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property_law:easement:acquisition

Acquisition of Easements

There are several modes of acquisition of easements. The following are the chief ones :

  1. Express grant or imposition.
  2. Implied grant or reservation.
  3. Prescription.
  4. Local custom
  5. Long enjoyment.
  6. Estoppel.

Express grant or imposition

Section 8 of the Easements Act allows every person to grant an easement in the circumstances, and to the extent in an to which he may transfer his interest in the heritage, on which, the liability is to be imposed. And a grant may consist either in the creation of the easement itself, as when a person grants to his neighbour a right of way over his land, or in the transfer of an already existing easement with the transfer of the dominant heritage. By section 19, the transfer of the dominant heritage passes the easement with it unless a contrary intention appears.

Implied grant or reservation

The grant of an easement is implied when the owner of two adjoining heritages sells one of them and retains the other or sell both of them to different persons simultaneously. For instance, A sells B a house with windows overlooking A's land, which A retains. The light which passes over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took place. B is entitled to the light, and A cannot afterwards obstruct it by building on his land. Easements created in this way are either “easements of necessity” or “quasi-easements”, dealt with under section 13 of the Act. The law presumes that if a man makes a grant of anything to another man a further grant is implied of all those things which ; make it possible for the grantee to enjoy and make use of the thing that is expressly granted to him. If on severance of two tenements an easement arises in favour of the property retained then it is said to be created by implied reservation and not by grant as a man cannot make a grant to himself. Under English law the creation of easements by implied grant is based on the rule that “a man cannot derogate from his own grant” and in the case of the property retained by the seller there is no grant from which he would be derogating hence no implied reservation of easements is recognised there. He may do so by express words, and then the easement is said to be created by “express reservation“.

Prescription

Under sections 15 and 16 of the Indian Easement Act, 1882 peaceable enjoyment of a right to light, air or support, as an easement, without interruption and for twenty years confers the easement on the property in respect of which it has been enjoyed but in the case of other easements the user must be “open”, “peaceable” and by a person claiming title to the right, as an easement, and of right, without interruption and for twenty years. Under English law this mode of acquisition of easements is also known as acquisition by “presumed grant” as from the length of enjoyment by the dominant owner or from the acquiescence of the servient owner in that enjoyment the law presumes that the dominant owner has a right to the easement. In India the period and the method of acquisition is fixed by statute and there is no necessity of introducing the theory of a presumed grant. Prescriptive easements are also said to be acquired through “acquiescence” for it is said that “consent or acquiescence of the servient owner lies at the root of prescription”.

Local Custom

Easements may also be acquired in virtue of a local custom. Such easements are said to be “customary easements” and are dealt with under section 15 of the Act.

Long enjoyment which may raise a presumption of some lawful origin

On the analogy of decisions relating to Indian Limitation Acts it may be inferred that the Indian Easements Act does not exclude or interfere with other titles or modes of acquiring easements. The only other mode (other than prescription) of acquiring easements by long enjoyment in India is that which rests on the presumption of a lawful origin. The length of the period of enjoyment has not been fixed by the decisions and the right may be presumed after a twenty-five or thirty years enjoyment unless anything is shown to the contrary. When the right of easement in not claimed under the Act, but by long enjoyment, proof of enjoyment within two years next before suit is not necessary.

Estoppel

An easement may be acquired by estoppel as for instance, if A, having no title to grant an easement, professes to do so in favour of B on the representation that he has such title, A will be estopped from denying the right of B to such easement, if he subsequently acquire the title to the servient heritage.


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