easement rights (2)

8/6/2019 Easement Rights (2)

1/18

Easement rights


2/18

Easement rights

An easement is a right which the owner or theoccupier 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 inrespect of certain other land not his own.

An easement is the right to use the real property of

another without possessing it.

Easements are helpful for providing pathwaysacross two or more pieces of property or allowing an

individual to fish in a privately owned pond.


3/18

Characteristics ofEasement rights

1) There must be dominant and a servient tenement;

2) The easement must accommodate the dominanttenement.

3) The right of easement must be possessed for the

beneficial enjoyment of the dominant tenement

4) Dominant and servient owners must be differentpersons.

5) 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 orupon, or in respect of servient tenement and

6) That something must be of certain or well defined

character and be capable of forming the subject

matter of grant.


4/18

Easement Restrictive Of Certain RightsDefinition : Sec 7 of the Indian Easements Act, 1882 contains

Easements restrictive of certain rights.

Easements are restrictions of one or other of the following

rights:

a) Exclusive right of enjoyment- The exclusive right of every

owner of immovable property (subject to any law for the timebeing 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.


5/18

Easement Restrictive Of Certain RightsMeaning:Restrictive easements are also called "negative easements,"

as their "use" is normally prohibitive, such as a common "non-

vehicular access" easement as shown along a main thoroughfare

where the governmental entity needs to restrict access.

Therefore a restrictive easement is a condition placed on land by its

owner or by government that in some way limits its use, usually

regarding the types of structures which may be built there or whatmay be done with the ground itself.

For instance, if a leased piece of land is not precluded by zoning laws

(probably because it is not in a township) from having people inhabit

it, and the government feels that for some reason living there wouldbe especially unsafe, it may place a restrictive easement on the

property stating that no one may live there.

Restrictive easements are also frequently placed on wetlands (i.e., a

conservation easement) to prevent them from being destroyed by

development.


6/18

Natural rights and easements:Natural rights though resembling easements in some respect, are

clearly distinguishable from them.

The essential condition between easement and natural rights

appears to lie in that is that easements are acquired restrictions of

the complete rights of property or to put in another way, acquired

rights abstracted from the ownership of one man and added to the

ownership of another ,whereas natural rights are themselves part ofthe complete rights of ownership, belonging to the ordinary incidents

of property and are factor enforceable in law.

Natural rights are themselves subject to restriction at the instance

of easements. Section 7 of the Indian Easement Act classifies therights which are so capable of restriction


7/18

illustrations to the rights:Owner of the land adjoining the public street has got a right to

access at every point where his land adjoins Public Street:

Neither the Government nor the Municipality or any local body has

got any right to put up any obstruction over the public street so as to

prevent it from having any access to the adjoining land.

It has been repeatedly held that the owner of the land adjoining thepublic street has got a right of access at every point where his land

adjoins public street.

In view of the above ratio the fencing of an iron fence put up

between the land of the petitioner and that of the suit cart track isillegal and on that ground alone the petitioners are entitled to an

order of injunction as prayed for.


8/18

Owners right to enjoy limited by Municipal Act:

Under the Bombay Municipal Corporation Act (iii of 1888), the

Bombay Municipal Corporation has power to enter upon lands

belonging to private owners , to make connection between theirmain pipes and to lay the pipes forming connection through or under

such lands , even without the owners permission , provided

reasonable notice is given to them.

Owners right to build any structure on his land:Parties may build whatever structure they please on their land, i.e., a

Hindu temple, by the side of a mosque, provided that they do not

interfere with the free enjoyment of the neighbors property.

The general rule of law is that the owner of one piece of land has a

right to it in the natural course of user; unless, in doing so, he

interferes with some right created either by law or by contract.

This has been uniformly followed by the courts


9/18

Right of owner to build a ridge on his land:

A person has a natural right, as owner of land, to raise a ridge on his

own land, adjoining a highway, so as to prevent water flowing from

such highway into his garden ;and the Municipality will be guilty oftrespass and liable for damages, if it removes the ridge so put up.

An injunction may be granted restraining such illegal act.

Easement of discharging water:

A right of easement to allow the water from the plaintiffs mori androof to fall on the defendants land will not entitle the plaintiff to

claim that the land shall be kept open and unbuilt.

The defendant can build making necessary arrangements to receive

the water from the mori and roof and to carry it away.


10/18

Easement of discharging smoke: Building on the servient tenement:

An injunction to restrain the servient owner from building on his land

so as to interfere with the right of easement to discharge smoke over

such land may be granted.Magistrate may make an order to prevent riot-

Any person is entitled to establish a market on his own land, and the

owner of a neighboring market has no right of the suit for the loss

which may ensue from the establishment of the new market.This

right is subject to the order of the Magistrate to prevent riot,etc.

Fundamental position as the right to build-

right to build is concerned, the fundamental position is that every

person is entitled to build right up to the limits of his own property.

In doing so , must not infringed the right of the owner of adjoiningproperty. But these rights have first to be acquired. If they are not

acquired then the fundamental position remains. If the fundamental

position is that a man is entitled to right upon the limit of his own

property, then the mere fact that he exercises that right cannot be

regarded as an actionable nuisance


11/18

Right of action in case of pollution of water of natural stream-

A riparian proprietor has a right to the natural stream of water

flowing through the land in its natural state; and if the water be

polluted by a proprietor higher up the stream,so as the occasiondamage in law, though not in fact, to the first mentioned proprietor,

it gives him a good cause of action against the upper proprietor

unless the latter have gained a right by long enjoyment or grant.

While in the case of riparian owners relief may be obtainable by the

mere fact of pollution, even though there may not, in fact, be any

sensible reduction of the comforts of the riparian owners in the case

of persons, who merely have a right over the property not belonging

to them damage , in fact, would have to be proved.


12/18

Natural right of passage arising out of the location of plots:

Natural rights are rights in rem ,that is enforceable against all who may

violate them,and they are either affirmative, as rights to do something

,or a negative,as rights which every owner of immoveable property has,that his neighbor shall not disturb the natural conditions under which he

enjoys his property.Sections 7(b) of the Indian Easement Act deals with

rights to advantages arising out of situations have been dealt with. it is

to have all natural incidents and advantages , as nature would produce

them; there is a right to the light and heat that would come ,to all therain that would fall to all the wind that would flow ; aright that the rain ,

which would pass over the land , should not be stopped and made to fall

on it ; a right that the wind should not be checked , but should be able

to escape freely; and it were possible that these rights interfered with

one having no right , no doubt an action would lie. But these naturalrights are subject to the right of the adjoining owners , who , for the

benefit of the community , have and must have rights in relation to the

use and the enjoyment of their property that qualify and interfere with

those of their neighbours rights to use their property in various ways in

which property is lawfully and commonly used.


13/18

Whether it is necessary to prove damage in an action by a lower

owner to restrain higher owner from diverting water:

In order to support an action by one riparian owner to restrain

another from diverting the water beyond his riparian tenement it isnot necessary that the plaintiff should proved that he has suffered

any damage.

Right of riparian owners-Removal of a bund:

To entitle a person for the removal of an embankment, constructed

in a channel on defendants own land , there must be an actual

infringement of the plaintiffs right, and not merely some act by

which the right is denied or ,questioned.

Artificial water course-To riparian proprietors have the right to usewater of a natural water course under certain restrictions. But these

rights have no application to a water course artificially constituted,

and the mere fact of riparian proprietorship gives no right whatever

over such a stream.


14/18

Historic Preservation Easement Easement-encumbered properties within local historic districts

should sell at a penalty relative to unencumbered properties in such

districts because the easement typically imposes stricter controls

than those contained in the usual preservation ordinance.

Easements often prohibit changes in property use or changes to

significant architectural features while ordinances may permit such

changes, subject to review and approval by a board of architecturalreview .

Further, unlike preservation ordinances, the easement typically

contains no relief for "economic hardship" commonly found in

governmental regulation of land use.Easements are granted in perpetuity while historic district

ordinances and local zoning practices change over time to reflect the

dynamics of a changing political and/or economic interests of a

community.


15/18

Historic Preservation EasementAn easement on a historic urban property is generally intended to

preserve and conserve the historic, architectural, scenic and cultural

values of a certified historic structure.

In the case of properties located in registered historic districts, the

easement will also protect the historic district through limitations on

uses that might jeopardize the architectural scale, style and sense of

cultural identity of the district.The easement does this by restricting alteration and modification of

the property in ways that would change its historic appearance or

remove or replace historic building fabric.


16/18

Historic Preservation EasementAnother type of restrictive easement is Historic Preservation

easement in which the owner of a historic structure agrees not to

change specified historic elements of the facade.

The primary difference between location preservation ordinances

and historic preservation easements is that local ordinances are

discretionary and can be removed and a historic preservation

easement runs with the property forever.The value of easements imposed on historic properties already

protected by local ordinances has recently been the subject of

discussion by some people who have claimed that where the subject

property is located in a local historic district in which there are

existing restrictions, regulations and controls, the terms of the

easement are substantially redundant


17/18

Conclusion

An easement is a right which the owner or the occupier of certain

land possesses ,as such, for the beneficial enjoyment of that land, todo 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.

An easement is the right to use the real property of another without

possessing it.

Easements are helpful for providing pathways across two or more

pieces of property or allowing an individual to fish in a privately

owned pond.

Traditionally the permitted kinds of uses were limited, the most

important being rights of way and rights concerning flowing waters.

The easement was normally for the benefit of adjoining lands, no

matter who the owner was, rather than for the benefit of a specific

individual.


18/18

Conclusion

Easements frequently arise among owners of adjoining parcels of

land. Common examples of easements include the right of a propertyowner who has no street front to use a particular segment of a

neighbor's land to gain access to the road, as well as the right of a

Municipal Corporation to run a sewer line across a strip of an owner's

land, which is frequently called a right of way.

Easements can be conveyed from one individual to another by will,

deed, or contract, which must comply with the Statute of Frauds and

can be inherited pursuant to the laws of Descent and Distribution.

Restrictive easement is a condition placed on land by its owner or by

government that in some way limits its use, usually regarding thetypes of structures which may be built there or what may be done

with the ground itself.

easement rights (2)

Documents