KINDS OF EASEMENTS

IN

LAW OF MORTGAGES AND EASEMENTS

SUBJECT CODE: PMK

SUBMITTED BY,
MANIMOZHI B
ID Card No: 232011,
LLM-I YEAR
PROPERTY LAW

UNDER THE GUIDANCE AND SUPERVISION OF

Tmt. P. SONA, M.A., ML.,

GOVERNMENT LAW COLLEGE MADURAI, TAMIL NADU.

MAY 2024

0
 TABLE OF CONTENTS

I. Introduction 2
II. Easement 2
III. Essentials of Easements 5
IV. Kinds of Easements 7
4.1 Continuous Easement and Discontinuous Easement 7
4.2 Apparent Easement and Non-Apparent Easement 11
4.3 Permanent Easement and Limited Time Easements 16
4.4 Easement of Necessity and Quasi Easement 17
4.5 Prescriptive Easement and Customary Easement 18
4.6 Positive Easement and Negative Easement 20
4.7 Classification of Easements in English Law 20
4.8 Contemporary Challenges in Classification 23
V. Conclusion 24
Bibliography and References 25

1
 I. INTRODUCTION

In India, the concept of easements is governed by the Indian Easements Act of 1882. This
act provides the legal framework for the creation, transfer, and termination of easement rights
in the country. The Indian Easements Act recognizes various types of easements, including
right of way, right to light and air, right to water, and right to support from adjoining land or
buildings. It can be created through express grants, implied grants, necessity, or prescription
(long-standing use). The land or property that benefits from the easement is known as the
dominant tenement, while the land or property that is burdened by the easement is called the
servient tenement. Easement rights in India are transferable and can be inherited or passed on
to successive owners of the dominant tenement.

Further, the Act imposes certain restrictions on the use of easement rights, such as the
requirement that the use must be continuous, apparent, and reasonably necessary. Easement
rights can be terminated through release, merger (when the dominant and servient tenements
come under the same ownership), or abandonment. In case of interference with easement rights,
the affected party can seek legal remedies, such as injunctions or damages, through civil courts.
It is important to note that easement rights in India are subject to various legal requirements
and considerations, and it is advisable to consult with a qualified legal professional for specific
cases or situations.

II. EASEMENT

Section 4, Easements Act, 1882 defines ‘Easements’ as a right which the owner or
occupier called the dominant owner of certain land called dominant heritage possessor, 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, called the servient heritage, and where owner or occupier is called the
servient owner.

The expression ‘land’ includes also things permanently attached to the earth and the
expression ‘beneficial enjoyment’ includes also possible convenience, remote advantage and a
mere amenity. The expression ‘to do something’ includes removal and appropriation by a
dominant owner of any part of the soil of the servient heritage or anything growing or subsisting
thereon.

2
 The right to remove and appropriate is an easement in India, but under English Law is
called ‘profits a prendre’. Easements are also called ‘servitudes’ in English Law.

In the words of great jurist, Salmond, easement is that legal servient which can be
exercised on some other piece of land specifically for the beneficial enjoyment of one’s
own land. Right of easement is basically a form of privilege, the integral part of which is to do
an act or prevent certain acts on some other land for enjoyment of one’s own land. It includes
the right of way, right to discharge rainwater, right to sunlight etc.

An easement can be defined as a privilege without profit which the owner of one tenement
has a right to enjoy in respect of that tenement in or over the tenement of another person, by
reason whereof the latter is obliged to suffer or refrain from doing something on his own
tenement for the advantage of the former.1

For example,

1. A, as the owner of a certain house, has a right of way to it, over the land of his neighbour
B for the beneficial enjoyment of A’s house.
2. A, as the owner of a certain house, has the right to go on the land of his neighbour B to
take water for the purpose of his household out of a spring on B’s land.
3. A, as the owner of a certain house, has the right to conduct water from B’s stream to
supply the fountains in A’s garden.
4. A, as the owner of a certain house and farm, has (a) the right to graze a certain number of
his own cattle on B’s field; or (b) to take, for the purpose of being used for his household,
water or fish out of C’s tank; or (c) to take timber out of D’s wood; or (d) for the purpose
of manuring his land, the leaves on E’s land.
But, if A dedicates to the public the right to occupy the surface of certain land for the
purpose of passing and repassing, it is not an easement, because there is no dominant
heritage or dominant owner.

Further, a dominant owner has no right to compel the servient owner to do anything
on the servient owner’s land. Therefore, though A, a riparian owner is bound to cleanse a
water-course running through his land and keep it free from obstruction for the benefit of B a
lower riparian owner, it is not an easement.

1
Law of Easement by Goddard, 7th Ed, p. 1.

3
 A riparian owner is one whose land abuts on and is part of the bank of a river or stream,
whether it is tidal or non-tidal.

For claiming, one’s easementary right of way it is not necessary that he should be actually
living in the dominant heritage.2 Section 4 does not use the word ‘owner’. It uses the word
‘occupier’. This means that any person who is occupying the dominant heritage would have
the easementary right.3 The land for whose enjoyment the right exists is called the dominant
heritage; its owner or occupier is the dominant owner. The land on which the liability is
imposed is called servient heritage and its owner or occupier is the servient owner.4

Easement is essentially a landlocked right. No such right can exist independently. It has
to be granted by deed or words. Easement is a prohibitive or restrictive right of enjoyment.
Merely a right annexed or appurtenant to land to utilise some other land of different ownership
does not create right.5 The use of an adjoining land to purposes of sitting or sleeping may
amount to a right of easement.6

Basis of the right of easement is a grant from servient owners. It may be express or
implied or may be presumed from a long and continued use for a certain period or may be
inferred from a long and continued use by a certain public class in a certain locality.7 An
easement by prescription cannot be acquired when both the tenements are owned or held by
the same person.8

Where the user of land for sitting and sleeping purpose is intended to be for more beneficial
enjoyment and living of the adjoining house, it is not a personal right but an easement. Section
4 places no restriction on the nature of user of the servient heritage. 9 An easement cannot be
extinguished except in accordance with the modes mentioned in the Act. It cannot be done

2
Ramcharan v Ram Asrey, (2007) SCC OnLine MP 410- all that is necessary is that the right should be necessary
for beneficial enjoyment of the dominant heritage.
3
Ibid.
4
Gopalakrishnan v C. Asokan, 2009 SCC OnLine Mad 1778: (2009) 5 LW 769 Mad, no easementary right can
be claimed on a public pathway because such pathway is there for general use of everybody. Easement requires
that there must be a dominant as well as a servient heritage. In this case, the plaintiff’s house had in front a part
of the public pathway, he also had an alternative pathway for ingress or egress, frame of the suit was held to be
erroneous.
5
Jasri Venkateswara Rao v Central Railway, 2011 SCC OnLine AP 516.
6
Mumtaz Ali v Mohd Sharif Khan, 1972 SCC OnLine All 92.
7
Lachhi v Ghansara Singh, 1971 SCC OnLine HP 34.
8
Diwan Durag Singh v State of MP., 1971 SCC OnLine MP 25.
9
Mumtaz Ali v Mohd Sharif Khan, 1972 SCC OnLine All 92.

4
merely at the will of the grantor. It is always appurtenant to the dominant tenement and it
is inheritable and assignable.10

A profit-a-pendre in gross, that is, a right exercisable by an indeterminate body of

persons to take something from the land of others, but not for more beneficial enjoyment of
any dominant tenement. It is not an easement.11 The right to use a highway is not an easement
right.12

III. ESSENTIALS OF EASEMENTS

The following six characteristics are essential to an easement:13

A. There must be a dominant and servient tenement,

B. An easement must accommodate the dominant tenement,
C. The right of easement must be possessed for the beneficial enjoyment of the dominant
tenement,
D. Dominant and servient owners must be different persons,
E. 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 the
servient tenement, and
F. That something must be of a certain or well defined character and be capable of forming
the subject matter of a grant.

The essentials in detail discussed below:

1. Dominant and Servient Heritage:

Two properties i.e., the dominant and servient heritage must exist to enjoy the privilege
of easement. This is because according to the definition under section 4, it refers to the
privilege that the owner or occupier of one piece of property might exert over another
person’s land to benefit from it. For example, if X is the owner of his house and has the

10
Purshottam Nath Kapoor v Natha Ahir, 1974 SCC OnLine All 99.
11
State of Bihar v Subodh Gopal Bose, AIR 1968 SC 281.
12
Saghir Ahmad v State of UP, AIR 1954 SC 728.
13
Sanjiva Row’s Commentary on the Indian Easements Act, 1882 and Licenses, p. 71.

5
 right to entry on the land of his neighbour and to take water from the hand pipe for his
domestic use, the house of X is dominant heritage and the land of Y is servient heritage.14

A tradition of dominance and servitude cannot coexist. Therefore, it is crucial for two
properties to exist and for them to be distinct from one another.

In Radhika Narain and Others v Smt. Shundra Devi and Others, it was held that for the
existence of easement, it is necessary that the obligation of its use must be on the ownership
of any person who is not the owner of the dominant heritage.

2. Separate Owners:
Owners of the two properties must be distinct and not belong to the same person to
exercise the right of easements. It is well settled that easement is a right and it must relate
to doing of an act upon or in respect of certain other lands which is not his own. However,
for constituting an easement the subject matter of the right must be definite, certain and
specific.

3. Beneficial Enjoyment:
Generally, the easement must be for the beneficial use of the property. The main object
of the easement is that the owner of the dominant heritage may use and enjoy it in a better
manner. Words ‘better use and enjoyment’ is a very wide term and it includes express and
implied benefits and comforts. In the case of Re Allen Bari, Re David Powell v Madison, it
was held that if residents of any house for better use of their house for sitting and sleeping
purposes, such use shall be considered to be ‘for better use’ by the residents.15
The purpose of an easement is to allow the dominant owner to benefit from it in a
way that incorporates both explicit and implicit advantages. An easement is a privilege
without profit and possession which the owner of one tenement has a right to enjoy in
respect of that tenement in or over the tenement of another person.

4. Positive or Negative:
Easements can be beneficial or harmful. Former describes a right that allows the
dominant owner to act to exercise control over the servient owner’s property. The

14
Ravi Kant Gupta, Lecture 34, Law of Property, Rama University, p. 4.
15
Ibid.

6
 latter, however, indicates a preventive action. A negative easement is one in which the
dominant owner forbids or limits the servient owner from performing some act or
acts.
An owner of dominant heritage may perform an act or forbid the servient owner
from performing one under the terms of an easement but he or she cannot obligate the
servient owner to do so.
Only when two heritages are next to one another does the easementary right exist.
It is a right in rem, which is a right that can be used against anybody or anything. The
dominant tenement is always annexed to the right of easement. Re-aliena refers to a
right over a servient tenement rather than a right to one’s land.

IV. KINDS OF EASEMENTS

Section 5 of the Act classifies easements into 1) continuous, 2) discontinuous, 3)

apparent, and 4) non-apparent.

4.1 Continuous Easement and Discontinuous Easement

A continuous easement is one whose enjoyment is or may be continual, without the act
of man. For example, a right annexed to B’s house to receive light by the windows without
obstruction by his neighbour. A discontinuous easement is one that needs the act of man for
its enjoyment. For example, a right of way annexed to A’s house over B’s land; because, to be
enjoyed A must use it.16

To put it otherwise, a continuous easement is a type of easement that involves a constant or

perpetual use of the servient land (the land burdened by the easement). It is distinguished from
a discontinuous easement, which involves intermittent or occasional use of the servient land.

Continuous easements are the ones whose enjoyment may be continued without the
intervention of any human conduct or act of a man. There is no interference by a man and it
adds special quality to the property. On the other hand, the right of easement for the enjoyment

16
Vepa Sarathi, Law of Transfer of Property Act, p. 391.

7
in which an interference of a man is required is known as discontinuous. In this kind of
easement, it is necessary that a human act is done on the servient heritage.

Continuous Easement:

Key Characteristics of Continuous Easement:

1. Constant or perpetual use: The use of the servient land by the easement holder is constant
or perpetual, rather than intermittent or occasional.

2. Visible and apparent: The existence of the easement is typically visible and apparent on
the servient land, such as the presence of a road, pipeline, or other permanent structure.

3. Automatically acquired: Continuous easements can be automatically acquired through long-

term, open, and uninterrupted use, even without a formal grant or agreement. This is known as
an easement by prescription.

For example,

1. Right of way: An easement that allows the easement holder to pass over the servient land
continuously, such as a driveway or path.

2. Utility easements: Easements that allow utility companies to maintain pipes, cables, or wires
on the servient land continuously.

3. Overhanging structures: An easement that allows a building or other structure on the

dominant land to overhang or encroach onto the servient land continuously.

4. Support easements: An easement that allows the dominant land to receive continuous support
from the servient land or a structure on the servient land.

In Gokal Chand v. Parvin Kumari,17 the Supreme Court held that a right of way, being
a continuous and apparent easement, can be acquired by prescription (long-term use) even
without a formal grant. In Syed Kasim v. Joynuddin Biswas18, the Calcutta High Court

17
(1952) AIR 231
18
(1916) 43 Cal 876

8
ruled that a right of way, being a continuous and apparent easement, can be acquired by
prescription if the use is open, continuous, and uninterrupted for the prescribed period.

In Rahimbhoy Habibbhoy v. Turner19 it was established that a right to light and air is a
continuous and apparent easement that can be acquired by prescription, provided the use is
open, uninterrupted, and continuous for the prescribed period.

In Mahant Shri Govind Giri Ji Maharaj v. Shri Amrawati Gramin Bank20 the Supreme
Court held that a right of way, being a continuous and apparent easement, can be acquired by
prescription even if the original use was by mistake or under a mistaken belief of
ownership. In Ponnamma v. Subramania Iyer21 the Madras High Court ruled that a right to
draw water from a well or stream is a continuous easement that can be acquired by
prescription if the use is open, continuous, and uninterrupted for the prescribed period. In Gour
Chandra Mukherjee v. Atul Krishna Ghosh22 it was held that a right of support from an
adjoining building or land is a continuous and apparent easement that can be acquired by
prescription if the use is open, continuous, and uninterrupted for the prescribed period.

Thus, these cases have established several important principles regarding continuous
easements in India, such as the ability to acquire them through prescription, the requirement of
open, continuous, and uninterrupted use, and the recognition of various types of continuous
easements like rights of way, light and air, water, and support.

Discontinuous Easement:

Key Characteristics of Discontinuous Easement:

1. Intermittent or occasional use: The use of the servient land by the easement holder is not
constant or perpetual but rather occurs at intervals or on specific occasions.

2. Non-visible or non-apparent: The existence of the easement may not be visible or apparent
on the servient land, as it does not involve a permanent structure or encroachment.

19
(1892) 18 Bom 632
20
(2014) 11 SCC 714
21
(1900) 23 Mad 566.
22
(1945) 49 CWN 539.

9
3. Express grant required: Discontinuous easements cannot be acquired through long-term use
or prescription (as with continuous easements). They require an express grant or agreement
between the parties.

For example,

1. Right of entry: An easement that allows the easement holder to enter the servient land for a
specific purpose, such as maintenance or repairs, but not for continuous use.

2. Right to use a well or draw water: An easement that permits the easement holder to access
and use a well or water source on the servient land for drawing water, but not for continuous
use or occupation.

3. Right to hunt or fish: An easement that grants the easement holder the right to hunt or fish
on the servient land, but only intermittently or during specific seasons.

4. Right of temporary storage: An easement that allows the easement holder to temporarily
store goods or materials on the servient land, but not for continuous use or occupation.

In Syed Kasim v. Joynuddin Biswas23 the Calcutta High Court held that a discontinuous
easement, such as a right of entry for repairs or a right to draw water from a well, cannot
be acquired by prescription (long-term use) and requires an express grant or agreement. In
Madho Singh v. Mukund Lal24 the Supreme Court ruled that a right to enter upon another's
land for repairing a shed or structure is a discontinuous easement that cannot be acquired
by prescription and must be established by an express grant or agreement.

Dharam Das v. Buta Ram25- this case involved a right to enter upon another's land
for the purpose of hunting or fishing. The Allahabad High Court held that such a right is a
discontinuous easement that cannot be acquired by prescription and requires an express grant.

In Mahadevi v. Rama Lingam26 the Madras High Court ruled that a right to enter upon
another's land for the purpose of cutting and gathering wood is a discontinuous easement

23
(1916) 43 Cal 876
24
(1954) AIR 388
25
(1929) 51 All 586
26
(1957) 1 MLJ 292

10
that cannot be acquired by prescription and must be based on an express grant or agreement.
In Munshi Ram v. Shri Khem Chand27, the Punjab and Haryana High Court held that a right
to enter upon another's land for the purpose of repairing a wall is a discontinuous
easement that cannot be acquired by prescription and requires an express grant or agreement.

In Salik Ram v. Gaya Prasad28 the Allahabad High Court ruled that a right to enter upon
another's land for the purpose of accessing a well or drawing water is a discontinuous
easement that cannot be acquired by prescription and must be established by an express grant
or agreement.

These cases have consistently held that discontinuous easements, which involve
intermittent or occasional use of another's land, cannot be acquired through prescription (long-
term use) alone. They require an express grant or agreement between the parties, clearly
defining the scope, purpose, and terms of the easement.

4.2 Apparent Easement and Non-Apparent Easement

An apparent easement is one of the existence of which is shown by some permanent sign,
which upon careful inspection by a competent person would be visible. For example, a right is
annexed to A’s land to lead water to it by an aqueduct across B’s land and from there, draw it
off by a drain. A non-apparent easement is one, which has no such sign. For example, a right
annexed to A’s land to prevent B from building on his own land.

An apparent easement is one the existence of which can be seen through a permanent sign.
It can be visible by careful examination and reasonable foresightedness. It is also known as
express easement. An inspection is required to check the existence of a right. For example-
there is a drain from A’s land to B’s land and from there it leads to an open yard. This can be
visible through a clear inspection and is an apparent easement. Whereas, a non-apparent
easement is just the opposite of what an apparent easement is. This kind of easement is not
visible through an inspection. There is no permanent sign as such. The right is in use but is not
visible and thus, is known as an invisible easement. For example, A’s right annexed to A’s land
to prevent B from building his own house. Another example to explain non-apparent easement
is that the right to stop construction over a certain height.

27
(1971) AIR 1971 P&H 258
28
(1975) AIR 1975 All 227

11
 From the above, it is easy to see that a positive or apparent easement is one, which enables
the dominant owner to do something upon the servient tenement; whereas a negative easement
is a right of the dominant owner to prohibit the servient owner from doing something on his
land.

Section 6 divides easements into permanent ones and temporary ones. The former are
where the dominant owner enjoys the easement without interruption and permanently.
Temporary ones are for limited time or on condition, as for example a right of way limited to a
particular season. A right of passage need not be continuous and apparent.29

Apparent Easement:

Key Characteristics of Apparent Easement:

1. Physical Evidence: There is visible and permanent evidence of the easement on the
servient land, such as a road, path, driveway, pipeline, or other permanent structure.

2. Continuous Use: The easement typically involves continuous or perpetual use of the
servient land, rather than intermittent or occasional use.

3. Implied Grant: Apparent easements can be created through an implied grant, rather than
an express written agreement, based on the physical evidence and continuous use.

4. Necessity: The existence of the apparent easement may be necessary for the reasonable
use and enjoyment of the dominant land (the land benefiting from the easement).

For example,

1. Right of way: A visible driveway or path crossing the servient land, providing access to the
dominant land.

2. Utility easements: Visible utility lines, cables, or pipes running across the servient land to
serve the dominant land.

29
Ram Narain Choubey Gangadhar v Gangadhar Choubey, 1974 SCC OnLine All 336.

12
3. Overhanging structures: A building or structure on the dominant land that visibly overhangs
or encroaches onto the servient land.

4. Support easements: A visible structure on the dominant land that is supported by or relies on
the servient land for stability.

Apparent easements are often created through long-standing use and the physical
manifestation of the easement on the land, even without a formal written agreement. They
can be established through an implied grant or necessity, based on the visible evidence and the
reasonable use and enjoyment of the dominant land. It's important to note that the legal
requirements for establishing an apparent easement may vary depending on the jurisdiction and
specific circumstances of the case.

In Ramji Govind v. Balkrishna Daji30, the Bombay High Court held that a right of way
over another's land, which was apparent and continuous, could be acquired by prescription
(long-term use) even without a formal grant or agreement.

In Ramanadan Chetty v. Sivagnana Mudaliar31, the Madras High Court ruled that a
visible and apparent drain passing through another's land, used for a long time, constituted
an apparent easement that could be acquired by prescription. In Ramprasad v. Ganga Prasad,32
a visible projection or overhanging structure from one building onto another's land was
involved. The Allahabad High Court held that such an apparent encroachment could give
rise to an easement by prescription.

In Narayana Rao v. Seetharamiah33, the Madras High Court ruled that a visible and
apparent right of support from an adjoining building or land could be acquired as an easement
by prescription, based on its continuous and apparent nature. In Venkatramana Rao v.
Subbamma34, the Madras High Court held that a visible and apparent right of way through a
gate or passage on another's land could be acquired as an easement by prescription, even if it
was initially used by mistake or under a mistaken belief of ownership.

In Ramdas Shrinivas v. Bapurao Daji35, the Bombay High Court ruled that a visible and
apparent drain or watercourse passing through another's land could constitute an apparent

30
(1941) 44 Bom LR 326.
31
(1893) ILR 16 Mad 19.
32
(1922) 44 All 489.
33
(1928) 51 Mad 925.
34
(1927) 50 Mad 862.
35
(1945) 47 Bom LR 629.

13
easement acquired by prescription, provided the use was continuous, open, and
uninterrupted.

These cases have established that apparent easements, which are visible and physically
manifested on the land, can be acquired by prescription (long-term use) even without a formal
grant or agreement. The continuous, open, and uninterrupted nature of the use, along with the
apparent existence of the easement, is crucial in establishing such rights.

Non-Apparent Easement:

The key characteristics of a non-apparent easement are:

1. No Physical Evidence: There is no visible or permanent structure or evidence of the

easement on the servient land.

2. Discontinuous Use: Non-apparent easements typically involve intermittent or occasional

use of the servient land, rather than continuous or perpetual use.

3. Express Grant Required: Non-apparent easements cannot be created through implied grants
or necessity. They require an express written grant or agreement between the parties.

4. Limited Purposes: Non-apparent easements are generally limited to specific purposes or

occasional uses, rather than broad or continuous rights.

For example,

1. Right of entry: An easement that allows the easement holder to enter the servient land for a
specific purpose, such as maintenance or repairs, but without a permanent structure or visible
evidence.

2. Right to draw water: An easement that permits the easement holder to access and use a well
or water source on the servient land for drawing water, but without a visible structure or
encroachment.

3. Right to hunt or fish: An easement that grants the easement holder the right to hunt or fish
on the servient land, but only intermittently or during specific seasons, without any permanent
structures.

14
4. Right of temporary storage: An easement that allows the easement holder to temporarily
store goods or materials on the servient land, but without any permanent structures or visible
evidence.

Because non-apparent easements lack visible evidence or physical manifestations on

the land, they cannot be created through implied grants or necessity. They require an express
written agreement between the parties, clearly defining the scope, purpose, and terms of the
easement.

It's important to note that the legal requirements and enforceability of non-apparent
easements may vary depending on the jurisdiction and specific circumstances of the case.

In Syed Kasim v. Joynuddin Biswas36, the Calcutta High Court held that a discontinuous
and non-apparent easement, such as a right to enter upon another's land for repairs or to
draw water from a well, cannot be acquired by prescription (long-term use) and requires
an express grant or agreement. In Nathubhai Govindji v. Maganbhai Kalidas37, the Bombay
High Court ruled that a right to enter upon another's land for the purpose of hunting or
fishing is a non-apparent and discontinuous easement that cannot be acquired by prescription
and must be based on an express grant or agreement.

In Vasudev Narhar Vani v. Ardeshir Burjorji Muncherji38, the Bombay High Court held
that a right to enter upon another's land for the purpose of repairing a wall or structure
is a non-apparent and discontinuous easement that requires an express grant or agreement
and cannot be acquired by prescription.

In Kishorilal v. Rajendra Bahadur Singh39, the Patna High Court ruled that a right to
enter upon another's land for the purpose of accessing a well or drawing water is a non-
apparent and discontinuous easement that cannot be acquired by prescription and must be
established by an express grant or agreement.

In Munshi Ram v. Shri Khem Chand40, the Punjab and Haryana High Court held that a
right to enter upon another's land for the purpose of repairing a wall is a non-apparent

36
(1916) 43 Cal 876.
37
(1921) 45 Bom 841.
38
(1886) 10 Bom 588.
39
(1962) AIR 1962 Pat 349.
40
(1971) AIR 1971 P&H 258.
15
and discontinuous easement that cannot be acquired by prescription and requires an express
grant or agreement.

These cases have consistently held that non-apparent easements, which lack visible or
physical manifestations on the land and involve intermittent or occasional use, cannot be
acquired through prescription (long-term use) alone. They require an express grant or
agreement between the parties, clearly defining the scope, purpose, and terms of the easement.

Non-statutory Classification of Kinds of Easements

4.3 Permanent Easement and Limited Time Easements

An easementary right may be permanent or for a period of years or for a limited term. It
can also be subjected to periodical interruption or may be exercisable at a particular place,
between certain hours and for a certain or particular purpose. This right can also be
granted on a condition that such a right shall become void or voidable on happening of some
event or non-performing of some act. These limitations or conditions which regard to the right
of easement has been specified under Section 6 of the Act.

As per Section 6, an easement may be permanent, or for a term of years or 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 non-performance of a specified act.

In Ashraf Ali v Jagan Nath41, it was ruled that there may be right by which the dominant
owner is entitled to come on the servient tenement for a few days at one period of the year. In
Doorga Chum Dhur v Kally Coomar Sen42 and Omur Shah v Rumzan Ali43 it was held that a
right of passage of boats during rainy season may be claimed as an easement, thus, there can
be right of way limited for particular seasons.

Further, the intention of legislature in allowing for easement for a limited period by
prescription is not clear.

41
ILR 6 All 497 at p. 502.
42
ILR 7 Cal 145.
43
10 W.R. 363.

16
 4.4 Easement of Necessity and Quasi Easement

Easement of Necessity:

An easement of necessity is an easement without which the property cannot be used at

all. Convenience is not the test but absolute necessity is the test. When one person transfers
immovable property to another, if an easement in other immovable property of the transferor
is necessary for enjoyment the property transferred, the transferee is entitled to such easement.

For example,

(a) A sells a land called B used for agricultural purposes. The land is sold to C. The
land is accessible only by passing through A’s land. C is entitled, to the right to way
by necessity for agricultural purposes.
(b) A, the owner of a house sells B a factory built on the adjoining land. The transferee
C has a right to run the factory and to pollute the air, when necessary, with smoke
and vapors from the factory.
(c) A sells his land called B over which A had a right of way to bring water. C is the
buyer. For A to enjoy his house the right of way to bring water is absolute necessary.
Hence, A has a right over the land B.

When a partition is made of the joint property of several persons, if an easement over
the share of one of them is necessary for enjoyment of share of the other coparcener the
latter shall be entitled to such easement. For example, in a partition A becomes the owner of
an upper room on the I floor. B becomes the owner of the room immediately beneath it. A is
entitled to the support from B’s room as it is absolutely necessary for his safety.

Quasi Easement:

As per Section 13 of Easement Act, when a person transfers immovable property to

another then:

If an easement is apparent and continuous and necessary the transferee is entitled to such
easement.

If such an easement is apparent continuous and necessary to enjoy the said property the
transferor has a right to such easement over the property transferred by him.

In a partition if such an easement is apparent and continuous and necessary for enjoyment the
share of one co-parcener over the other, he is entitled to such easement.

17
 For example,

a) A right attached to B’s house to receive light and air through a window without
obstruction by his neighbour A. This is a continuous easement.
b) Rights attached to as land to lead water across B’s land by an aqueduct and to draw off
water by a stream. The drain is discoverable by careful inspection. This is an apparent
easement.

Easements are called ‘quasi’ as those arising out of circumstances i.e., when the
common properties are converted into tenements by sale, mortgage partition etc. In such
a case, there is an ‘implied grant’. There is no express grant or transfer. Hence, in a sale or
partition, even if there is no grant of such an easement, the courts construe that there is an
implied transfer of an easement.

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 at the division and grant, and 3) the use continued for the
benefit (reasonable comfort and enjoyment) of a property after the division and
conveyance.44

4.5 Prescriptive Easement and Customary Easement:

Prescriptive Easement

Section 15 of the Easement Act provides for the acquisition of prescriptive easement
(Section 25 of the Limitation Act is also the same). The essential requisites for the acquisition
are:

A) The right must be definite and certain.

B) It must have been enjoyed independently of any agreement with the owner of the land
over which the right is claimed.
C) It must be enjoyed (i) peaceably (ii) openly (iii) as of right (iv) as an easement (v)
without any interruption (vi) for a period of 20 years (d) in respect of government land,
the period is 30 years

Computation of 20 years: this is a period ending within 2 years next before the institution
of the prescriptive easementary suit. Mere enjoyment for over 20 years gives an inchoate

44
Knud E. Hermansen, Easement not Mentioned – Quasi Easement.

18
(incomplete) right, but to acquire a prescriptive easement a suit must be filed and a decree
obtained from the court.

For example,

(i) A built a house with a window facing the land of C in 1960. C built in 1979, a house
which cut off the light and air from A’s window. A objected & filed a case in 1983 to remove
the obstruction. The suit is to be dismissed. The period of 20 years is not completed (1960
to 1979) only 19 years completed.

(ii) A sues B for obstructing the right of way. B admits the obstruction but denies the right
of way. B proves that A had taken written permission at one point of time in 20 years. A
suit is to be dismissed. The enjoyment is not for 20 full years.

(iii) A was receiving light and air through a window facing D’s land for 30 years. D built a
house in 1982, obstructing the light and air. A must file a suit within 1984 against B, to
remove the obstruction, i.e., within 2 years.

Exceptions (what cannot be acquired):

a) A right which tends to destroy the servient tenement, cannot be acquired by

prescription. No prescriptive right can be acquired to an open area to get light and air.
b) There is no prescriptive right in respect of surface water in undefined channels.
c) A right to underground water channels which are undefined.
d) For overhanging of branches over another’s land, there is no prescriptive title.

Customary Easement

As per section 18 of the Easement Act, an easement may be acquired by virtue of

local custom such an easement is called a customary easement. A customary easement relating
to sports and recreation or religious observations is well known. The right to ferry, riparian
right to use water are examples.

Customary right of fisherman to fish in a river or sea. These easements arise out of local
customs which are well established and be enjoyed by any owner of land situated in the locality.
Hence, there will be a fluctuating body of persons enjoying this right. Courts take judicial
notice of these easements. A claimed that his right to privacy was affected by B, who built a

19
house with wide windows to command a view of the interiors of the house of A. Held, the local
custom was confined to Zanana and did not apply to A.

Some examples:

By the custom of a village, every cultivator was entitled to graze his cattle on the common
pasture. This is a customary easement

People living in a township have the right to bury the dead in a particular place. This is a
customary easement.

4.6 Positive Easement and Negative Easement

A positive easement is when the dominant tenant can do something on the land that is
the subject of the easement. It can also be said as an Affirmative easement i.e., having a
legal right to install power lines or sewage lines on a property that is not owned by the landlord
but by the servient tenant. In contrast, negative easements allow the dominant tenant to
restrict the servient tenant from using his land for specific things. These are uses that the
servient tenant may generally have all rights to use the land for if the easement did not exist.
For example, dominant tenant may prevent the servient tenant from building a high structure
that blocks the light and air to his dominant heritage. That is, despite the fact that the land
actually belongs to the servient owner/tenant, dominant tenant does have some control over
what cannot be done with it.

4.7 Classification of Easements in English Law

Common law jurisdictions, including England and many former British colonies like the
United States, Canada, and Australia, do not have a strict statutory classification system for
easements like the one found in the Indian Easements Act of 1882. However, some general
categories and distinctions have emerged through case law and judicial precedents.

Here are some common ways in which easements are classified in common law:

1. Affirmative and Negative Easements:

- Affirmative easements give the easement holder the right to do something on the servient
land (e.g., right of way, right to draw water).

20
 - Negative easements restrict the servient landowner from doing something on their land (e.g.,
right to light, right to support).

2. Appurtenant and In Gross Easements:

- Appurtenant easements are attached to a particular piece of land (the dominant tenement)
and can be transferred with the land.

- Easements in gross are personal rights held by an individual or entity, not attached to any
specific land.

3. Express and Implied Easements:

- Express easements are created through written agreements or deeds.

- Implied easements can arise through necessity, prior use, or other circumstances, without
an express grant.

4. Easements by Prescription:

- Easements acquired through long-term, continuous, and open use of the servient land, even
without a formal grant.

5. Easements Appurtenant and Easements in Gross:

- Easements appurtenant benefit a particular piece of land (the dominant tenement).

- Easements in gross are personal rights not attached to any specific land.

While common law jurisdictions may not have a detailed statutory classification like
continuous/discontinuous or apparent/non-apparent, some of these categories can be seen as
analogous. For example, affirmative easements are often considered more akin to continuous
easements, while negative easements may be more similar to discontinuous easements. It's
important to note that the specific rights, requirements, and interpretations of these categories
can vary across different common law jurisdictions, as they are primarily shaped by judicial
precedents and case law rather than a comprehensive statutory code.

21
Easement in Common Law in Comparison with Indian Law

There are some key similarities and differences between easements under Indian law
(governed by the Indian Easements Act of 1882) and easements under common law (as
developed and applied in countries like England, the United States, and other former British
colonies).

Similarities:

1. Concept and Purpose: Both Indian law and common law recognize the concept of easements
as non-possessory rights to use or enjoy another's land for specific purposes, while the
landowner retains ownership.

2. Types of Easements: Many types of easements, such as rights of way, rights to light and
air, rights of support, and rights to water, are recognized under both Indian law and
common law.

3. Creation Methods: Easements can be created through express grants, implied grants,
necessity, or prescription (long-term use) under both legal systems.

4. Transferability: Easement rights are generally transferable to successive owners of the

dominant tenement (the benefited property) under both Indian law and common law.

Differences:

1. Statutory Basis: Indian law on easements is primarily codified in the Indian Easements Act
of 1882, while common law jurisdictions rely on judge-made law and precedents.

2. Classification System: Indian law has a more detailed classification system for
easements, distinguishing between continuous/discontinuous and apparent/non-apparent
easements, which is not as explicitly defined in common law.

3. Acquisition by Prescription: Under Indian law, continuous and apparent easements can be
acquired by prescription (long-term use), while discontinuous and non-apparent easements
cannot. In common law, the requirements for acquiring easements by prescription may vary
across jurisdictions.

4. Customary Easements: Indian law recognizes customary easements arising from long-
standing local customs or traditions, which may not be as readily accepted in common
law jurisdictions.

22
5. Terminology: While the underlying concepts are similar, the terminology used in Indian law
(such as "dominant tenement" and "servient tenement") may differ from the terminology used
in common law jurisdictions.

6. Judicial Interpretations: While Indian courts have developed jurisprudence based on the
Indian Easements Act, common law jurisdictions have a broader body of case law and judicial
precedents interpreting and shaping easement law.

Overall, while there are some fundamental similarities in the recognition and purpose
of easements, Indian law and common law have distinct legal frameworks, classifications, and
approaches to easement law, reflecting their respective historical and legal traditions.

4.8 Contemporary Challenges in Classification

The traditional classification of easements in Indian law under the Indian Easements Act of
1882 has faced some new challenges and evolving considerations in recent times. Here are
some of the key challenges in the classification of easements:

Emergence of new types of easements: With technological advancements and changing

societal needs, new types of easements have emerged that may not fit neatly into the
traditional classifications. For example, easements related to renewable energy installations,
telecommunication infrastructure, or recreational activities may require a re-evaluation of the
existing categories.

Blurring of boundaries between continuous and discontinuous easements: The distinction

between continuous and discontinuous easements has become increasingly blurred in
certain cases. For instance, the use of smart technologies or remote monitoring systems may
allow for intermittent use of an easement while still maintaining a degree of continuity.

Challenges in classifying complex or mixed-use easements: Some easements may involve

a combination of rights or serve multiple purposes, making it difficult to classify them
into a single category. For example, an easement that allows access for both utilities and
recreational purposes may not fit neatly into the existing classifications.

Evolving interpretations of apparent and non-apparent easements: With changes in land use
patterns and urban development, the interpretation of what constitutes an "apparent" or
"non-apparent" easement may require re-evaluation. For instance, certain structures or

23
installations that were once considered non-apparent may now be considered apparent due to
their prevalence or visibility.

Reconciling traditional classifications with modern environmental concerns: The

traditional classifications may not adequately address or account for environmental
considerations, such as conservation easements or easements related to sustainable land
management practices.

Inconsistencies in judicial interpretations: Different courts or jurisdictions may have

varying interpretations or applications of the existing classifications, leading to inconsistencies
and legal uncertainties.

Need for flexibility and adaptability: As societal needs and technological advancements
continue to evolve, there may be a need for more flexible and adaptable classifications that can
accommodate new types of easements or changing circumstances.

To address these challenges, some legal experts and scholars have suggested the need for
a comprehensive review and potential revision of the easement classification system in
Indian law. This could involve introducing new categories, refining existing definitions, or
adopting a more flexible and principles-based approach to account for evolving circumstances
and societal needs. Additionally, there may be a need for clearer guidelines, judicial precedents,
and legislative amendments to provide greater clarity and consistency in the interpretation and
application of easement classifications in India.

V. CONCLUSION

In this paper, the meaning and definition of easement under the Indian Easements Act 1882,
the essentials of an easement right, statutory kinds of easements as well as other (non-statutory)
kinds of easements in Indian law, and classification of kinds of common law in comparison
with that of India are all discussed. Further, the new challenges and evolving considerations
that warrant the existing classification of kinds of easements are observed. Hence, through the
understanding of the concept of easement and kinds of easement in Indian Easement Law, it
can be concluded that it is the need of the hour to amend the legal provisions on the subject of
kinds of easements incorporating technological developments in the country.

24
BIBLIOGRAPHY AND REFERENCES

1. The Indian Easements Act, 1882

2. Vepa P. Sarathi, LAW OF TRANSFER OF PROPERTY, EBC (2017)
3. Sanjiva Row, COMMENTARY ON THE INDIAN EASEMENTS ACT 1882 AND
LICENCES, DELHI LAW HOUSE.
4. Hirade GA, Property Law and Easement, NEW LAW COLLEGE.
5. Ravi Kant Gupta, Lecture 34, Law of Property, RAMA UNIVERSITY.
6. Vibha, An Analysis on the Doctrine of Easement, THE LAW BRIGADE (2020).
7. Abhishek Gupta, Law on Easement Act.
8. The Complexity of ‘Easement’ in English Land Law, March 2019.
9. https://legalstixlawschool.com/blog/An-Overview-of-the-Law-of-Easements-in-India
10. https://lawnotes.co/tag/classification-of-easements/
11. https://blog.ipleaders.in/an-overview-law-of-easements-in-india/

25