INTRODUCTION

An easement is a right which the owner of a property has to compel the owner of another property to allow something to be done, or to refrain from doing something on the survient element for the benefit of the dominant tenement. For example - right of way, right to light , right to air etc.

An easementary right is almost like a privilege, depriving which the owner of one tenement has a right to enjoy regarding that tenement in or over the tenement of another person, by reason of which the latter is obliged to suffer or abstain from doing something on his own tenement for the advantage of the former.

Easementary right must possess the following essentials:

  1. Dominant and survient tenement
  2. Easement should accommodate the dominant tenement
  3. Easementary rights must be possessed for the beneficial enjoyment of the dominant tenement.
  4. Dominant and survient owners must be different persons.
  5. The easementary rights should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done, or in respect of , the survient tenement; and
  6. The something must be of a certain or well defined character and be capable of forming the subject matter of a grant

DESCRIPTION AND ANALYSIS :

  1. RIGHT OF WAY

There are two classes of right of way

  1. Public rights of way which exist for the benefit of all people. These are Highway, navigating way. Its origin is in dedication, express or implied.
  2. By way of -Private rights of way which is vested in particular individuals or to owners of particular tenements; and its origin is found ingrant or prescription or to certain classes of persons or certain portions of the public, such as the tenement of a manor, or the inhabitant of the parish or village.

An easementary right of way is created by - Express grant or by immemorial custom, necessity or by prescription, or by statute or through private dedication. The term “general right of way” is applied to private rights of way on which there are no restriction except the necessary qualification, which nature or the law requires regarding all private rights of way. Actual significance of the term general right of way lies in its use in contradistinction to the special limitations expressed or inferred upon the user of any particular right of way over and above the limitations thus imposed by general law.

Apart from statute, the determination of the question who may use a right of way depends upon the nature and extent of the right. If the right is created by grant, the persons or classes or persons entitled to use it may be expressly limited by the terms of the instrument, a grant of this kind being construed, not strictly, but in accordance with the apparent intention of the parties. As a general rule the persons or the classes of persons who may use the right must be ascertained by construing the instrument having regard to the general circumstances surrounding the exception of the grant. The most important of these circumstances are the nature of the place over which the right is granted, and the nature of the dominant tenement, and the purposes for which that tenement is, in the contemplation of the parties, intended to be used.

A person who is enjoining the right of way by more than 20 years without any obstruction by the person in whose land a person pass thru, but one exception for this is; if such person having another way then he cannot claim easementary right by way of prescription1.

REMEDIES

It does not matter whether the way was created by express grant or by way of reservation, or is claimed under the doctrine of prescription. The nature of the remedy is the same

The person claiming for an easementary right of way has the remedy to sue for an injunction - to restrain obstruction of the way or for getting damages. Whether any particular interruption amounts to an unlawful interference or not depends upon the nature of the right of way and of the place, and also on the circumstances of the case. If he suffers no damage by obstruction, nominal damages will be awarded only, and an injunction will be refused. A person who purported exercise of a right of way makes on excessive user of the survient tenement commits a trespass and may be restrained from doing at the instance of the survient owner. The factor for deciding the excessive user depends on the scope of the right, based on the true construction of an express grant or based on the user, established by the prescription as the case may be.

  1. RIGHT OF LIGHT& AIR:

The right to light is basicaly the right to prevent the owner or occupier of an adjoining tenement from building or placing on his own land anything which has the effect of illegally obstructing or obscuring the light of the dominant tenement. The easementary right to light is a right to be protected against a particular form of nuisance, and an action for the obstruction of light which has in fact been used and enjoyed for twenty years without having any interruption , or written consent cannot be sustained unless the obstruction amounts to an actionable nuisance. The right of light is an easement and may be acquired.

  1. by way of - either grant or by covenant, which may be express or implied.
  2. as per the provisions of the India Easement Act, and by Presciption under the Prescription Act in England. These acts necessitate an enjoyment without interruption for a period of twenty years to confer the right.
  3. by way of reservation on the sale of the survient tenement. If the vendor of a land desires to reserve any right in the nature of easement and for taking the benefit of his adjacent land which he is not parting with, he must do it by express words in the deed of conveyance, except in the case of easement of necessity.

The interference complained of amounts to a nuisance or not cannot be determined by the fact - whether the diminution is enough materially to lessen the amount of light previously enjoyed, nor it can be determined by the fact that how much light is left, without regard to what there was before, but it can be properly decided by the fact - whether the diminution (i.e. difference between the light before and the light after the obstruction) really makes the building to a sensible degree less fit than it was before, for the purposes of business or occupation as per the ordinary requirements of mankind.

So far as the easementary right to access of air is concerned, it is co-existence with the right to light. In this regard it is pertinent to note that the owner of the house cannot by prescription claim an entitlement of the flow and uninterrupted passage of current of wind, neither the owner of the house is entitled to right of uninterrupted flow of breeze as such, rather he can claim only such amount of air which is sufficient for sanitary purposes. He cannot be allowed to sustain his unjustifiable claim in this regard.

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 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.

In India the Court has discretion: It may or may not issue an injunction depending on the fact- where 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.

CONCLUSION

Unlike a lease, an easement does not give the holder a right of “possession” of the property. Therefore an easementary right is provided for specific relief from specific violations of common basic rights. In the case of the right to way, any wrongful interference with the right of way constitutes a nuisance. However, a right of 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 nor every obstruction of the way amounts to an unlawful interference, and no action would lie unless there is a substantial interference with the easement granted. In the case of right to access of light, it does not consist of a right to have a continuance of the same amount of light throughout. In case of a diminution, the dominant owner is bound to show that the diminution has interfered with his ordinary occupations of life and it results in a nuisance if it is sufficient to render the occupation of the house uncomfortable, and prevent the owner from carrying his business as beneficially as he formerly did.

In the leading case of Hero vinoth Vs Seshammal (AIR 2006 SC 2234), it is held that – an easement would last only as long as the absolute necessity existed and such a legal extinction could not apply to an acquisition by grant- if a right of way was provided to a particular sharer, it could not be extinguished merely because such sharer had other alternative way.