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property_law:easement:continuous-discontinuous-apparent-non-apparent

Continuous and discontinuous, apparent and non-apparent, easements

Section 5 of The Indian Easements Act, 1882

Easements are either continuous or discontinuous, apparent or non-apparent. A continuous easement is one whose enjoyment is, or may be, continual without the act of man. A discontinuous easement is one that needs the act of man for its enjoyment. 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 windows 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 matters. 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.

In Kunhikrishnan Nair V. M. and Another v. Koroth Ammalu Amma and Others1) the Hon'ble Kerala High Court held that : “ What amounts to 'apparent and continuous' defined under S.5 of the Act. A continuous easement stands for something which is available without the act of man such as light, air etc. A discontinuous easement stands for something which needs the act of a man for its enjoyment such as right of way. An apparent easement stands for something visible perceivable by sign and a non - apparent easement is the one which has no sign. A right of way will not satisfy continuous easement, as such, there cannot be any quasi easement for a way as claimed by the party”.

Examples

A right to discharge rain water through a drain or a spout, a right to lateral support to a building, a right to receive light and air through an opening, are all examples of continuous easements, no act of man being required for their enjoyment. These are also examples of apparent easements because each of these has got some sign by which it can be known. A discontinuous easement can be enjoyed only by a fresh act on each occasion of its exercise, for instance, a right of way, a right to draw water or to catch fish and in fact, all easements in the nature of profits a prendre. Some of these may be apparent, as for example, a right of way, if there is a road or some track on the servient owner’s land leading to the dominant heritage ; others are non-apparent.

Case Laws

  1. A drain through which rain-water passes is a continuous easement, and a drain through which sullage water from a latrine passes is a discontinuous easement.2) For contrary view vide 34 Mad., 487, and cases on sec. 13.
  2. An artificial watercourse is an apparent easement.3)
1)
2020 (4) KHC 165 : 2020 (3) KLJ 642
2)
Sajid Un-Nissa Bibi v. Hidayat Husain, 22 A. L. J., 428.
3)
24 W. R., 345


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Created on 2021/03/25 14:45 by LawPage • Last modified on 2021/04/09 22:26 (external edit)