Easements Act, 1882

Easements Act, 1882 The right of easement which means a right exercised by one person over the property of another is a necessary adjunct to the law of property and became the subject of a separate statue during the British period. The Easement Act, 1882 (Act V of 1882) was adopted in Pakistan by adaptation of central acts and Ordinances Act, 1949 and is deemed to have come into effect on 1 July 1982.

The right of easement has been defined in the Act as the right which the owner or occupier of certain land possesses for the beneficial enjoyment of that land to do something upon certain other land not belonging to him. It is an incorporeal right as being capable of possession. It is actually a reasonable restriction on the power of use and enjoyment of an immovable property by its owner for the sake of enabling the owner of another piece of immovable property to enjoy his property. In order to be an easement within the meaning of this Act, the easement must appertain to a dominant tenement and is inseparably attached to it. The essential elements of a right of easement are: (i) there must be a dominant tenement to which the right of easement belongs; (ii) there must be a servient tenement on which the right of easement rests; and (iii) the right of easement must be for the beneficial enjoyment of the dominant tenement. Easements are of various types, such as easements of access to and use of air and light, easements of polluting air by smoke and gas, easements in water which may relate to flow of water in natural or artificial water course, easements of way, and easements relating to support.

Rights of easement differ from customary rights. While easement is a privilege attached to a dominant tenement belonging to a determined person, customary rights are claimed for a large body of persons in respect of a locality. Easements may either be positive or negative. A positive easement is that which entitles the dominant owner to do something which otherwise would be a nuisance or trespass. The right of way over the land of another is an instance of positive easement. Negative easement is that which restrains the servient owner from exercising some of the ordinary rights of ownership over his own land. An easement is presumed to be permanent unless the contrary is proved. Easements may be acquired by grant. Easement of necessity is another type of easement considered relatively important. Where by transfer, bequest or partition, a single tenement is divided into two or more tenements, and any of those divided tenements is so situated that it can not be used at all without enjoyment of certain privileges on the other tenements, the reservation of such privilege is called easement of necessity. [Aminul Huq]