Modes of acquisition of easement

KEY TAKEAWAYS:

• Easement is the right of owner to enjoy his land and use it as he desires.
• Easement can be acquired in 7 ways.
• The right of the easement can be imposed by Owners, Lessors, Mortgagors.
• Easement is governed by the provisions of the Indian Easement Act, 1882

Introduction:

The development of human civilization has begun when people started living in groups, in realization of the each individuals’ private rights with mutual benefits within the society. Hence, the right of easement dates back to the period of recognition of private property in a definite society. Such a right, arises out of certain aspects of morality, which permits a third person to enjoy certain benefits in relation to the property, on which he has, neither ownership nor possession. With due progress in the society, the legislation has given deference to the easement rights, which makes it necessary for us to have a line of thinking on it.

Easement - Meaning and Definition

Easement[i] 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 not his own. The land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier of such land is called the dominant owner. The land on which the liability is imposed is called the servient heritage and the owner or occupier of such land is called the servient owner.

Modes of acquisition of easements:

There are several methods by which easements may be acquired. They are:

• Express grant
• Implied grant
• Presumed grant
• Acquisition by prescription
• Customary easement
• Transfer of dominant heritage
• Imputed grant
• Statute

The various modes of acquisition of easement are explained in detail in the following paragraphs.

1. Express grant:

The most direct method of creating an easement is by express grant. Express easements are created by a written agreement between landowners granting or reserving an easement. An express easement is created by a deed or by a will. Thus, it must be in writing. Express easements must be signed by both parties and are recorded with the deeds to each property. An express easement can also be created when the owner of a certain piece of property conveys the land to another, but saves or reserves an easement in it. This arrangement is known as an "easement by reservation."

 Similar to a deed of a property it must contain the name of the property owner which is requesting the easement, as well as the owner of the property where the easement is to be created. Once created, the witnessed process will consist of the easement being signed by the grantor, giving his or her consent and permission for the use of land. In addition, the easement must be notarized and furthermore conveyed to the owner it has been granted to.

Example of it would be an individual who requests access to build a walkway on his neighbour's property. The grantor in this case can grant the easement for the length of their ownership over the property to the grantee, not anytime longer. This specifies the life of the easement created through an express grant.

Sec. 8 to 11[ii] deal with the scope of the power to impose easements.

The persons such as

• Servient owners (sec.9)
• Lessor (sec.10)
• Mortgagor (sec.10)

may impose easements on the respective properties of servient heritage, leased and mortgaged subject to certain conditions whereas a lessee cannot impose easement after the derogation of his rights under sec.11 of the Act.

In Booth v. Alcock[iii], it was ruled out that General words in a grant should be restricted to that which the grantor had then the power to grant and will not extend to anything which he subsequently acquire. So the easement granted could not continue after the expiration of servient owner’s interest.

Sec 12[iv] states that “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.”

An easement is also acquired by a co-owner. The permission of other co-owner is not necessary in this case. But a lessee cannot get such a right.

In England, easement could be created only be a deed. In the absence of writing, the grantee could only have a revocable bare license[v]. An easement can be made orally in India. Easements in writing require registration under Indian registration Act[vi].

2. Implied grant:

Even when no document or agreement has created an express easement, an easement right may still be understood (or "implied") by a situation or circumstances[vii]. To create an easement by implication, three requirements must be met:

• The easement must be at least reasonably necessary to the enjoyment of the original piece of property.
• The land must be divided (or "severed"), so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners.
• The use for which the implied easement is claimed must have existed prior to the severance or sale.

Implied easements are not recorded or explicitly stated until a court decides a dispute, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement.

a) Easement by prior use:

An easement may also be created by prior use. Easements by prior use are based on the idea that land owners can intend to create an easement, but forget to include it in the deed.

There are five elements to establish an easement by prior use:

1. Common ownership of both properties at one time
2. Followed by a severance
3. Use occurs before the severance and afterward
4. Notice
   1. Not simply visibility, but apparent or discoverable by reasonable inspection (e.g. the hidden existence of a sewer line that a plumber could identify may be notice enough)
5. Necessary and beneficial
   1. Reasonably necessary
   2. Not the "strict necessity" required by an easement by necessity[viii].

The easement by necessity and quasi easements have been referred under sec.13[ix].

b) Easement by necessity:

Clauses (a),(c),(e) of Sec.13[x] explains easement by necessity. Similar to an easement implied by prior use, in property law, an easement implied by necessity[xi] is created only when a landowner divides her land among two or more owners.

But an easement by necessity arises only when that division of land causes a newly divided parcel of land to no longer have access to a public street, regardless of whether some of the owner’s land had previously been used to access that portion before the division of the land[xii].

A person claiming an easement by necessity must prove the following:

• Severance of unity: One of the parties has divided her land and transferred part of it to the other party.
• Loss of access: The division of the land caused the claimant’s land, whether the parcel retained by the grantor or the parcel granted to the grantee, to no longer have a legal right of access to a public street.
• Necessity: At the time the property was severed, the claimant’s land didn’t border a public street or have any other existing easement over private land to get to a public street. This is the only kind of “necessity” for which one may have an easement by necessity[xiii].

But even if these conditions are met, some courts have held that the easement isn’t implied if the parties have otherwise indicated their intent not to create an easement — such as the grantee’s acknowledging in the purchase agreement that the land he’s buying doesn’t have access to a public street.

In Hero Vinoth (Minor) v. Seshammal[xiv], court held that an easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. 

The owner of the servient land can specify the location of the easement by necessity over her land. But if she doesn’t do so within a reasonable time after severance, the dominant tenant can choose the access route over the servient land.

The grantee can choose only one way when there are more than one ways[xv].This doctrine rests upon absolute necessity and not the mere convenience[xvi]. The easement by necessity exists only over land that was divided over either the grantor’s or the grantee’s land and only when the division itself cut off access to a public street.

An easement by necessity is terminated when the necessity no longer exists. This occurs when other access becomes available[xvii].

c)  Quasi easements:

A quasi easement is almost always appurtenant to property. In other words, once the easement is created, it is attached to one property and burdens other property, and will exist regardless if mentioned in deeds to the property. A quasi easement will exist when there is: 1)an existing use at the time of a division and grant, 2) the use was apparent of the division and grant, and 3) the use continued for the benefit reasonable comfort and enjoyment of a property after the division and conveyance[xviii].

When it comes to the quasi-servient tenement, apparent and continuous easements are capable of acquisition on a severance of tenements by the grantor under an implied reservation as ruled out in Pyer v. Carton case[xix] and sec.13(d)[xx]. No express reservation is necessary as in English law. In cases of way of necessity, reciprocal easements, simultaneous conveyances[xxi].

Whereas in case of quasi dominant tenement, when the owner of an entire property grants part of that property as it is then used and enjoyed, he is presumed by law to grant everything which is essential to the use and enjoyment of quasi-dominant tenement similar to those in English law as ruled in Wheeldon v. Burrows[xxii].

3. Presumed grant:

In England, it is possible to acquire easements by long usage under the common law of prescription (based on user since time immemorial), under the Prescription Act 1832 or under the doctrine of lost grant[xxiii]. Under this doctrine, use of a right for 20 years gives rise to a presumed grant. It is assumed that there has been an express grant of the easement but that it has been lost. English law, however, only allows for the acquisition of easements by prescription in the case of fee simple (freehold) land.

The earliest reported decision on this subject is Lewis v. Price[xxiv].

In Dalton v. Angus[xxv], two adjoining houses had been built each on the extremity of its owner’s soil. One of the houses was converted into coach factory openly. Twenty years after the conversion, the other house was pulled down so that the plaintiff’s coach factory would lose the support and it sank and fell. The plaintiff claimed the right of support under the doctrine of lost grant and succeeded in the appeal. The court held that no prior grant is required to apply this doctrine.

In India, there is absolutely no proviso prescribing Doctrine of lost grant as a mode of acquisition of easement but is accepted judicially as the Indian Easements Act is not exhaustive. Sec.21 of Limitation Act prescribes the minimum period of twenty years to establish this right[xxvi].

4. Acquisition by prescription:

An easement by prescription is one that is gained under principles of a legal concept known as "adverse possession", under which someone other than the original property owner gains use or ownership rights to certain property[xxvii].

Section 15[xxviii] provides for the acquisition of the right of easement by prescription. Prescription means acquisition of a right or title by user of possession had during the period and in the manner prescribed by law. A man who cannot show any other title may acquire property or certain rights by showing that he has been in possession of the property or enjoying rights for a very long-time[xxix].

Conditions for Acquisition of Easement rights by prescription:

A scrutiny of Section 15 reveals that the following conditions should exist before an easement can become absolute by prescription :

• There must be a pre-existing easement which must have been enjoyed by the dominant owner (Nec precario),
• The enjoyment must have been peaceable (Nec Vie),
• The enjoyment must have been as of right (Nec Clam),
• The enjoyment must have been as an easement,
• The right must be enjoyed openly,

In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd.[xxx], The Supreme Court has laid down that to establish the clause under Section 15, continuous user of 20 years as of right to do the act complained of in assertion of a title, peaceably and openly must be made out.

(6) The enjoyment must have been for a period of twenty years,

This period is of sixty years when the servient heritage belongs to the Government. Till this period of twenty years has elapsed the right remains an inchoate one, and no court will protect an inchoate right.The right becomes absolute only when questioned in the court.

In M. Jadavji v. S.S. Randidas[xxxi], it was held that if somehow the enjoyment, whatever its duration, ceases and no suit is initiated within two years of the cessation thereof the enjoyment has lost all efficacy for the purpose of acquiring an easement.

(7) The enjoyment for 20 years must have been without interruption.

In Ram Sahai v. ManSingh[xxxii], it has been held that the fact that the mode of enjoyment was changed from time to time during the period of twenty years does not cause an interruption within Section 15 where the change in the mode of enjoyment is due to an act on the part of the dominant owner himself.

All the above 7 ingredients of an easement right must be proved to have been present during the whole of the prescriptive period of 20 years.

 In Chapsibhai v. Purushottam[xxxiii], it was held that if the owner of a dominant tenement has during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement.

Where the easement is enjoyed under the pretext of life interest or other exceeding three years, such period is excluded from the computation of the said period of twenty years as under sec.16 of the Easements Act.

In Bankey Lal v. Kishan Lal[xxxiv], it has been held that a right of way may be acquired by prescription if it is exercised openly and with the knowledge of the owner of the servient tenement, but a right to commit a nuisance cannot be acquired by prescription no matter how often the act of nuisance is repeated.

In Tulasamma v. Nandula Buchairamiah [xxxv], It has been held that once the easement is acquired by prescription, there is no scope for issuing a mandatory injunction to put an end to the mode of enjoyment which has given rise to the easement.

Rights which cannot be acquired by prescription:

Section 17 of the Indian Easements Act, 1882 provides for the rights which cannot be acquired by prescription.

These are as follows :

• A right which would tend to the total destruction of the subject-matter of the right, or the property on which, if the acquisition were made, liability would be imposed.
• A right to the free passage of light or air to an open space of ground. 
• A right to surface water not flowing in stream and not permanently collected in a pool, tank or otherwise.
• A right to underground water not passing in a defined channel.

5. Customary Easement:

Sec.18[xxxvi] “Customary easement. -An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”

 A customary easement is not an easement in the true sense of that expression. It is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement; it is recognized and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right to prevent and continue to prevent something done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy[xxxvii].

In Rup Chand v. Sh. Daulatu[xxxviii], it was held that the right of using the edges (mainds) of each other’s fields for going to their respective fields by the agriculturists is a customary right of easement and not a right of easement which is to be acquired by prescription or by necessity.

Customary easements are acquired by virtue of local custom. Prescriptive easements are acquired on proof of peaceable enjoyment for twenty years. No fixed period of enjoyment is necessary for customary easements. A customary easement belongs to those land owners of an ascertained class, caste or community who for the time being happen to own lands within that particular area or locality where the custom prevails. A prescriptive easement, on the other hand, is not limited to a particular locality, it can be enjoyed wherever land can be found. A customary easement must satisfy all the essentials of a custom, viz., it must be ancient, reasonable, continuous and certain. But prescriptive easements need not be reasonable.

Other modes of acquisition:

Transfer of dominant heritage: Dominant heritage transferred by the act of the parties or by the operation of law carries the incidental easement rights with it under sec.19[xxxix]. A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues[xl].

Imputed grant: Easements are established by proof of immemorial enjoyment and created by the operation of doctrine of acquiescence when the servient owner actively encourages the dominant owner to exercise a right[xli].

Statute: By legislation easements may be created. Indeed even the rights which do not have the characteristics of the easement may be statutorily declared to be easements.

Conclusion:

From the analysis, we are able to understand the various modes of acquisition of easements such as express grant, presumed grant, prescriptive etc., and the differences between them. The claim for easementary rights can legally take place through any of these forms and the principles can also be borrowed form other legal systems, to assist the process. Though the provisions of the Act are not apparent about the application of these principles and certain doctrines, judicial interpretation clears all the ambiguity. The study of easement is important even in layman’s context, so as to have his common rights established with respect to a person’s property. Apart from the legislation, it is in the hands of the judiciary to prevent such abuses. The reliance on English law also adds to our strength.

• [i] Section 4 of the Indian Easements Act, 1882, Act no.V of 1882.
• [ii] Indian Easements Act,1882, Act no.V of 1882.
• [iii] (1873) 8 Ch.App. 663.
• [iv] Supra 2.
• [v] Wood v. leadbitter, 153 E.R. 351.
• [vi] Subramanyam v. Meyyammai Achi, AIR 1943 Mad. 522.
• [vii] Vepa P.Sarathi, Law of Transfer of Property, vol.1 378-483(7th ed., 2012).
• [viii]Creation of Easements, National Paralegal, available at http://nationalparalegal.edu/public_documents/courseware_asp_files/realProperty/Easements/CreationofEasements.asp, last seen on 01/10/2015.
• [ix] Supra 2.
• [x] Supra 2.
• [xi] Nancy S. Greif, Erin J. Johnson, The Good Neighbor Guidebook for Colorado, (2000).
• [xii] Easement by necessity, Legal Match, available at http://www.legalmatch.com/law-library/article/easement-by-necessity.html, last seen on 30/09/2015.
• [xiii] Ibid.
• [xiv] (2006) 5 SCC 545.
• [xv] Sec.14 of Indian Easements Act,1882, Act no.V of 1882.
• [xvi] Govindh Bhatta v. Rambhatta, AIR 1927 Mad. 963.
• [xvii] Homes v. Goring, 130 E.R. 233.
• [xviii] Quasi easement, Umaine, available at http://umaine.edu/svt/files/2012/11/QuasiEasement.pdf, last seen on 01/10/2015.
• [xix] 156 E.R. 1471.
• [xx] Supra 2.
• [xxi] Easements, Law Cornell, available at https://www.law.cornell.edu/wex/easement, last seen on 30/09/2015.
• [xxii] (1879) 12 Ch.D. 39.
• [xxiii] http://www.jstor.org/stable/1323669?seq=1#page_scan_tab_contents, last seen on 01/10/2015.
• [xxiv] 85 E.R. 926.
• [xxv] (1881) 6 A.C. 740.
• [xxvi] Bhilanath v. Momeno, AIR 1946 Cal. 444.
• [xxvii] John P. Lewis, Land Use Controls and Property Rights: A Guide for Real Estate Professionals, (1st ed., 2007).
• [xxviii] Supra 2.
• [xxix] Easement by Prescription, Legal Match, available at http://www.legalmatch.com/law-library/article/easement-by-prescription-lawyers.html, last seen on 01/10/2015.
• [xxx] 1969 SCD 1105.
• [xxxi] 7 Saurashtra LR 183.
• [xxxii] AIR 1952 All 398
• [xxxiii] AIR 1971 SC 1878.
• [xxxiv] AIR 1967 All 43.
• [xxxv] AIR 1949 Mad. 826.
• [xxxvi] Supra 2.
• [xxxvii] State of Bihar v. Subodh Gopal Bose, AIR 1986 SC 281.
• [xxxviii] AIR 1992 H.P. 6.
• [xxxix] Supra 2.
• [xl] Wultzar v. Sharpe, ILR 15 All. 270.
• [xli] Supra 7.