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EASEMENTS ACT, 1882
1 ACT No. V OF 1882
[ 17th February, 1882 ]
An Act to define and amend the Law relating to Easements and Licenses.
Preamble. WHEREAS it is expedient to define and amend the law relating to
easements and licenses; It is hereby enacted as follows :__
PRELIMINARY
1. Short title. This Act may be called the 2 * Easements Act, 1882.
[ Local Extent. ] Omitted by A. O. , 1949, Schedule.
Commencement. And it shall come into force on the first day of July, 1882.
2. Savings. Nothing herein contained shall be deemed to affect any law not hereby
expressly repealed; or to derogate from—
(a) any right of the 3 [Government] to regulate the collection, retention and
distribution of the water of rivers and streams flowing in natural channels, and
of natural lakes and ponds, or of the water flowing, collected, retained or
distributed in or by any channel or other work constructed at the public expense
for irrigation;
(b) any customary or other right (not being a license) in or over immoveable
property which the 3 [Government], the public or any person may possess
irrespective of other immoveable property; or
(c) any right acquired, or arising out of a relation created, before this Act comes
into force.
(^1) For Statement of Objects and Reasons, see Gazette of India, 1880, Pt. V, p. 494, for Report of the Select Committee, see ibid ., Pt. V, p.1021; and for Proceedings in Council, see ibid., 1881, Supplement, pp. 687 and 766; and ibid ., 1882, Supplement, p. 172.
This Act had been extended to Sindh which was administered by the Governor of Bombay in Council by Act VIII of 1891.
This Act had been applied to Phulera in the Excluded Area of Upper Tanawal to the extent the Act is applicable in the N.W.F.P., subject to certain modifications; and also extended to the Excluded Area of Upper Tanawal (N. W.F.P.) other than Phulera with effect from such date and subject to such modifications as may be notified, see N.W.F.P. (Upper Tanawal) (Excluded Area) Laws Regulation, 1950. This Act has been extended to the whole of Pakistan by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October. 2 1955).
3 The word^ “Indian”^ omitted by A. O., 1949, Sch. Subs. by A. O., 1961, Art_._ 2 (with effect from the 23rd March , 1956) for “Crown” which had been subs. by A. O., 1937, for “Govt.”.
3. [ Construction of certain references to Act XV of 1877 and Act IX of 1871.] Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981, (27 of 1981), s. 3 and Sch. II.
CHAPTER I
OF EASEMENTS GENERALLY
4. “Easement” defined. An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
Dominant and servient heritages and owners. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; 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 ame nity ; 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 servient 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. (b) A, as the owner of a certain house, has the right to go on his neighbour B’s land, and to take water for the purposes of his household out of a spring therein, This is an easement. (c) A, as the owner of a certain house, has the right to conduct water from B’s stream to supply the fountains in the garden attached to the house. This is an easement.
(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B’s field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C’s tank, or timber out of D’s wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E’s land. These are easements.
(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement.
(f) A is bound to cleanse a watercourse running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement.
5. Continuous and discontinuous, apparent and non-apparent, easements. Easements are either continuous or discontinuous, apparent or non-apparent.
(e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person. Explanation.- Land is in its natural 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. (f) The right of every owner of land that, within his own limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons. (g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel. (h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain with in such owner’s limit without material alteration in quantity or temperature. (i) The right of every owner of upper land that water natural1y rising in, or falling, on such land, and not passing in defined channels, shall be a1lowed by the owner o f adjacent lower land to run naturally thereto. (j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land and for the purposes of any manufactory situate thereon: Provided that he does not thereby cause material injury to other like owners. Explanation.- A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.
CHAPTER II
THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS
8. Who may impose easements. An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed. Illustrations
(a) A is tenant of B’s land under a lease for an unexpired term of twenty years, and has power to transfer his interest under the lease. A may impose an easement on the land to continue during the time that the lease exists or for any shorter period. (b) A is tenant for his life of certain land with remainder to B absolutely. A cannot, unless with B’s consent, impose an easement thereon which will continue after the determination of his life-interest. (c) A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an easement on the land or on any part thereof. (d) A and B are lessees of the same lessor, A of a field X for a term of five years, and B of a field Y for a term of ten years. A’s interest under his lease is transferable; B’s is not. A may impose on X, in favour of B, a right of way terminable with A’s lease.
9. Servient owners. Subject to the provisions of section 8, a servient owner may
impose on the servient heritage any easement that does not lessen the utility of the existing
easement. But he cannot, with out the consent of the dominant owner, impose an easement on
the servient heritage which would lessen such utility.
Illustrations
(a) A has, in respect of his mill, a right to the uniterrupted flow thereto from sunrise to noon of the water of B’s stream. B may grant to C the right to divert the water of the stream from noon to sunset: Provided that A’s supply is not thereby diminished.
(b) A has, in respect of his house, a right of way over B’s land. B may grant to C, as the owner of a neighbouring farm, the right to feed his cattle on the grass growing on the way: Provided that A’s right of way is not thereby obstructed.
10. Lessor and mortgagor. Subject to the provisions of section 8, a lessor may impose, on the property leased, any easement that does not derogate from the rights of the lessee as such, and a mortgagor may impose, on the property mortgaged, any easement that does not render the security insufficient. But a lessor or mortgagor cannot, without the consent of the lessee or mortgagee, impose any other easement on such property, unless it be to take effect on the termination of the lease or the redemption of the mortgage.
Explanation.- A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.
11. Lessee. No lessee or other person having a derivative interest may impose on the property held by him as such an easement to take effect after the expiration of his own interest, or in derogation of the right of the lessor or the superior proprietor. 12. Who may acquire easements. An easement may be acquired by the owner of the immoveable 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 immoveable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
No lessee of immoveable property can acquire, for the beneficial enjoyment of other immoveable property of his own, an easement in or over the property comprise in his lease.
13. Easements of necessity and quasi easements. Where one person transfers or bequeaths immoveable property to another, -
(a) if an easement in other immoveable 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
( d ) A sells B a house with windows overlooking A’s land. The light passing over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A’s hands.
( e ) A is the owner of a house and adjoining land. The house has windows overlooking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.
( f ) A is the owner of a house and adjoining land. The house has windows overlooking the land. A, retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.
( g ) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.
( h ) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect. ( i ) A, the owner of two adjoining buildings, sells one to B, retaining the other. B is entitled to a right to lateral support from A’s building, and A is entitled to a right to lateral support from B’s building. ( j ) A, the owner of two adjoining buildings, sells one to B and the other to C. C is entitled to lateral support from B’s building, and B is entitled to lateral support from C’s building. ( k ) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of lateral and subjacent support from A’s land as is necessary for the safety of the house. (l) Under the l[Land Acquisition Act, 1894( I of 1894 )], a Railway Company compulsorily acquires a portion of B’s land for the purpose of making a siding. The Company is entitled to such amount of lateral support from B’s adjoining land as is essential for the safety of the siding. ( m ) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amount of vertical support from B’s portion as is essential for the safety of the upper room. ( n ) A lets a house and grounds to B for a particular business. B has no access to them other than by crossing A’s land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds.
14. Direction of way of necessity.- When 2 [a right] to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner.
(^1) Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and 2nd Sch., for “Land Acquisition Act, 1870”. (^2) Subs. by the Amending Act, 1891 (12 of 1891), for “right”.
When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.
15. Acquisition by prescription. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interrup tion, and for twenty years,
and where support from one person’s land or things affixed thereto has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is 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 n ot been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II.- Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some 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 1 [ the Government], this section shall be read as if, for the words “twenty years” the words “sixty years” were substituted.
(^1) The original word “Govt.” has successively been amended by A.O., 1937, and A.O., 1961, Art. 2 ( with effect from the 23rd March, 1956), to read as above.
(d) a right to underground water not passing in a defined channel.
18. Customary easements. An easement may be acquired in virtue of a local custom. Such easements are called customary easements. Illustrations
( a ) By the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. A, having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom.
( b ) By the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbour’s privacy. A builds a house in the town near B’s house. A thereupon acquires an easement that B shall not open new win dows in his house so as to command a view of the portions of A’s house which are ordinarily excluded from observation, and B acquires a like easement with respect to A’s house.
19. Transfer of dominant heritage passes easement. Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolu tion shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place. Illustration A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues.
CHAPTER III
THE INCIDENTS OF EASEMENTS
20. Rules controlled by contract or title. The rules contained in this chapter are controlled by any contract between the dominant and servient owners relating to the servient heritage, and by the provisions of the instrument or decree, if any, by which the easement referred to was imposed.
Incidents of customary easements. And when any incident of any customary easement is inconsistent with such rules, nothing in this chapter shall affect such incident.
21. Bar to use unconnected with enjoyment. An easement must not be used for any purpose not connected with the enjoyment of the dominant heritage.
Illustrations
( a ) A, as owner of a farm Y, has a right of way over B’s land to Y. Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the be neficial enjoyment of Y. He must not use the easement for the purpose of passing to and from Z.
( b ) A, as owner of a certain house, has a right of way to and from it. For the purpose of passing to and from the house, the right may be used, not only by A, but by the members of his family, his guests, lodgers, servants, workmen, visitors and customers; for this is a purpose connected with the enjoyment of the dominant heritage. So, if A lets the house, he may use the right of way for the purpose of collecting the rent and seeing that the house is kept in repair.
22. Exercise of easement. Confinement of exercise of easement. The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
Illustrations
( a ) A has a right of way over B’s field. A must enter the way at either end and not at any intermediate point.
( b ) A has a right annexed to his house to cut thatching-grass in B’s swamp. A, when exercising his easement, must cut the grass so that the plants may not be destroyed.
23. Right to alter mode of enjoyment. Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. Exception. - The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage. Illustrations ( a ) A, the owner of a saw-mill, has a right to a flow of water sufficient to work the mill. He may convert the saw-mill into a corn-mill, provided that it can be worked by the same amount of water.
( b ) A has a right to discharge on 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 in similar liquor produced by making in the mill paper by a new process from bamboos, provided that he does not substantially increase the amount, or injuriously change the nature, 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 the stream by discharging into it poisonous liquor.
24. Right to do acts to secure enjoyment. The dominant owner is entitled^1 , 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 as 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 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.
(^1) But see s. 36, infra, as to abatement of obstruction of easement.
( e ) A, in respect of his house, is entitled to a certain quantity of light passing over B’s land. B must not plant trees so as to obstruct the passage to A’s windows of that quantity of light.
28. Extent of easements. With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:
Easement of necessity. An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed.
Other easements. The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties and the purpose for which the right was imposed or acquired.
In the absence of evidence as to such intention and purpose__
Right of way. (a) a right of way of any one kind does not include a right of way of any other kind:
Right to light or air acquired by grant.
(b) 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 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: Prescriptive right to light or air. (c) the extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used:
Prescriptive right to pollute air or water. (d) 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
Other prescriptive rights. (e) the extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right.
29. Increase of easement. The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement.
Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the easement is proportionately increased, and, if the dominant heritage is diminished by diluvion, the easement is proportionately diminished.
Save as aforesaid, no easement is affected by any change in the extent of the dominant or the servient heritage.
Illustrations
( a ) A, the owner of a mill, has acquired a prescriptive right to divert to his mill part of the water of a stream. A alters the machinery of his mill. He cannot thereby increase his right to divert water.
( b ) A has acquired an easement to pollute a stream by carrying on a manufacture on its banks by which a certain quantity of foul matter is discharged into it. A extends his works and thereby increases the quantity discharged. He is responsible to the lower riparian owners for injury done by such increase.
( c ) A, as the owner of a farm, has a right to take, for the purpose of manuring his farm, leaves which have fallen from the trees on B’s land. A buys a field and unites it to his farm. A is not thereby entitled to take leaves to manure this field.
30. Partition of dominant heritage. Where a dominant heritage is divided between two or more persons, the easement becomes annexed to each of the shares, but not so as to increase substantially the burden on the servient heritage: Provided that su ch annexation is consistent with the terms of the instrument, decree or revenue-proceeding (if any) under which the division was made, and, in the case of prescriptive rights, with the user during the prescriptive period. Illustrations ( a ) A house to which a right of way by a particular path is annexed is divided into two parts, one of which is granted to A, the other to B. Each is entitled, in respect of his part, to a right of way by the same path. ( b ) A house to which is annexed the right of drawing water from a well to the extent of fifty buckets a day is divided into two distinct heritages, one of which is granted to A, the other to B. A and B are each entitled, in respect of his heritage, to draw from the well fifty buckets a day; but the amount drawn by both must not exceed fifty buckets a day.
( c ) A, having in respect of his house an easement of light, divides the house into three distinct heritages. Each of these continues to have the right to have its windows unobstructed.
31. Obstruction in case of excessive user. In the case of excessive user of an easement the servient owner may, without prejudice to any other remedies to which he may be entitled, obstruct the user, but only on the servient heritage: Provided that such us er cannot be obstructed when the obstruction would interfere with the lawful enjoyment of the ease - ment. Illustration A, having a right to the free passage over B’s land of light to four windows, six feet by four, increases their size and number. It is impossible to obstruct the passage of light to the new windows without also obstructing the passage of light to the ancient windows. B cannot obstruct the excessive user.
CHAPTER IV
THE DISTURBANCE OF EASEMENTS
32. Right to enjoyment without disturbance. The owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person.
36. Abatement of obstruction of easement. Notwithstanding the provisions of section 24, the dominant owner cannot himself abate a wrongful obstruction of an easement.
CHAPTER V
THE EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS
37. Extinction by dissolution of right of servient owner. When, from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished.
Exception.- Nothing in this section applies to an easement lawfully imposed by a mortgagor in accordance with section 10.
Illustrations ( a ) A transfers l[Ulipur] to B on condition that he does not marry C. B imposes an easement on l[U1ipur]. Then B marries C. B’s interest in l[Ulipur] ends, and with it the easement is extinguished.
( b ) A, in 1860 let l[Ulipur] to B for thirty years from the date of the lease. B, in 1861, imposes an easement on the land in favour of C, who enjoys the easement peaceably and openly as an easement without interruption for twenty-nine years. B’s interest 1 [Ulipur] then ends, and with it C’s easement.
( c ) A and B, tenants of C, have permanent transferable interests in their respective holdings. A imposes on his holding an easement to draw water from a tank for the purpose of irrigating B’s land. B enjoys the easement for twenty years. Then A’s rent falls int o arrear and his interest is sold. B’s easement is extinguished.
( d ) A mortgages l[Ulipur] to B, and lawfully imposes an easement on the land in favour of C in accordance with the provisions of section 10. The land is sold to D in satisfaction of the mortgage-debt. The easement is not thereby extinguished.
38. Extinction by release. An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner.
Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage.
An easement may be released as to part only of the servient heritage.
Explanation I .-An easement is impliedly released-
(a) where the dominant owner expressly authorizes an act of a permanent nature to be done on the servient heritage, the necessary consequence of which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority;
(^1) Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960),. s. 3 and 2nd Sch., for “Sultanpur” ( with effect from the 14th October,1955 ).
(b) where any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future. Explanation II .-Mere non-user of an easement is not an implied release within the meaning of this section. Illustrations
( a ) A, B and C are co-owners of a house to which an easement is annexed. A, without the consent of B and C, releases the easement. This release is effectual only as against A and his legal representative. ( b ) A grants B an easement over A’s land for the beneficial enjoyment of his house. B assigns the house to C. B then purports to release the easement. The release is ineffectual. ( c ) A, having the right to discharge his eavesdroppings into B’s yard, expressly authorizes B to build over this yard to a height which will inter fere with the discharge. B builds accordingly. A’s easement is extinguished to the extent of the interference. ( d ) A, having an easement of light to a window, builds up that window with bricks and mortar so as to manifest an intention to abandon the easement permanently. The easement is impliedly released. ( e ) A, having a projecting roof by means of which he enjoys an easement to discharge eavesdroppings on B’s land, permanently alters the roof so as to direct the rain -water into a different channel and discharge it on C’s land. The easement is impliedly released.
39. Extinction by revocation. An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement. 40. Extinction on expiration of limited period or happening of dissolving condition. An easement is extinguished where it has been imposed for a limited period, or acquired on condition that it shall become void on the performance or non -performance of a specified act, and the period expires or the condition is fulfilled. 41. Extinction on termination of necessity. An easement of necessity is extinguished when the necessity comes to an end.
Illustration
A grants B a field inaccessible except by passing over A’s adjoining land. B afterwards purchases a part of that land over which he can pass to his field. The right of way over A’s land which B had acquired is extinguished.
42. Extinction of useless easement. An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner. 43. Extinction by permanent change in dominant heritage. Where, by any permanent change in the dominant heritage, the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement, the easement is extinguished, unless-
(a) it was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the easement should be used; or
47. Extinction by non-enjoyment. A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.
A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.
Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner; and, in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner:
Provided that if, in the case of a discontinuous easement, the dominant owner, within such period, registers, under the l[Registration Act, 1908( XVI of 1908) ], a declaration of his intention to retain such easement, it shall not be extinguished until a pe riod of twenty years has elapsed from the date of the registration.
Where an easement can be legally enjoyed only at a certain place, or at certain times or between certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at other times, or between other hours, or for another purpose, does not prevent its extinction under this section.
The circumstance that, during the said period, no one was in possession of the servient heritage, or that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that the dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section.
An easement is not extinguished under this section– (a) where the cessation is in pursuance of a contract between the dominant and servient owners; (b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period, or (c) where the easement is a necessary easement.
Where several heritages are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement.
Illustration
A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening heritage Y. Before the twenty years expire, A exercises his right of way over X. His rights of way over Y and Z are not extinguished.
(^1) Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981) , s. 3 and 2nd Sch., for “Registration Act, 1877.”
48. Extinction of accessory rights. When an easement is extinguished, the rights (if any)
accessory thereto are also extinguished.
Illustration
A has an easement to draw water from B’s well. As accessory thereto he has a right of
way over B’s land to and from the well. The easement to draw water is extinguished under
section 47. The right of way is also extinguished.
49. Suspension of easement. An easement is suspended when the dominant owner
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.
50. Servient owner not entitled to require continuance. The servient owner has no
right to require that an easement be continued; and, notwithstanding the provisions of section 26,
he is not entitled to compensation for damage caused to the servient heritage in consequence of
the extinguishment or suspension of the easement, if the dominant owner has given to the
servient owner such notice as will enable him, without unreasonable expense, to protect the
servient heritage from such damage.
Compensation for damage caused by extinguished or suspension. Where such notice
has not been given, the servient owner is entitled to compensation for damage caused to the
servient heritage in consequence of such extinguishment or suspension.
Illustration
A, in exercise of an easement, diverts to his canal the water of B’s stream. The diversion
continues for many years, and during that time the bed of the stream partly fills up. A then
abandons his easement, and restores the stream to its ancient course. B’s land is consequently
flooded B sues A for compensation for the damage caused by the flooding. It is proved that A
gave B a month’s notice of his intention to abandon the easement, an d that such notice was
sufficient to enable B, without unreasonable expense, to have prevented the damage. The suit
must be dismissed.
51. Revival of easement. An easement extinguished under section 45 revives ( a ) when
the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion;
( b ) when the destroyed heritage is a servient building and before twenty years have ex pired such
building is rebuilt upon the same site; and ( c ) when the destroyed heritage is a dominant building
and before twenty years have expired such building is rebuilt upon the same site and in such a
manner as not to impose a greater burden on the servient heritage.
An easement extinguished under section 46 revives when the grant or bequest by which
the unity of ownership was produced is set aside by the decree of a competent Court. A
necessary easement extinguished under the same section revives when the unity of ownership
ceases from any other cause.
