The right to an easement goes from the time when humanity first emerged from savagery and acquired the habit of being neighbors to one another or respecting one another’s rights. The broad idea that a person should enjoy their property fully and exclusively while avoiding interfering with a neighbor’s lawful enjoyment of his own property rights was deemed essential for the common welfare. It appears that the original tenet of easements was this beneficial principle.

Definition:

Section 4 of the Indian Easements Act defines easement as: An easement is aright 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. Eg.: ‘A’ the owner of the house has a right of way over B’s land. This is for the beneficial enjoyment of As house. This is an Easement.

According to Salmond, “Easement is that legal servient which can be exercised on some other piece of land for the benefit of a piece of land”

Dominant land; parcel of land with the benefit of the easement

Servient Land; parcel of land being burdened by the easement

Positive Easements; give rights of entry onto another person’s land to enable something to be done on the land e.g. right of way, rights to discharge water

Negative Easements; rights to prevent something being done e.g. rights to flow air through defined apertures, to support a building etc

REQUIREMENTS OF A VALID EASEMENT
The essential features of an easement, in the strict sense of the doctrine, are as follows:
(a) It is an incorporeal right; a right to the utilize and enjoyment of land not to the land itself;
(b) it is trusted upon corporeal property;
(c) it demands for its constitution two distinct tenements the “dominant tenement”
which enjoys the right, and the “servient tenement” which submits to it.
The characteristics that are required for the validity of an easement has been laid down by the court in Re Ellen borough Park. The Court of Appeal had to decide the status with respect to a right for residents to use a garden in the middle of a square around which their houses were built.

CREATION OF EASEMENTS

The title to easement may be by grant, by custom, by prescription or necessity. An easement can be acquired by grant. A grant is given by an agreement executed by a grantor in favour of  a grantee for a consideration. The grant becomes effective when the grantee has the right to enter upon the grantor’s land. The deed of easement may be separate or the grant may be included in a deed relating to the dominant heritage.

For example, X sells his land to Y and  by the same deed he may grant a right of way to Y for such land for another land of his. Grant is given by an agreement executed by the grantor in favour of the grantee for a consideration. The grant becomes effective when the grantee has the right to enter upon the grantor’s land. 

Easement by virtue of custom is a legal right acquired by the operation of law through continuous use of a land over a long period of time. Therefore the right of way continues to exist by grant, prescription or by virtue of custom.Easements, which are the subject matters of agreement between the parties, are for right of  way, right to air and light. Some easements are acquired by grant and others prescription and custom. Creation of an easement does not mean transfer of property.

In the same manner, surrendering an easement right does not imply transfer of property. Easement can be made, altered and released. Easement right cannot be created or modified orally. It must be in a written form. However, easements by prescription and custom need not be in writing.A deed of grant must clearly mention the purpose of which easement is granted. By the deed of grant the subservient owner gives full and free right to the dominant owner and his successors a passage wide enough for movement of people and vehicles between the dominant owner’s premises and the public road against a price consideration. In Moody v Steggles the grant of a right to fix a signboard to the adjoining property advertising the public house which constituted the dominant tenement was held to comprise an easement.

DURATION AND NATURE OF EASEMENTS

The Indian Easements Act, 1882 states in Section 6 that “An easement may be permanent, for a term of years or other limited period, or subject to periodic interruption, or exercisable only at a particular place, or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commerce or become void or voidable upon the happening of a specified event or the performance or nonperformance of a specified Act..”

The nature of easements is described in section 7 of the Indian Easement Act, 1882 which states that easements are restrictions of one or other of the following rights (namely):(a) Exclusive right to enjoy -The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all  products thereof and accessions thereto.(b) Rights to advantages arising from situation – The right of every owner of immovable  property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation