What are Dominant heritage or tenement in easement

[vustudents]

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Dominant heritage or tenement
Clause (2) of Section 4 provides that the land for the beneficial enjoyment of which the right of easement exists is called the dominant heritage and the owner or occupier thereof is called the dominant owner.
(1) Easement must be Appurtenant: The findings of the lower appellate court on the point of user are based on surmises and conjectures and also mis-reading of evidence the said findings have to be interfered with. Thus it can be held that the land in suit appurtenant to the plaintiff’s house was in plaintiff’s possession. AIR 1980 All. 50. A person possesses an easement in respect of some estate or interest in a particular piece of land, and the easement is said to be appurtenant to that land. No one can possess an easement irrespective of his enjoyment of some estate or interest in a piece of land, for there is no such thing as an easement in gross. When validly annexed to land constituting the dominant tenement an easement remains inseparably attached to the dominant tenement so long as the easement remains inseparably easement cannot be severed from the dominant tenement, nor can it be made a right in gross. The requirement that an easement must accommodate the dominant tenement expresses the character of an easement as a right which personal capacity. The benefit or advantage conferred by the right must relate to the purpose for which the dominant tenement is used, although in that sense an easement will usually, if not always, increase the value of the dominant tenement. Thus, a right of access to a hotel or a restaurant over neighbouring land will be easement.
(2) Dominant owner cannot have easement over his own land: Clause (1) of section 4 specifically provides that the dominant owner can require an easement only over land which is not his own. Thus, the dominant owner cannot acquire an easement either over the dominant heritage or over other land belonging to him. AIR 1978 Ori. 211. A man cannot have an easement over his own land because all acts which he does upon his own land are acts in exercise of his proprietary rights in the land.
(3) Dominant owner not entitled to exclusive user of servien heritage: An easement does not give the dominant owner the exclusive or unrestricted use of any part of the servient tenement. The grant of exclusive and unrestricted use of a piece of land passes the property of ownership in the land and not merely an easement in it. A right which amounts effect to the whole beneficial user of the servient tenement to the exclusion of the owner or to a joint user of the servient tenement, or which would prevent the servient owner from making ordinary use of his land cannot take effect as an easement either by virtue of grant or by prescription. Whether or not a right asserted amounts to a claim to the whole beneficial user or the servient tenement is a question of law to be determined in according with all the facts of a particular case, the problem is one of decree. The grant of the exclusive use of pipes or wires is, however, an easement. So also, apparently is the grant of the exclusive use of a burial vault.
public nuisance—proof of: plaintiffs failing to prove case of absolute nuisance. Plaintiffs’ allegations were merely based on apprehension and anticipated problems which did not exist and might not arise to an unreasonable extent. Plea of public nuisance was not proved in circumstances. 1991 MLD 1112.
Raising construction of property: Such construction strictly in accordance with rules and regulations could not give cause of action to plaintiffs. Defendant’s building plan having been approved and passed by authority subsequent withdrawal/cancellation of some without show cause or opportunity of hearing given to defendants would have no effect especially when plaintiffs had no justiciable right with regard to grant of approval of building plan. Plaintiffs cause of action against creation of nuisance and infringement of their right of easement would not be justiciable so long as they could not prove that approval of defendants plan was illegal and ultra vires. Defendants having acted upon approval of building plan acquired a legally vested right which could not be taken away in an arbitrary manner. Defendants, thus could not be taken away from raising building on their own plot. 1991 MLD 1112.

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