Easements Law
Frequently Asked Questions on Easements LawQ. 1 Discuss the Origin of right of easement. Trace the History of Legislation of Easement in India.
Ans. Origin of Right of Easement
Origin and History of right of easement can be traced from early days of man- kind, when people started living together and started acknowledging the respective rights of every one in immoveable property, as right of easement is a necessary consequence of right of ownership of immoveable property. So with the growth of civilization, right of easement had started emerging as necessary consequence and later took shape of well-recognized statutory right. The existence of two houses adjoining to each other necessitates the exercise of right of easement for ensuring beneficial enjoyment of both the houses. Origin and necessity of right of easement can well be understood from abstract of proceedings of the Council of Governor-General of India dt. Feb. 16, 1882.
"The right of easement is a right as old as the day when the human race first emerging from barbarism, adopted the custom of living together in towns or living as each other's neighbours or respecting each other's rights. The right of the easement is the necessary consequence of the right of ownership of immovable property; and as soon as mankind arrived at determination that individuals were to be allowed exclusive ownership of property, the very next step was concurrence in the equitable principle, that the good of the public lay in enjoying one's property so as not to disturb the enjoyment by the neighbour of his own property. And this salutary principle appears to be the original foundation on which easements are based".
History of Legislation On Right of Easement Even before British era, right of easement was recognized in one way or other. During old and Medieval History of India, right of easement was recognized in the form of common street, right about drains, well, flow of water or Right of window etc. With the advent of British rule in India, this branch of law developed by application of English principles. In presidency towns, Higher Courts by virtue of provisions contained in charter used to apply and acknowledge easementary rights in appropriate cases. The first enactment in India which expressly recognized easement right was Limitation Act of 1871 which was later superseded by Act of 1877. These Acts enable a man to acquire a title who had no other right at all but did not exclude the mode of acquiring easementory rights. But these acts were merely prescriptive as far as their application to right of easement is concerned. With the passage of time and growth of civilization there was pressing need to have independent enactment on right of easement which defines the right and makes provisions of its application. Indian Easement Act was enacted in 1882 defining and clarifying the law relating to Easements and licences. The present Easement Act was therefore enactment to make certain what was formerly vague and to cure what was defective and to give shape and form to multifarious rules constituting the law of easement. It however does not repeal the old law, it only repeals Sections 26 and 27 of Limitation Act of 1877.
Ans. The Indian Easement Act 1882 is a Complete Code in itself in the territories to which this Act applies. Act define and regulate the easement rights in all aspects so that every one enjoy common easementory rights and there should be least controversy in this regard. Though the Act is complete in itself yet it is not exhaustive. It is supplemented by following:-
(A) Transfer of Property Act 1872 - regarding transfer of easements
(B) Criminal procedure Code regarding procedure in disputes concerning easements.
(C) Limitation Act 1908, regarding right of easement by prescription u/s 25 of Act.
The Act is a Complete and self contained code on the subject of easement AIR 1917 Cal. 681. It was also observed that where the Act is not in force, principles of English law as embodying the principles of equity, justice and good conscience are to be applied (See : AIR 1944 Lahore 417 (418) Punjab) Right of the Government to regulate the flow of water. - Section 2(a) provides that the Indian Easements Act will not affect 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. In other words, this section saves from the operation of the Act rights of the Government to regulates, collect and distribute water in natural and artificial water courses, lakes and ponds. The Government may distribute water and also conserve it for public good wherever necessary. It may construct works of irrigation and also maintain old ones according to the needs and circumstances of the country. In --------------------AIR 1987 A.P. 6 (DB), it was observed that the overriding powers of States to regulate streams and rivers are not taken away by this Act, however the State while regulating the water source cannot defeat customary supply of water based on either prescription or natural right. So regulation and distribution of water is sovereign power of State. Any question under Easement Act, if arises has to be examined on collection of evidence and investigation of facts and conclusion drawn thereon with reference to the factual matrix and which can only be decided in a suit and not by writ petition [I.L.R. (1992) Kant. 2529].
Ans. Definition of Easement. - An "Easement" has been defined in Section 4 of the Indian Easement Act, as follows :
"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."
Characteristics of Rights of Easement 1. It is Incorporeal - An Easement is an incorporial thing whereas the land upon which it is imposed is a corporial thing. Easements have been described as "rather a fringe to property than property itself and are not capable in an exact sense of being possessed." 2. The right of easement is a right attached to the ownership of land. The words "as such" used in Section 4 are significant in this connection. They connote that the right of easement is a right enjoyed by a person in his capacity as owner or occupier of certain land. An easement does not exist in gross or independently of the ownership or occupation of some land. If one has no land, he may have only a personal right called a right in gross but not an easement right. The rights which a person holds independently of his being the owner or occupier of some land do not constitute easements. An easement is attached to the land for the beneficial enjoyment which it is created and runs with it. It is not the personal right of the owner or occupier of land to which it is annexed. One who is not the owner of the dominant heritage nor is in occupation thereof cannot exercise the right of easement. In --------------------AIR 1981 Pat. 133, it was observed that An Easement is always appurtenant to dominant land and inseparably attached to it and cannot be severed from it. There can be no easement without dominant tenement and a servient tenement. Similarly in AIR 1955 A.P. 199 it was observed that an easement is a right or interest in immoveable property. Its benefits and burdens passes to every person into whose occupation the dominant and servient tenements respectively come. 3. The Right of easement necessarily contemplates two species of land. One is for beneficial enjoyment of which the right of privilege exists and the other on which the liability is imposed. The formers is called "dominant heritage" and the latter "servient heritage". As regards the owner of the dominant heritage, an easement involves an enhancement of his ordinary rights and as regards the owner of "servient heritage" it involves a corresponding diminution in his ordinary eights. These terms have been defined in Section 4 of the Easements Act, as follows The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Dominant heritage and dominant owner. - The land for the beneficial enjoyment of which a right of Easement exists is called dominant heritage and the owner or occupier thereof the dominant owner. There can be no easement in gross and the foundation of Easements is dominant heritage or tenement as it is known in English Law. A public road or highway is never a right of Easement. The easement is a privilege of Dominant owner or occupier. The public community or a section of the public or section of a community can have no right of Easement. Easement is always appurtenant to the dominant tenement and is inseparably attached to it and cannot be severed from it and made a right in gross. Servient heritage and servient owner. - The land upon which the liability of an easement is imposed is called servient heritage or servient tenement and the owner thereof servient owner. It must be land or other corporeal property but it can in no case, be incorporeal hereditaments though in English Law, it is possible in certain cases. However no personal obligation is imposed on the servient owner. Servient owner cannot insist for the continuance of Easements as they are meant only for Dominant owner. Right of easement exists only for the beneficial enjoyment of dominant tenement. It is not something apart from the dominant tenement and that is why Section 6 of Transfer of Property Act provides that the right of easement cannot be transferred apart from dominant tenement. In -----------------AIR 1988 Kerala 298 it was observed that characteristics essential to an easement are that there must be a dominant and servient tenement, easement must accommodate the dominant tenement the right of easement must be possessed for beneficial enjoyment of dominant tenement, dominant and Servient owners must be different persons. The right should entitle the dominant owner 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 which must be of a well defined character and be capable of forming the subject matter of grant.
Ans. "Profit a prendre" defined. - `Profit a prendre' is an expression of the English law. It is nowhere used in the Indian Easement Act. It connotes a right by which one person is entitled "to remove" and appropriate for his own use any part of the soil belonging to another person, or anything growing in or attached to or subsisting upon his land for the sake of the profit to be gained from the property thereby acquired in the thing removed. For instance, the right to take fish out of another's tank or timber out of another's forest or the right to gaze cattle on another's land are `profits a prendre'.
The explanation to Section 4 of the Act says that the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage of any part of the soil of the servient heritage or anything growing or subsisting thereon. "It means that under the Indian Easements Act the right of easement includes `profits-a- prendre'. For instance, if A, as owner of a certain house, has right to graze a number of cattle on B's land, or to take for the purpose of being used in his house fish out of B's tank or timber out of B's grove these are `profits-a-prendre' and are included within the definition of easementary right under the Act.
It should be noted, however, that rights in gross are not to be considered as easements. An easement even when it is of the nature of a `profit-a-prendre' must be appurtenant to a dominant tenement. In the above illustration if a person has a right to graze cattle irrespective of being owner of any house he cannot be said to have acquired a right of easement but has only a right in gross.
Distinction Between Easement and Profit a Prendre
(i) An easement confers merely a convenience to be exercised over the neighbouring land without any participation in the profit of it. If accompanied with participation in the profits of neighbouring soil, they are known as profit-a-prendre. But in India Easement includes profit-a-prendre.
(ii) Easement only confers a right to utilise the servient tenement in a particular manner or to prevent the commission of some act on that tenement, the profit-a-prendre confers a right to take from the servient tenement, some part of the soil of that tenement or some part of its natural produce or the "animals female naturale" existing upon it.
(iii) An Easement can never convey an interest in land. But a profit-a- prendre which gives a right to take away a portion or the produce, of another's soil, may be said, to that extent, to be an interest in land or a possessory right.
(iv) The profit-a-prendre considered as a right, is an incorporeal hereditament equally with an easement but considered as a tangible thing taken from the soil is a corporeal thing.
(v) Profit-a-prendre cannot be claimed by virtue of custom whereas an easement can be claimed by custom.
(vi) Profit-a-prendre are analogous to easements in the sense of being associated with two tenements.
Ans. An Easement and a Licence. - (i) An easement is a right appertaining to property while a licence is only a personal right.
(ii) An easement is a right against individual but known to whole world. It is enforceable by all against all into whose hands the servient and dominant properties go. License is only personal and known to individual only.
(iii) An easement can be assigned with the property to which it is annexed, but a licence cannot be assigned at all except where it is licence to attend a place of public entertainment.
(iv) An easement is not revocable at will of the grantor while a licence is so revocable.
(v) A licence is permission traceable to a grant from the licensor whereas easement is acquired by assertive enjoyment or negative enjoyment, grant or statute.
(vi) An easement may be positive or negative in character. A licence is invariably of positive character. It is never negative.
II. Easements and Customary Rights. - The Indian Easement Act does not deal with Customary rights. The following differences however may be noted :-
(1) A custom may be good though its exercise may have the effect of depriving the owner of the soil of the whole and enjoyment of his property. Right of Easement must not tend to the total deprivation of the rights of the servient owner.
(2) Where an easement claimed is not a customary right, it needs not to be reasonable whereas the custom must always be reasonable.
(3) An Easement, which cannot be prevented, cannot be acquired by prescription. There is no such rule regarding the acquisition of a customary right.
(4) One who relies on custom, must prove that it was ancient, continuous, peaceable, reasonable, certain, compulsorily observed, consistent with other customs and not inconsistent with statute. A customary right's origin is generally to common consent and when fully developed, may be treated as incorporated into a contract by implication. It is not always so with Easements.
III. Easements and Natural Rights. - The following distinctions are significant :-(i) Natural rights are inherent in land but Easements are created at the will of the owner of the land over which they are to be used. (Goddard on Easements 7th Edition, p. 33).
(ii) Natural rights are certain incidents and advantage which are provided by Nature for the use and enjoyment of a man's property. (Peacock on Easement 2nd Edition p. 24). They are capable of separate existence and can be disposed of separately whereas easements cannot be so dealt with.
(iii) Natural rights are rights in rem, that is, enforceable against all who may violate them. The remedy is an action for trespass whereas infringement of easement is nuisance.
(iv) Easements rights are taken from the ownership of one man and are added to ownership of another. Natural lights are themselves part of the complete rights of ownership, they belong to the ordinary incidents of property and are ipso facto enforceable in law.
(v) Easements are only to be created and conferred by the act of man whereas natural rights are incidents of land.
In -----------------AIR 1967 A.P. 81 it was observed `Easement are distinct from Natural rights. Natural rights are those rights which constitute the ordinary incidents of a property and wherein a person by virtue of his ownership of that property while easement denotes right acquired by another person having the effect of restricting these natural rights of owner or property.
Ans. (a) According to Section 5 "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........."
Distinction between continuous and discontinuous easements. - An easement is a right either (1) to do or continue to do something or (2) to prevent or continue to prevent something being done, on servient heritage. The former right requires an act of man for its enjoyment and is, therefore, discontinuous. The latter right consists in merely preventing something being done upon the servient heritage for example an obstruction to light or air received there, and does not require any act of man for the enjoyment of the right. It is, therefore, a continuous easement.
A right is annexed to B's house to receive light by the windows without obstruction by his neighbour A. This is a continuous easement. The reason is that its enjoyment is continued without the act of a man. A drain is also a continuous easement. So is the right of person to an uninterrupted flow of a permanent artificial stream to his land.
A right of way however is discontinuous easement for it needs the act of man for its enjoyment.
Ans. (b) Distinction Between Apparent and Non-apparent Easement - According to Section 5 of the Indian Easement Act "......an apparent easement is one the existence of which is shown by some permanent sign which upon careful inspection by competent person, would be visible to him."
"A non-apparent easement is one that has no such sign."
So an easement is apparent where its existence is shown by some external permanent mark or sign on servient heritage which is either visible to every one or to one who cases to look to it. A non-apparent easement is one which has no such signs. A right annexed to `A's house to prevent `B' from building on his own land is a non-apparent easement. But doors, windows, sky lights, drains are apparent easement.
Ans. Section 7 of the Indian Easements Act reads as under -
Easement restrictive of certain rights. - Easements are restrictions of one or other of the following rights (namely) -
(a) Exclusive rights 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 thereof and accession 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.
Explanation - Land is in its natural condition 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. Explanation - A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or under ground, which flows by the operation of nature only and in a natural and known course. [Section 7] Right of ownership consists of bundle of minor or fragmentary rights each right capable of separate enjoyment. The owner's absoluteness in his property consists in his power to dispose of as he please any of these fragmentary rights. Easementary rights consists of (sic) of possession or enjoyment. These rights are carved out of the right of ownership by a restrictive process and are restrictions on the owner's power of full use and enjoyment. In -----------------------AIR 1957 M.P. 44, it was observed that an easement right is curved out in favour of a dominant heritage and is imposed on servient heritage. In every case right is exercised qua owner or occupier of dominant heritage and falls as a burden on the owner or occupier of servient heritage.
Ans. Riparian Owners :- "Riparian" suggests water or river running between the banks be it saltry or fresh; and "Riparian Owners" are owners of land on the bank of a river or a stream.
The rights of the riparian owners are statutorily reconised under Section 7(b) of the Easements Act, of 1882 read with Illustration (i) to the said section. It is also necessary to note the Explanation to Section 7 which defines natural stream which is in the following terms :
"7 (a) ...........
(b) 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"
(i) The right of every owner of land abutting a natural stream, lake and 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 manufacture situate thereon : provided that he does not thereby cause material injury to other like owners. Explanation. - A natural stream is stream, whether permanent or intermitent, 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." Natural Rights of a Riparian Owner. - The following are some of the natural rights of a riparian owner. They are the same as in England :-(i) by the general law applicable to running streams every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land, for instance the reasonable use of water for his domestic purposes and for his cattle. But further he has a right to use water for any other purposes provided he does not thereby interfere with the rights of other proprietors whether above or below him. Subject to this condition he may dam up the stream for the purposes of his mill or divert the water for the purposes of irrigation. This is the natural right. But he has no right to interrupt the regular flow of the stream which can be acquired only as an easement.
The right of the riparian owner is confined only to the usufruct of the stream which passes through a riparian owner's land. He has no property in the water itself, but he has simply the right to use it.
(ii) Every riparian owner of land has a natural right 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. He has a similar right in respect of water of lake or pond abutting his land into or out of which natural stream follows.
(iii) Every riparian owner can insist that the water coming to him should not be polluted or rendered unfit for his domestic use or injurious to his land or cattle.
In -------------------------------AIR 1954 Pat. 320 (DB) it was observed that every riparian owner of natural stream has a natural right as an incident to the ownership of the soil abutting on the stream, to the benefit and advantage of the water flowing past his land subject however to limitation of not interfering ever to the limitation of not interfering with the quality or quantity of water of stream to which the lower riparian properietors are entitled under similar rights.
Ans. Imposition of Easement : Sections 8 to 11 of Easement Act deal with the imposition of Easement. The word "impose" in sections of Chapter-II of the Act means the creation of an easement by a voluntary act of the owners or lessee or of any other person having power to transfer an interest in the servient tenement.
According to Section 8 of Easement Act "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 heritage on which the liability is to be imposed."
So section 8 of Act permits the servient owner to impose an easement on his own property.
Then Section 9 of Easement Act says :-
"Subject to 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 without consent of the dominant owner impose an easement on the servient heritage which would lessen such utility.
A has, in respect of his house, a right of way over B' Land. B may grant to C, as the owner of a neighbouring farm, the rights to feed his cattle on the grass growing on the way. Provided that A's right to way is not thereby obstructed.
Then Section 10 of Act says "Subject to 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." Section 11 says "No lessee or other person having derivative interest may impose on the property held by him as such an easement to take effect after expiration of his own interest, or in derogation of the right of the lessor or the superior proprietor.
So law does not prevent a tenant, from granting easement by express or implied grant commensurate with the extent of his interest.
Ans. Acquisition of Easement - According to Section 12 of the Act -
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 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. [Section 12]
In ----------------------AIR 1987 Raj. 169, it was observed that An easement can be acquired by the owner of immoveable property for the beneficial enjoyment of a right by any person in possession of the same. The incidence of easement and that of lost grant are almost the same. Right of easement is also created by grant and grant of such use may be presumed from long use or possession although actual transaction of making such grant could not be discovered.
As easement may be acquired by the owner of immovable property for the beneficial enjoyment of which the right is created, or on his behalf by any person in possession of the same [Nihal Chand v. Mst. Bhagwan Dei, A.I.R. 1934 All. 527]. Such an easement shall not, however, be personal to him. If the physical acts of the dominant owner are of such a nature as to entitle him to acquire the right of easement, he is entitled to that right notwithstanding the fact that he was doing those acts under the belief that he was the owner of the servient heritage. But, it would be otherwise if he had actually asserted and claimed ownership in an earlier litigation. [Shivpyari v. Mst. Sardari, A.I.R. 1966 Raj. 265].
Acquisition of easement by a tenant against his landlord - Tenant can acquire an easement over the adjoining land belonging to his landlord for beneficial enjoyment of other immovable property not his own but belonging to some one else which also he happens to occupy for the time being as a tenant. [A.I.R. 1939 All. 339].
A tenant cannot acquire an easement by prescription against his landlord. The reason of this rule is explained by CHIRNS. L.J. in Goyford v. Muffat in the following words :
"The possession of the tenant of the demised close land is in the possession of his landlord; and it seems to be an utter violation of the first principle of the relation of landlord and tenant to suppose that the tenant, whose occupation of the close A was the occupation of his landlord, could, by that occupation acquire as easement over close B also belonging to his landlord."
Ans. Easement of Necessity - Section 13 of Indian Easement Act says-
Where one person transfer 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 legatee 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 been entitled to such easement; or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easement mentioned in Clauses (a)(c) and (e) of this section 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." In ----------------AIR 1984 Orissa 97 it was observed that Easement of necessity is one which the law creates according to doctrine of implied grant in a particular case and is one without which the dominant tenement can not be used at all. Easement of necessity arises only where by a transfer, bequest or partition, single tenement is divided into distinct and separate tenements and any of the tenement is so situated that it cannot be used at all without enjoying an easement over the other such tenement or tenements. Where one property is served from another property either in possession or ownership, or in both by transfer, bequest, or partition or by operation of law and these two are so relatively situated that once cannot be enjoyed without exercise of a particular privilege in or upon or in respect of the other, such privilege is called the easement of necessity. An easement of necessity is an easement which under particular circumstances the law creates by nature of the doctrine of implied grant to meet the necessity of a particular case. It is an easement which is not merely necessary for a reasonable enjoyment of the dominant tenement, but one without which the tenement cannot be used at all. Convenience is not the test of easement of necessity. An easement of necessity can be claimed only when there is absolute necessity for it. Thus a man cannot acquire an easement of necessity, if he has any other means of access to his land however inconvenient it may be, than by passing over his neighbour's soil. Easements of quasi Necessity : The clauses (b), (d) and (f) of Section 13 deal with what are called quasi- easements. These are not exactly easementary rights but are only modes of enjoyment of property which bear resemblance to easementary rights in several characteristics. Strictly speaking these rights are easements before severance because both parts are before severance under common ownership. The modes of enjoyment themselves are converted into easement rights. Examples of Easement of Quasi Necessity :(i) Right of irrigation,
(ii) Rights of lights and air,
(iii) Right of path, way and drainage when they are apparent and continuous.
Easement of Necessity and quasi-Necessity Compared : 1. The easement of necessity is the easement without which the concerned property cannot be used and enjoyed at all. But the quasi easement is that without which the reasonable, comfortable and more convenient use of the property would not be possible. 2. The easement of necessity presupposes the vesting of ownership of two tenements originally in one and the same person and the severance of such ownership. Prior joint ownership and unity of ownership are essential. In easements of quasi-necessity the use does not start after severance, but has so continued even beforehand. The severance allows it to continue on the ground that it is reasonable to do so. 3. In easement of necessity, the cause is absolute necessity whereas in easement of quasi-necessity it is only qualified necessity. 4. The easement of quasi-necessity depends upon whether it is apparent, continuous and more convenient or reasonable. But in the easement of necessity, nothing is required to be proved. The easements of necessity can be claimed even if easements are non-apparent or discontinuous. But easements of quasi-necessity cannot be so claimed.
Ans. Acquisition of Easement by Prescription. - Section 15 of the Easements Act, provides that where the access and use of light or air to 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 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 contested.
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 there is an 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.
Explanation III. - Suspension 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 the Government, this section shall be read as if, for the words "Twenty Years" "Sixty Years" were substituted.
Section 15 has been divided into three parts :
Part one, deals with the right to the access and use of light or air to and for any building.
Part two, deals with right of support.
Part three, deals with general things including right of way.
Conditions Necessary for Acquisition of Prescriptive Easement -(i) The right claimed must be certain and must be against specific individual.
(ii) Enjoyed independently.
(iii) Without any agreement with owner of servient land or must be non-permissive. It is always hostile and as such resembles in some respects to claim of ownership by adverse possession.
(iv) Enjoyment must have been :
(a) peaceful or Nec vi (without violence),
(b) Open or Nec clam (without stealth),
(c) As of right, or nec precario (without permission),
(d) As an easement,
(e) Without interruption,
(f) For twenty years or sixty years (If Government Estate).
The easement of light and support and air need not to have been enjoyed openly and as matter of right but regarding other easementary rights, these are necessary elements. In ---------------------AIR 1971 SC 1878 it was observed that to establish prescriptive acquisition of right one must prove that he was exercising that right on a property treating it as some one elses'. In ---------------------AIR 1986 Kerala 75(79), it was observed in order that an easement can become absolute by prescription there must be pre-existing easement which must have been enjoyed by the dominant owner the enjoyment must be peaceful, which must have been as an easement as of right the right must have been openly enjoyed for 20 years without interruption.
Ans. The following are the conditions for acquisition of easement rights by prescription -
(1) The right to possess by the owner or occupier of dominant heritage against the servient heritage. There should be two different pieces of land owned by two different persons for the existent of an easementary right.
(2) The right of way and other varieties can be acquired if -
(a) they have been enjoyed -
(b) as an easement;
(c) for 20 years; or 30 years (if the right is claimed against the Government);
(d) without interruption by a person claiming title to them;
(e) openly;
(f) peaceably; and
(g) as of right;
Easement rights of light, air and support can be acquired, if they have been peaceably enjoyed, without interruption as an easement for twenty years. The right of light, air and support need not be enjoyed either openly or as of right or by a person claiming title thereto. Such easement can be acquired by peaceable enjoyment without its enjoyment as of right for a prescribed period. According to Section 17 of Indian Easements Act none of the following rights can be acquired :(a) a right which would tend to total description of the subject of the right, or the property on which, if the acquisition was 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 under ground water not passing in a defined channel.
In Het Singh and others v. Aman Singh and others (AIR 1982 All. 968) it has been held that under Section 17(a) a right to underground water not passing in a defined channel cannot be acquired by prescription under Section 15. A right to draw water from a well is a right to underground water. Therefore, the right to irrigate field from the well situate in another's land cannot be acquired as an easementary right by prescription. The right of easement by prescription cannot become absolute unless the right has been contested in a suit. Thus a suit for mere injunction is not maintainable when the suit is based on alleged prescriptive right without a prayer for declaration that the plaintiff acquired such prescriptive right [Dr. Ramanatha Gupta v. S. Razaack (AIR 1982 Karn. 314)].
Ans. Customary Easement :- Section 18 of the Indian Easement Act, defines customary easement. It lays down - "An easement may be acquired by virtue of a local custom, such easements are called customary easements. Though custom and easement are rights of a totally different kind there undoubtedly can be a custom in a locality under and by virtue of which an individual may become entitled to an easement in respect of his estate situated in a `locality', to which the custom belongs. The special feature of these easements is that custom affects an individual not as such but only as a member of some community and it is a usage annexed to a locality.
A customary easement originates in a valid custom and a custom to be valid must have four essential attributes. It must be (1) immemorial, (2) reasonable, (3) certain and (4) it must have continued without interruption since its immemorial origin.
Immemorial. - A custom to be valid must be ancient. But it does not mean that its antiqity, must, in every case, be carried back to a period beyond the memory of men. It will depend upon the circumstances of each case as to what antiquity must be established before the custom can be accepted. It must be proved for the establishment of a custom that taking the governing rule of the particular district into consideration it has been in practice since long. It would create great perplexity if in every case the antiquity of a custom must be carried back to a period which is beyond the memory of man. The statute of Indian Law does not prescribe any period of enjoyment of proving a valid custom.
Reasonable. - Reasonableness of a custom should be seen with regard to its inception. If a custom is unreasonable at its inception, no usage or continuance can make it good. The reasonableness of a custom must not be judged by the reason of an unlearned man, but by artificial legal reasons warranted by authority of law.
Certain. - The custom must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain, and the porsons whom it is alleged to affect.
Distinction between customary easement and customary rights. - Customary easement and customary right have both their origin in custom and to that extent they are similar in nature. A customary right is a public right belonging to no particular individual but to all those who inhabit a particular locality or belong to a class of persons entitled to the benefit which is not appurtenant to any land. An easement is not a public right. It is a private right belonging to some particular individual or individuals in respect of his or their land. For example, a right to burn Holi or to have horse races on another's land is a customary right because such a right belongs to the public of a certain place and not to any particular individual, moreover it is not annexed to a land. On the other hand, a customary easement, for instance, as easement of privacy, though based on custom is not a customary right as every owner of a house in a particular locality has a right, in respect of his house, that his neighbour shall, by opening new windows, not invade his privacy and the right is his private right not shared with others.
Ans. (A) Right of Privacy. - The phrase `right of privacy' is used in the Indian Case Law to refer to the right which an owner of a house may have under local custom to the seclusion of his inner apartments from the view of his neighbour.
The right of privacy is a customary easement and may be acquired by virtue of a local custom under Section 18 of the Easements Act. The Law on the subject has been laid down in this way in English Law "with regard to the question of privacy, no doubt, the owner of a house would prefer that a neighbour should not have right of looking to his windows or yards, but neither this court nor a court of law, will interfere on the mere ground of invasion of privacy; and a party has a right even to open new windows, although he is thereby enabled to overlook his neighbour's premises, and to interfere perhaps with his comfort". The same is the law in India except in the provinces where a right of privacy exists by custom. The right of privacy does not arise from prescription, but is a creation of custom.
In -----------------------AIR 1988 SC 2024 it was observed right of privacy was neither pleaded nor proved, if one party opens window it is equally open to another party to block them by raising walls. No natural right to privacy inheres in owner of property which would extend to his obstructing a window opened in his neighbour's buildings.
(B) (i) Under Section 18 of the Easements Act such an easement of privacy can be acquired by virtue of a local custom. In India there is a difference in respect of this right in different parts of India. In U.P., Gujarat, Bombay, the Punjab and not in Madras where the purdah system is observed the right in respect of apartments where ladies reside can only be claimed. In the above case the house or portion of a house which is not meant to be occupied by females and consequently is not ordinarily excluded from observation will not be protected, e.g., a sitting room.
(ii) A right of privacy is a right which attaches to the property and is not dependant on the religion of the owner. (Abdul Rahman v. D. Emile, 16 I.A. 49). So if there was a right of privacy in the house even a Christian lady who does not observe purdah can claim it.
(iii) It depends on the circumstances of each case. Where the defendants opened certain apertures towards the plaintiff's house which was already overlooked by defendants' house in several places it was held that there was substantial and material invasion of the right of privacy as the apertures would permit a person to look on without being observed which would be guarded against from an open space. (29 All.852 Supra).
(iv) The existence of a lane in between would not destroy the right of privacy. In order to establish the right of privacy, it does not matter whether the house in question are on the same side of street or the opposite side of it. So the right of privacy can be claimed in respect of a house separated from the other by a narrow public lane.
Ans. Transfer of Dominant Heritage Passes Easement - As per Section 19 of Indian Easement Act where the dominant heritage is transferred or devolves by acts of parties or by operation of law the transfer or devolution shall, unless contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place.
Ans. Sections 21 to 31 of the Indian Easements Act deal with the incidents of easements. The sections are reproduced below-
Bar to use unconnected with enjoyment - An easement must not be used for any purpose not connected with the enjoyment of the dominant heritage. [Section 21]
Illustrations
(a) A, as owner of a farm has a right of way over B's land to Y. Lying 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, 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 that the house is kept in repair.
Exercise of easement-Confinement of exercise of easement - The dominant owner must exercise his right in the mode which is least one route 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 servent heritage, such exercise shall, at the request of the servient owner, be so confined. [Section 22]
(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 B's swamp. A when exercising his easement, must cut the grass so that the plants may not be destroyed.
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 enjoyment of 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. [Section 23]
It can easily be inferred from reading of sections 23 and 45 of the Indian Easement Act that the enjoyment of the easement can be extinguished only when the position of the place where the easement is enjoyed, is permanently altered in a manner so as to impose an extra burden on the service heritage. [Chaturbhuj v. Ramjeevan, A.I.R. 1976 Raj. 164].
Right to do acts, to secure enjoyment - The dominant owner entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such act 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. [Section 24]
Accessory Right - Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.
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 drainage 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 adopt to the new sewer, provided that he does not thereby impose any additional burden on B's land.
Liability For Expenses Necessary For Preservation of Easement :- The expenses incurred in constructing works or making repairs or doing another act necessary for the use or preservation of an easement, must be defrayed by the dominant owner. (Section 25)
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 render its exercise less convenient. (Section 27)
Extent of easement - 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 easement - 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 purposes 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 kind does not include a right of any other kind;
(b) Right to the light or air acquired by grant - The extent of right to the passage of light or air to a 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 certain windows, door or other opening is that quantity of light of air which has been accustomed to enter that opening during the whole of the prescriptive period irrespective of the purposes for which it has been used.
(d) Prescriptive right to pollute air and water - The extent of prescriptive right to pollute air or water is the extent of pollution at the commencement of the period of user on completion of which the right arose; and
(e) Other prescriptive right - The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right. [Section 28]
Sections 22, 24 and 28 seem to embody the rule that while the claimant of the easementary right should have a full protection in the enjoyment of his right; there should be an adjustment with the rights of the servient owner also so that the least inconvenience be caused to the latter. [Ram Narain v. Gangadhar, A.I.R. 1975 All. 259]. Increase of easements - 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. [Section 29] Partition of Dominant Heritage :- Section 30 of the Act says that 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 of the servient heritage. Provided that such annexation is consistent with the terms of the instrument, decree or revenue proceedings (if any) under which the division was made and in case of prescriptive rights with the user during the prescriptive period. Obstruction in case of Excessive User :- Section 31 says in 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 otherwise when obstruction would interfere with the lawful enjoyment.
Ans. Section 28 lays down the rules to determine, in case of dispute, the extent and mode of enjoyment of easements claimed. It is divided into two parts : one dealing with easement of necessity and the other dealing with all the other classes of easements.
(1) Easement of necessity. - An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed. The extent of an easement of necessity will be determined by the necessity as it existed at the time or the severance of the tenements, e.g., when the easement of necessity arose. For example, an owner of a house and a factory on adjoining land sold the land and factory to another person on 1st January, 1920, and a certain quantity of smoke necessarily polluted the air coming to the vendor's house. Two years later, the purchaser extended his factory work and a much larger quantity of smoke polluted the air. The vendor objected. To decide the dispute it will be seen what was the volume of smoke issuing out of the factory on 1st January, 1920, when the easement of necessity was created, and if there was any addition to it at the time of dispute and additional volume would not be allowed.
(2) The extent of all other easements shall be determined :-
(a) According to :-
(i) the probable intention of the parties; and
(ii) the purpose for which the easement was granted or acquired. This can be found out from the terms of the document, if any, granting the easement or from the mode of enjoyment of the right in case of prescriptive easements.
(b) If no evidence be available about the above, then the extent and mode of enjoyment of other classes of easements (e.g., other than an easement of necessity) shall be determined according to the following rules :-(i) A right of way of any one kind does not include that of any other kind. For example, when the defendant had been exercising a right of way for himself, his servants and for his carts, it was held that no general right of way was acquired to include a passage for sweepers. It is certainly not generally incidental to a right of way that a sweeper carrying night soil should use it, for such a person is not one of the normal class of servants of a house-hold in this country.
(ii) The extent of a right to the passage of light or air to a certain window, door or other opening imposed by a testamentary or non- testamentary instruments is the quantity of light or air that entered the opening at the time the testator died, or the non-testamentary instrument was made.
A right to the passage of light and air to a certain window etc., can either be granted by the servient owner to the dominant owner, or it can be acquired by prescription adversely to the servient owner. In the first case, its extent and mode of enjoyment shall be determined by the quantity of light and air that entered the opening at the time the grant took effect. In the second case, the extent will be determined according to the quantity.(iii) The extent of a prescriptive right to pollute air or water is the extent of pollution at the commencement of the period of user on completion of which the right arose. The extent of a right to pollute water is to be measured by the amount of polluting water poured into the stream at the commencement of the prescriptive period and not by means of discharge at the disposal of the dominant owner.
(iv) The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right.
The change in the mode of enjoyment of easement is not a discontinuance of the old easement, nor is it necessarily an aggravation. Thus when the plaintiff who was enjoying a right of way for mehtars over the defendant's passage several times in the years for every twenty years prior to the defendant's interruption of it, began to employ municipal servants instead of his own mehtars and the municipal servants came and went on the passage more often than the mehtars did formerly, the change of system was held not to be an aggravation of the servitude.
Ans. Accessory Easement - Right to do acts necessary to secure the full enjoyment of an easement are called accessory rights. [Section 24]
A dominant owner is entitled to the full enjoyment of his right of easement; and if in order to secure its full enjoyment the doing of certain other secondary acts is necessary, he is naturally and by a presumption of law, entitled to do all those acts also. A right to do such acts is called an accessory right, and is incidental to the right of easement. But the acts must be done in such a manner and at such a time as to cause the servient owner as little inconvenience as possible, but without any prejudicial effect on the dominant owner's right.
A, as owner of a certain house, has a right of way over B's land. The way is out of repair. A may enter on B's land and repair the way but then it must be so done as to cause the servient owner as little inconvenience as possible, the damage caused thereby to the servient heritage must be repaired by the dominant owner.
Accessory easement confers certain auxiliary rights upon the dominant owner. The dominant owner is authorised to perform all such acts on the servient tenement as are necessary for the proper exercise of his easement. However, in performing such acts if the dominant owner causes any damage to the servient tenement, he must make good this damage, and restore the servient tenement to its original condition as far as possible.
Accessory rights are sometimes called "accessory easement" or "secondary easement" and are quite distinct from "subordinate easement" mentioned in Section 9.
Ans. Section 32 of Indian Easement Act provides :-
"The owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person."
Illustration `A' as owner of a house, has a right of way over B's 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. Disturbance - Meaning : Any act which tends to interfere with or obstruct or inconvenience or diminish the enjoyment of the right of dominant owner either by servient owner or by any other person the dominant owner is said to be disturbed and has right of suit against obstructing party. Disturbance is a word possessing a special legal significance in English Law. "Gale" in his commentary on Easement has said "It is not every interference with the full enjoyment of an easement that amounts in law to a disturbance; there must be some sensible abridgement of the enjoyment of the tenement to which it is attached, although it is not necessary that there should be total obstruction of the easement. The injury complained of must be of a substantial nature in ordinary apprehension of mankind and not arising from the caprice or peculiar physical constitution of party aggrieved." Whether a particular act causes disturbance of right of easement is a question of fact to be determined in each case with reference to the nature of act, the nature of easement and the circumstances connected with enjoyment of such easement as well as with the doing of such act. In Narsoo v. Madan Lal, AIR 1975 M.P. 185 it was observed that it is no doubt true that u/s 32 the owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person. But before Section 32 is invoked it is necessary to determine as to what extent of right of easement acquired by the owner or occupier of dominant heritage. If he had acquired or if he could acquire legally only the right to use water collected in the pool or the tank and under law could not acquire a right over the free flow of surface water, it cannot be said that any disturbance is caused by anyone in the enjoyment of the easement by impounding the surface water before it reached the pool or the tank or by diverting it.
Ans. A person complaining of disturbance of his right of easement has in order to succeed in suit, to show not only that there has been a disturbance of an easement or of any right accessory thereto, but has also to prove that the disturbance has actually resulted in substantial damage to him.
It is further clear from explanation II of Section 33 of the Act that no damage would be substantial in the case of right of free passage of light through the opening of a house, unless :-
(1) It is likely to injure the plaintiff by affecting the evidence of the easement by materially diminishing the value of dominant heritage.
(2) It interferes with the physical comfort of the plaintiff; or
(3) Prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to the institution of the suit.
In Devinder Kumar v. Smt. Chatro Devi, AIR 1966 Punj 502 - It was observed that where the decrease in the light and air in appellant's room was not to such an appreciable extent as would injure the property of appellant in point of value, comfort, convenience or usefulness it cannot be held that appellant has suffered substantial damage by the construction of the walls and roof in front of the window on the second storey.
Ans. Every owner or occupier of the dominant heritage is entitled to enjoy easement without disturbance by any other person. On the disturbance of an easement which means an illegal obstruction, a dominant owner has the following rights :
(i) Section 33 of the Easements Act lays down that "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." So we see that in the section the condition precedent to the institution of such a suit for compensation is that the disturbance must have actually caused substantial damage to the plaintiff.
(ii) In Section 35 of the Easement Act subject to the provisions of the Specific Relief Act, 1887, Sections 52 to 57 (both inclusive) an injunction may be granted to restrain the disturbance of an easement :-
(a) If the easement actually disturbed when 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.
So court might issue injunction in following two cases :-(1) When the easement is actually disturbed and suit for compensation can be lawfully maintained by the dominant owner against the wrong doer.
(2) Where the disturbance is only threatened or intended but threatened or intended act is such that it is bound to cause disturbance to an easement if it is allowed to be performed.
It important to point out that the injury to an easement for claiming relief of damage or injunction should be material. In Dulichand v. Bhairon Dass, AIR 1973 Raj. 96 it was observed that obstruction to the view of the road from one's building or place of business does not per se give right for obtaining injunction unless the obstruction affects his right of access or otherwise causes damages to his building. The obstruction must cause pecuniary loss to the plaintiff. In Kasturilal v. Krishan Chan, AIR 1971 J and K 27 it was observed that explanation to Section 38 of Easement Act clearly defines the nature and extent of right of easement and provide that the easement can be disturbed only if the value of the dominant heritage is materially diminished or if the damage is substantial so as to materially affect the physical comfort and health of the dominant owner. Under the circumstances Sec. 35 of the Easements Act cannot be read in isolation and must be read in conjunction with Section 33 because both these sections deal with the same subject namely the question of grant of injunction where there is a disturbance of easement.
Ans. Sections 37 to 47 of Indian Easements Act deal with the extinction of easements. The circumstances under which easements extinguished are as under :-
(1) From a Cause Which Preceded The Imposition of Easement - Section 37 lays down that 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.
The Section lays down a general principle that any body who has a contingent or limited interest in the servient tenement can grant on easement which would terminate with his own name.
Illustration - `A' transfers Sultanpur to `B', on condition that he does not marry `C' B imposes an easement in Sultanpur. Then `B' marries `C'. B's interest in Sultanpur ends and with it the easement is extinguished.
(2) By Release Express or Implied - Section 38 says that easement is extinguished when the dominant owner releases it expressly or impliedly,
Express release :- An easement may be created by express grant, so easements may be extinguished by express release. An express release can occur by a declaration oral or written, because there is no statute requiring an express release to be written.
Implied release :- Just as the grant of easement may be presumed from the conduct of the parties, so the release of an easement by the dominant owner may, in certain circumstances be implied. The release of an easement will be implied :-
(a) Where the dominant owner `expressly' authorises an act of 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.
(3) By revocation :- Section 39 lays down that an easement is extinguished when the servient owner in exercise of a power reserved in this behalf, revokes the easement. (4) On the expiration of limited period of happening of dissolving condition :- Where an easement is imposed for a limited period or is acquired on condition that it shall become void on the performance or non-performance of a specified act, then such an easement would extinguish on the expiration of the limited period or on the fulfilment of the contingent condition. This provision is given in Section 40 of the Indian Easement Act. (5) On termination of necessity :- Section 41 provides that an easement of necessity is extinguished when the necessity comes to an end. This section codifies the principle that an easement of necessity does not last longer than the necessity. Easements of necessity are those easements which are absolutely necessary for the enjoyment of the dominant heritage. When the absolute necessity ceases and the dominant heritage can be enjoyed without such easement, the easement extinguishes. (6) On becoming useless :- Section 42 says that when an easement causes loss of any benefit to the dominant owner under any circumstances and places an unnecessary burden on the servient tenement, then the easement extinguishes. (7) By permanent change in dominant heritage :- Section 43 provides that an easement, other than easement of supports is extinguished in the following circumstances which must co-exist :-(i) There must be a permanent change in the dominant heritage;
(ii) in consequence of that permanent change the burden on the servient heritage must have been materially increased; and
(iii) the increased burden, i.e., the excessive use of easement, cannot be reduced by the servant owner without interfering with the lawful enjoyment of the easement.
(8) On permanent alteration of servient heritage by superior force :- Section 44 lays down that where the servient tenement is permanently altered by a superior force in such a way that the dominant owner can no longer enjoy his easement right, the easement is extinguished. But an exception has been made in case of an easement by way of necessity, in which case the dominant owner has a right to fresh way of necessity. (9) By Destruction of Either Heritage :- Section 45 provides that an easement is extinguished by complete destruction of a tenement, servient or dominant. (10) By Unity of Ownership :- Section 46 lays down that an easement is extinguished when the same person becomes entitled to the absolute ownership of whole of the dominant and servient heritage. It is general rule of law that easements are extinguished by operation of law of the ownership of the dominant and servient tenements becoming absolutely united in one and the same person. (11) By non-enjoyment :- Section 47 lays down that an easement is extinguished by non-enjoyment for a period of 20 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 case of a discontinuous easement, from the day on which it was last enjoyed by any person a dominant owner : Provided that, if, in the case of discontinuous easement, the dominant owner, within such period, registers under the Indian Registration Act, 1877, a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years have elapsed from the date of the registration. 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 a necessary easement.
Where several heritages are respectively subject to right 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. [Section 47]
Ans. Effect of extinction of easement on accessory rights - When an easement is extinguished, the rights (if any) accessory thereto are also extinguished. [Section 48]
A has an easement to draw water from B's well. As accessory thereto, he has right of way over B's land from the well. The easement to draw water is extinguished under Section 47. The right of way is also extinguished.
Ans. Suspension of easement - An easement is suspended when the dominant owner becomes 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. [Section 49]
The section lays down that unity of possession of the dominant and servient heritage merely suspends an easement. But unity of estate would extinguish it as provided in section 46.
Where the occupancy tenant had, by purchase, the right to take water from the landlord's well and the landlord had, sub-lease from the occupancy tenants, entered into possession it was held that, on the termination of the sub-lease, the easement to take water, which was suspended under section 49, revived.
Where the dominant owner, who had an easement of way took possession of the servient tenement as a lessee it was held that the easement was suspended by unity of possession under section 49.
Ans. According to Section 50 of the Act - The servient owner has no right to require that an easement be continued; and, notwithstanding 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 damage caused by extinguishment or suspension - Where such notice has not been given the servient owner is entitled to compensation for damages caused to the servient heritage in consequence of such extinguishment or suspension.
Ans. Section 51 of Indian Easement Act provides a rule which is distinct from English Law on the point. In English Law suspended easement revives but easement howsoever extinguished can never revive. In India extinguished easement can be divided into two categories :-
Section 51 of Indian Easement Act reads as "An easement extinguished u/s 45 revives (a) when the destroyed heritage is, before 20 years have expired restored by alluvion (B) when the destroyed heritage is a servient building and before 20 years have expired such building is rebuilt upon same site and (c) when destroyed heritage is a dominant building and before 20 years have expired such building is rebuilt upon same site and in such manner as not to expose a greater burden on servient heritage.
An easement extinguished u/s 46 revives when the grantor 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 u/s 47."
In -------------------AIR 1967 All. 302 it was observed that an easement may be revived after it has been extinguished by the union of dominant and servient tenements in one owner by their subsequent severvance, provided the easement is apparent. If there has been unity of possession merely an easement which has been thereby suspended will revive on severance of the union but if there has been unity of seisin for estates in fee simple and not unity of possession merely all easements are absolutely extinguished and will not revive, unless they are re-created.
Ans. Section 52 of the Indian Easements Act, defines licence, as follows :-
"Where one person grants to another, or to 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 an interest in the property the right is called licence."
The term `easement' has been defined under Section 4 of Indian Easements Act, as follows :-"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, in respect of certain other land not his own."
The distinction between easement and licence is given as under -|
Licence |
Easement |
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(1) Licence is not apparent to any land |
but is a personal right to do on the land of the grantor something which without such licence would be unlawful. |
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(2) A licence is a personal right granted to an individual or ascertained number of individuals. |
(2) An easement is a right of beneficial enjoyment of property. |
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(3) A licence is not transferable except in circumstances mentioned in Section 56 |
(3) An Easement right follows the dominant tenement |
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(4) The transferee of the land over which the licence is available is not bound by the Licence |
(4) The transferee of the servient tenement takes the tenement subject to the easement right |
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(5) A licence is always bound to be of a positive nature |
(5) An easement right may be positive or negative in character. |
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(6) A Licence can be revoked at the will of the grantor except in two cases mentioned in Section 60 |
(6) An Easement cannot be revocked at the will of the servient owner. |
Ans. Main features of licence :
1. It is privilege of liberty and not right - Licence is privilege of the grantee to do something he would have otherwise been not authorised to do. This privilege never matures into a right and continues till the grantor likes. It can be withdrawn at any time without any notice to the grantee who can never get it enforced in a Court of Law.
2. It is purely personal - Licence is personal to the grantee. It touches no property.
3. It is always positive - Licence makes lawful the commission or continuation of something being done by the grantee. The licence covers only those wrongs that are limited to the grantor's property and that can be authorised by the licence. It is never negative in character.
4. It is not an interest in property - Licence is in respect of property, but does not amount to an interest in the property in respect of which it is granted. If property is sold to somebody, it goes free from all the liabilities accepted or imposed by licence.
5. Non-transferable and non-heritable - Licence can not be transferred by licensee nor it goes down to heirs after the death of licensee.
Definite number of persons to hold licence - The High Court of J. and K. has held in the case of Shambho Nath v. Kapoor Singh, A.I.R. 1976 J. and K. 52 that under section 52 of the Easements Act, licence can be granted only in favour of definite number of persons and not in favour of fluctuating body of individuals. The agreement involved in the case, even if binding on the defendants, cannot be considered to be at best a bilateral agreement between the representatives of the two parties and containing reciprocal conditions.
In E.P. George v. Thomas John AIR 1984 Ker. 224 it was observed "A licence properly passes no interest nor alters or transfers property in anything but only makes action lawful without which it would be unlawful. From definition of Section 52 it is clear that the licensee has no interest in property and his possession for enjoyment of his right is not judicial possession but only an occupation.
Ans. Distinction between lease and licence
Section 105 of the Transfer of Property Act defines lease. A lease of immovable property is transfer of a right to enjoy such property, made for a certain time express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, services or any other thing of value to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
(1) The main point of distinction between a lease and licence is regarding the exclusive possession of the property, if the effect of the agreement is to give exclusive possession to the holder; though subject to certain reservations, then it is a lease ; if the agreement is merely for the use property in a certain way and on certain terms, while it remains, in the possession of the owner, it is a licence. (Sharif Dadumiya v. Emperior, 32 Bom. L.R. 332).
(2) The cardinal distinction between a lease and a licence is that in a lease there is a transfer of interest in land, whereas in the case of a licence there is no transfer of interest although the licensee acquires a right to occupy the land. For example, where A agreed with B to let him have the use of the Surety Garden and Music Hall for four days at Rs. 100 per day for the purpose of giving a series of concerts etc., it was held that it was not letting and there was no tenancy as there was no transfer of interest in the land although the contract gave the licensee the use of the hall and garden for a specified time.
(3) A lease can be assigned to a third person while a licence cannot be assigned.
(4) A lease can bring an action for trespass, and he can also maintain a suit for possession when a licensee cannot.
(5) A lease is not revocable, a licence is revocable.
(6) A lessee forfeits the lease and becomes liable to ejectment if he denies the title of the grantor while a licensee does not.
(7) A lease needs registration. A grant of licence needs no registration.
Ans. According to Section 53 of the Act -
"A licence may be granted by any one in the circumstances and to the extent in and to which he may transfer his interest in property affected by the licence."
So section 53 lays down with regard to power to grant a licence. Circumstances in which and the extent to which a licence may be granted are the circumstances in which and the extent to which the grantor of the licence may transfer his interest in the property. Thus whereas a co-owner would not be entitled without the consent of other co-owners to grant an easement, he would be entitled to grant a licence in respect of the property in which he may have a right as a co-owner as far as the grant of such licence would not amount to an unreasonable user of the joint property. Where G and A were co-owner of a forest and G mortgaged his interest with possession to the plaintiff and then both G and A licensed a third person to cut and take wood from the forest on a suit by the plaintiff mortgagee, it was held that A being the co-owner, had a right to grant the licence but not G who was out of possession [Balvantrav v. Ganpatrav, ILR 7 Bom. 336].
Ans. Licence when transferable - Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee but save as aforesaid, licence cannot be transferred by the licensee or exercised by his servants and agents. [Section 56]
(a) A grants B a right of walk over A's field whenever he chooses. 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' servants may enter on the land for the purpose of erecting sheds, erect the same, deposit grain therein and remove grain therefrom.
(c) A granted licences to B to trap elephants from A's forest. B can employ servants to dig pits for enticing elephants and to render other assistance in capturing it. Here licence will be transferable.
(d) A is sole licensee of printing papers. He can employ helpers, proof readers, co-printers and distributors, agents and servants to manage the business. The licence is deemed to have been made with this interest of transferability.
A licence may be granted by any one in the circumstances and to the extent to which he may transfer his interests in the property affected by the licence. Licence is purely personal privilege and therefore it can not be transferred on the grounds of public and good behaviour. Bare licence is founded on personal confidence. Hence it is ordinarily not transferable. The general principle is that licence is never transferable unless it is covered by four exceptions to this principle. They are as follows :1. Licence to attend the place of public entertainment.
2. Licence will be transferable when it is exercisable through servants or agents.
3. Licence is transferable when it is coupled with grant.
4. Different intention to the contrary.
Ans. Grantor's Duty To Discloses Defects - The grantor of Licence is bound to disclose to licensee any defect in the property affected by the licence likely to be dangerous to the person or property of licensee of which the grantor is and the licensee is not aware.
Section 57 imposes a duty upon licensor to disclose defects existing in his property to the licensee of which grantor is and licensee is not aware. In case of failure on the part of licensor to do so, and if it is an injury to licensee, licensor would be liable to damages under the common law.
Ans. 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 licensse, has executed a work of a permanent character and incurred expenses in the execution. [Section 60]
Section 60 of the Indian Easements Act embodies two exceptions of the general rule that a licence is revocable, the instant case is covered by clause (b) of Section 60 which is based on the principle of estoppel by acquiescence. When the licensee acting upon a licence has executed a work of permanent character and incurred expenses in the execution, the licence cannot be revoked by the grantor. The man who stands by and allows another person to build on his land in the belief that he has power or authority to do so, and incurs expenses in such building, cannot turn round and claim the removal of such building on the ground, that the latter had no authority to build. He is estopped by his conduct from adopting that course and the law will presume an authority from him in such cases [Fazal Haq v. Data Ram, A.I.R. 1975 Alld. 379] The creation of tenancy in respect of an immovable property always means transfer of interest in immovable property to the tenant. Tenancy rights themselves constitute immovable property. Therefore, when the landlord let out the premises in question to tenant, there was the transfer of interest in the moveable property by the landlord to the tenant. Therefore, the terms of section 60(a) of Easements Act are fully satisfied in such circumstances. Magan Lal v. Chaman Lal, AIR 1980 Guj. 14. Section 60(b) can have application only if the licensee has acted upon the licence and erected structures and constructions of permanent character. "Acting upon licence" means the state of mind of the licensee at the time when he constructed the structures of building. In a case where the licensee has considered himself to be a lessee or mortgagee and has constructed the building or erected other structures in the property he would not be entitled to get the benefit under Section 60(b). The provisions of the Act do not preclude the parties from entering into such agreement. So long as the contract is not vitiated or rendered invalid in any manner, it is not possible to hold that the contract makes inroads into the conditions of irrevocability provided in Section 60 of the Act. Section 61 of the Act makes it clear that revocation of licence may be express or implied.
Ans. A licence is deemed to be revoked as per Section 62 :-
(a) Where from a cause preceding the grant of it, the grantor ceases to have any interest in the property covered by the licence.
(b) When the licensee releases it, expressly or impliedly, to the grantor or his representative.
(c) When 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 condition 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) When the licensee becomes entitled to the absolute ownership of the property affected by his right.
(f) When 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 necessary ceases to exist.
Section 62 is another section laying down very important principle of law. It deals with nine specified situations in which the revocation of the licence shall be presumed. The section provides that existence of any of the nine circumstances will by itself by sufficient to allow to presume that relevant licence has been properly revoked. Nothing else is necessary. In AIR 1953 All. 439 it was observed that Section 60 deals with a case when licence is revoked at the will of Licensor. Section 62 enumerates the circumstances on the happening of any one of which a licence is revoked. Each clause of Section 62 is independent of the other and by itself constitutes the ground for deeming a licence to have revoked.
Ans. Licencee's Right On Revocation :- Where licence is revoked, licencee 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 (Section 63)
In order to safeguard the interests of the licensee from being jeopardised by the vexatious exercise of the right of revocation by licensor, the provisions of this section have been made. This section provides that where a licence is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby, and to remove one's goods which he has been allowed to place on such property. For the purpose of revocation, a reasonable notice must be given by the licensor.
In AIR 1932 P.C. 108, it was observed that as a general proposition a licensee is entitled to reasonable notice of revocation even where the licence is revocable one and even in a case where there is no consideration, a licensee would be entitled to a reasonable time to leave the property.
Ans. Licensee's 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 grantor. [Section 64]
This section lays down that the licensee is entitled to compensation from the grantor, if he satisfies the following condition -
(1) The licence has been granted for a consideration.
(2) The licescee has been evicted by the grantor there being no fault on the part of the licensee before he has fully enjoyed the right conferred by the licence.
Where the licensor revokes a licence and installs a fresh licensee, the original licensee has no cause of action against anyone except his licensor who evicts him for compensation under section 64. The provisions of this section do not apply in case of an irrevocable licence. In other words a licence which has become irrevocable under section 60, cannot be revoked under this section on payment of compensation.