What is Continuous Easement ?

Freedom and Property Rights are inseparable. You can’t have one without the other.
                                                                                                                                 -George Washington

 INTRODUCTION

What is an easement?

 The concept of the easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the provisions of Section 4, easement or easement agreement is a term that describes a situation in which one party uses another party’s property and a fee is charged to the owner of the property in exchange for the easement. Utilities also purchase easements for the right to install utility poles or lay pipes on or under private property.

Payments are charged by the property owner, but the easement can negatively affect the value of the property. For example, unsightly power lines detract from the appearance of your property.

They are used to define high-level agreements between property owners and other parties (individuals or organizations). Traditional easement agreements specify some form of payment by the plaintiff to the owner for the right to use the subject matter of the easement for a particular purpose.

Since an easement is only an agreement between the parties involved, the easement agreement must be such that the exact use of the property is clearly defined so that the property owner is allowed to waive the easement. Drafted in a way. These contracts often change into a sale of the property, so it’s important for prospective buyers to know if an easement on the home is being considered.

  • Examples of Easement

There are three forms of easement agreements common to all. The form of easement granted to an individual depends on the interests of each party.

  • The first is a utility easement. It allows property owners and utilities to operate water, power lines, and other utilities.
  • The second is a private easement agreement between two private parties. This easement is relatively common because it gives one party the right to use the property for personal purposes.
  • The third easement is an emergency easement. This form of easement is more liberal in that it does not require formal agreement and can be enforced by local law.

The word “land” refers to something permanently connected to the earth, and the word “useful enjoyment” means convenience, advantage, comfort or necessity. The owner or user is called the dominant owner and the land on which the easement is held is called the dominant heritage. The owner of the land on which the responsibility is imposed is known as the service owner, and the land on which such responsibility is imposed to do or prevent something is known as the service heritage.

Section 5 in The Indian Easements Act, 1882

Continuous and discontinuous, apparent and non-apparent, easements. -Easements are either continuous or discontinuous, apparent or non-apparent.

1. Continuous Easement

  • Easements which are of continuous nature are called continuous Easements.
  • It can be made without any interference.
  • It adds a special quality to the property.
  • Continuity doesn’t mean that continuity of enjoyment, however, requires the property permanently.
  • For example:- Right to receive light and air; to flow water on others land by drainage; drainage passing through or land; right to repair etc.

 A right annexed to B’s house to receive light by the windows without obstruction by his neighbour A. This is a continuous easement.

In the words of great jurist Salmond, the 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 the enjoyment of one’s own land

Essentials of Easements

  1. Dominant and Servient Heritage

For the enjoyment of the right of ease, the necessary existence of two properties, namely, the patriarchal right of dominion and service, is essential. Indeed, by definition, it is the right of the owner or usurper of land to enjoy the yield on his own land, and on the land of others. Inheritance to dominate and to serve inheritance cannot be the same. Thus, the existence of the two properties and of inseparability is essential.

  • Separate owners

For the easement to be exercised, the two properties must be owned by different people, not the same person.

  • Beneficial Enjoyment

The purpose of an easement is for the controlling owner to enjoy the easement in a way that entails explicit and implicit benefits.

  • Positive or Negative

Easements can be positive or negative. The former refers to the right to do something to enforce the controlling owner’s right to the servant owner’s land. The latter is a preventive action. In a negative easement, the controlling owner prevents or restricts the service-providing owner from taking certain actions.

In an easement, the owner of a dominant inheritance can either perform an act or prevent the servant owner from doing anything but does not allow the servant owner to do something for him. You cannot be obliged to do so.

The easement right exists only when two heritages are adjacent to each other. It is a right in rem, which means a right available to the whole world. Easement as a right is always annexed to the dominant tenement. It is a right of re-aliena which means a right over a servient tenement and not on one’s own land.

Implied Circumstances

Elementary rights can be acquired in implied circumstances in the following ways-

Quasi Easements

If someone transfers their property to another person, then-

  • The transferee shall be entitled to an easement if it is continuous, apparent, and necessary to enjoy it.
  • If such an easement is continuous, apparent and necessary to enjoy the said property, the transferor has a right to such easement over the property transferred by him
  • In case of division of the property of the joint family, if an easement is continuous, evident and required to enjoy the share of one coparcener over the other coparcener, then he is entitled to such a right of easement.

Easements are quasi as those arising out of circumstances,i.e. When common properties are turned into tenements by way of sale, mortgage, partition or through any other form of transfer. In such a case, there is an implied grant of a right of easement.

For example– P’s right is attached to Q’s house to receive air and light through a window without any obstruction by his neighbour. This is a continuous

  • Prescriptive Easements

Section 15 provides for this type. Following are the requisites-

  • Right must be definite and certain,
  • The right must have been exercised unilaterally and without consulting the servient owner.
  • Must be enjoyed freely, peacefully and as of a right without any interruption for a continuous period of 20 years and in regard to any government land the duration of non-interruption shall be 30 years.
  • Customary Easements

An easement right can be acquired by virtue of a local custom. This is known as customary easements. Section 18 of the Act provides for it. For example- people living in a particular city or town have a right to bury the dead in a particular area or riparian right to use water.

Conclusion

The Indian Easements Act provides for the full notion of the right of easements and its regulation in India. Easement as defined under Section 4 of the Act is a right possessed by the owner of the dominant heritage over the heritage of the servant’s owner for the good enjoyment of his own property. It not only explains what exactly an easement is but also offers classification for easements. Easements can be prescriptive, customary, quasi and of necessity.

Certain rights are related to the enjoyment of immovable property whenever it is involved; without these rights, such properties may not be easily and completely held and enjoyed. Easements are the name given to these rights.

So there are fundamentally 4 categories of the easement under Indian Easement Act, 1882, Continuous and discontinuous, apparent and non–apparent easement.

Case laws

Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors on 5 January 2010

“There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. An exception is no doubt made in certain cases, where there is a `formed road’ existing over one part of the tenement for the apparent use of another portion or there is `some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unlethe ss language is used by the grantor to create a fresh easement.”

 therefore, the High Court was also fully justified in holding that there was an implied grant of `B’ schedule property as a pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to `A’ schedule property of the plaint and there was no objection also to the use of `B’ schedule property of the plaint as a pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.

U.P. State Sugar Corporation Ltd vs Dy. Director Of Consolidation & … on 7 February 2000

Further findings recorded by the Consolidation Officer are as follows :

“But Jaswant Sugar Mills was entered to be in possession since before Zamindari abolition. Thus no doubt the land of disputed plot Nos. 1366, 1367, and 1368 are proved to be area appurtenant to the building of Jaswant Sugar Mills and its residential colony and are in the possession and was of the Mill for the purposes of storing of sheer, sullage water, refuse etc. as mentioned above. But since no cultivators’ possession of the Mill is proved over land in dispute no sirdar rights accrue to the Mill over the land in dispute. The objectors Jaswant Sugar Mills thus can at best claim rights u/s 9 of the U.P.Z.A. and Protection of Sec. 7(1) of the said Act which protects the rights of Bhumidharis and Sirdaris continues to enjoy the easement or any similar rights for the more beneficial enjoyment of the land as he was enjoying on the dates immediately preceding the date of vesting.”

References

https://cleartax.in/g/terms/easement

https://www.lawcolumn.in/kinds-of-easement-under-indian-easement-act1882/

An Overview: Law of Easements in India

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

We do conduct several Courses, Quizs and Webinars, Click here to register

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com

In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Create a website or blog at WordPress.com

Up ↑

%d bloggers like this: