We, humans, use land, diurnally, as a resource in numerous ways to sustain our lives. Eventually, this use and associated rights led to the evolution of various concepts such as ownership, tenement, easement, etc. Here, we are going to discuss easementary rights. Easement, in laymen’s terms, is an acquired right by someone who is not the true owner but has certain entitlements to use the concerned land for specific purposes and with limited access. Elementary rights can be a bit complicated because this legal concept gives a more appropriate right to a person accessing something than the rightful owner of that property. According to the Webster dictionary, the legal definition of easement is “an interest in land owned by another that entitles its holder to a specific limited use or enjoyment (as the right to cross the land or have a view continue unobstructed over it).”

An easement can be thus seen as a privilege (a right to enjoy), which one proprietor enjoys over the property of another, for the use of his property, whereby the latter is obligated to such duty to not interfere with such use or abstain from doing anything against such use. An easement is defined under Section 4 of the Indian Easements Act, 1882.

It is defined as “an easement is a right 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 another land not his own.[1]

Section 26 of the Limitation Act, 1908, precisely states that about the acquisition of the right to an easement. According to this section, “the right of easement regarding enjoyment of light, air, way, watercourse, use of water or another easement shall be absolute and indefeasible if it is enjoyed continuously for 20 years in the case of enjoying private property or 60 years in the case of public property.[2]” “It has also been defined as a right which one person has to use the land of another for a specific purpose or a servitude imposed as a burden on the land.” The aspects of easementary rights are perpetual and extremely significant. The right of easement is “a right in rem”, i.e., it is available against the whole world and not just the servient owner. Although the easement rights are exclusive there can be certain limitations and restrictions subject to the use of such rights. Easements can also be positive, i.e., the right of the dominant to do something or enjoy the right over the servient land; and be negative, i.e., the restrictions or limitations which are put by the dominant owner over rights of the servient owner. The easement can be granted by various methods such as by express terms, or be necessarily implied from the object of the grant, the situation of the parties, and the uses to which the estate of both the parties might reasonably be put, etc.

The need for the easement is to let a person use his land fully where such land needs the usage of others land for such enjoyment. In another word, the rights of easements are conferred upon an individual for the following purposes:

  1. To allow convenience to a person.
  2. When the usage of land is necessary for the enjoyment of a property.
  3. When there can be no reasonable usage of land without the existence of such easement.

An easement can be viewed as a burden on the subservient land and when discussed in these terms it brings a whole new aspect of looking at this concept. In the paper, ‘Burden of Easement by John V. Ortho, the author has discussed the concept of easementry rights in light of traditional rules and the developments made so far[3].

The author points out that easement shall be limited to the particular use that has been made the subject matter of easement and any other additional use must lead to infringement of rights of the servient owner. This discourse has arisen because of the complicated nature of the right of easement and the overburden put by the dominant owner on the servient owner under the guise of his easementry rights.

In the paper by John V. Ortho, the author introduces the concept of the easement as a burden upon the servient land. The unauthorized use or other extending additional use shall not be permitted under law according to the author. The author describes ‘overburden’ as unauthorized use of easement (i.e., burden) which occurs in the following cases, namely:

  1. Any use of the land, by the easement owner other than the authorized user.
  2. Use of the land by the dominant owner, of a land other than the benefited land.
  3. Or, where there is excessive use of the authorized user.

The paper interprets easement as an obligation or reasonability which is imposed upon the owner of the land to entertain the person, having such right, to use the part of his own for a specified purpose. The concept of the extent of such use is very precisely and descriptively discussed. The extent of addition of any rights to such existent easement right is allowed only if it is within the authorised use. An easementry right is provided as a remedy to avoid the violations of basic rights of enjoyment of one’s land. In the case of the right to way, any wrongful interference with the right of way constitutes a nuisance. As, however, a right of the way never entitles the grantee, or those lawfully using the way under the grant, to the exclusive use of the land over which the way exists not every obstruction of the way amounts to unlawful interference, and no action would lie unless there is a substantial interference with the easement granted. Thus, to comprehend the concept of easementry rights, we have to define limits or extent to which the right can be used. The right of one person should not be an unauthorised burden on another. The easementary right is considered a privilege in hands of a person and a burden imposed upon the owner as a result of consistent usage. The concept is ever-evolving and different aspects such as the right to way, right to light, right to flowing water, etc. would be continuously added and discussed under the concept. In modern times and the digital world, it is to be seen if the elementary or “right of use/access” can be exercised over digital contains or databases or soft copies? Can we broaden this right to a virtual level? The question might arise in one’s mind that an easement right should be allowed over digital contents too, but would it lead to infringement of the Intellectual Property rights of such an owner. Such questions and queries would keep flourishing in the world of easementary rights.


In my opinion, Easementary rights are far wider than the provisions of the Easements Act and the Indian courts have analysed the rights in each circumstance by weighing all the surrounding factors. The jurisprudence or easement and the way the author discusses it raises a very crucial question on our minds and as we delve the only solution is not to make the burden an overburden by adding more additional rights. As the right of easementary is in itself an additional right that comes along with the right to enjoy one’s property, any other unnecessary addition would only go on to harm the subservient wrongfully and might as well defeat the purpose of the law.

Author’s Name: Anjali Shekhawat (RGNUL, Patiala)

[1] Indian Easements Act, 1882, s 4, No. 5, Acts of Parliament, 1882.

[2] The Limitation Act, 1963, s 26, No. 36, Acts of Parliament, 1963.

[3] John V. Orth, “THE BURDEN OF AN EASEMENT.” (2006) 40 RPPT 639 <www.jstor.org/stable/20785807> Accessed 20 Sep 2021.

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