An easement is a right which the owner or occupier of a certain land possess, as such for the beneficial enjoyment of that land 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.
Characteristics Essential To An Easement
An easement is a privilege, without which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former. To get the instant and right law information then you can visit the site- Law Planet.
The Following Six Characteristics Are Essential For An Easement:
- There must be a dominant and survient tenement
- An easement must accommodate the dominant tenement
- The rights of an easement must be possessed for the beneficial enjoyment of the dominant tenement.
- Dominant and survient owners must be different persons.
- The right should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, the servient tenement; and
- The something must be of a certain or well-defined character and be capable of forming the subject matter of a grant.
It forms a part of the right of way is an affirmative easement – It entitles the owner of a right to do a certain act and to continue to do it, namely pass over the land of the servient owner. From this point of view, it is called a positive easement. But a right of way also prevents the server owner from the building of his land or doing any other act in the enjoyment of his proprietary rights on the land, which would interfere with the right of way. In fact, every right of easement imposes on the survient owner a restrictive use and enjoyment of his own land by him so that it may not interfere with the enjoyment of the right of easement by the dominant owner. Easements are classified into positive or negative according to the predominating factor of the particular exercise.
There Are Two Classes of Right of Way
- Public rights of way exist for the benefit of all people. They are called highways. Their origin is in dedication express or implied.
- Private rights of way. These are vested in particular individuals or to owners of particular tenements: their origin is grant or prescription or belongs to certain classes of persons or certain portions of the public, such as the tenement of a manor, or the inhabitants of a parish or village, their origin is custom.
Classification of Ways
The classification of private rights of way which was formerly regarded as of importance is now of no practical utility There are no exact categories under one or other of which every private right of way must fall, as was formerly supposed. If you want to know about the “Keshvanand Bharti Case” just knock the site name Lawplanet.
Nature of Easement of Light
The easement of light is a negative easement or a species of the negative easement. It is a right acquired in augmentation of the ordinary rights incident to the ownership and enjoyment of land and may be defined as a right which a person may acquire, as the owner or occupier of a building with windows or apertures, to prevent the owner or occupier of an adjoining piece of land from a building or placing upon the latter’s land anything which has the effect of “illegally” obstructing or obscuring the light coming to the building of the owner of the easement.
The easement of light used frequently to be spoken of as the easement of “light and air”, as though the right to light and the right of air were inseparably connected. They are, however, wholly distinct, and although orders for the protection of light once included the protection of air as well, this practice has long since been abandoned.
The Extent of Easement of Light
The easement of light does not consist of a right to have a continuance of all the light that has previously come to the window of the dominant tenement. The test whether the interference complained of amounts to a nuisance is not whether the diminution is enough materially to lessen the amount of light previously enjoyed, nor is it entirely a question of how much light is left, without regard to what there was before, but whether the diminution (i.e. the difference between the light before and the light after the obstruction) is such a really makes the building to a sensible degree less fit than it was before for the purposes of business or occupation according to the ordinary requirements of mankind. The amount of light is sufficient according to the ordinary notions of mankind increases as standards increase.
Access and use of air to and for any building may be acquired under the Indian Easements Act if it has been peaceably enjoyed without interruption for twenty years. The right to air is co-extensive with the right light. The owner of a house cannot by a prescription claim to be entitled to the full and uninterrupted passage of a current of wind. He can claim no more air than what is sufficient for sanitary purposes. There is no right as a right to the uninterrupted flow of the south breeze as such. There is no easement for free access to wind. In this country, a man who has enjoyed a right of air more or less pure and free will is reasonably protected against any interference.
The right to the purity of air is not violated unless it interferes materially with the ordinary comfort of human existence. It is only in rare and special cases involving danger to health, or at least something very nearly approaching it, that the Court would be justified interfering on the ground of domination of the air.
But under the Indian law where the easement disturbed is a right to the full passage of air to the opening in a house, the damage is substantial if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.