions are no more a rule of modern
architecture. Presently, buildings are constructed in a well-planned manner.Leaving minimum set backs as prescribed between two buildings for free flow of
air and natural light is now mandatory.
Therefore, any one who comes into possession
of a servient heritage has to carry the burden of easement for all times to
come for the benefit and enjoyment of the person who comes into possession of
the dominant heritage. This sort of ‘master-servant’ relationship cannot be
severed as long as such properties co-exist.
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