INTRODUCTION

An easement is the grant of a non-possessory property interest that grants the easement holder
permission to use another person's land. There are different kinds of easements. If an easement
appurtenant is granted, it involves two pieces of land, where one serves as the servient tenement
that bears the burden, and the other the dominant tenement, which benefits from the grant of the
easement and has permission to use the servient land in some manner. There are two types of
easements: affirmative and negative. An affirmative easement gives the easement holder the
right to do something on the grantor of the easement's land, such as travel on a road through the
grantor's land. A negative easement, on the other hand, allows the easement holder to prevent
the grantor of the easement from doing something on his land that is lawful for him to do, such
as building a structure that obscures light or a scenic view.1
Easements can be created in a variety of ways. They can be created by an express grant, by
implication, by necessity, and by adverse possession. Easements are transferrable and transfer
along with the dominant tenement. Additionally, easements can also be terminated. An easement
can be terminated if it was created by necessity and the necessity ceases to exist, if the servient
land is destroyed, or if it was abandoned.
An easement is commonly defined as a non-possessory interest in another person's land. The
non-possessory nature of an easement is one of its primary -- and potentially confusing -characteristics. An easement is a property interest that allows the holder of the easement to use
property that he or she does not own or possess. An easement does not allow the easement holder
to occupy the land, or to exclude others from the land, unless they interfere with the easement
holder's use. In contrast, the possessor of the land may continue to use the easement and may
exclude everyone except the easement holder from the land. For instance, if A owns a piece of
property and grants B a right-of-way on the road across the property, B has an easement in A's
property. B may use the road, but may not stop others from also using the road, except to the

1 Retrieved from www.lawyers.findlaw.com on 08/10/15 at 15:00

extent that their use interferes with her own use of the road. A may exclude everyone except B
from crossing his property, while continuing to use the road himself.

Land affected or "burdened" by an easement is called a "servient estate," while the land or
person benefited by the easement is known as the "dominant estate." If the easement benefits a
particular piece of land, it is said to be "appurtenant" to the land. If the easement only benefits an
individual personally, not as an owner of a particular piece of land, the easement is termed "in
gross." Most easements are affirmative, which means that they authorize use of another's land.
Less common are negative easements, which usually involve preserving a person's access to light
or view by limiting what can be done on neighboring or nearby property.
An easement by prescription or Prescriptive Easement is one that is gained under principles of
a legal concept known as "adverse possession", under which someone other than the original
property owner gains use or ownership rights to certain property. Prescriptive easements often
arise on rural land when landowners fail to realize part of their land is being used, perhaps by an
adjoining neighbor. Fences built in incorrect locations often result in the creation of prescriptive
easements. If a person uses another's land for more than the statute of limitations period
prescribed by state laws on adverse possession, that person may be able to derive an easement by
prescription. Under adverse possession laws, the use of the land must be open, notorious, hostile,
and continuous for a specified number of years as required by law in each state. Once they
become legally binding, easements by prescription hold the same legal weight as written or
implied easements. But, before they become binding, they hold no legal weight and are broken if
the true property owner takes appropriate acts to defend their ownership rights. Easement by
prescription is typically found in legal systems based on common law, although other legal
systems may also allow easement by prescription.2

2 Retrieved from www.findlaw.com on 08/10/15 at 15:35

INDIAN EASEMENT ACT OF 1887

The Indian Easements Act, 1882 (Act No. V of 1882) was enacted in the year 1882 and came
into force on the 1st July, 1882 also it extents to the territories respectively administered by the
Governor of Madras in Council and the Chief Commissioners of the Central Provinces and
Coorg. The Act was enacted to define and amend the former laws relating to easement and
licence.3
Easement is a term connected to Property. Under the property laws, Easement plays most
important role which enables a person owning property to enjoy his property rights without any
hurdle. Easement as defined under First Chapter and Section 4 of the Act, is a right which the
owner or occupier of certain land possesses, as such, for the beneficial enjoyment of the 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. In simple terms easement could be
meant as a right and the person entitled thereof being owner or occupier of certain land, for the
beneficial enjoyment of his land, could require adjoining land owners to do or continue to do
something and even also could prevent them from doing something being done in or upon the
their lands which are not owned by right holder. The Act also provides for certain illustrations for
easy understanding of readers and pleaders. Further Sections like Section 5 and 6 define
different kinds of easements like Continues and discontinuous, apparent and non-apparent
easements; and Easement for limited time or on condition. Moreover Section 7 of the Act
provides for nature of Easement i.e. how easement restricts certain rights of other land owners.4

3Retrieved from www.lawcommission.gov.org on 08/10/15 at 16:05

4 Taken from bare act of indian easement act, 1889

The judiciary dealt with easementary rights of many kinds while dealing with controversies
relating thereto. The examples of such different kind of right of easement includes, Right to way,
Right to light, Right to air, etc.
The Second Chapter of the Act contains provisions as to imposition, acquisition and transfer of
easement and describes who may impose easement and who may acquire it. Also this Chapter of
the Act makes provisions as to acquisition of right by Prescription, which is highly challenged
and explained term by judiciary. The third Chapter of the Act makes rules controlling use of
right and also provides for all relevant aspects as to use and enjoyment of easementary right. This
chapter contains provision as to bar to use of easementary right which is not connected with
enjoyment. Even certain provisions under this chapter contain liabilities for expenses as to
preservation of easement and as to damage for want of repair while enjoying easementary right.
Further Chapter i.e. Chapter fourth of the Act describes right of easement as is enjoyable
without any disturbance and in violation of this right suit could be brought. Moreover this
chapter clarifies other relevant aspects like when cause of action arises for removal of support
and also consequences of abatement as to obstruction to enjoyment.
Moreover, the chapter fifth of the Act also provides for extinction of easement by dissolution of
right, by release, by revocation, on expiration of limited period or happening of dissolving
condition, on termination of necessity, if easement became useless, by permanent change in
dominant heritage, on permanent alteration of servient heritage by superior force, by destruction
of either heritage, by unity of ownership, by non-enjoyment or extinction of accessory right.
Further it provides for suspension and revival of easement as per Section 49, 50 and 51 of the
Act.
Chapter Sixth of the Act provides for concept of License and relevant provisions including its
transferability. It defines license under Section 52 of the Act as, when a person grants to another
or definite number of other persons right to do or continue to do something in or upon the
immovable property of such granter, which would in absence of such grant, unlawful. Such right
not amount to easement or an interest in property. Moreover, Sections 58 and 59 of the Act make
provisions for duties of the Grantor of license. Sections 60, 61 and 62 of the Act provides for

revocation of license. Further Sections provides for rights of Licensee on revocation or on

eviction.5
A case where another person has a right over a part of the property of a landowner is called
servient tenement and the owner of such a land is called servient owner. Servient or subordinate
because he has to abide by the requirements and convenience of the dominant owner.

In fact, whether he likes it or not, it is a burden he is forced to bear by grant, custom, or by

prescription.

An easement can be acquired by grant. The deed 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 the
land through another land of his.
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.
Prescription means getting a right by continuous assertion of the right, which has been in use for
a long period of time.
According to the Indian Easements Act, the inhabitants of a building enjoying the access and use
of air and light as a right continuously for over 20 years have the right to them without any
condition or restriction.
REMEDIES
Regarding the cases of easementary right of light the Courts generally do not interfere by way of
injunction where the courts find that the obstruction of light is very slight and where the injury
sustained is trifling, except in such rare and exceptional cases. Here again it is necessary to
understand that no damage is substantial unless it materially diminishes the value of the
5 Taken from bare act of indian easement act, 1889

dominant heritage, or interferes materially with physical comfort of the plaintiff, or prevents him
from carrying on his accustomed business in the dominant heritage as beneficially as he had
done previous to instituting the suit.6
In India the Court has discretion: It may or may not issue an injunction depending on the factwhere the injury is such that pecuniary compensation would not afford adequate relief.In some
cases a mandatory injunction will also be granted. Court will grant such injunction where a man,
who has a right to light and air which is obstructed by his neighbor's building, brings his suit and
applies for an injunction as soon as he can after the commencement of the building, or after it has
become apparent that the intended building will interfere with his light and air. But the court
should be satisfied that a substantial loss of comfort has been caused and not a mere fanciful or
visionary loss.If plaintiff has not brought his suit or applied for an injunction at the earliest
opportunity, and has waited till the building has been finished, and then asks the Court to have it
removed, a mandatory injunction will not generally be granted. The person entitled to a right of
way may sue for an injunction to restrain obstruction of the way or for damages. If he in fact
suffers no damage by the obstruction, nominal damages will be awarded only, and an injunction
will be refused.
A person who in purported exercise of a right of way makes an excessive user of the servient
tenement commits a trespass and may be restrained from doing at the instance of the servient
owner. What amount to excessive user depends on the scope of the right according to the true
construction of an express grant or according to the user established by the prescription as the
case maybe? A trespass committed in the manner described, however, gives no cause of action to
persons who are not entitled to use the way and are not interested in the servients tenement, nor
can the dominant owner claim for the physical damage to the way unless this substantially
interferes with his right to use it.
A person interested only in reversion or remainder in the dominant tenement cannot sue for the
protection of the right of way unless the obstruction is of such a nature that it either permanently
injures the estate or operates as a denial of right.

6 Retrieved from www.legalservicesindia.com on 08/10/15 at 17:00 IST

A person interested in reversion or remainder in the servient tenement cannot sue for trespass
done under an alleged right of way, because acts of this nature cannot operate as evidence of
right against a person who has no present remedy by which he can obtain redress.7

TYPES OF EASEMENTS
Easements are part and parcel of the land they affect. They dont change when the property
changes hands. Subsequent owners are obliged to let whoever owns the easement use the
property, so anyone buying a house should be sure to find out exactly what easements a property
is subject to before finalizing the purchase.
There are several types of easements, including utility easements, private easements, easements
by necessity, and prescriptive easements (acquired by use of property).
Utility Easements
The most common kind of easement is one that has been given in writing to a utility company or
a city. Utility easements are sometimes described in a property deed or certificate of title as
those certain utility easements as set out and shown on the map and plat of record in such-andsuch a book on page something-or-other. The existence of these easements doesnt have much
day-to-day effect. You can plant on the property, live on it, even build on it, as long as you dont
interfere with the utilitys use of the easement.
If you want to know where any utility easements are located on your property, call the utility
company. Or you can go to the county land records office or city hall and ask a clerk to show you
a map of the easement locations. A survey of the property will also show the location of utility
easements.
Private Easements
7 Retrieved from www.eskridgelaw.in on 08/10/15 at 17:20

In addition to utility easements, a property owner may sell an easement to someone elsefor
example, to use as a path or driveway or for sewer or solar access. Private sewer easements are
often sold when an uphill house is being built, so the pipe from the house to the street can slant
properlysometimes right under your property.8
If your title contains private easements, you should get copies of the actual easement documents.
You need to know where the easements are and what uses they allow. If a solar access easement
has been sold to a neighbor, for example, you may find that you are severely limited in what you
can build or grow on your property, because you cant block sunlight to the neighbors solar
collectors. If you are unaware of the terms of a private easement, you could unknowingly
interfere with the easement rights and be liable for damage.
Any private easement referred to in your property papers should have a reference number, such
as a book and page number. Your county clerk can help you locate it in the public records and
obtain a copy to keep with your deed.
Easements by Necessity
Even if it isnt written down, a legal easement can exist if its absolutely necessary to cross
someones land for a legitimate purpose. The law grants people a right of access to their homes,
for example. So if the only access to a piece of land is by crossing through your property, the law
recognizes an easement allowing access over your land. This is called an easement by
necessity. When land is subject to such an easement, the landowner may not interfere with the
neighbors legal right.
Prescriptive Easements
Someone can acquire an easement over anothers land for a particular purpose (such as accessing
their own home) by using someone elses property openly and continuously for a set period of
time. This is called a prescriptive easement, and typically one is created when someone uses land
for access, such as a driveway or beach path or shortcut. The length of use required for a

88,9- Taken from Commentary on indian easement act- Justice H.L Tiku 6th
edition

prescriptive easement varies from state to state and is often the same (10 or 20 years) as for
adverse possession (which is when someone acquires legal ownership of land by occupying it).9
While prescriptive easements and adverse possession may be the same (in terms of length of use
required), there are important differences. For example, payment of property taxes is not
necessary for a successful prescriptive easement claim, while some states require a trespasser to
pay property taxes to obtain legal ownership. Also, to acquire a prescriptive easement, a
trespasser does not need to be the only one using the land. More than one person can acquire a
prescriptive easement in the same portion of landan example would be a driveway on
anothers land or a path people use as a shortcut.
If you dont mind someone using part of your property but dont want him or her to gain the
legal right to do so, the simplest way to prevent a prescriptive easement is to grant the person
written permission to use the property. For example, if your neighbor is parking his car on a
small strip of your property and you give him permission to do so, your neighbor is no longer a
trespasser, and he cant claim an easement by prescription. Giving permission to a current user
also prevents people who move in later from claiming that they inherited a prescriptive
easement.

PRESCRIPTIVE EASEMENTS

An easement by prescription is one that is gained under principles of a legal concept known as
"adverse possession", under which someone other than the original property owner gains use or
ownership rights to certain property. Prescriptive easements often arise on rural land when
landowners fail to realize part of their land is being used, perhaps by an adjoining neighbor.
Fences built in incorrect locations often result in the creation of prescriptive easements. If a
person uses another's land for more than the statute of limitations period prescribed by state laws
on adverse possession, that person may be able to derive an easement by prescription. Under
adverse possession laws, the use of the land must be open, notorious, hostile, and continuous for
a specified number of years as required by law in each state. The law on adverse possession is
contained in the Indian Limitation Act. Article 65,10
Schedule I of The Limitation Act prescribes a limitation of 12 years for a suit for possession of
immovable property or any interest therein based on title. It is important to note that the starting
point of limitation of 12 years is counted from the point of time when the possession of the
defendants becomes adverse to the plaintiff. Article 65 is an independent Article applicable to
10 Taken from Indian Limitation Act 1963

all suits for possession of immovable property based on title i.e., proprietary title as distinct from
possessory title. Article 64 governs suits for possession based on possessory right. 12 years from
the date of dispossession is the starting point of limitation under Article 64. Article 65 as well as
Article 64 shall be read with Section 27 which bears the heading Extinguishment of right to
property. It lays down:
At the determination of the period hereby limited to any person for instituting the suit for
possession of any property, his right to such property shall be extinguished.11
That means, where a cause of action exists to file a suit for possession and if the suit is not
filedwithin the period of limitation prescribed, then, not only the period of limitation comes to an
end,but the right based on title or possession, as the case may be, will be extinguished. The
sectionassists the person in possession to acquire prescriptive title by adverse possession
Someone can acquire an easement over anothers land for a particular purpose such as accessing
their own home by using someone elses property openly and continuously for a set period of
time. This is called a prescriptive easement, and typically one is created when someone uses land
for access, such as a driveway or beach path or shortcut. The length of use required for a
prescriptive easement varies from state to state and is often the same i.e 10 or 20 years as for
adverse possession which is when someone acquires legal ownership of land by occupying it.
While prescriptive easements and adverse possession may be the same in terms of length of use
required, there are important differences. For example, payment of property taxes is not
necessary for a successful prescriptive easement claim, while some states require a trespasser to
pay property taxes to obtain legal ownership. Also, to acquire a prescriptive easement, a
trespasser does not need to be the only one using the land. More than one person can acquire a
prescriptive easement in the same portion of landan example would be a driveway on
anothers land or a path people use as a shortcut.
If you dont mind someone using part of your property but dont want him or her to gain the
legal right to do so, the simplest way to prevent a prescriptive easement is to grant the person
written permission to use the property. For example, if your neighbor is parking his car on a
11 Indian limitation act, 1963

small strip of your property and you give him permission to do so, your neighbor is no longer a
trespasser, and he cant claim an easement by prescription. Giving permission to a current user
also prevents people who move in later from claiming that they inherited a prescriptive
easement. The time period for obtaining an easement by adverse possession does not begin to
run until the one seeking adverse possession actually trespasses on the land. Thus, a negative
easement cannot be acquired by prescription because no trespass takes place. The use of the
easement must truly be adverse to the rights of the landowner of the property through which the
easement is sought and must be without the landowner's permission. If the use is with
permission, it is not adverse. There must be a demonstration of continuous and uninterrupted use
throughout the statute of limitations period prescribed by state law. If the use is too infrequent for
a reasonable landowner to bother protesting, the continuity requirement will probably not be
satisfied.

Section 15 of the Indian Easement Act, 1882 defines Easement of Prescription or Prescriptive
Easement as:12
Where the access and use of light or air and for any building have been peaceably enjoyed
therewith, as an easement, without interruption, and for twenty years.
And where support from one persons land or things affixed thereto, has been peaceably,
received by another persons land subjected to artificial pressure, or by things affixed thereto, as
an easement, without interruption, and for twenty years,
And where a right of way or any other easement has been peaceably and openly enjoyed by any
person claiming title thereto, as an easement and as of right, without interruption, and for twenty
years,
The right, to such access and use of light or air, support, or other easement, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years
next before the institution of the suit wherein the claim to which such period relates is contested.
12 Taken from bare act of indian easement act, 1887

Explanation I-Nothing is an enjoyment within the meaning of this section when it has been had
in pursuance of an agreement with the owner or occupier of the property over which the right is
claimed, and it is apparent from the agreement that such right has not been granted as an
easement, or, if granted as an easement, that it has been granted for a limited period, or subject
to a condition on the fulfilment of which it is to cease.
Explanation II. -Nothing is an interruption within the meaning of this section unless where there
is an actual cessation of the enjoyment by reason of an obstruction by the act of some other than
the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the
claimant has notice thereof, and of the person making or authorizing the same to be made:
Explanation III. -Suspensions of enjoyment in pursuance of a contract between the dominant
and servient owners is not an interruption within the meaning of the section.

Explanation IV. -In the case of an easement to pollute water the said period twenty years begins
when the pollution first prejudices perceptibly the servient heritage.13
on this basis,here certain conditions which should be fulfilled to categorize easement in the
category of prescriptive easement, can be classified as:

The first is the user must be as of right; for this requirement to be fulfilled by the owner,
the user must be nec vi i.e without force, nec clam i.e without secrecy, and nec precario
i.e without consent. The first requirement of without force means that the user must not
be contentious. The word force has a wide meaning and can include actual physical
violence or damage to property. Force can even be a clear protest by the servient owner;
the protest may take the form of physical, material or legal action.

The second condition is without secrecy. Prescriptive easements can be generated only if
the use has been open that is to say, of such character that an ordinary owner of land,
diligent in the protection of his interests, would have, or must be taken to have, a

13 Taken from bare act of indian easement act, 1887

reasonable opportunity of becoming aware of the use. Any secret performance prevents
the servient owner from protesting and objecting the acquisition of the right. Also, even
if the act is not performed in secret, the servient owner must have knowledge of the act.

The third condition is without permission. One obvious case is where the servient owner
receives an annual sum from the claimant; this shows a continuing element of permission.
If permission is asked or consent given then the servient owner would be acknowledging
that no right exist and would go against prescription . Providing the servient owner
knows of the act and tolerates such act the user is as of right.14

Another common rule to all three forms of prescription is that the user must be continuous. An
additional requirement to be fulfilled is that the user must be by or on behalf of a fee simple
owner against a fee simple owner. The requirements are also more specific. The user must be
against a fee simple owner of the servient tenement and the dominant tenement user must be by
or on behalf of a fee simple owner. If the user is on behalf, the claim for an easement will be for
the fee simple owner, but the tenant may enjoy the benefit during his lease. Also a tenant cannot
prescribe for an easement against his landlord or vice versa.
A property owner may not interfere with the purpose of a legal easement. If, for example, the
electric company has wires strung across its right of way, you cannot take them down or block
their path. If you interfere with an easement, you may end up being liable to the easement owner
for damage and be subject to a court action ordering you to stop.
If you find yourself in a dispute over an easement or you feel someone is illegally trespassing on
your propertyfor example you are a new homeowner who just discovered that your neighbor is
using what you believe is a private drive for access to her own propertysee an experienced
local real estate attorney. The laws on easements vary from state to state and you will probably
need tailor-made advice for your situation. Its especially important to consult with an
14 Taken from transfer of property act, 1882 and Indian easement act, 1887murlidhar chaturvedi- 3rd edition

experienced real estate attorney if there is nothing in writing ,for example, in a deed or title
papers about the easement. The legal doctrines of unwritten easements that are created by
peoples actions and certain circumstances can be very complicated, and youll want advice from
someone experienced in your states real estate law and up to date on relevant court decisions.

Case laws
Dr.Salim vs. N.Puroshottam Pai15
Plaintiff is one of the co-owners in possession and enjoyment of plaint A and C schedule
properties. Plaint C schedule is described as a strip of land, having a width of 4' situate
along the eastern boundary of plaint A schedule, commencing from south-eastern corner
of B schedule pathway and ending in a pathway on the north. A schedule property is
described as having 4 cents and odd, comprising the residential building under the
occupation of the plaintiff. Admittedly, there is a pathway to A schedule on its northern
side providing access to the public road, Chittur Road, situate on the north. The case of
the plaintiff is that on the southern side of A schedule as well lies a pathway from the
Chittur Road to the property of the 2nd defendant situate on the east, having a length of
75 meters and a width of 14 links. That pathway is bounded on two sides by compound
walls except on the south-eastern corner of A schedule, wherein the C schedule proceed
towards north. That pathway is described in the plaint as B schedule. Plaintiff claimed a
15 (2014) 3 SCC 760

right of prescriptive easement over B schedule pathway by open, continuous and

uninterrupted user of that pathway for the statutory period in continuation of the right so
exercised by his predecessors. Imputing interference with the right of his enjoyment over
B schedule pathway by the defendants in causing obstruction to its user blocking the
entry from that pathway to C schedule, putting up concrete constructions of a boundary
wall throughout the northern side of B schedule, the plaintiff laid the suit for the reliefs of
declaration and injunction both prohibitory and mandatory.
HELD: he mere existence of a pathway is not sufficient to enable the plaintiff to acquire
an easement by prescription under Section 15 of the Easements Act, and to sustain such a
claim he has to satisfy the necessary ingredients covered by that section. Easement is a
precarious and special right which a person claims over a land of another. So, whenever a
right of easement is claimed, upholding of which would cause a burden on the land of the
another, lawful owner of the property, the totality of the facts and circumstances involved
in the backdrop of the pleadings and also the materials tendered necessarily has to be
examined to judge the merit of the claim.
Jivanlal Palliwal vs. Krishnarao D. Sathone16
Plaintiff is the owner of field survey No. 639/1 and the defendant is the owner of field
survey No. 640 situated at village Mowad and the field of the defendant is adjoining on
the southern side of the field of the plaintiff. The plaintiff contended that he has a right Of
way to approach his field from the disputed way which is shown by letters AB in the map
annexed with the plaint. The plaintiff further contended that he has been using this way
openly, peacefully and without any interruption since more than 20 years. He used to take
his bullock-cart and agricultural implements to his field through this way and, therefore,
he has acquired a right of way by prescription. The right of way proceeds from nala
(stream) diving the field of the defendant in two parts. The defendant had obstructed the
right of way prior to two months of the institution of the suit and, therefore, he was
served with a notice dated 23-9-1974. The defendant did not give any reply to the notices
and the obstruction continued. Therefore, the plaintiff was constrained to file the suit for
declaration of the right of way and consequential relief of mandatory and permanent
injunction.
16 AIR 2014 Bom 89

HELD: A right of way may be acquired by prescription where the same has been
peaceably and openly enjoyed by any person claiming title thereto as an easement and as
of right without any Interruption and for 20 years. However, it all depends upon the facts
and circumstances of each case. In the present case, the plaintiff has proved that he has
acquired the right of easement by prescription under Section 15 of the Act and that the
acquisition was being used as of a right within two years of the institution of the suit.

Kausalya Kumaran vs Edward17

The plaintiffs obtained kudikidappu rights from the defendants as per Ext.A1 dated
01.02.1971. According to them, thereafter, they have been using a pathway having a
width of 3 metres and a length of 6 metres, starting from the public road on the east
running through the property of the defendants and ending of the eastern boundary of his
property. The plaintiffs have been enjoying this pathway for over 20 years and that is the
only means of egress and ingress to their property. The allegation is that the defendants
put up a construction, trespassing into the plaint schedule pathway. That forced the
plaintiffs to approach the court for a declaration of their rights and other ancillary reliefs.
The defendants resisted the suit. They appended a rough sketch to the written statement
which showed the plot given to the plaintiffs as kudikidappu. According to them, the 'F'
portion shown in the said sketch is a common pathway for the plaintiffs and other
alienees of the defendants on the northern side. That pathway has sufficient width and the
plaintiffs can use the same. They have no right to use the plaint schedule pathway. On the
basis of these contentions, they prayed for a dismissal of the suit.
HELD: the plaintiffs have not been successful in establishing their prescriptive right of
easement and accordingly, dismissed the suit.

17 1957 CLj 1388

Conclusion
An easement is an interest in the land of another that entitles the easement owner to a limited use
or enjoyment of the others land. The owner of the legal title to property is presumed to be the
owner of the full beneficial title. This presumption may be rebutted only by clear and convincing
evidence. This means that, in order to establish a prescriptive easement, the person who is
seeking to establish a prescriptive easement must prove all the required elements by clear and
convincing evidence.
A prescriptive easement is lost by at least five years of nonuse. In other words, even if a
prescriptive easement did exist at some time, if the owner of the property shows that the
prescriptive easement was not used for at least five years, then the prescriptive easement was
extinguished, even if the property owner did not prevent anyone from using the prescriptive
easement and even if the property owner did not use the easement itself.
The period of continuous use for a prescriptive easement to become binding is generally between
5 and 30 years depending upon local laws (sometimes based on the statute of limitations on
trespass). Generally, if the true property owner acts appropriately to defend their property rights
at any time during the required time period the hostile use will end, claims on adverse possession
rights are voided, and the continuous use time period will be reset to zero.
In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal
property owner, the prescriptive easement may become a regular or implied easement rather than
a prescriptive easement and immediately becomes binding. In other jurisdictions, such

permission immediately converts the easement into a terminable license, or restarts the time for
obtaining a prescriptive easement. Government or railroad owned property is generally immune
from prescriptive easement in most cases, but some other types of government owned property
may be subject to prescription in certain instances.

Bibliography

The research work on the project has been done through following sources:
WEBSITES

www.lawyers.findlaw.com
www.legalservicesindia.com
www.lawyerslaw.org
www.gov.uk
www.indiankanoon.com

BOOKS
Commentary on The Indian Easement Act, 1882- Justice H.L TIku
Indian Easement Act- H.P Gupta
Transfer of Property Act, 1882 and Indian Easement Act 1887- Murlidhar Chaturvedi

Contents
I.
II.
III.
IV.
V.
VI.
VII.

Introduction
Indian Easement Act, 1887
Types of Easements
Prescriptive easements
Case Laws
Conclusion
Bibliography