Easement rights of law, Lecture notes of Land Law

Download Easement rights of law and more Lecture notes Land Law in PDF only on Docsity! The Indian Easements Act, 1882 BA.LL.B. 7 th Semester Introduction The right of easement is a right as old as the day when human race first emerging from barbarism, adopted the custom of living as other’s neighbors, or respecting each other’s rights. It found it indispensable for common good to adopt the general principle that an individual should enjoy his property, though fully and exclusively, yet so as not to interfere with neighbor’s legitimate enjoyment of his own property rights. This salutary principle appears to be the original foundation on which easements are based. In this I Introductory lesson we will discuss various aspects of easement such as definition and meaning of Easement, Easement and Public right contrasted, Easement distinguished from customary rights and Difference between easement under the English and Indian Laws. We will also discuss continuous and discontinuous, apparent and non-apparent easements. In order to check your level comprehension, the students are advised to answer questions as asked at the end of each sub-section and also at the end of the lesson. 1.1 Easement Defined The term “easement” has been variously defined. An easement has been said to be a privilege which the owner of one tenement has over the tenement of another. It has also been defined as a right which one person has to use the land of another for a specific purpose or a servitude imposed as a burden on the land. In some cases it has been stated that an easement is a right which one proprietor has to some profit, benefit, or lawful use out of or over the estate of another proprietor. Section 4 of the Indian Easements Act defines easement as: An easement is aright which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of , certain other land not his own. Dominant and servient heritage and owners.- The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation.- In the first and second clauses of this section the, expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the serviant heritage, or anything growing or subsisting thereon. Illustrations (a) A, as the owner of a certain house, has a right of way thither over his neighbour B’s land for purposes connected with the beneficial enjoyment of the house. This is an easement. or presumed from long user by prescription. By contrast a public right is enjoyed by the public at large, irrespective of any interest they may have in the tenement. An indeterminate and fluctuating body of persons, such as the public, or the community, or a section of the public, or section of the community, cannot have any right of easement. For instance, public rights of way which every citizen is entitled to use at his pleasure are not dependant on the ownership of any estate; and even a public road or highway is taken to be a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing. So far as the ordinary easement is concerned, the occupation remains with the owner of the servient heritage, subject to the easement. 1.3 Easement distinguished from customary rights Easements are distinguished from that class of rights which exist in particular localities under special local customs whereby a wholly undefined and fluctuating body of persons is entitled to utilize the land of another person in a particular manner and for a particular purpose. Such rights founded on custom appertain to many persons as a class, and not as grantees, nor do such rights require the existence of a dominant tenement. They are analogous to easements, but are not really easements, since some necessary elements of easements are wanting. A customary right is a right in gross while an easement is always appurtenant to a tenement. Customary rights are claimed for a large or fluctuating body of persons in respect of a locality and it is unnecessary to look out for their origin from grant or otherwise. Private easements, on the other hand, are claimed by defined persons and arise from a grant, which is either express or implied or by prescription. 1.4 Difference between easement under the English and Indian Laws 1. In India easementary rights can be claimed only in respect of corporeal property such as land and not in respect of incorporeal rights. But under the English Law an easement can be claimed in respect of an incorporeal right also. 2. An easement right under the English Law is a privilege without profit. It permits enjoyment of certain rights in respect of the dominant tenement without allowing the owner of the dominant tenement to share in the profits which arise out of the soil of the servient heritage. Thus easement excludes what is called profits a prendere. Under Indian Law an easement also includes profits a prendere. It includes a right to enjoy the profits arising out of the soil of another owner. This is made clear by the Explanation to section 4 which lays down 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. 3. Under the Indian Law two tenements need not be adjacent to each other because used in the section are that the servient heritage must be “certain other land” not belonging to the dominant owner. But under the English Law the heritages must be adjacent ones. 1.5 Section 5. Continuous and discontinuous, apparent and non-apparent easements.- Easements are continuous or discontinuous, apparent or non-apparent. A continuous easement is one whose enjoyment is or may be continual without the act of man. A discontinuous easement is one that needs the act of man for its enjoyment. An apparent easement is one the existence of which is shown by some permanent sign, which, upon careful inspection by a competent person, would be visible to him. A non-apparent easement is one that has no such sign. Illustrations (a) A right annexed to B’s house to receive light by the window without obstruction by his neighbour A. This is a continuous easement. (b) A right of way annexed to A’s house over B’s land. This is a discontinuous easement. (c) Rights annexed to A’s land to lead water thither across B’s land by an aqueduct and to draw off water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matter. These are apparent easements. (d) A right annexed to A’s house to prevent B from building on his own land. This is a non- apparent easement. Apparent and non-apparent easements.- An easement is apparent if its existence is evidenced by some apparent sign, whether that sign be patent to everyone or whether it can only be perceived on a careful inspection by a person ordinarily conversant with the subject. An easement is non-apparent if no external sign points to its existence. For apparency to be material the apparency must be on the servient tenement. A right of way on the servient tenement may be an apparent easement or a non-apparent easement according to the circumstances of each case. Where a right of way is shown by a permanent doorway and a formed path, it is an apparent It is well established that an easement must be used by the dominant owner for some purpose connected with the enjoyment of the property in the dominant tenement. It cannot be enjoyed for the purposes unconnected with the enjoy of the dominant tenement. The justice and good sense of this are obvious, otherwise the user of the restrictive right might be extended in all sorts of ways not contemplated by the servient owner, the burden imposed on the servient tenement might be indefinitely increased, and the easement in relation to such extended user might become a mere right in gross. 2.4 Section 22. Exercise of easement: confinement of exercise of easement.- The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be, confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner be so confined. Illustrations (a) A has a right of way over B’s field, A must enter the way at either end and not at any intermediate point. (b) A has a right annexed to his house to cut thatching grass in B’s swamp. A when exercising his easement must cut the grass so that the plants may not be destroyed. Section 22 lays down that every easement right should be exercised in a way which is “least onerous to the servient owner. The least onerous mode of enjoyment of his right by the dominant owner is that which might be expected from the full owner of the servient tenement himself had he any occasion to enjoy the same right. The test of the conduct of the dominant owner is what a reasonable man would do under similar circumstances on his own land. The reason for this rule is that an easement right imposes a burden on the servient heritage and it is but reasonable that the dominant owner must be enjoined not to increase the burden by indiscriminate use of the right. 2.5 Section 23. Right to alter mode of enjoyment.- Subject to the provisions of Section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement provided that he does not thereby impose any additional burden on the servient heritage. Exception.- The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage. Illustrations (a) A, the owner of a sawmill, has a right to a flow of water sufficient to work the mill. He may convert the sawmill into a corn-mill; provided that it can be worked by the same amount of water. (b) A has a right to discharge in B’s land the rain-water from the eaves of A’s house. This does not entitle A to advance his eaves if, by so doing, he imposes a greater burden on B’s land. (c) A as the owner of a paper-mill, acquires a right to pollute a stream by pouring in the refuse liquor produced by making in the mill paper from rags. He may pollute the stream by pouring similar liquor produced by making in the mill paper by a new process from bamboss, provided that he does not substantially increase the amount, or injuriously change of the pollution. (d) A, a riparian owner, acquires as against the lower riparian owners, a prescriptive right to pollute a stream by throwing sawdust into it. This does not entitle A to pollute by discharging into it poisonous liquor. 2.6 Section 24. Right to do acts to secure enjoyment.- The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far practicable, the damage (if any) caused by the act to the servient heritage. Accessory rights.- Rights to do acts necessary to secure the full enjoyment of an easement are called accessory right. Illustrations (a) A has an easement to lay pipes in B’s land to convey water to A’s cistern. A may enter and dig the land in order to mend the pipes, but he must restore the surface to its original state. (b) A has an easement of a drain through B’s land. The sewer with which the drain communicates is altered. A may enter upon B’s land and alter the drain, to adapt it to the new sewer, provided that he does not thereby impose any additional burden on B’s land, keep the work in proper repair so as not to cause damage to the servient tenement. The dominant owner is liable for any damage arising from the want of repair of such work. 2.9 Section 27. Servient owner not bound to do anything.– The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient. Illustrations (a) A, as owner of a house, has a right to lead water and send sewage through B’s land. B is not bound, as servient owner, to clear the watercourse or scour the sewer. (b) A grants a right of way through his land to B as owner of a field. A may feed his cattle on grass growing on the way, provided that B’s right of way is not thereby obstructed; but he must not build a wall at the end of his land so as to prevent B from going beyond it, nor must he narrow the way so as to render the exercise of the right less easy than it was at the date of the grant. (c) A, in respect of his house, is entitled to an easement of support from B’s wall. B is not bound, as servient owner to keep the wall standing and in repair. But he must not pull down or weaken the wall so as to make it incapable of rendering the necessary support. (d) A, in respect of his mill, is entitled to a watercourse through B’s land. A must not drive stakes so as to obstruct the watercourse. (e) A, in respect of his house, is entitled to a certain quantity of light passing over B’s land. B must not plant trees so as to obstruct the passage to A’s windows of that quantity of light. Notes The servient owner is under no personal obligation to do anything for the benefit of the dominant owner. He is free to use his tenement in any way he likes provided it is not inconsistent with the enjoyment of his tenement by the dominant owner. The owner of the servient heritage is prohibited from doing any act tending to restrict the easement, or to render its exercise less convenient 2.10 Section 28. Extent of easements- With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect: Easement of necessity- An easement of necessity is co-extensive with the necessity, as it existed when the easement was imposed. Other easements- The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired. In the absence of evidence as to such intention and purpose- (a) Right of way- A right of way of any one kind does not include a right of way of any other kind; (b) Right of light or air acquired by grant.– The extent of a right to the passage of light or air to a certain window, door on other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument was made; (c) Prescriptive right to light or air- The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespective of the purposes for which it has been used; (d) Prescriptive right to pollute air or water- The extent of a prescriptive right to pollute air or water is the extent of the pollution at the commencement of the period of user on completion of which the right arose; and (e) Other prescriptive rights- The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right. Notes Section 28 lays down certain rules for determining the extent of easements and the mode of their enjoyment.