Introduction:
Easement is a right for an intent to use another’s property. You may not own the land with an easement, but can pass over the property to another neighbouring property. They can also be given to an agency to operate a pipeline, electricity or phone line and the like, such as a municipal utility. That is a right that the owner of a certain property exercises over an adjoining structure he does not have. It is the right to a property owned and not by the individual requesting easement by anyone else. An easement is a privilege to require the owner of an asset to enable something to be done, or to forbid the owner of another land to do something for gain of the dominant tenement on the remaining portion. An Easementary right is more of a luxury, depriving the owner of a tenement of the right to enjoy the tenement in or above the tenement of another person, on the grounds that the latter is obliged to suffer or refrain from doing so of his own for the benefit of the former residence.
The following elements must be held under Easementary Rule:
- Dominant and survient tenement.
- Easement should accommodate the dominant tenement
- Easementary rights must be possessed for the beneficial enjoyment of the dominant tenement.
- Dominant and survient owners must be different persons.
- The Easementary rights should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done, or in respect of, the survient tenement; and
- The something must be of a certain or well-defined character and be capable of forming the subject matter of a grant.[1]
Right of Way
It is a positive easement that forms part of the right of way. It allows the holder of a right to do and continue to do a certain act, that is, to cross over the property of the surviving owner. It is considered a constructive easement, from this point of view. Therefore, however, the right of way bars the owner of the servant from building his property or from doing any other act that would interfere with the right of way in the exercising of his ownership rights over the land. In truth, every right in easement imposes on the surviving owner a limited use of the pleasure of its land, so that it would not interfere with the enjoyment of rights of easement by the reigning owner.
Easements are categorised into pro or con according to the overriding factor of the individual exercise. The right of way allows to uninterruptedly move through some individual’s soil. The category of natural rights does not contain the right of way. They are separate easement, just as though they are obtained by the other easements, they can be acquired in the same way.
Extinction and Extinguishment
The extinction of easement rights upon cessation of necessity is discussed in the 41st Section of the Indian Easements Act, 1882. When the requirement comes to an end, this clause specifies that an easement of need is extinguished. It can be better understood from an analogy. X permits Y a field which is unavailable except by going over X’s neighbouring property, Y then purchases a part of the land so he may travel across to his area. Right of way is extinguished over X’s property that Y had obtained.[2]
Easements not of necessity shall not, as are easements of necessity, be liable to extinction unless of a character limited in duration or purpose. However, this differentiation or division of easements is perhaps rather evident rather than significant. It is therefore necessary to bear in mind that easements function only as a dominant tenement incident and as a servant tenement incident. Several modes of extinction are listed in the books on the law of easement. The first class includes a few instances and those of a relatively basic sort. Namely; extinction by act of God and extinction by statute.[3]
When the occurrence of Act of God takes place, “the conditions of the dominant or servient tenant should be so changed that the further enjoyment of an easement, theretofore appurtenant to the former, would become physically impossible. Although, if it should be probable, the relative conditions of the respective tenements might be altered again to render the enjoyment of the easement practicable, the possibility of enjoyment of the easement at any future time be manifestly out of the question, it is submitted that it must be deemed extinct.”[4]
Extinction by statute happens if an Act of Parliament either explicitly removes an easement or allows or authorises the execution of anything that is incompatible with its continued life, whether explicitly or implicitly.
The Indian Easements Act
The Indian Easements Act, 1882, allows for by sections 37 to 47, the mode of extinction of easements.
Extinction by Dissolution of Right of Servient Owner
Section 37 of The Indian Easements Act states that, “Extinction by dissolution of right of servient owner. -When, from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished.”[5]
Under this section of the Act, in the case where for whatever reason, the grantor fails to have any right in the servant tenement, then the right to work therefore ceases to exist. For example -X assigns a plot of land to Y in the year 1970 for a term of 20 years. Y placed an easement in the year 1971 in favour of Z. Y’s interest in 1990 came to a close. Therefore, the sedimentary privilege given to Z therefore ceases to expire.[6]
Extinction through Expiry of Time
If under certain circumstances or for a certain reason or for a certain amount of time, an easement is obtained. The right of easement shall be extinguished in the case of the fulfilment of the provision or intention or expiry of the period, in compliance with Section 6 of the Act.
Extinction by Release
Section 38 states, “An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner. Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage. An easement may be released as to part only of the servient heritage.”[7]
If the beneficiary of the prevailing legacy releases the right of easement to the servant owner in a case the right ceases to exist. A release of this type may be rendered either explicitly or indirectly. For example-P has the freedom to discharge water to Q’s yard through the roof. P allowed Q to construct a building to such a height that it could not discharge water. Q constructs it and comes to an end with P’s right.[8]
Extinction by Revocation
“An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement.”[9]
Extinction on termination of Necessity
“An easement of necessity is extinguished when the necessity comes to an end.”[10]
The easement of requirement therefore terminates as necessity terminates. [11] For instance, A grants B a piece of land on which the right of his way over A’s land is the easement of necessity for B. B later buys a portion of the property of the A across which he will pass to access his own house. The requirement has finished here and the easement does so.
Extinction of useless Easement
“An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner.”[12]
If easement is of a sort that at some moment or in any conditions is not useful or becomes incapable of being advantageous, then the right of easement ceases.
Extinction by Permanent Change in Dominant Heritage
“Where, by any permanent change in the dominant heritage, the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement….”[13]
When the essence of the dominant heritage constantly shifts with an increase in tenement stress, the right of easement ceases to exist and the object of it was to support the dominant heritage.[14] For instance, by going through B’s house, A’s house is situated so that he has a right of way. Later, because of the earthquake, B’s house was cut apart, thereby ending the right of easement.
Extinction by Destruction of either Heritage
“An easement is extinguished when either the dominant or the servient heritage is completely destroyed.”[15]
The easement expires when one of the legacies is lost, since it is necessary for two properties to remain to exercise the right. There is nothing in this Act to justify the argument that when a right to light and air to a structure has been obtained, that right is extinguished by partial demolition of it.
Extinction by Unity of Ownership
“An easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages.”[16]
It is implied by unity of inheritance that the right of easement terminates when one person becomes the owner of both the dominant and servant heritage. A has a right of easement over B’s land, for instance. A takes B’s land on loan in the future, A becomes the occupier of B’s land here. Thus, the easement stops.[17]
Extinction of Accessory Right
“When an easement is extinguished, the rights (if any) accessory thereto are also extinguished”[18]
For example- To draw water from B’s well, A has an easement. He has a right of way over B’s property to and from the well, as an extension to it.
Conclusion
In conclusion, an easement is a right where the owner of a property must require the owner of another property to accept or refrain from doing anything on the surviving element for the gain of the dominant property. An easement does not, however, grant the holder a right of “possession of the land, unlike a contract. Therefore, a special right is given for specific relief against specific abuses of common fundamental rights. In the context of the right of way, a nuisance is any unlawful intrusion with the right of way.
However, a right of way neither entitles the grantor, or anyone legitimately using the way provided for in the grant, to the sole use of the property in which the way resides, nor does any barrier to the way entail unreasonable intrusion, and no recourse will be taken unless there was a significant interference with the easement given. In the landmark judgment of Hero Vinoth Vs Seshammal[19], it was established that if a right of way was granted to a particular sharer, it could not be extinguished solely because such a sharer had another alternative way, an easement would survive just as long as the absolute need prevailed and such legitimate extinction could not extend to an acquisition by a grant.[20]
References:
[1]Harshal Sreen, Easementary Rights: An Overview Indian Legal Solution (2020), https://indianlegalsolution.com/easementary-rights-an-overview/.
[2] Sreen, supra.
[3] Frank A. Anglin, The Extinguishment of Easements, 20 CAN. L. Times 279 (1901).
[4] Id.
[5] Indian Easements Act,1882, §37, Acts of Parliament,1882 (India).
[6] Diva Rai, An Overview: Law of Easements in India iPleaders (2019), https://blog.ipleaders.in/an-overview-law-of-easements-in-india/ (last visited Dec 2020).
[7] Easements Act, supra.
[8] Diva, supra.
[9] Easements Act, supra.
[10] Easements Act, supra.
[11] Diva, supra.
[12] Easements Act, supra.
[13] Easements Act, supra.
[14] Diva, supra.
[15] Easements Act, supra.
[16] Easements Act, supra.
[17] Diva, supra.
[18] Easements Act, supra.
[19] Hero Vinoth Vs Seshammal, AIR 2006 SC 2234.
[20] Shivanand Singh, A Glance Over The Easementary Rights – Real Estate and Construction – India Welcome to Mondaq (2013), https://www.mondaq.com/india/land-law-agriculture/227658/a-glance-over-the-easementary-rights (last visited Dec 2020).
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