EASEMENT

RIGHTS

A paper Submitted

By

Sudip Patra

Under the guidance of

Prof. S. Matilal

Rajiv Gandhi School of Intellectual Property Law
Indian Institute of Technology, Kharagpur
Octobor-2014

S.No

Topic

Pg. No

1.

Chapter I Introduction

2.

Chapter II- Characteristics of Easement

3.

Chapter III- Easement Restrictive Of Certain Rights

4.

Chapter IV Natural Rights and Easements

5.

Chapter V Conclusion

10

6.

Bibliography

11

1 | P a g e

Chapter I - Introduction

An easement is a right which the owner or the 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 is the right to use the real property of another without possessing it.
Easements are helpful for providing pathways across two or more pieces of property or
allowing an individual to fish in a privately owned pond.

2 | P a g e

Chapter II - Characteristics of Easement

The following can be said to be the general characteristics of easement1) There must be dominant and a servient tenement;
2) The easement must accommodate the dominant tenement.
3) The right of easement must be possessed for the beneficial enjoyment of the dominant
tenement;
4) Dominant and servient owners must be different persons;
5) The right should entitle the dominant owner to do and continue to do something , or to
prevent and continue to prevent something being done, in or upon, or in respect of
servient tenement; and
6) That something must be of certain or well defined character and be capable of forming
the subject matter of grant.

3 | P a g e

Chapter III - Easement Restrictive of Certain Rights

Definition- Sec 7 of the Indian Easements Act, 1882 contains Easements restrictive of
certain rights. Easements are restrictions of one or other of the following rights:
a) Exclusive right of enjoyment- The exclusive right of every owner of immovable
property (subject to any law for the time being in force) to enjoy and dispose of the same
and

all

products

thereof

and

accessions

thereto.

b) Rights to advantages arising from situation-The right of every owner of immovable

property (subject to any law for the time being in force) to enjoy without disturbance by
another

the

natural

advantages

arising

from

its

situation.

Meaning- Restrictive easements are also called "negative easements," as their "use" is
normally prohibitive, such as a common "non-vehicular access" easement as shown along
a main thoroughfare where the governmental entity needs to restrict access. Therefore a
restrictive easement is a condition placed on land by its owner or by government that in
some way limits its use, usually regarding the types of structures which may be built there
or what may be done with the ground itself. For instance, if a leased piece of land is not
precluded by zoning laws (probably because it is not in a township) from having people
inhabit it, and the government feels that for some reason living there would be especially
unsafe, it may place a restrictive easement on the property stating that no one may live
there. Restrictive easements are also frequently placed on wetlands (i.e., a conservation
easement) to prevent them from being destroyed by development.
Historic Preservation Easement- Another type of restrictive easement is Historic
Preservation easement in which the owner of a historic structure agrees not to change
specified historic elements of the facade. The primary difference between location
preservation ordinances and historic preservation easements is that local ordinances are
discretionary and can be removed and a historic preservation easement runs with the property
forever. The value of easements imposed on historic properties already protected by local
ordinances has recently been the subject of discussion by some people who have claimed that
4 | P a g e

where the subject property is located in a local historic district in which there are existing
restrictions, regulations and controls, the terms of the easement are substantially redundant.
Easement-encumbered properties within local historic districts should sell at a penalty
relative to unencumbered properties in such districts because the easement typically imposes
stricter controls than those contained in the usual preservation ordinance. Easements often
prohibit changes in property use or changes to significant architectural features while
ordinances may permit such changes, subject to review and approval by a board of
architectural review. Further, unlike preservation ordinances, the easement typically contains
no relief for "economic hardship" commonly found in governmental regulation of land use.
Easements are granted in perpetuity while historic district ordinances and local zoning
practices change over time to reflect the dynamics of a changing political and/or economic
interests of a community. An easement on a historic urban property is generally intended to
preserve and conserve the historic, architectural, scenic and cultural values of a certified
historic structure. In the case of properties located in registered historic districts, the easement
will also protect the historic district through limitations on uses that might jeopardize the
architectural scale, style and sense of cultural identity of the district. The easement does this
by restricting alteration and modification of the property in ways that would change its
historic appearance or remove or replace historic building fabric.

5 | P a g e

Chapter IV - Natural Rights and Easements

Natural rights though resembling easements in some respect are clearly distinguishable from
them. The essential condition between easement and natural rights appears to lie in that is that
easements are acquired restrictions of the complete rights of property or to put in another
way, acquired rights abstracted from the ownership of one man and added to the ownership of
another ,whereas natural rights are themselves part of the complete rights of ownership,
belonging to the ordinary incidents of property and are ipso facto enforceable in law. Natural
rights are themselves subject to restriction at the instance of easements. Section 7 of the
Indian Easement Act classifies the rights which are so capable of restriction.
Below are the illustrations to the rightsOwner of the land adjoining the public street has got a right to access at every point
where his land adjoins Public Street:
Neither the Government nor the Municipality or any local body has got any right to put up
any obstruction over the public street so as to prevent it from having any access to the
adjoining land. It has been repeatedly held that the owner of the land adjoining the public
street has got a right of access at every point where his land adjoins public street. In view of
the above ratio the fencing of an iron fence put up between the land of the petitioner and that
of the suit cart track is illegal and on that ground alone the petitioners are entitled to an order
of injunction as prayed for1.
Owners right to enjoy limited by Municipal Act:
Under the Bombay Municipal Corporation Act (iii of 1888), the Bombay Municipal
Corporation has power to enter upon lands belonging to private owners , to make connection
between their main pipes and to lay the pipes forming connection through or under such lands
, even without the owners permission , provided reasonable notice is given to them2.
Owners right to build any structure on his land:
Parties may build whatever structure they please on their land, i.e., a Hindu temple, by the

1
2

K.V.K. Janardan v State of Tamil Nadu, AIR 1995 Mad. 179

Kasim Ali Khan v Brij Kishore, 2 N.W.P. 182

6 | P a g e

side of a mosque, provided that they do not interfere with the free enjoyment of the
neighbours property. The general rule of law is that the owner of one piece of land has a
right to it in the natural course of user; unless, in doing so, he interferes with some right
created either by law or by contract3. This has been uniformly followed by the courts in India
as evident from the decisions in Gopalkrishna Panicker v. Thirunakkara Devasworn4.
Right of owner to build a ridge on his land:
A person has a natural right, as owner of land, to raise a ridge on his own land, adjoining a
highway, so as to prevent water flowing from such highway into his garden ;and the
Municipality will be guilty of trespass and liable for damages, if it removes the ridge so put
up. An injunction may be granted restraining such illegal act.
Easement of discharging water:
A right of easement to allow the water from the plaintiffs mori and roof to fall on the
defendants land will not entitle the plaintiff to claim that the land shall be kept open and
unbuilt. The defendant can build making necessary arrangements to receive the water from
the mori and roof and to carry it away.
Easement of discharging smoke: Building on the servient tenementAn injunction to restrain the servient owner from building on his land so as to interfere with
the right of easement to discharge smoke over such land may be granted.
Magistrate may make an order to prevent riotAny person is entitled to establish a market on his own land, and the owner of a neighbouring
market has no right of the suit for the loss which may ensue from the establishment of the
new market. This right is subject to the order of the Magistrate to prevent riot, etc.
Fundamental position as the right to buildSo far as the right to build is concerned, the fundamental position is that every person is
entitled to build right up to the limits of his own property. In doing so , must not infringed the
right of the owner of adjoining property. But these rights have first to be acquired. If they are
not acquired then the fundamental position remains. If the fundamental position is that a man

3
4

Haji Ismail Sait v. Trustees of Harbour Madras, ILR 23 Mad. 389

Gopalkrishna Panicker v. Thirunakkara Devasworn, AIR 1959 Ker. 202

7 | P a g e

is entitled to right upon the limit of his own property, then the mere fact that he exercises that
right cannot be regarded as an actionable nuisance. The decision cited in Cawashah Bomanji
Parakh v. Profulla Nath Rudra5

Natural right of passage arising out of the location of plots:

Natural rights are rights in rem ,that is enforceable against all who may violate them,and they
are either affirmative, as rights to do something ,or a negative,as rights which every owner of
immoveable property has, that his neighbor shall not disturb the natural conditions under
which he enjoys his property.Sections 7(b) of the Indian Easement Act deals with rights to
advantages arising out of situations have been dealt with. A set of statutory illustrations have
been provided under the section. None, however deals with a right of passage, Bramwell,
L.J., in the case of Bryant v. Lefever6 , observed:
it is to have all natural incidents and advantages , as nature would produce them; there is a
right to the light and heat that would come ,to all the rain that would fall to all the wind that
would flow ; aright that the rain , which would pass over the land , should not be stopped and
made to fall on it ; a right that the wind should not be checked , but should be able to escape
freely; and it were possible that these rights interfered with one having no right , no doubt an
action would lie. But these natural rights are subject to the right of the adjoining owners,
who, for the benefit of the community , have and must have rights in relation to the use and
the enjoyment of their property that qualify and interfere with those of their neighbours
rights to use their property in various ways in which property is lawfully and commonly
used.
Whether it is necessary to prove damage in an action by a lower owner to restrain
higher owner from diverting water:
In Ah Li v. U. San Baw7, Baguley, J. observed: The Lower Appellate Court has quoted a
dictum in Kaw La v. Maung Ke8, in which it is said: In order to support an action by one
riparian owner to restrain another from diverting the water beyond his riparian tenement it is

5

Cawashah Bomanji Parakh v. Profulla Nath Rudra, ILR (1941) Nag. 266
(1879) 4 C.P.D. 172
7
AIR 1939 Rang. 446 at p.447
8
AIR 1916 L.B.30
6

8 | P a g e

not necessary that the plaintiff should proved that he has suffered any damage.
Right of riparian owners-Removal of a bund.-To entitle a person for the removal of an
embankment, constructed in a channel on defendants own land , there must be an actual
infringement of the plaintiffs right, and not merely some act by which the right is denied or
,questioned. Artificial water course-To riparian proprietors have the right to use water of a
natural water course under certain restrictions. But these rights have no application to a water
course artificially constituted, and the mere fact of riparian proprietorship gives no right
whatever over such a stream.
Right of action in case of pollution of water of natural streamIn Wood v. Waud9, it was held that:
A riparian proprietor has a right to the natural stream of water flowing through the land in its
natural state; and if the water be polluted by a proprietor higher up the stream,so as the
occasion damage in law, though not in fact, to the first mentioned proprietor, it gives him a
good cause of action against the upper proprietor unless the latter have gained a right by long
enjoyment or grant.
While in the case of riparian owners relief may be obtainable by the mere fact of pollution,
even though there may not, in fact, be any sensible reduction of the comforts of the riparian
owners in the case of persons, who merely have a right over the property not belonging to
them damage , in fact, would have to be proved10.

(1849) 3 Exch. 748

Pakkale v. P. Aiyasami Ganapathy, 31 L.W. 555

10

9 | P a g e

Chapter V - Conclusion

An easement is a right which the owner or the 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 is the right to use the real property of another without possessing it.
Easements are helpful for providing pathways across two or more pieces of property or
allowing an individual to fish in a privately owned pond. Traditionally the permitted kinds of
uses were limited, the most important being rights of way and rights concerning flowing
waters. The easement was normally for the benefit of adjoining lands, no matter who the
owner was, rather than for the benefit of a specific individual.
Easements frequently arise among owners of adjoining parcels of land. Common examples of
easements include the right of a property owner who has no street front to use a particular
segment of a neighbour's land to gain access to the road, as well as the right of a Municipal
Corporation to run a sewer line across a strip of an owner's land, which is frequently called a
right of way. Easements can be conveyed from one individual to another by will, deed, or
contract, which must comply with the Statute of Frauds and can be inherited pursuant to the
laws of Descent and Distribution.
Restrictive easement is a condition placed on land by its owner or by government that in
some way limits its use, usually regarding the types of structures which may be built there or
what may be done with the ground itself.

10 | P a g e

Bibliography
Books:
1. Row, Sanjia. The Indian Easement Act, 1882 and Licenses (Delhi Law House) 6th
Edition 2009.
2. Narayana, P.S. Law of Easements and Licenses (Asia Law House) 2007.
Websites:
1. www.wikipedia.org
2. http://indianlawyer.blogspot.in/2006/05/easement-by-prescription_29.html
3. http://www.lawyersclubindia.com/experts/Easement-rights-331381.asp#.UJxCDMVFzQg

11 | P a g e