What are easement rights?

Salmond defined an easement as a legal servient that can be used on another piece of the property exclusively for the sake of enjoying one’s own property. A right of easement is essentially a privilege that includes the ability to perform an action or forbid an action on another piece of property in order to enjoy one’s own property.

Statutory Definition

The Indian Easements Act of 1882’s Section 4 defines the term “easement.” According to Section 4’s guidelines, an easementary right is a privilege that a landowner or occupier has over another piece of property that is not his own and that is intended to allow for the beneficial use of the property. Because an occupier or owner cannot completely enjoy his own property without this privilege, it is permitted.

It also includes the right to take action or continue to take action in relation to or with regard to some other land, other than his own, for the pleasure of his own land. Let’s understand it further with the help of illustrations –

A right of easement allows X to enter his neighbour Y’s home to retrieve water from the well for use in his own home. Here, the sole access to the well is via Y’s property. As a result, X has a right of the easement to cross past Y’s home.

Elements or Essentials for an Easementary Right

1. A strong and resilient habitation

2. The dominant tenancy should be accommodated in the easement

3. In order to use the dominating tenement in a profitable manner, easement rights must be held.

4. There must be a distinction between the dominant and survivor owners.

5. The easementary rights should give the dominant owners the right to act and continue to act, or to stop and continue to stop acting, with respect to the survivor tenement; and

6. The object must have a specific or clearly defined character and be able to serve as the basis for a grant.

Do you know?

In the landmark case of Hero Vinoth v. Seshammal (AIR 2006 SC 2234), it was determined that an easement would only last as long as the absolute necessity existed and that an acquisition by the grant was exempt from this rule. Additionally, if a right of way was granted to a specific shareholder, it could not be terminated just because that shareholder had access to another alternative route. To understand this better let’s understand the various types of easements –

Types of Easements

Different types of easements exist. First, easements might either be in gross or appurtenant form. Appurtenant easements are those that are granted to another piece of real estate. Gross easements are those that have a benefit for the owner. For example, Florida recognises easements in gross, which are only personal interests in land that are not supported by a dominant estate, as in Dunes of Seagrove Owners Ass’n, Inc. v. Dunes of Seagrove Dev., Inc., (Fla. 1st DCA 2015).

Second, easements may be favourable or unfavourable. An affirmative easement allows the owner of the easement to use another person’s property in a certain way. A negative easement forbids the owner of the property that is subject to it from using it in a specific manner. Negative easements are not, however, encouraged by the law. The law promotes the free use of the real estate, and restrictions on utilisation will typically be narrowly construed, according to Wahrendorff v. Moore, (Fla. 1957) & Kilgore v. Killearn Homes Ass’n, 7 (Fla. 1st DCA 1996).

Easements may be explicit or implied, third. A deed or reservation that is executed and entered into the county’s public records may result in the creation of an express easement. Dedication and acceptance can also result in the creation of an express easement. Express easements must be in writing in either case. Whiteside v. Dupont, (Fla. 5th DCA 1998).

On the other hand, an implied easement is established by the parties’ conduct or inaction. Implied easements typically fall into one of two categories. Easements by prescription and necessity are the first two types of easements. When a piece of land is walled off from all feasible exits and entrances, an easement is inevitably created. When a landowner divides a parcel, closing off one of the parcels’ access to any highways, a common law easement by necessity is created. However, the Florida Legislature broadened the extent of this common law right when it codified it. Now, whether or not there was ever common ownership of the adjacent lots, what is called a statutory way of need is formed by necessity (section 13 of Indian Easements Act, 1882).

Second, easements by prescription are granted when a party uses another’s property in an unfavourable manner, for a continuous period of twenty years, within a defined and constrained area, with the owner either having actual knowledge of the use or being required to assume knowledge of it due to the user’s openness and notoriety. Pope v. Stackman (Fla. 5th DCA 2010).


No damage is considered significant unless it significantly reduces the worth of the dominant heritage, interferes with the plaintiff’s bodily comfort, or keeps him from conducting his regular business in the dominant heritage as profitably as he did before filing the lawsuit. The light coming from other directions should be taken into account when determining whether there is enough light. S. 28(c) of the Indian Easements Act specifies the scope of a prescriptive right to the flow of light and air through a specific window.

The only amount of light that can be claimed by prescription or length of enjoyment, without an actual grant, is that amount that is reasonably necessary for the house’s occupants to live comfortably and conveniently. However, whether the blockage in question is a nuisance must be determined. Under the Indian Easements Act, access and use of and for any building that has been peacefully and uninterruptedly enjoyed for twenty years may be obtained. The right to light and the right to air go hand in hand. By prescription, the owner of a house cannot assert a right to the uninterrupted and complete passage of a wind current. He is only allowed to demand the amount of air necessary for sanitary purposes. There is no such thing as a claim to the unbroken flow of the south air. No easement exists for unrestricted access to the wind. A guy who has had a more or less pure and free-willed right to air is reasonably safeguarded against any intervention in this country.


Unlike a lease, an easement does not grant the proprietor a right of “possession” over the property. In order to provide specific remedies for specific infringement of fundamental human rights, an easementary right is provided. Any improper obstruction of a right of way is considered a nuisance in this context. A right of way does not, however, give the grantee or those lawfully using its access exclusive use of the land it passes through, nor does it mean that any obstruction of the way constitutes an unlawful interference. Additionally, no legal action would be admissible without material interference with the granted easement. In the instance of the right to access light, this does not entail a guarantee that there will always be an equal amount of light present. If there is a diminution, the dominant owner must demonstrate how it has interfered with his daily activities and created a nuisance if it is significant enough to make residing there uncomfortable and prohibit the owner from conducting business as profitably as he once did.


Statutory Definitionhttps://blog.ipleaders.in/an-overview-law-of-easements-in-india/

Elements or essentials for an easementary right https://www.mondaq.com/india/land-law-agriculture/227658/a-glance-over-the-easementary-rights

Type of Easements https://www.jimersonfirm.com/blog/2020/07/easements-rights-of-way-building-rights-property-value/

Indian Easements Act, 1882 https://indianlawlive.net/2021/04/19/what-is-easement-does-right-of-easement-allow-to-enjoy-after-making-a-construction/

Remedies http://www.legalservicesindia.com/article/1444/Violation-of-Easementary-Rights.html

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