Easements LawFrequently Asked Questions on Easements Law
"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 The first enactment in India which expressly recognized easement right was Limitation Act of 1871 which was later superseded by Act of 1877.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.
(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].
"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.
(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.
"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.
(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.
"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.
"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."
(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.
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.
(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;
(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)].
Q. 15 (A) Explain the expression "right of privacy". State the law relating to Right of Privacy as an easement. Is the right to undisturbed privacy recognised in this country ?
(B) Can a right of privacy be claimed in the following cases:-
(i) In respect of apartments generally occupied and used by males.
(ii) By a Christian lad, who does not observe Purdah in respect of her private apartments.
(iii) In respect of an already overlooked house by the opening of additional apertures.
(iv) In respect of a house separated from the other by a narrow public lane.
Give reasons for your answers.
(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.
(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.
"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.
(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.
(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.
(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]
"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 -
(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.
(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.
(3) A licence is not transferable except in circumstances mentioned in Section 56
(3) An Easement right follows the dominant tenement
(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
(5) A licence is always bound to be of a positive nature
(5) An easement right may be positive or negative in character.
(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.
"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].
(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.
(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.
(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.
(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.