INTRODUCTION
The easement is a right that 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 lands not his own.
There are four ways of acquisition of easements that are By Grants, By Prescriptions, By Customs, and By Necessities.
DEFINING THE TERM ‘EASEMENT’
According to section 4 of the Easement Act, of 1882:
An easement is a right that 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 lands not his own.
GENERAL PRINCIPLE
The general principle of Easement governing the Law of Easement is that; “Easement is not an ipso facto right.” Ipso Facto means, by mere fact. Thus, an easement is not a right that is present by the mere fact, rather it has to be acquired.
This acquisition has to be made by the owner of the dominant tenement over the land or property of the servient owner by means of the rant, prescription, custom, etc.
ACQUISITION OF EASEMENT
Under section 12 of the Easement Act, 1882:
“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. One or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property. No lessee of immovable property can acquire for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.”
MODES OF ACQUISITION
The Law of Easement lays down the following modes for the acquisition of easements;
1. Grant U/s 8 of the Easement Act 1882
2. Necessity U/s 13 of the Easement Act 1882
3. Prescription U/s 16 of the Easement Act 1882
4. Custom U/s 18 of the Easement Act 1882
1. ACQUISITION THROUGH GRANT
MEANING OF GRANT:
Legal Meaning:
“Legally grant means the permission or license given by the owner or occupier of one immovable property to the owner or occupier of another immovable property to exercise some right and enjoy some benefit.”
According to Section 8 of the Easement Act, of 1882:
“An easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage, on which the liability is to be imposed.”
MODES OF ACQUIRING EASEMENT BY GRANT:
Following are the modes of acquisition of easement through the method of grant.
1. Express Grant:
Express grant means any written agreement by which the servient owner imposes easement on the servient heritage and thus grants the right of the easement to the dominant owner for the benefit of the dominant heritage.
Express grant is of two kinds. For example;
Testamentary: The term testamentary means a Will(وصیت نامه). A testamentary easement is effective only after the death of the servient owner. However, a Will, which grants the easement, must fulfill the requirements of the Succession Act, of 1925.
Non Testamentary: Non Testamentary grant of easement is created by the servient owner through an agreement during his lifetime in favor of the dominant owner. The non-Testamentary grant may be in the form of
-
- A deed
- An agreement
- It may be oral
Non Testamentary grant of an easement requires compulsory registration under Sec.17 of the Registration Act, of 1908.
2. Implied Grant:
An implied grant means the acquisition of an easement that is not made through a written document. However, the easements in such cases are acquired by implication of law.
Example: The owner of one heritage has ownership of a partying wall. The case of division of heritage in two parts would give rise to the easement to partying wall through an implied grant.
3. Lost Grant:
As we see in history, the right of easement in England could be claimed only if the enjoyment of the right of the easement was established from a period that a man can memorize. In England, the memory of man started during the reign of King Richard I.
The English Courts invented a new term named Lost Grant and based it on the fiction that a grant was made by a servient owner to a dominant owner but it has been lost in time. However, the Prescription Act, of 1832 fixed the period of 20 years for establishing easement right.
4. Presumed Grant:
An easement can be acquired after the expiry of the time prescribed in Section 15 of Easement Act 1882 i.e. 20 years. It can also be acquired according to Section 26 of the Limitation Act, of 1908.
After the expiry of this period, the servient owner is presumed by law to have made a grant of easement, as he did not seek any remedy against infringement of his right by the dominant owner.
PERSONS COMPETENT TO GRANT AN EASEMENT:
Following are the persons who have been declared either competent or not competent to grant and not to grant an easement according to Section 8 of the Easement Act, of 1882
- Owner: An individual owner of land can make it subject to an easement.
- Co-Owner: One of the several co-owners cannot impose an easement on any part of the land without the consent of others.
- Trespasser: A trespasser is not capable of imposing a permanent burden like an easement on the property.
- Lessee: An easement related to the leased property may be granted by the lessee with regard to property in his occupation. An easement created by the lessee would be valid only during the leased period.
- Permanent Tenure Holder: A holder of a permanent tenure can create an easement.
- Limited Owner: Can Limited owners having temporary interests in land, grant easement rights which might last during the continuance of their interests?
- Ostensible (Apparent) Owner: If a person grants an easement upon the representation that he has the title to do so but actually he does not have the title to do so but subsequently acquires it, the easement so granted is valid.
GRANT OF EASEMENT BY SERVIENT OWNER
Under Section 9 of the Easement Act 1882;
A servient owner may impose an easement on the servient heritage. It would not lessen the utility of the existing easement. However, he cannot grant an easement without the consent of the dominant owner.
Example: A has, for the use of his Mill, a right to the uninterrupted flow of water from B’s stream from sunrise to noon. B may grant C the right to divert the water of the stream from noon to sunset, provided that A’s supply of water is not affected.
2. ACQUISITION THROUGH NECESSITY
MEANING OF NECESSITY:
Under Section 13 of the Easement Act 1882;
Where one person transfers or bequeaths immovable property to another;
- The right of an easement will be granted if it is necessary to enjoy such a transfer or bequeath.
- If the right of easement is necessary to enjoy some other immovable property of a transfer, it shall be granted.
- Where there is a partition in the property owned by joint persons and easement over the property on one is necessary for the other to enjoy his property, such type of easement will be granted.
EXAMPLE:
A sells B a field used for agricultural purposes only. There is no way of getting to that field except by passing over A’s adjoining land. B would be granted the right of way but only for agricultural purposes under the law of necessity recognized by the law of Easements.
EXPLANATION:
An easement of necessity is that easement that the law creates under certain circumstances by virtue of an implied grant to fulfill the necessity of that particular case. Without the easement of necessity, the right to enjoy the dominant heritage cannot be used at all.
3. ACQUISITION BY PRESCRIPTION
MEANING OF PRESCRIPTION:
Literal Meaning:
Here, the word ‘Prescription’ means to acquire some right on the basis of its long enjoyment.
According to Section 15 of the Easement Act, of 1882
The easement can be acquired by means of prescription, where
- the access and use of light or air to and for any building has been for 20 years without any type of interruption.
- Where support from one person’s land or things fixed on it has been peaceably received by another person’s land or things fixed on it as being subject to artificial support for 20 years without any interruption.
- Where a right of way or any other easement has been peaceably and openly enjoyed without any interruption for 20 years.
REQUIREMENTS FOR ACQUISITION BY PRESCRIPTION:
The following requirements have to be satisfied before a right becomes an easement by way of prescription.
- The enjoyment of the right should be open and peaceful
- It should not be permissive
- It should continue for 20 years. However, if the land was the property of the government then this period would be 60 years.
- Twenty years should have been completed before the institution of the suit.
- The enjoyment of the right should be without interruption.
- The enjoyment of the right should be the same as an easement as defined in Section 4 of the Easement Act.
ESSENTIAL INGREDIENTS OF PRESCRIPTION:
1. Peaceable Enjoyment:
The right, which becomes an easement, should have been enjoyed as a right. It must not be based on a contract, gift, or personal privilege. It should not be a conditional easement or for a limited time. The requirement of peaceable enjoyment in Section 15 are as follows;
Nec Vi: It means without any force or compulsion. Enjoyment of rights should be nec vi. The enjoyment of rights would be non-peaceable if the dominant owner uses force in the enjoyment of his right or is obstructed by the servient in the enjoyment of the right.
Nec Clam: It means without secrecy. The enjoyment of the right should be nec clam. The servient owner should have actual or constructive notice about the enjoyment of right by the dominant owner over his property. Secret enjoyment of his right by the dominant owner which is not in the knowledge of the servient owner would not make enjoyment of right an easement.
Nec Precario: It means without agreement. The enjoyment of rights should be Nec Precario. When the enjoyment of a right has its origin in a contract between the dominant owner and the servient owner, it is not a right, which can be turned into an easement.
2. Without any Interruption:
An interruption within the meaning of this section means;
- Actual cessation of enjoyment by the claimant
- Obstruction by the servient owner
- The dominant has noticed the interference but does not do anything about it for a whole year
ABSOLUTE RIGHT:
A right becomes absolute only when it is questioned and decreed in litigation.
KINDS OF PRESCRIPTIVE EASEMENT:
There are two kinds of prescriptive easement which are as follows.
1. Acquisitive Prescriptive Easement: This is that kind of easement where the dominant owner exercises a right over the servient heritage.
Example: the right of use of water from servient heritage.
2. Extinctive Prescriptive Easement: This is known as the extinguishing easement and takes away the right of the servient owner, which he possesses over his own heritage.
RIGHTS THAT CAN NOT BE ACQUIRED:
Section 17 has specified rights, which cannot be acquired by prescription. They are as follows
- Right to Free Passage of Light or air to an open space of ground
- Right to surface water that is not flowing in a stream and not permanently collected in a pool or tank
- Right to underground water, which is not passing in a defined channel
- The rights which would lead to the total destruction of the servient heritage, cannot be acquired.
DEFENCES TO A SUIT OF PRESCRIPTIVE EASEMENT:
Following are the defenses to a suit of a prescriptive easement,
- Enjoyment was with a force
- Enjoyment was with society
- Enjoyment was in agreement
- There was an interruption of more than 1 year
- Right claimed would be destructive
- The suit has been filed before the completion of 20 years
4. ACQUISITION THROUGH CUSTOM
MEANING OF CUSTOM
General Meaning:
Customs are a pattern of behaviors followed over a long time. A usual, general, established mode of behavior, something that one does generally and regularly.
According to Section 18:
An easement that can be acquired by virtue of a local custom is known as Customary Easement.
Example: By the custom of a certain village, every cultivator of the village land is entitled as such to graze his cattle on the common pasture. When A becomes the tenant of a plot of uncultivated land in the village, he breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom.
VALIDITY OF A CUSTOM:
To base an easement on a custom, it has to be established that the customer meets the following conditions:
Ancient/Immemorial Usage: The customs should be ancient but not necessarily immemorial. However, the courts recognize those usages as customs, which have been prevalent in society for a long time.
Custom must be Reasonable: Customs should not be against reason. It is sufficient if no good legal reason can be assigned against it. If someone wants to prove a custom unreasonable, he will have to prove its unreasonableness and not its reasonableness.
Peaceful Enjoyment: It is necessary for a custom to be valid that it should have been enjoyed peacefully without resorting to any force.
Not Opposed To Public Policy: A custom must not be against public policy.
Certain and Definite: Customs should be certain and definite where all parameters of practice should be explored and certain.
Right Of Way: A customary easement regarding the right of way over a property could be established by a fluctuating body of villagers.
Right of Privacy: English Law does not recognize the right to privacy as an easement. In Pakistani Law, this concept exists. Courts have upheld the fact that this right is available as a customary easement. It is especially enforced in cases of women living in apartments etc.
EXAMPLES OF CUSTOMARY EASEMENTS:
Following are the examples of customary easements;
Right to Bury: The right to bury is recognized as customary easement provided that the land is not suitable for any other purpose.
Right to Graze Cattle: The customary easement of the tenants to graze their cattle in their landlord’s forest has been recognized in the country with certain limits.
CONCLUSION
A person can acquire the right of easement over another person’s property. There are some specific modes to do that. These methods include Grants, Prescriptions, Customs, and Necessities.
FREQUENTLY ASKED QUESTIONS
Who may impose and acquire an easement?
(2019-A)
What is the relevant law regarding the acquisition by prescription? Which rights cannot be acquired by prescription?
(2018-A)
Who can acquire an easement and impose an easement?
(2017-A)
How can easement be acquired through necessity and prescription?
(2016-S)
How can an easement be acquired through prescription or long usage?
(2015-S)
What are the different modes of acquisition of an easement?
(2015-A)
