(Act No. 5 of Year 1882)
An Act to define and amend the law
relating to easements and licences
WHEREAS it is expedient to define and
amend the law relating to Easements and Licences. It is hereby
enacted as follows: -
PRELIMINARY
1. Short title
This Act may be called the Indian
Easements Act, 1882.
Local extent: It extends to the
territories respectively administered by the Governor of Madras in
Council and the Chief Commissioners of the Central Provinces and
Coorg.
Commencement: It shall come into force on
the first day of July, 1882.
2. Saving
Nothing herein contained shall be deemed
to affect any law not hereby expressly repealed; or to derogate
from-
(a) any right of the government to
regulate the collection, retention and distribution of the water of
rivers and streams flowing in natural channels, and of natural lakes
and ponds, or of the water flowing, collected, retained or
distributed in or by any channel or other work constructed at the
public expense for irrigation;
(b) any customary or other right (not
being a licence) in or over immovable property which the government,
the public or any person may possess irrespective of other immovable
property; or
(c) any right acquired, or arising out of
a relation created, before this Act comes into force.
3. Construction of certain
references to Act XV of 1877 and Act IX of 1871
All
references in any Act or Regulation to sections 26 and 27 of the
Indian Limitation Act, 1877 or to sections 27 and 28 of Act No. IX
of 1871, shall, in the territories to which this Act extends, be
read as made to sections 15 and 16 of this Act.
CHAPTER I: OF EASEMENTS GENERALLY
4. "Easement" defined
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.
Dominant and
servient heritages and owners: The land for the beneficial enjoyment
of which the right exists is called the dominant heritage, and the
owner or occupier thereof the dominant owner; and land on which the
liability is imposed is called the servient heritage, and the owner
or occupier thereof the servient owner.
Explanation : In the first and second clauses of
this section the, expression "land" includes also things permanently
attached to the earth; the expression "beneficial enjoyment"
includes also possible convenience, remote advantage, and even a
mere amenity; and the expression "to do something" includes removal
and appropriation by the dominant owner, for the beneficial
enjoyment of the dominant heritage, or any part of the soil of the
servant heritage, or anything growing or subsisting thereon.
Illustrations
(a) A, as the
owner of a certain house, has a right of way thither over his
neighbour Bs land for purposes connected with the beneficial
enjoyment of the house. This is an easement.
(b) A, as the
owner of a certain house, has the right to go on his neighbours Bs
land, and to take water for the purposes of his household out of a
spring therein. This is an easement.
(c) A, as the
owner of a certain house, has the right to conduct water from Bs
stream to supply the fountains in the garden attached to the house.
This is an easement.
(d) A, as the
owner of a certain house and farm, has the right to graze a certain
number of his own cattle on B's field, or to take, for the purpose
of being used in the house, by himself, his family, guests, lodgers
and servants, water or fish out of C's tank, or timber out of D's
wood, or to use, for the purpose of manuring his land, the leaves
which have fallen from the trees on Es land. These are
easements.
(e) A
dedicates to the public the right to occupy the surface of certain
land for the purpose of passing and re-passing. This right is not an
easement.
(f) A is
bound to cleanse a watercourse running through his land and keep it
free from obstruction for the benefit of B, a lower riparian owner.
This is not an easement.
5. Continuous and discontinuous,
apparent and non-apparent easements
Easements are
either continuous or discontinuous, apparent or non-apparent.
A continuous
easement is one whose enjoyment is, or may be, continual without the
act of man.
A
discontinuous easement is one that needs the act of man for its
enjoyment.
An apparent
easement is one the existence of which is shown by some permanent
sign which, upon careful inspection by a competent person, would be
visible to him.
A
non-apparent easement is one that has no such sign.
Illustrations
(a) A right
annexed to Bs house to receive light by the windows without
obstruction by his neighbour A. This is a continuous easement.
(b) A right
of way annexed to As house over Bs land. This is a discontinuous
easement.
(c) Rights
annexed to A's land to lead water thither across B's land by an
aqueduct and to draw off water thence by a drain. The drain would be
discovered upon careful inspection by a person conversant with such
matters. These are apparent easements.
(d) A right
annexed to A's house to prevent B from building on his own land.
This is a non-apparent easement.
6. Easement for limited time or
on condition
An easement
may be permanent, or for a term of years or other limited period, or
subject to periodical interruption, or exercisable only at a certain
place, or at certain times, or between certain hours, or for a
particular purpose, or on condition that it shall commence or become
void or voidable on the happening of a specified event or the
performance or non-performance of a specified Act.
7. Easements restrictive of
certain rights
Easements are
restrictions of one or other of the following rights (namely):-
(a)
Exclusive right to enjoy-The exclusive right of every owner
of immovable property (subject to any law for the time being in
force) to enjoy and dispose of the same and all products there of
and accessions thereto.
(b)
Rights to advantages arising from situation-The right of every
owner of immovable property (subject to any law for the time being
in force) to enjoy without disturbance by another the natural
advantages arising from its situation.
Illustrations of the rights above referred to
(a) The
exclusive right of every owner of land in a town to build on such
land, subject to any municipal law for the time being in force.
(b) The right
of every owner of land that the air passing thereto shall not be
unreasonable polluted by other persons.
(c) The right
of every owner of a house that his physical comfort shall not be
interfered with materially and unreasonably by noise or vibration
caused by any other person.
(d) The right
of every owner of land to so much light and air as pass vertically
thereto.
(e) The right
of every owner of land that such land, in its natural condition,
shall have the support naturally rendered by the subjacent and
adjacent soil of another person.
Explanation: Land is in its natural conditions when
it is not excavated and not subjected to artificial pressure, and
the "subjacent and adjacent soil" mentioned in this illustration
means such soil only as in its natural condition would support the
dominant heritage in its natural condition.
(f) The right of every owner of land
that, within his own limits, the water which naturally passes or
percolates by, over or through his land shall not, before so passing
or percolating, be unreasonably polluted by other persons.
(g) The right of every owner of land to
collect and dispose within his own limits of all water under the
land which does not pass in a defined channel and all water on its
surface which does not pass in a defined channel.
(h) The right of every owner of land that
the water of every natural stream which passes by, through or over
his land in a defined natural channel shall be allowed by other
persons to flow within such owner's limits without interruption and
without material alteration in quantity, direction, force or
temperature; the right of every owner of land abutting on a natural
lake or pond into or out of which a natural stream flows, that the
water of such lake or pond shall be allowed by other persons to
remain within such owner's limits without material alteration in
quantity or temperature.
(i) The right of every owner of upper
land that water naturally rising in, or falling on such land, and
not passing in defined channels, shall be allowed by the owner of
adjacent lower land to run naturally thereto.
(j) The right
of every owner of land abutting on a natural stream, lake or pond to
use and consume its water for drinking, household purposes and
watering his cattle and sheep, and the right of every such owner to
use and consume the water for irrigating such land, and for the
purposes of any manufactory situate thereon, provided that he does
not thereby cause material injury to other like owners.
Explanation : A natural stream is a stream, whether
permanent or intermittent, tidal or tideless, on the surface of land
or underground, which flows by the operation of nature only and in a
natural and known course.
CHAPTER II: THE IMPOSITION, ACQUISITION AND TRANSFER OF
EASEMENTS
8. Who may impose
easements
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 so imposed.
Illustrations
(a) A is a
tenant of Bs 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.
(b) A is
tenant for his life of certain land with remainder to B absolutely.
A cannot, unless with B consent, impose an easement thereon which
will continue after the determination of his life interest.
(c) A, B and
C are co-owners of certain land. A cannot, without the consent of B
and C, impose an easement on the land or on any part thereof.
(d) A and B
are lessees of the same lessor, A of a field X for a term of five
years and B of a field Y for a term of ten years. A's interest under
his lease is transferable; B's is not. A may impose on X, in favour
of B, a right of way terminable with A's lease.
9. Servient owners
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 exiting easement. But he cannot, without the consent of the
dominant owner, impose an easement on the servient heritage which
would lessen such utility.
Illustrations
(a) A has, in
respect of his mill, a right to the uninterrupted flow thereto, from
sunrise to noon, of the water of B's stream. B may grant to C the
right to divert the water of the stream from noon to sunset:
PROVIDED that
As supply is not thereby diminished.
(b) A has, in
respect of his house, a right of way over Bs land. B may grant to
C, as the owner of neighbouring farm, the right to feed his cattle
on the grass growing on the way:
PROVIDED that
As right of way is not thereby obstructed.
10. Lessor and
mortgagor
Subject to
the provisions of section 8, a lessor may impose, on the property
leased, any easement that does not derogate from the rights of the
lessee as such, and a mortgagor may impose, on the property
mortgaged, any easement that does not render the security
insufficient. But a lessor or mortgagor cannot, without the consent
of the lessee or mortgagee, impose any other easement on such
property, unless it be to take effect on the termination of the
lease or the redemption of the mortgage.
Explanation: 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.
11. Lessee
No lessee or
other person having a derivative interest may impose on the property
held by him as such an easement to take effect after the expiration
of his own interest, or in derogation of the right of the lessor or
the superior proprietor.
12. Who may acquire
easements
An easement
may be acquired by the owner of the immovable property for the
beneficial enjoyment of which the right is created, or on his
behalf, by any person in possession of the same.
One of two or
more co-owners of immovable property may, as such, with or without
the consent of the other or others, acquire an easement for the
beneficial enjoyment of such property.
No lessee of
immovable property can acquire, for the beneficial enjoyment of
other immovable property of his own, an easement in or over the
property comprised in his lease.
13. Easements of necessity and
quasi easements
Where one
person transfers or bequeaths immovable property to another-
(a) if an
easement in other immovable property of the transferor or testator
is necessary for enjoying the subject of the transfer or bequest,
the transferee or legatee shall be entitled to such easement;
or
(b) 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, the transferee or lessee shall, unless a different intention
is expressed or necessarily implied, be entitled to such
easement;
(c) if an
easement in the subject of the transfer or bequest is necessary for
enjoying other immovable property of the transferor or testator, the
transferor or the legal representative of the testator shall be
entitled to such easement; or
(d) 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, the transferor, or the legal representative of the
testator, shall, unless a different intention is expressed or
necessarily implied, be entitled to such easement.
Where a
partition is made of the joint property of several persons,-
(e) if an easement over the share of one
of them is necessary for enjoying the share of another of them, the
latter shall be entried to such easement; or
(f) 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, he shall, unless the
different intention is expressed or necessarily implied, be entitled
to such easement.
The easements
mentioned in this section, clauses (a), (c) and (e) are called
easements of necessity.
Where
immovable property passes by operation of law, the persons from and
to whom it so passes are, for the purpose of this section, to be
deemed, respectively, the transferor and transferee.
Illustrations
(a) A sells B
a field then used for agricultural purposes only. It is inaccessible
except by passing over As adjoining land or by trespassing on the
land of a stranger. B is entitled to a right of way, for
agricultural purposes only, over As adjoining land to the field
sold.
(b) A, the
owner of two field, 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 to way, for agricultural
purposes only, over Bs field to the field retained.
(c) A sells B
a house with windows overlooking A's land which A retains. The light
which passes over As land to the windows 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.
(d) A sells B
a house with windows overlooking As land. The light passing over
As land to the windows is necessary for enjoying the house as it
was enjoyed when the sale took effect. Afterwards A sells the land
to C. Here C cannot obstruct the light by building on the land, for
he takes it subject to the burdens to which it was subject in As
hands.
(e) A is the
owner of a house and adjoining land. The house has windows
overlooking the land. A simultaneously sells the house to B and the
land to C. The light passing over the land is necessary for enjoying
the house as it was enjoyed when the sale took effect. Here A
impliedly grants B a right to the light, and C takes the land
subject to the restriction that he may not build so as to obstruct
such right.
(f) 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.
(g) A, the
owner of a house, sells B a factory built on adjoining land. B is
entitled, as against A, to pollute the air, when necessary, with
smoke and vapours from the factory.
(h) A, the
owner of two adjoining houses, Y and Z, sells Y to B, and retains Z.
B is entitled to the benefit of all the gutters and drains common to
the two houses and necessary for enjoying Y as it was enjoyed when
the sale took effect, and A is entitled to the benefit of all the
gutters and drains common to the two houses and necessary for
enjoying Z as it was enjoyed when the sale took effect.
(i) A, the
owner of two adjoining building, sells one to B, retaining the
other. B is entitled to a right to lateral support from A's
building, and A is entitled to a right to lateral support from Bs
building.
(j) A, the
owner of two adjoining buildings, sells one to B and the other to C.
C is entitled to lateral support from B's building, and B is
entitled to lateral support from Cs building.
(k) A grants
lands to B for the purpose of building a house thereon. B is
entitled to such amount of lateral and subjacent support from As
land as is necessary for the safety of the house.
(l) Under the
Land Acquisition Act, 1870, a railway company compulsorily acquires
a portion of B's land for the purpose of making a siding. The
company is entitled to such amount of lateral support from B's
adjoining land as is essential for the safety of the siding.
(m) 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.
(n) A lets a
house and grounds to B for a particular business. B has no access to
them other than by crossing A's land. B is entitled to a right of
way over that land suitable to the business to be carried on by B in
the house and grounds.
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.
15. Acquisition by
prescription
Where the
access and use of light or air and for any building have been
peaceably enjoyed therewith, as an easement, without interruption,
and for twenty years,
and where
support from one person's land or things affixed thereto, has been
peaceably received by another person's land subjected to artificial
pressure, or by things affixed thereto, as an easement, without
interruption, and for twenty years,
and where a
right of way or any other easement has been peaceably and openly
enjoyed by any person claiming title thereto, as an easement and as
of right, without interruption, and for twenty years,
the right to
such access and use of light or air, support, or other easement,
shall be absolute.
Each of the
said periods of twenty years shall be taken to be a period ending
within two years next before the institution of the suit wherein the
claim to which such period relates is contexted.
Explanation I: 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 not 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.
Explanation II: Nothing is an interruption within
the meaning of this section unless where there is an actual
cessation of the enjoyment by reason of an obstruction by the act of
some 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 authorising the same to
be made.
Explanation III: Suspensions of enjoyment in
pursuance of a contract between the dominant and servient owners is
not an interruption within the meaning of this section.
Explanation IV: 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.
When the
property over which a right is claimed under this section belongs to
government, this section shall be read as if, for the words "twenty
years" the words "thirty years" were substituted.
Illustrations
(a) 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 peaceable and openly enjoyed by him, claiming
title thereto, as an easement, and as of right, without
interruption, from lst January, 1862 to lst January, 1882. The
plaintiff is entitled to judgement.
(b) In a like
suit the plaintiff shows that the right was peaceable and openly
enjoyed by him for twenty years, the defendant proves that for a
year of that time the plaintiff was entitled to possession of the
servient heritage as lessee thereof and enjoyed the right as such
lessee. The suit shall be dismissed, for the right of way has not
been enjoyed "as an easement" for twenty years.
(c) 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.
Comment: As far as the question of
opening of new windows is concerned, it is open to the defendants to
use their property in any manner permitted by law; and hence they
cannot be restrained from opening new windows, as no customary right
of privacy appears to have been pleaded or proved. This position is
not disputed by the plaintiffs. It is, however, equally clear that,
if the defendants open any new windows, the plaintiffs are fully
entitled to block the same by raising the height of their walls and
the defendants are not entitled to break or damage the said walls or
any portion thereof so as to remove the obstruction to their new
windows. Smt. Anguri v. Jiwan Dass AIR 1988 SUPREME COURT 2024
16. Exclusion in favour of
reversioner of servient heritage
Provided
that, 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, 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
case the claim is, 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 to 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 Cs death B became entitled to the land; and that
within two years after Cs death he contested As 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.
17. Rights which cannot be
acquired by prescription
Easements acquired under section 15 are
said to be acquired by prescription, and are called prescriptive
rights.
None of the following rights can be so
acquired-
(a) 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;
(b) a right to the free passage of light
or air to an open space of ground;
(c) a right to surface-water not flowing
in a stream and not permanently collected in a pool, tank or
otherwise;
(d) a right to underground water not
passing in a defined channel.
18. Customary
easements
An easement may be acquired in virtue of
a local custom. Such easements are called customary easements.
Illustrations
(a) 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.
(b) By the custom of a certain town no
owner or occupier of a house can open a new window therein so as
substantially to invade his neighbours privacy. A builds a house in
the town near Bs house. A thereupon acquires an easement that B
shall not open new windows in his house so as to command a view of
the portions of As house which are ordinarily excluded from
observation, and B acquires a like easement with respect to As
house.
19. Transfer of dominant heritage
passes easement
Where the dominant heritage is
transferred or devolves, by act of parties or by operation of law,
the transfer or devolution shall, unless a contrary intention
appears, be deemed to pass the easement to the person in whose
favour the transfer or devolution takes place.
Illustration
A has certain land to which a right of
way is annexed. A lets the land to B for twenty years. The right of
way vests in B and his legal representatives so long as the lease
continues.
CHAPTER III: THE INCIDENTS OF EASEMENTS
20. Rules controlled by contract
or title
The rules contained in this Chapter are
controlled by any contract between the dominant and servient owners
relating to the servient heritage, and by the provisions of the
instrument or decree, if any, by which the easement referred to was
imposed.
Incidents of customary easements
: And when any incident of any customary easement is
inconsistent with such rules, nothing in this chapter shall affect
such incident.
21. Bar to use unconnected with
enjoyment
An easement must not be used for any
purpose not connected with the enjoyment of the dominant
heritage.
Illustrations
(a) A, as
owner of a farm Y, has right of way over B's land to Y. Lying beyond
Y, A has another farm Z, the beneficial enjoyment of which is not
necessary for the beneficial enjoyment of Y. He must not use the
easement for the purpose of passing to and from Z.
(b) A, as
owner of a certain house, has a right of way to and from it. For the
purpose of passing to and from the house, the right may be used, not
only by A, but by the members of his family, his guests, lodgers,
servants, workmen, visitors and customers; for this is a purpose,
connected with the enjoyment of the dominant heritage. So, if A lets
the house, he may use the right of way for the purpose of collecting
the rent and seeing the house is kept in repair.
22. Exercise of
easement-confinement of exercise of easement
The dominant
owner must exercise his right in the mode which is least onerous to
the servient owner, and, when the exercise of an easement can
without detriment to the dominant owner be confined to a determinate
part of the servient heritage, such exercise shall, at the request
of the servient owner, be so confined.
Illustrations
(a) A has a
right of way over B's field. A must enter the way at either end and
not at any intermediate point.
(b) A has a
right annexed to his house to cut thatching grass in Bs swamp. A,
when exercising his easement, must cut the grass so that the plants
may not be destroyed.
23. Right to alter mode of
enjoyment
Subject to
the provisions of section 22, the dominant owner may, from time to
time, alter the mode and place of enjoying the easement, provided
that he does not thereby impose any additional burden on the
servient heritage.
Exception-The dominant owner of a right of way
cannot vary his line of passage at pleasure, even though he does not
thereby impose any additional burden on the servient heritage.
Illustrations
(a) A, the
owner of a saw-mill, has a right to a flow of water sufficient to
work the mill. He may convert the saw-mill into a corn-meal:
PROVIDED that
it can be worked by the same amount of water.
(b) A has a
right to discharge on Bs land the rain-water from the eaves of A's
house. This does not entitle A to advance his eaves if, by so doing,
he imposes a greater burden on Bs land.
(c) A, as the
owner of a paper-mill, acquires a right to pollute a stream by
procuring in the refuse-liquor produced by making in the mill paper
from rags. He may pollute the stream by pouring in similar liquor
produced by making in the mill paper by a new process from
bamboos:
PROVIDED that
he does not substantially increase the amount, or injuriously change
of the pollution.
(d) A, a
riparian owner, acquires as against the lower riparian owners, a
prescriptive right to pollute a stream by throwing saw dust into it.
This does not entitle A to pollute the stream by discharging into it
poisonous liquor.
24. Right to do acts to secure
enjoyment
The dominant owner is entitled, as
against the servient owner, to do all acts necessary to secure the
fully enjoyment of the easement; but such acts must be done at such
time and in such manner as, without detriment to the dominant owner,
to cause the servient owner as little inconvenience as possible; and
the dominant owner must repair, as far as practicable, the damage
(if any) caused by the act to the servient heritage.
Accessory
rights : Right to do acts necessary to secure the full
enjoyment of an easement are called accessory right.
Illustrations
(a) A has an
easement to lay pipes in B's land to convey water to A's cistern. A
may enter and dig the land in order to mend the pipes, but he must
restore the surface to its original state.
(b) A has an
easement of a drain through B's land. The sewer with which the drain
communicates is altered. A may enter upon B's land and alter the
drain, to adapt it to the new sewer:
PROVIDED that
he does not thereby impose any additional burden on B's land.
(c) A, as
owner of a certain house, has a right of way over B's land. The way
is out of repair, or a tree is blown down and falls across it. A may
enter on B's land repair the way or remove the tree from it.
(d) A, as
owner of a certain field, has a right of way over B's land. B
renders the way impassable. A may deviate from the way and pass over
the adjoining land to B:
PROVIDED that
the deviation is reasonable.
(e) A, as
owner of a certain house, has a right of way over B's field. A may
remove rocks to make the way.
(f) A has an
easement of support from B's wall. The wall gives way. A may enter
upon B's land and repair the wall.
(g) A has an
easement to have his land flooded by means of a dam in B's stream.
The dam is half swept by an inundation. A may enter upon B's land
and repair the dam.
25. Liability for expenses
necessary for preservation of easement
The expenses
incurred in constructing works, or making repairs, or doing any
other act necessary for the use or preservation of an easement, must
be defrayed by the dominant owner.
26. Liability for damage from
want of repair
Where an easement is enjoyed by means of
an artificial work, the dominant owner is liable to make
compensation for any damage to the servient heritage arising from
the want of repair of such work.
27. Servient owner not bound to
do anything
The servient owner is not bound to do
anything for the benefit of the dominant heritage, and he is
entitled, as against the dominant owner, to use the servient
heritage in any way consistent with the enjoyment of the easement;
but he must not do any act tending to restrict the easement or to
renders its exercise less convenient.
Illustrations
(a) A, as
owner of a house, has a right to lead water and send sewage through
B's land. B is not bound, as servient owner to clear the watercourse
or scour the sewer.
(b) A grants
a right of way through his land to B as owner of a field. A may feed
his cattle on grass growing on the way:
PROVIDED that
B's right of way is not thereby obstructed; but he must not build a
wall at the end of his land so as to prevent B from going beyond it,
nor must he narrow the way so as to render the exercise of the right
less easy than it was at the date of the grant.
(c) A, in
respect of his house, is entitled to an easement of support from B's
wall. B is not bound, as servient owner to keep the wall standing
and in repair. But he must not pull down or weaken the wall so as to
make it incapable of rendering the necessary support.
(d) A, in
respect of his mill, is entitled to a watercourse through B's land.
B must not drive stakes so as to obstruct the watercourse.
(e) A, in
respect of his house, is entitled to a certain quantity of light
passing over B's land. B must not plant trees so as to obstruct the
passage to A's windows of that quantity of light.
28. Extent of
easements
With respect
to the extent of easements and the mode of their enjoyment, the
following provisions shall take effect:-
Easement of necessity: An
easement of necessity is co-extensive with the necessity as it
existed when the easement was imposed.
Other easements : The extent of
any other easement and the mode of its enjoyment must be fixed with
reference to the probable intention of the parties, and the purpose
for which the right was imposed or acquired.
In the absence of evidence as to such
intention and purpose:-
(a) Right of way-A right of way
of any one kind does not include a right of way of any other
kind;
(b) Right to light or air acquired by
grant- The extent of a right to the passage of light or air to
certain window, door or other opening, imposed by a testamentary or
non-testamentary instrument, is the quantity of light or air that
entered the opening at the time the testator died or the
non-testamentary instrument was made;
(c) Prescriptive right to light or
air- The extent of a prescriptive right to the passage of light
or air to a certain window, door or other opening is that quantity
of light or air which has been accustomed to enter that opening
during the whole of the prescriptive period irrespectively of the
purposes for which it has been used;
(d) Prescriptive right to pollute air
or water- The extent of a prescriptive right to pollute air or
water is the extent of the pollution at the commencement of the
period of user on completion of which the right arose; and
(e) Other prescriptive rights-
The extent of every other prescriptive right and the mode of
its enjoyment must be determined by the accustomed user of the
right.
29. Increase of easement
The dominant owner cannot, by merely
altering or adding to the dominant heritage, substantially increase
an easement.
Where an easement has been granted or
bequeathed so that its extent shall be proportionate to the extent
of the dominant heritage, if the dominant heritage is increased by
alluvion, the easement is proportionately increased, and if the
dominant heritage is diminished by diluvion, the easement is
proportionately diminished.
Save as
aforesaid, no easement is affected by any change in the extent of
the dominant or the servient heritage.
Illustrations
(a) A, the
owner of a mill, has acquired a prescriptive right to divert to his
mill part of the water of a stream. A alters the machinery of his
mill. He cannot thereby increase his right to divert water.
(b) A has
acquired an easement to pollute a stream by carrying on a
manufacture on its banks by which a certain quantity of foul matter
is discharged into it. A extends his works and thereby increase the
quantity discharged. He is responsible to the lower riparian owners
for injury done by such increase.
(c) A, as the
owner of a farm, has a right to take for the purpose of manuring his
farm; leaves which has fallen from the trees on B's land. A buys a
field and unites it to his farm. A is not thereby entitled to take
leaves to manure this field.
30. Partition of dominant
heritage
Where a dominant heritage is divided
between two or more persons, the easement becomes annexed to each of
the shares, but not so as to increase substantially the burden on
the servient heritage:
PROVIDED that
such annexation is consistent with the terms of the instrument,
decree or revenue proceeding (if any) under which the division was
made, and in the case of prescriptive rights, with the user during
the prescriptive period.
Illustrations
(a) A house to which a right of way by a
particular path is annexed is divided into two parts, one of which
is granted to A, the other to B. Each is entitled, in respect of his
part, to a right of way by the same path.
(b) A house to which is annexed the right
of drawing water from a well to the extend of fifty buckets a day is
divided into two distinct heritages, one of which is granted to A,
the other to B. A and B are each entitled, in respect of his
heritage, to draw from the well fifty buckets a day; but the amount
drawn by both must not exceed fifty buckets a day.
(c) A, having in respect of his house an
easement of light, divides the house into three distinct heritages.
Each of these continues to have the right to have its windows
unobstructed.
31. Obstruction in case of
excessive user
In the case
of excessive user of an easement the servient owner may, without
prejudice to any other remedies to which he may be entitled,
obstruct the user, but only on the servient heritage:
PROVIDED that
such user cannot be obstructed when the obstruction would interfere
with the lawful enjoyment of the easement.
Illustration
A, having a
right to the free passage over B's land of light to four windows, 6"
x 4", increases their seize and number. It is impossible to obstruct
the passage of light to the new windows without also obstructing the
passage of light to the ancient windows. B cannot obstruct the
excessive user.
CHAPTER IV: THE DISTURBANCE OF EASEMENTS
32. Right to enjoyment with out
disturbance
The owner or
occupier of the dominant heritage is entitled to enjoyment the
easement without disturbance by any other person.
Illustration
A, as owner
of a house has a right of way over Bs land. C unlawfully enters on
B's land and obstructs A in his right of way. A may sue C for
compensation, not for the entry, but for the obstruction.
33. Suit for disturbance of
easement
The owner of
any interest in the dominant heritage, or the occupier of such
heritage, may institute a suit for compensation for the disturbance
of the easement or of any right accessory thereto:
PROVIDED that
the disturbance has actually caused substantial damage to the
plaintiff.
Explanation I : The doing of any act likely to
injure the plaintiff by affecting the evidence of the easement, or
by materially diminishing the value of the dominant heritage, is
substantial damage within the meaning of this section and section
34.
Explanation II: Where the easement disturbed is a
right to the free passage of light passing to the openings in a
house, no damage is substantial within the meaning of this section
unless it falls within the first Explanation, or interferes
materially with the 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.
Explanation III: Where the easement disturbed is a
right to the free passage of air to the opening in a house, damage
is substantial within the meaning of this section, if it interferes
materially with the physical comfort of the plaintiff, though it is
not injurious to his health.
Illustrations
(a) A places
a permanent obstruction in a path over which B, as tenant of Cs
house, has a right of way. This is substantial damage to C, for it
may affect the evidence of his reversionary right to the
easement.
(b) A, as
owner of a house, has a right to walk along one side of B's house. B
builds a verandah overhanging the way about ten feet from the
ground, and so as not to occasion any inconvenience to foot
passengers using the way. This is not substantial damage to A.
34. When cause of action arises
for removal of support
The removal of the means of support to
which a dominant owner is entitled does not give rise to a right to
recover compensation unless and until substantial damage is actually
sustained.
35. Injunction to restrain
disturbance
Subject to the provisions of the Specific
Relief Act, 1877 (1 of 1877), sections 52 to 57 (both inclusive), an
injunction may be granted to restrain the disturbance of an
easement-
(a) if the
easement is actually disturbed-then compensation for such
disturbance might be recovered under this Chapter;
(b) if the
disturbance is only threatened or intended-when the act threatened
or intended must necessarily, if performed, disturb the
easement.
36. Abatement of obstruction of
easement
Notwithstanding the provisions of section
24, the dominant owner cannot himself abate a wrongful obstruction
of an easement.
CHAPTER V: THE EXTINCTION, SUSPENSION AND REVIVAL OF
EASEMENTS
37. Extinction by dissolution of
right of servient owner
When, from a
cause which preceded the imposition of an easement, the person by
whom it was imposed ceases to have any right in the servient
heritage, the easement is extinguished.
Exception: Nothing in this section applies to an
easement lawfully imposed by a mortgagor in accordance with section
10.
Illustrations
(a) A transfers Sultanpur to B on
condition that he does not marry C. B imposes an easement on
Sultanpur. Then B marries C. Bs interest in Sultanpur ends, and
with it the easement is extinguished.
(b) A, in 1860, let Sultanpur to B for
thirty years from the date of the lease. B, it 1861 imposes an
easement on the land in favour of C, who enjoys the easement
peaceably and openly as an easement without interruption for
twenty-nine years, Bs interest in Sultanpur then ends, and with it
Cs easement.
(c) A and B, tenants of C, have permanent
transferable interests in their respective holdings. A imposes on
his holding an easement to draw water from a tank for the purpose of
irrigating Bs land. B enjoys the easement for twenty years. Then
As rent fall into arrear and his interest is sold. Bs easements is
extinguished.
(d) A mortgages Sultanpur to B, and
lawfully imposes an easement on the land in favour of C in
accordance with the provisions of section 10. The land is soled to D
in satisfaction of the mortgage debt. The easement is not thereby
extinguished.
38. Extinction by
release
An easement is extinguished when the
dominant owner releases it, expressly or impliedly, to the servient
owner.
Such release can be made only in the
circumstances and to the extent in and to which the dominant owner
can alienate the dominant heritage.
An easement may be released as to part
only of the servient heritage.
Explanation I: An easement is
impliedly released-
(a) where the
dominant owner expressly authorises an act of a permanent nature to
be done on the servient heritage, the necessary consequence of which
is to prevent his future enjoyment of the easement, and such act is
done in pursuance of such authority;
(b) where any
permanent alteration is made in the dominant heritage of such a
nature as to show that the dominant owner intended to cease to enjoy
the easement in future.
Explanation II: Mere non-user of an easement is not
an implied release within the meaning of this section.
Illustrations
(a) A, B and
C are co-owners of a house to which an easement is annexed. A,
without the consent of B and C, releases the easement. The release
is effectual only as against A and his legal representative.
(b) A grants
B an easement over As land for the beneficial enjoyment of his
house. B assigns the house to C. B then purports to release the
easement. The release is ineffectual.
(c) A, having
the right to discharge his eavesdroppings into Bs years, expressly
authorises B to build over this year to a height which will
interfere with the discharge. B builds accordingly. As easements is
extinguished to the extent of the interference.
(d) A, having
an easement of light to a window, build up that window with bricks
and mortar so as to manifest an intention to abandon the easement
permanently. The easement is impliedly released.
(e) A, having
a projecting roof by means of which he enjoys an easement to
discharge eavesdroppings on Bs land permanently alters the roof, so
as to direct the rain-water into a different channel and discharge
it on Cs land. The easement is impliedly released.
39. Extinction by
revocation
An easement is extinguished when the
servient owner, in exercise of power reserved in this behalf,
revokes the easement.
40. Extinction on expiration of
limited period or happening of dissolving condition
An easement is extinguished where it has
been imposed for a limited period, or acquired on condition that it
shall become void on the performance or non-performance of a
specified act, and the period expires or the condition is
fulfilled.
41. Extinction on termination of
necessity
An easement of necessity is extinguished
when the necessity comes to an end.
Illustration
A grants B a field inaccessible except by
passing over A's adjoining land. B, afterwards purchases a part of
that land over which he can pass to his field. The right of way over
A's land which B has acquired is extinguished.
42. Extinction of useless
easement
An easement is extinguished when it
becomes incapable of being at any time and under any circumstances
beneficial to the dominant owner.
43. Extinction by permanent
change in dominant heritage
Where by, any permanent change in the
dominant heritage, the burden on the servient heritage is materially
increased and cannot be reduced by the servient owner without
interfering with the lawful enjoyment of the easement, the easement
is extinguished unless-
(a) it was intended for the beneficial
enjoyment of the dominant heritage, to whatever extent the easement
should be used; or
(b) the injury caused to the servient
owner by the change is so slight that no reasonable person would
complain of it; or
(c) the easement is an easement of
necessity.
Nothing in this section shall be deemed
to apply to an easement entitling the dominant owner to support of
the dominant heritage.
44. Extinction on permanent
alteration of servient heritage by superior force
An easements is extinguished where the
servient heritage is by superior force so permanently altered that
dominant owner can no longer enjoy such easement:
PROVIDED that, where a way of necessity
is destroyed by superior force, the dominant owner has a right to
another way over the servient heritage; and the provisions of
section 14 apply to such way.
Illustrations
(a) A grants
to B, as the owner of a certain house, a right to fish in a river
running through As land. The river changes its course permanently
and runs through Cs land. Bs easements is extinguished.
(b) Access to
a path over which A has a right of way is permanently cut off by an
earthquake. As right is extinguished.
45. Extinction by destruction of
either heritage
An easement
is extinguished when either the dominant or the servient heritage is
completely destroyed.
Illustration
A has a right
of way over a road running along the foot of a sea-cliff. The road
is washed away by a permanent encroachment of the sea. A's easement
is extinguished.
46. Extinction by unity of
ownership
An easement
is extinguished when the same person becomes entitled to the
absolute ownership of the whole of the dominant and servient
heritages.
Illustrations
(a) A, as the
owner of a house, has a right of way over Bs field. A mortgages his
house, and B mortgages his field to C. Then C forecloses both
mortgages and becomes thereby absolute owner of both house and
field. The right of way is extinguished.
(b) The
dominant owner acquires only part of the servient heritage; the
easement is not extinguished, except in the case illustrated in
section 41.
(c) The
servient owner acquires the dominant heritage in connection with a
third person; the easement is not extinguished.
(d) The
separate owners of two separate dominant heritages jointly acquire
the heritage which is servient to the two separate heritage; the
easements are not extinguished.
(e) The joint
owners of the dominant heritage jointly acquire the servient
heritage, the easement is extinguished.
(f) A single
right of way exists over two servient heritages for the beneficial
enjoyment of single dominant heritage. The dominant owner acquires
only one of the servient heritages. The easement is not
extinguished.
(g) A has a
right of way over Bs road. B dedicates the road to the public. As
right of way is not extinguished.
47. Extinction by
non-enjoyment
A continuous easement is extinguished
when it totally ceases to be enjoyed as such for an unbroken period
of twenty years.
A discontinuous easement is extinguished
when, for a like period, it has not been enjoyed as such.
Such period
shall be reckoned, in the case of a continuous easement, from the
day on which its enjoyment was obstructed by the servient owner, or
rendered impossible by the dominant owner; and, in the case of a
discontinuous easement, from the day on which it was last enjoyed by
any person as dominant owner:
PROVIDED that
if, in the case of a discontinuous easement, the dominant owner,
within such period, registers, under the Indian Registration Act,
1877 (3 of 1877), a declaration of his intention to retain such
easement, it shall not be extinguished until a period of twenty
years has elapsed from the date of the registration.
Where an
easement can be legally enjoyed only at a certain place, or at
certain times, or between certain hours, or for a particular
purpose, its enjoyment during the said period at another place, or
at other items, or between other hours, or for another purpose, does
not prevent its extinction under this section.
The
circumstance that, during the said period no one was in possession
of the servient heritage, or that the easement could not be enjoyed,
or that a right accessory thereto was enjoyed, or that dominant
owner was not aware of its existence, or that he enjoyed it in
ignorance of his right to do so, does not prevent its extinction
under this section.
An easement
is not extinguished under this section-
(a) where the cessation is in pursuance
of a contract between the dominant and servient owners;
(b) where the dominant heritage is held
in co-ownership, and one of the co-owners enjoys the easement within
the said period; or
(c) where the easement is necessary
easement.
Where several
heritages are respectively subject to rights of way for the benefit
of a single heritage, and the ways are continuous, such rights
shall, for the purposes of this section, be deemed to be a single
easement.
Illustration
A has, as
annexed to his house, rights of way from the high road thither over
the heritages X and Z and intervening heritage Y. Before the twenty
years expire, A exercises his right of way over X. His rights of way
over Y and Z are not extinguished.
48. Extinction of accessory
rights
When an
easement is extinguished, the rights (if any) accessory thereto are
also extinguished.
Illustration
A has an
easement to draw water form Bs well. An accessory thereto, he has a
right of way over Bs land to and from the well. The easement to
draw water is extinguished under section 47. The right of way is
also extinguished.
49. Suspension of
easement
An easement
is suspended when the dominant owner become entitled to possession
of the servient heritage for a limited interest therein, or when the
servient owner becomes entitled to possession of the dominant
heritage for a limited interest therein.
50. Servient owner not entitled
to require continuance
The servient owner has no right to
require that an easement be continued; and notwithstanding the
provisions of section 26, he is not entitled to compensation for
damage caused to the servient heritage in consequence of the
extinguishment or suspension of the easement, if the dominant owner
has given to the servient owner such notice as will enable him,
without unreasonable expense, to protect the servient heritage from
such damage.
Compensation for damages caused by extinguishment or
suspension : Where such notice has not been given, the servient
owner is entitled to compensation for damage caused to the servient
heritage in consequence of such extinguishment or suspension.
Illustration
A, in
exercise of an easement, diverts to his canal the water of B's
stream. The diversion continues for many years, and during that time
the bed of the stream partly fills up. A then abandons his easement,
and restores the stream to its ancient course. B's land is
consequently flooded. B sues A for compensation for the damage
caused by the flooding. It is proved that A gave B a months notice
of his intention to abandon the easement, and that such notice was
sufficient to enable B, without unreasonable expense, to have
prevented the damage. The suit must be dismissed.
51. Revival of
easements
An easement
extinguished under section 45 revives (a) when the destroyed
heritage is, before twenty years have expired, restored by the
deposit of alluvion; (b) when the destroyed heritage is a servient
building and before twenty years have expired such building is
rebuilt upon the same site; and (c) when the destroyed heritage is a
dominate building and before twenty years have expired such building
is rebuilt upon the same site and in such a manner as not to impose
a greater burden on the servient heritage.
An easement
extinguished under section 46 revives when the grant or bequest by
which the unity of ownership was produced is set aside by the decree
of a competent court. A necessary easement extinguished under the
same section revives when the unity of ownership ceases from any
other cause.
A suspended
easement revives if the cause of suspension is removed before the
right is extinguished under section 47.
Illustration
A, as the absolute owner of field Y, has
a right of way thither over B's field Z. A obtains from B a lease of
Z for twenty years. The easement is suspended so long as A remains
lessee of Z. But when A assigns the lease to C, or surrenders it to
B, right of way revives.
CHAPTER VI: LICENCES
52. "Licence" defined
Where one person grants to another, or to
a definite number of other persons, a right to do, or continue to
do, in or upon the immovable property of the grantor, something
which would, in the absence of such right, be unlawful, and such
right does not amount to an easement or an interest in the property,
the right is called a licence.
53. Who may grant
licence
A licence may be granted by anyone in the
circumstances and to the extent in and to which he may transfer his
interests in the property affected by the licence.
54. Grant may be express or
implied
The grant of
a licence may be express or implied from the conduct of the grantor,
and an agreement which purports to create an easement, but is
ineffectual for that purpose, may operate to create a licence.
55.Accessory licences annexed by
law
All licences
necessary for the enjoyment of any interest, or the exercise of any
right, are implied in the constitution of such interest or right.
Such licences are called accessory licences.
Illustration
A sells the trees growing in his land to
B. B is entitled to go on the land and take away the trees.
56. Licence when
transferable
Unless a different intention is expressed
or necessarily implied, licence to attend a place of public
entertainment may be transferred by the licensee; but, save as
aforesaid, a licence cannot be transferred by the licensee or
exercised by his servient or agents.
Illustrations
(a) A grants
B a right to walk over A's field whenever he pleases. The right is
not annexed to any immovable property of B. The right cannot be
transferred.
(b) The
government grants B a licence to erect and use temporary grain-sheds
on government land. In the absence of express provision to the
contrary, B's servants may enter on the land for the purpose of
erecting sheds, erect the same, deposit grain therein and remove
grain therefrom.
57. Grantors duty to disclose
defects
The grantor
of a licence is bound to disclose to the licensee any defect in the
property affected by the licence, likely to be dangerous to the
person or property of the licensee, of which the grantor is, and the
licensee is not, aware.
58. Grantors duty not to render
property unsafe
The grantor of a licence is bound not to
do anything likely to render the property affected by the licence
dangerous to the person or property of the licence.
59. Grantors transferee not
bound by licence
When the
grantor of the licence transfers the property affected thereby, the
transferee is not as such bound by the licence.
60. Licence when
revocable
A licence may be revoked by the grantor,
unless-
(a) it is
coupled with a transfer of property and such transfer is in
force;
(b) the
licensee, acting upon the licence, has executed a work of a
permanent character and incurred expenses in the execution.
61. Revocation express or implied
The
revocation of a Licence may be express or implied.
Illustrations
(a) A, the owner of a field, grants a
licence to B, to use a path across it. A with intent to revoke the
licence, locks a gate across the path. The licence is revoked.
(b) A, the owner of a field, grants a
licence to B to stack hay on the field. A lets or sells the field to
C. The licence is revoked.
62. Licence when deemed
revoked
A licence is deemed to be revoked-
(a) when, from a cause preceding the
grant of it, the grantor ceases to have any interest in the property
affected by the licence;
(b) when the licensee releases it,
expressly or impliedly, to the grantor or his representative;
(c) where it has been granted for a
limited period, or acquired on condition that it shall become void
on the performance or non-performance of a specified act, and the
period expires, or the conditions is fulfilled;
(d) where the property affected by the
licence is destroyed or by superior force so permanently altered
that the licensee can no longer exercise his right;
(e) where the Licensee becomes entitled
to the absolute ownership of the property affected by the
licence;
(f) where the licence is granted for a
specified purpose and the purpose is attained or abandoned, or
becomes impracticable;
(g) where the licence is granted to the
licensee as holding a particular office, employment or character,
and such office, employment or character ceases to exist;
(h) where the licence totally ceases to
be used as such for an unbroken period of twenty years, and such
cessation is not in pursuance of a contract between the grantor and
the licensee;
(i) in the case of an accessory licence,
when the interest or right to which it is accessory ceases to
exist.
63. Licensees rights on
revocation
Where a
licence is revoked, the licensee is entitled to a reasonable time to
leave the property affected thereby and to remove any goods which he
has been allowed to place on such property.
64. Licensees rights on
eviction
Where a
licence has been granted for a consideration, and the licensee,
without any fault of his own, is evicted by the grantor before he
has fully enjoyed, under the licence, the right for which he
contracted, he is entitled to recover compensation from the
grantors.