Easements

Definition : An 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 which is
not his own.

Dominant and Servient Heritages and Owners:

1. The land for the beneficial enjoyment of which the right exists is called
the Dominant Heritage, and the owner or occupier thereof is called the
Dominant Owner.
2. The land on which the liability is imposed is called the Servient
Heritage, and the owner or occupier thereof is called the Servient
Owner.
Explanation
1. The expression land also includes things permanently attached to
the earth.
2. The expression beneficial enjoyment includes also possible
convenience, remote advantage, and an amenity there-in.
3. The expression to do something includes removal (and appropriation)
by the dominant owner of entire or any part of the soil of the servient
heritage or anything growing thereon or subsisting thereon.

Easements is a burden a Servient Owner is forced to bear

by
1. Grant
2. Custom
3. Prescription

1. Grant
An easement can be acquired by grant. The deed 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 this land through another land of his.
A grant is given by an agreement executed by a grantor in favor of a
grantee for a consideration (Money). The grant becomes effective when
the grantee has the right to enter upon the grantor's land.

2. Custom
Easement by virtue of custom is a legal right acquired by the power of law
through continuous use of a land over a long period of time .
Example: By the custom of a certain village every cultivator of a village
land is entitled, as such, to graze his cattle on a common pasture (Gairan
in Marathi). A person X having become the tenant of a plot of
uncultivated land in the village starts cultivating that plot and he thereby
acquires an easement to graze his cattle in the common pasture in
accordance with this custom.

3. Prescription.
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, 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 them without any condition or
restriction. So if an adjacent land owner were to plan a building that would
obstruct the light reception of any of such a Dominant Owner, the
Dominant Owner could prevent the construction of such a building by
exercising his Easement Right.

Characteristics essential to an Easement

The following six characteristics are essential for an Easement.
(a) There must be a dominant and survient tenement.
(b) An easement must accommodate the dominant tenement.
(c) The rights of easement must be possessed for the beneficial
enjoyment of the dominant tenement.
(d) Dominant and survient owners must be different persons.
(e) The right should entitle the dominant owners to do and continue to do
something or to prevent and continue to prevent something being done,
in or upon, or in respect of, the servient tenement.
(f) The something must be of a certain or well defined character and be
capable of forming the subject matter of a grant.
Herein I will discuss two easements

Right to Access of Light

Right to Access of Air
1. RIGHT TO ACCESS OF LIGHT
By common law the owner of land has no right to light. Anyone may build
up his own land regardless of the fact that his doing so involves an

interference with the light which would otherwise reach the land and
building of another person
The right to light is nothing more or less than the right to prevent the
owner or occupier of an adjoining tenement from constructing or placing
on his own land anything which has the effect of illegally obstructing or
obscuring the light of the dominant tenement. It is in truth no more than a
right to be protected against a particular form of nuisance. However an
action in a court for the obstruction of light which has in fact been used
and enjoyed for twenty years without interruption or without written
consent cannot be sustained unless the obstruction amounts to an
actionable nuisance. This light enjoyed for twenty years is called Ancient
Light.
An owner of ancient light is entitled to sufficient light, according to the
ordinary notions of mankind, for the comfortable use and enjoyment of his
house as a dwelling-house, if it is a dwelling, or for the beneficial use and
occupation of the house, if it is a warehouse, a shop, or other place of
business.
The right of light is an easement and may be acquired as follows,
a) By grant
b) By prescription. The dominant owner does not by his easement
obtain a right to all the light he has enjoyed. He obtains a right to so
much of it as will suffice for the ordinary purposes of inhabitancy or
business according to the ordinary notions of mankind, having regard to
the locality and surroundings.
c) By reservation on the sale of the servient tenement. If a vendor of
land desires to reserve any right in the nature of easement for the benefit
of his adjacent land which he is not parting with, he must do it by express
words in the deed of conveyance, except in the case of easement of
necessity.
1. Nature of Easement of light
The easement of light is a negative easement or a species of negative
easement and may be defined as a right which a person may acquire, as
the owner or occupier of a building with windows or apertures, to prevent
the owner or occupier of an adjoining piece of land from a building or
placing upon the latters land anything which has the effect of illegally
obstructing or obscuring the light coming to the building of the owner of
the easement.
2. Extent of easement of light
An easement of light does not consist of a right to have a continuance of

all the light which has previously come to the window of the dominant
tenement.
The rule that the easement of light does not give to the dominant owner a
right to all the light coming to the window of the dominant tenement
applies whether the easement is based upon the doctrine of prescription
at common law or is claimed under the provisions of the Prescription Act
1832. A nuisance is however committed by interference of light coming to
the dominant tenement if it results in a substantial privation of light
sufficient to render the occupation of the house uncomfortable and to
prevent the owner from carrying on his accustomed business as
beneficially as he formerly did.
3. Indian Law
No damage suit is substantial unless it materially diminishes the value of
the dominant heritage, or interferes materially with physical comfort of
the plaintiff, or prevents him from carrying on his accustomed business in
the dominant heritage as beneficially as he had done previous to
instituting the suit. In considering the sufficiency of light, the light coming
from other quarters should be considered. The extent of a prescriptive
right to the passage of light and air though a certain window is provided
for by s. 28(c) of the Indian Easements Act. An easement of light to a
window only gives a right to have buildings that obstruct it removed so as
to allow the access of sufficient light to the window.

In cases of light, Court ought not to interfere by way of injunction when

obstruction of light is very slight and where the injury sustained is trifling,
except in rare and exceptional cases and where, the defendant is doing an
act which will render the plaintiffs property absolutely useless to him
unless it is stopped in such a case, inasmuch as the only compensation,
which could be given to the plaintiff, would be to compel the defendant to
purchase his property out and out, the court will not in the exercise of its
discretion compel the plaintiff to sell his property to the defendants by
refusing to grant him an injunction and awarding him damages on that
basis.
In some cases a mandatory injunction will also be granted. Court will
grant such injunction where a man, who has a right to light and air which
is obstructed by his neighbors building, brings his suit and applies for an
injunction as soon as he can after the commencement of the building, or
after it has become apparent that the intended building will interfere with
his light and air. But the court should be satisfied that a substantial loss of
comfort has been caused and not a mere fanciful or visionary loss.
If plaintiff has not brought his suit or applied for an injunction at the

earliest opportunity, and has waited till the building has been finished,
and then asks the Court to have it removed, a mandatory injunction will
not generally be granted.

2. RIGHT TO ACCESS OF AIR

An owner or occupier of land or building has no natural right to free
passage of air to his tenement over adjoining open land. He has no
natural right to prevent his neighbor from using his land in such a way as
to obstruct that free passage air. A right to air through a particular
aperture in a house or building on the dominant tenement can be
acquitted by prescription as an easement or by express grant.
A right to the general passage of air not flowing in any defined channel
may be the subject of express grant or covenant, but is not capable of
being claimed either by a prescription in common law or by grant or under
the Prescription Act 1832. Such claim is too vague and indefinite to be
recognized in law.
1. Indian Law
Access and use of air to and for any building may be acquired under the
Indian
Easements Act if it has been peaceably enjoyed without interruption for
twenty years. The right to air is co-extensive with the right light. The
owner of house cannot by prescription claim to be entitled to the full and
uninterrupted passage of a current of wind. He can claim no more air than
which is sufficient for sanitary purposes. There is no right as a right to the
uninterrupted flow of south breeze as such. There is no easement for free
access of wind. In this country a man who has enjoyed a right of air more
or less pure and free will is reasonably protected against any interference.
The conditions here are different from those existing in England, so far as
air is concerned. In England more light is needed than here: whereas more
air is needed here than England.
2. Infringement of the right
The right to the purity of air is not violated unless it interferes materially
with the ordinary comfort of human existence. It is only in rare and special
cases involving danger to health, or at least something very nearly
approaching it, that the Court would be justified interfering on the ground
of dimunation of air.
But under the Indian law where the easement disturbed is a right to the
full passage of air to the opening in a house, damage is substantial if it
interferes materially with the physical comfort of the plaintiff, though it is
not injurious to his health. The Calcutta High Court has held that
obstruction in cases not governed by Easement Act must be such as to

cause what is technically called a nuisance to the house, in other words,

to render the house unfit for ordinary purposes of habitation or business.

Classification of Easements:
Let us first discuss a few examples and arrive at a conclusion whether
these can be called easements or not.
1. The owner X of a house when buying his piece of land from Y had
included in his agreement that he would have a right of way across Ys
land as he had no direct access to his land. This is an Easement
2. The same owner X also had when purchasing his piece of Land from
Y had included in the agreement that he would take water for the
purposes of his household from a well in Ys land. This is an
Easement.
3. A owner of a plot X has been staying in a house built on a plot of land
for 25 years and now the owner of an adjacent plot wants to construct
a building 5 floors and the side margin is such that the natural light
that would generally be illuminating the living room of Xs House is
depleted. X can exercise his easement right and go to court against the
construction of such a building. This action must be taken may be
within the time the construction of the ground floor of the structure.
This is an Easement
4. A dedicates the right to use a certain piece of his own land for the
purposes of passing through to go to some other place. As there is no
specific dominant owner, there is no easement right existing either.
This is not an Easement.
a. Continuous and Discontinuous Easements.
A Continuous easement is one whose enjoyment is or may be continual
without the act of man.
A Discontinuous easement is one that needs the act of man for its
enjoyment.
1. Right of Ancient Light is a Continuous Easement.
2. Right of Way is a Discontinuous Easement.
b. Positive and Negative Easements.
Right to Ancient Light is a Negative Easement in the sense that it
prohibits the adjacent Land Owner to build upon his land any structure
that would hinder with this light.
Right to Way is a Positive Easement and is to be exercised as such

c. Apparent and Non Apparent Easements.

An Apparent Easement is one the existence of which is shown by some
permanent sign, which, upon careful inspection by a competent person,
would be visible to him.
A non-apparent easement is one that has no such sign.
1. A is drawing water from a well in Bs Land by means of an underground
aqueduct which could become visible only to a person who is
conversant with such matters on careful inspection. This is an
Apparent Easement.
2. A right annexed to As house to prevent B from building on his own
land because that affects his ancient light. This is a Non-Apparent
easement.
d. Customary Easements.
An easement may be acquired in virtue of a local custom. Such
easements are called Customary Easements.
Example: By the custom of a certain village every cultivator of village land
is entitled, as such, to graze his cattle on a common pasture. A person X
having become the tenant of a plot of uncultivated land in the village
starts cultivating that plot and he thereby acquires an easement to graze
his cattle in the common pasture in accordance with this custom
e. Easement for limited time or on condition.
An easement may be permanent, or for a term of years or for other
limited period, or subject to periodical interruption, or exercisable only at
a certain place, or at certain times, or between certain hours, or for a
particular purpose, or on condition that it shall commence or become void
or voidable on the happening of a specified event or the performance or
nonperformance of a specified Act.
f. Easement restrictive of certain rights. Easements are restrictions
of one or the other of the following rights (namely):

1. Right to enjoy exclusively -The exclusive right of every owner of an

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.
2. Rights to advantages arising from a 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.
The rights above referred to are as follows.
a. The Right to construct upon your land restrictive to municipal bye laws.
b. The Right that air passing over your land is not polluted by others.
c. The Right that the physical comfort enjoyed while using your land is
not interfered with unreasonably by noise and pollution and vibration
caused in another land by some other persons
d. The Right to enjoy so much air and light as will pass from vertically
above over your land.
e. The Right of your land in its natural conditions that shall have the
support naturally rendered by the subjacent and adjacent soil of
another person.

3. Right of every owner of Land of Water within his own limits which
naturally passes or percolates by, over or through your and shall not
before so passing or percolating, be unreasonably polluted by other
persons.
4. Right of every owner of Land of Water to collect and dispose
within his own limits of all water under the land which does not pass in
a defined channel and all water on its surface which does not pass in a
defined channel.
5. Right of every owner of Land of Water that the water of every
natural stream which passes by through or over his land in a defined
natural channel shall be allowed by other persons to flow within such
owners limits without interruption and without material changes
in quantity, direction. force or temperature; The right of every
owner of land abutting on a natural lake or pond into or out of
which a natural stream flows, that the water of such lake or pond shall
be allowed by other persons to remain within such owners limits
without material alteration in quantity or temperature.

6. Right of every owner of Upper Land that water naturally rising in,
or falling on such land, and not passing in defined channels, shall be
allowed by the owner of adjacent lower land to run naturally thereto.
7. Right of every owner of Land abutting on a Natural Stream , lake
or pond to use and consume its water for drinking, household purposes
and watering his cattle and sheep: and right of every such owner to
use and consume the water for irrigating such land.