INTRODUCTION
A general and common concept is that a person can enjoy full control of his own property. He can exercise the full rights of ownership within the limits of his property. Sometimes, it also happens that a person can also enjoy the property of another person with full control. It is called Easement. The concept of easement is as old as human civilization. The rights of easements have evolved along with human societies. In Pakistan, easement rights are recognized by the Law of Easement, 1882.
MEANING OF EASEMENT
Literally, Easement means “having a right of way over another’s property or land”.
DEFINITION OF EASEMENT
According to section 4 of the Easement Act, 1882
“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 lands not his own.“
According to Limitation Act, of 1908
The easement includes all rights which are easements within the meaning of section 4 of the Easement Act 1882 and also a ‘profit a prendre’ in gross which are not easements under the Easement Act.
ELEMENTS OF EASEMENT
Dominant Tenement: A dominant tenement is described as a land for the beneficial enjoyment of which the right exists and the owner of this land is a dominant owner.
Servient Tenement: The land on which the liability is imposed is a servient tenement. The owner of this land is known as the servient owner.
FEATURES OF EASEMENT
The essential features of an easement are the following.
1. Not an Ipso Facto Right
An easement is not an ipso facto right. It means that it is not a right by mere fact. However, it is a right that has to be acquired by the dominant owner by means of a grant, prescription, custom, or by some statute.
2. Dominant and Servient Heritage
For an easement to exist there must be a property owned by one who can impose liability on the property of another. If these properties or tenements are absent no right of the easement can exist.
3. Beneficial Enjoyment of the Land
It is essential for an easement to exist that it enhances the beneficial enjoyment of the dominant tenement.
4. The Easement must Accommodate
A right of the easement must accommodate the dominant land; it must have some direct beneficial impact on the dominant land itself. It must not be for the grantee’s personal benefit; i.e. the land should benefit not the owner. The dominant and servient tenements should be sufficiently close to each other to establish an easement.
5. Owners must be Different Persons
Clause 1 of Section 4 of the Easement Act 1882 explicitly points out that a dominant owner can acquire an easement only over that land that is not his own.
6. Subject Matter of a Grant
An easement should be capable of being transferred e.g. right to light, right to air, the night of way, etc. Whatever easement you claim should exist in fact. You have to prove that you are surely going to acquire beneficial enjoyment of your land.
7. It must not Involve extra Expenditure
An easement must not require the servient owner to spend his money on the maintenance of the right of easement.
8. An Easement must not be Extensive Enough
An easement must not be so extensive to amount to a claim of the joint possession of the servient land.
9. Easement Creates no right in the Servient Owner
Once a servient owner grants an easement right, the dominant owner can abandon his right whenever he feels like it whereas the servient owner cannot insist on continuance.
KINDS OF EASEMENT
Some of the kinds of easement are the following. They are discussed briefly as follows.
1. POSITIVE OR AFFIRMATIVE EASEMENT
A positive or affirmative easement confers a right to commit some act upon or in respect of the servient tenement.
Example: Right of way is a positive right.
2. NEGATIVE EASEMENT
A negative easement involves only a right to prohibit the commission of a certain act upon the servient tenement, which the servient owner would have been otherwise entitled to commit.
Example: It is the exclusive right of every owner of land in town to build on such land, thus it would be a negative easement if it is required of the servient owner not to build in a way that would restrict the passage of light coming to the dominant tenement.
3. CONTINUOUS EASEMENT
A continuous easement is one whose enjoyment is or may be continued without the act of man.
Example: A right to light is a continuous easement as once it is acquired, the act of man is not required to enjoy it.
4. DISCONTINUOUS EASEMENT
A discontinuous easement needs the act of man for its enjoyment.
Example: A right of way, right to draw water from the other well, all these are discontinuous easements.
5. APPARENT EASEMENT
An apparent easement is one the existence of which is shown by some permanent sign or which upon careful inspection by a competent person would be visible to him.
Example: If there is a permanent sign demarcating the route, which is used by a dominant owner, this is an apparent easement, which is visible to anyone who goes there.
6. NON-APPARENT EASEMENT
A non-apparent easement is one in which there are no signs indicating the existence of a right. For apparency to be material the apparency must be on the servient tenement.
Example: If a pipeline is laid 5 feet underground when generally pipelines are laid 2 feet underground. This would be a non-apparent easement because it is not visible externally or even by a competent person.
7. EASEMENT OF NECESSITY
It is rather a mode of acquiring an easement but it is also discussed as a kind of casement. Such an easement, which under particular circumstances, the law creates by the Doctrine of implied Grant to meet the necessity of a particular case. This easement lasts only so long as the necessity exists.
Example: If a piece of land is owned by one person and the owner leases out the back portion of the land, the original land being landlocked renders no access to the back portion. Thus an easement of necessity arises and the owner of the back portion is entitled to a right of way over the front portion of land.
8. URBAN EASEMENTS
Urban Easements are annexed to houses, buildings, plazas, shopping centers, and arcades in the cities.
Example: Right of way or right to support a wall.
9. RURAL EASEMENTS
Rural Easements are those, which relate to lands in the villages.
Example: Right of one farmer to graze his cattle on the land of another.
10. SUB-ORDINATE EASEMENTS
These types of easements can be better understood with an example where A has a right of way through the fields of B. B grants C to graze his cattle on the way used by A. Easement granted by B to C is sub-ordinate to an easement granted by B to A.
11. PRIVATE EASEMENT
A private easement is one, which is restricted to one person.
Example: A has a right of way upon B’s land, this is a private easement.
12. PUBLIC EASEMENT
A public Easement is one whose enjoyment is vested in the public generally.
Example: Easement of passage on public streets or highways.
CONCLUSION
It is concluded that an easement is an incorporeal right exercised over the corporeal property for the beneficial ownership of another corporeal property.
FREQUENTLY ASKED QUESTIONS
What is an easement and its essential elements?
(2019-A)
Define easement and narrate its essential characteristics in detail. How is it related to Tort law?
(2019-A 5 years)
What are the different kinds of easements? Give a brief overview giving statutory reference where applicable.
(2017-S)
Define easement. What are its essentials?
(2016-S)
What is an easement and how is it classified? (2016-A)
