Acquisition, Imposition And

Transfer Of Easement.
Law of Easement, The easement act 1882.

Submitted by:-
Submitted to:-
Bilal Khan Niazi,
Roll no:- 1819
Respected Madam
Gomal Law College, Mobina Mehsud.
DI Khan.
 1 Abstract 3-5
Table of 2 Imposition Of Easement. 6

Contents
3 Persons Qualified for Impositions. 7
4 Imposition by person having 8-9
Transferable Interest.
5 Imposition by Servient owner. 10-12
6 Imposition by lessor or Mortgaor 13-17
7 Imposition by Occupier. 18-20
8 Acquisition of Easements. 21
9 Person qualified for Acquisition. 22
10 Modes of Acquisition. 25-71
 11 By Grant 26-27

Table of Contents
12 By Severance of Property. 28-49

13 Easement acquired by Transfer or Bequest 30-41

14 Easements acquired through Partition. 42-46

15 Direction of way of Necessity. 47-49

16 Acquisition of Easements by Prescription 50-67

17 Exclusion in favour of Reversion. 63-64

18 Rights which Can't be Acquired by Prescription. 65-67

19 Acquisition of easements by Customs 68-70

20 Acquisition by transfer of Dominant Heritage. 71-72

21 Summary 72-73
 Abstract.
Definition of Easement.
“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 other land not his own.”
● Easement is a transferable right. So it may
be acquired, transferred and imposed at
anytime when it's required.
Statutory Reference;-
Chapter II of the Easement Act 1882
describes the rules for Imposing, acquisition
and transfer of an Easement.
● Sections 8-11 are about Imposition of
Easements , while Sections 12 about the
acquisition of Easement.
● Section 8, 13, 15, 18 19 describe the ways
by which an easement may be
granted,acquired or transferred.
According to Section 6 of Transfer of
Property Act:-
● The right of easement may be transferred
alongwith Dominant Heritage, not Servient.
● Transfer of an existing easement cannot
take place except by transfer of Dominant
Heritage.
A) .IMPOSITION OF
EASEMENTS.
Persons Qualified for Imposition.
The easement may be imposed by:-
1. Person having transferable interest in Property.
But there are some rules described for Imposition by
following.
2. By Servient Owner.
3. Hy Lessor and Mortgagor
4. By Lesse
● Among the persons discussed above, no 1 is in Generalised
form while other 3 are specified, because they have some
provisions which we would discuss. All it requires is no1 to
impose an easement.
1). Person Having Transferable Interests in Property.
Reference to Section 8:-
An easement may be imposed by any one in the
circumstances, and to the extent, in and to which he may
transfer his interest in the heritage on which the liability is
to be imposed.

Illustrations:-
(a) A is tenant of B’s land under a lease for an unexpired term of twenty
years, and has power to transfer his interest under the lease. A may impose
an easement on the land to continue during the time that the lease exists
or for any shorter period.
Note:-
● An occupier can't create an easement which exceeds his
own transferable interests over Heritage.
● This Section basically describes the imposition of easement
by way of Grant.
Grant of an Easement.
An easement may be granted by any words clearly
showing the intentions to give an easement.
● No particular words are required.
● The grant may fail for every reason which may
invalidate a contract e.g minority, mistake, Fraud etc.
2). Imposition by Servient Owner.
Reference to Section 9:-
Subject to the provisions of section 8, a servient owner
may impose on the servient heritage any easement that
does not lessen the utility of the existing easement. But he
cannot, with out the consent of the dominant owner,
impose an easement on the servient heritage which would
lessen such utility.
 ● So if it would lessen the utility of existing
easement, he would not be able to impse an
easement on Servient Heritage without the
consent of Dominant Heritage.

Illustrations:-
A has a right of way through B’s property,
in respect of his house. B may grant to c a
right to feed his cattles the grass growing
on way.
● But if A’s right of Way is not obstructed. If it does,
then A’s xonsent is necessary.
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3). Imposition by Lessor or Mortgaor.
● Before leading to the Imposition by Lessor of
mortgagor, let's discuss some important
Terminologies.

Lease:-
A contract by which the owner of a property gives the
tenant sole use of property for an agreed time.
● One who gives :- “Lessor”
● One who takes:- “Lessee”
Mortgage :-
A contract for using property as a security for
a loan, when money is lent.
● One who gives:- Mortgagor
● One who takes :- Mortgagee.

Reference to Section 10.

Section 10 describes the rules regarding Imposition
of easements by:-
● Lesse
● Mortgagor.
Imposition by lessor:-
Subject to section 8, a Lessor may impose an easement on the
property leased.
● ,Provided that such easement should not derogate from the
rights of lessee as such.

Imposition by Mortgagor:-
Subject to section 8, a Mortgagor may impose an easement on
the property mortgaged.
● ,Provided that such easement should not derogate from th
rights of lessee as such.
Consent of Lessee and mortgagee:-
Both lessor and Mortgagor can't impose such
easements i.e derogating rights or rendering
insufficiency of security, without the consent of
lessee and mortgagee respectively. Unless it be to
take effect on termination of lease or redemption
of mortgage. E.g Functioning after end of lease
or mortgage.
Insufficiency ofSecurity-
A security is insufficient within the
meaning of this section unless the value
of the mortgaged property exceeds
by one-third, or,
● if consisting of buildings, exceeds
by one-half, the amount for the time
being due on the mortgage.
4). Imposition by Occupier
Here we'll discuss the Imposition of right of
easement by lesse or person having derivative
interests in certain property.

Reference to Section 11.

● Following are the rules regarding Imposition
of easements by lessee or person having
derivative interest in property, laid down by
section 10.
● Easement taking effect after Expiration:-
➢ No lessee or other person having derivative
interest in property may impose such easement on
the property held by him which easement takes
place after Expiration of his own interest.

● Easement Derogating rights Of Proprietor:-

➢ He is also unable to impose such
easements which result in derogation of
rights of lessor or Superior Proprietor.
● The grant of Larger interest would be
certainly void.
This was all about Imposition of
easements,
Now we mover forward to the next part of
chapter i.e Acquisition of Easements.
B) Acquisition OF
EASEMENTS.
Person Qualified for Acquisition.
Reference to Section 12.
An easement may be acquired by
● Owner ,or
● Any person in possession,
Of immovable property for beneficial
enjoyment of which the right is created.
● Acquisition by Co-Owners:-
● Consent of others is not necessary.
One of the 2 or more co owners may acquire an
easement with or without the consent of others.

● Acquisition by Lessee:-
No lessee of immoveable property can acquire,
for the beneficial enjoyment of other immoveable
property of his own, an easement in or over the
property comprise in his lease.
 In this chapter in sections 13-19 we
are also going to discuss the modes

Modes of of acquisition of easements. There

are following modes of acquisition

Acquisition. described in the Easements Act

1882.

A. By Grant.
B. By Severance of Property.
C. By Prescription.
D. By Custom.
E. By transfer of Dominant
Heritage.
 A) By Grant.
We have already discussed in the very 1st section of
this Chapter.

An easement may be imposed by any one in

the circumstances, and to the extent, in and to
which he may transfer his interest in the
heritage on which the liability is to be imposed.
Grant of an Easement.
An easement may be granted by any words
clearly showing the intentions to give an
easement.
● No particular words are required.
● The grant may fail for every reason which
may invalidate a contract e.g minority,
mistake, Fraud etc.
B) By Severance Of Property.
Before starting Grant of Easements by Necessity
or Quasi/nec, let's discuss some important
terminologies for clearer concepts.

Easement Of Necessity:-
An easement which is absolute necessity i.e
● No alternative existsand property cannot be enjoyed
without such easement.
● It can't be excluded, e.g:-
Right of Way.
Quasi Easement:-
An easement which has no absolute necessity i.e
● Which is reasonable
● Without which property may be enjoyed.
● It must be apparent and continuous.
E.g :- Light & Air.
➢ Easement of necessity and quasi easements may be
acquired by the Severance of Property.

Reference to Section 13.

1). Acquisition Of easements
through Transfer or Bequest:-
If one person transfers or bequests his property to
another then two kind of easements arise. Both have
different rules for acquisition.
I. Necessary Easement
II. Easements enjoyed at time of Transfer. And can he
acquired by both parties i.e
● Transfree or Legatee
● Transferor or Testator.
Easements Acquired by Transfree
or Legatee.
I) Necessary Easements:-
If an easement in other immovable property of
transferor or testator is necessary to enjoy
subject to transfer or Bequest,
● Then transfetee or Legatee shall be entitled
to that Easement.
Illustration:-
A sells B a land “Z”. It is inaccessible
except by passing over A’s Landor by
trespassing on someone else's Land.
B is entitled to right of way for
agricultural purposes only over B’s
adjoining Land.
 C A B
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II) Easements enjoyed at the
time of Transfer:-
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,
● Then the transferee or legatee shall, unless
a different intention is expressed or
necessarily implied, be entitled to such
easement;
Illustration:-
A sells B a house with windows
overlooking A’s land, which A retains.
The light which passes over A’s land to
the window is necessary for enjoying the
house as it was enjoyed when the sale
took effect. B is entitled to the light,
and A cannot afterwards obstruct it by
building on his land.
Easements Acquired by Transferor
or Testator.
I) Necessary Easements:-
If an easement in the subject of the transfer
or bequest is necessary for enjoying other
immoveable property of the transferor or
testator,
● Then the transferor or the legal representative of
the testator shall be entitled to such easement.
Illustration:-
A, the owner of two fields, sells one to
B, and retains the other. The field
retained was, at the date of the sale,
used for agricultural purposes only, and is
inaccessible except by passing over the
field sold to B. A is entitled to a right
of way, for agricultural purposes only, over
B’s field to the field retained.
A

B A
II) Easements enjoyed at the
time of Transfer:-
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,
● Then the transferor, or the legal
representative of the testator, shall,
unless a different intention is expressed or
necessarily implied, be entitled to such
easement.
Illustration:-
A is the owner of a house and
adjoining land. The house has windows
overlooking the land. A, retaining the house,
sells the land to B, without expressly
reserving any easement. The light passing over
the land is necessary for enjoying the house
as it was enjoyed when the sale took effect.
A is entitled to the light, and B cannot build
on the land so as to obstruct such light.
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A B
2). Acquisition Of easements
through Partition:-
When a partition is made of
joint property of several
persons:
I) Necessary Easements:-
if an easement over the share of one
of them is necessary for enjoying the
share of another of them,
● Then the latter shall be entitled to
such easement,
Illustration:-
Owing to the partition of joint property, A
becomes the owner of an upper room in a
building, and B becomes the owner of the portion
of the building immediately beneath it. A is
entitled to such amount of vertical support from
B’s portion as is essential for the safety of the
upper room.
A

B Vertical Support
II) Easements enjoyed at the
time of Transfer:-
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,
● Then he shall, unless a different
intention is expressed or necessarily
implied, be entitled to such easement.
● There is a provision regarding the
easement of Necessity i.e right of way
acquired through previously discussed
section 13, in the form of Section 14.

Reference to Section 14.

Direction of Way of Necessity:-
When [a right] to a way of necessity is created under
section 13,
● the transferor,
● the legal representative of the testator, or
● the owner of the share over which the right is
exercised, as the case may be, is entitled to set
out the way; but it must be reasonably convenient
for the dominant owner.
➢ When the person so entitled to set out the
way refuses or neglects to do so, the dominant
owner may set it out.
Example:-
✔ Granted by A

B A
❌
C) Acquisition of Easements by Prescription:-

Prescription:-
The effect of lapse of time in Creating or
Destroying rights.
● Second 15 deals with Acquisition of easements by Prescription

Reference to Section 15.

Absolute Right;-
● The Right shall be absolute to following
enjoyments, if they take place as discussed.
● Light and Year:-
The enjoyment of excess of Light or air to or for any
Building.
Such enjoyment must he:
● Peaceable
● Without interruption
● As an Easement
● For 20 Years.
● Enjoyment of Support:-
The enjoyment of support from one person's
land or think affixed there bt another person's
land subject to artificial pressure or by things
affixed thereto.
Such enjoyment must be
● Peaceable
● Without Interruption
● As an Easement
● For 20 years.
● Enjoyment of Way:-
The enjoyment of right of way by person claiming title
thereto.
Such enjoyment must be
● Peaceable
● As of Right
● As an easement
● Without interruption
● For 20 years.
As of Right means , User would not want the consent
or there would no sufferance of Teant.
“Nec clam” :- Not Secretly
Illustrations:-
● A suit is brought in 1883 for obstructing a
right of way. The defendant admits the
obstruction, but denies the right of way.
The plaintiff proves that the right was
peaceably and openly enjoyed by him, claiming
title thereto as an easement and as of
right, without interruption, from 1st
January, 1862, to 1st January, 1882.
The plaintiff is entitled to judgment.
● In a like suit the plaintiff shows that
the right was peaceably and openly
enjoyed by him for twenty years. The
defendant proves that the plaintiff on
one occasion during the twenty years had
admitted that the user was not of right
and asked his leave to enjoy the right.
The suit shall be dismissed, for the
right of way has not been enjoyed “as
of right” for twenty years.
Continuity after 20 Years;-
This section further lays down that the enjoyment
must be of 20 years , But should be proved to have
continued upon a time within 2 years next before
the institution of Suit, in which the claim is
contested.
● So if there is an interruption in next 2 years
before suit, the claim of right of easement would
fail.
Matters other than Enjoyment;-
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 n ot 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.
Meaning of Interruption:-
“The actual cessation of the enjoyment by reason of an
obstruction by the act of some person 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.”

● Nothing is interruption under this

act except above
Illustration:-
In a like suit the plaintiff shows that the
right was peaceably and openly enjoyed by
him for twenty years. The defendant
proves that the plaintiff on one occasion
during the twenty years had admitted that
the user was not of right and asked his
leave to enjoy the right. The suit shall be
dismissed, for the right of way has not
been enjoyed “as of right” for twenty
years
Suspension of Enjoyment under Contract:-
● Suspension of enjoyment in
pursuance of a contract
between the dominant and
servient owners is not an
interruption within the meaning
of this section.
Commencement of Period in
Case of polluting Water:-
-In the case of an easement to pollute
water, the said period of twenty years begins
● when the pollution first prejudices
perceptibly the servient heritage.
Prescription Over Government
Property:-
● When the property over which a
right is claimed under this section
belongs to 1[ the Government], this
section shall be read as if, for the
words “twenty years” the words
“sixty years” were substituted.
● Exclusion in Favour of Reversion:-
Reference to Section 16.
When any land upon, over or from which any easement
has been enjoyed or derived has been held under or
by virtue of any interest for life or any term of
years exceeding three years from the granting thereof,
● Then the time of the enjoyment of such easement
during the continuance of such interest or term
shall be excluded in the computation of the said
last-mentioned period of twenty years
● in such case the claim must be within three years next after
the determination of such interest or term, resisted by the
person entitled, on such determination, to the said land.

Illustration:-
A sues for a declaration that he is entitled to a right of
way over B’s land. A proves that he has enjoyed the right
for twenty-five years; but B shows that during ten of these
years C had a life-interest in the land; that on C’s death B
became entitled to the land; and that within two years
after C’s death he contested A’s claim to the
right. The suit must be dismissed, as A, with reference
to the provisions of this section, has only proved enjoyment
for fifteen years.
Rights which can't be acquired by
Prescription:-
Reference to Section 17.
None of the Following easements can be acquired
through prescription
I. Right causing destruction
II. Right to Light and air in open space
III. Water in Non permanent pool
IV. Underground water.
i) Right Causing Destruction:-
● A right which would tend to the total
destruction of the subject of the right, or the
property on which, if the acquisition
were made, liability would be imposed;
ii) Right to Air & Water in Open space:-
A right to the free passage of light
or air to an open space of ground;
iii) Right to Water in Non Permanent Pool:-
● A right to surface-water not flowing in a
stream and not permanently collected in a
pool, tank or otherwise.
iv) Right to underground Water :-
● A right to underground water not
passing in a defined channel.
D) Acquisition of Easements by Customs:-
Reference to Section 17.
● An easement may be acquired in
virtue of a local custom.
● Such easements are called customary
easements.
Illustration:-
By the custom of a certain village
every cultivator of village land is
entitled, as such, to graze his cattle
on the common pasture. A, having
become the tenant of a plot of
uncultivated land in the village, breaks
up and cultivates that plot. He
thereby acquires an easement to graze
his cattle in accordance with the
custom.
Special Feature of Customary
Easements
Special feature of these easement is
that
● Custom effects an owner as a
member of some community or
society not as an individual.
● It's usage is annexed to locality
E) Acquisition By Transfer of Dominant Heritage:-

Where the dominant heritage is transferred or

devolves, by act of parties or by operation of
law, the transfer or devolu tion shall,
● Then unless a contrary intention appears, be
deemed to pass the easement to the
person in whose favour the transfer or
devolution takes place.
Illustration:-
B has certain land to which a right of way
is annexed. B lets the land to A for twenty
years. The right of way vests in A and his
legal representative so long as the lease
continues.
 Summary.
So we discussed that easement may be imposed by
● Anyone having transferable interests in Property.
We also discussed some rules regarding Imposition
of easements by
● Servient Owner
● Lessor and Mortgagor
● By Lessee etc
Besides this, Easements may be acquired by:
● Owner of Immovable property
● Co owners of Immovable Property
But it cannot be acquired by
● Lessee for enjoyment of his Own property.
An easement may be acquired by following modes.
● Grant
● Severance
● Prescription
● Custom
● Transfer of Dominant Heritage.
Thankyou Sir
Yours Obediently.

Submitted by:-
Submitted to:-
Bilal Khan Niazi,
Date:- Roll no:- 1819
Respect Sir
14th june, 2020 Gomal Law College, RazaUllah
DI Khan.