Easement of way (Right-of –way)

Easement of way (Right-of –way)

Easement is a certain rights to use the real property of another without possessing it.

Natural or Inherited 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 access under which he enjoys his property.

A right of way benefits a large plot of land which has been subdivided by the Government or by the Owner itself. It should be pertinent to note that the right of way benefits all of the land in the dominant consolidation/tenement. If the land is subdivided then each and every small plot derived from the original dominant consolidation/tenement inherits the right of way and may use it for the same purposes as the original grant allowed.

ü  [14]Sections 7(b) of the Indian Easement Act deals with rights to advantages arising out of situations have been dealt with.

“7.        Easement restrictive of certain rights. -Easement 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.”

ü  [b] Section 13(b) of the Indian Easement, 1982 deals with continuous use:

13.      Easements of necessity and quasi-easements. -Where one person transfers or bequeaths immovable property to another-

(a)      If an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or

(b)      If such an easement is apparent and continuous and necessary for enjoying: the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or lessee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement:

(c)      If an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or

(d)      If such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied be entitled to such easement.

Where a partition is made of the joint property of several persons, -

(e)      If an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entire to such easement, or

(f)       If such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless the different intention is expressed or necessary implied, be entitled to such easement.

The easements mentioned in this section, clauses (a), (c) and (e), are called easement of necessity.

Where immovable property passed by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed respectively, the transferor and transferee.

Relevant Supreme Court Judgment has been provided as under:

1.      The Ratio Decidendi given by Hon’ble Supreme Court in Sree Swayam Prakash Ashramam and Anr. Vs. G. Anandavally Amma and Ors. (2010 SC)

“Continuous use of a pathway/passage gives an implied grant of Easement right, even if it is not expressly mentioned in deeds or agreements or any other documents.”

Relevant para of the said judgment is as under:

“25. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of 'B' schedule property as 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 pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

Conclusion

The easement is normally for the benefit of adjoining lands, no matter who the owner was, and is not limited for the benefit of a specific individual, it goes with the land. Easements frequently arise among owners of adjoining parcels of land, or by consolidation proceeding conducted by the revenue department.

However, under these circumstances, Easements gives the right to a property owner who due to any reason of tenement including but not limited to by implication of law or any Government Policy, has no access to road/ street front, to impliedly use a particular segment of a neighbor's land to gain access to the road, as well as the right to run a sewer line across a strip of an neighbor's land, which is frequently called a right of way.