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property_law:easement:customary-easements

What is a Customary easement?

Section 18 of The Indian Easements Act, 1882.

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 windows 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.

Customary easements distinguished from customary rights

An easement may be acquired by virtue of a local custom, but all customs relating to the use and enjoyment of the land are not easements. A custom for the freemen of Carlile to enter upon private land for the purpose of holding horse-races thereon, a Custom of the inhabitants of a place to hold sports on a village green, a custom for the inhabitants of a parish to enter upon certain land in the parish and erect a Maypole thereon and dance round and about it; a custom of certain Hindus of a certain place to go on a piece of land during some days at one period of the year, and perform some ceremonies there, a custom of the Hindus of a certain place to burn Holi or hold a festival on another’s land, a custom of Mohammedans of a certain locality to lay and exhibit tazias on another’s land during Mohurrum, etc., are not easements but mere customary rights. These rights are not appurtenant to any land, they belong to no individual in particular but are enjoyed by any who inhabit a particular locality or who belong to a particular class.

Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general. In the case of customary easements one or more individuals by virtue of a local custom become entitled to an independent right in respect of his or their estate situated in the locality to which the custom belongs. For instance, a right of privacy is recognized by custom in the town of Agra ; hence if a person owns or occupies house in Agra he acquires a right, by virtue of this custom that no neighbour of his will open a new window in his house so as substantially to invade his privacy. Here by virtue of a local custom, a private right (of privacy) is acquired by an individual in respect of his house. He does not share this right in common with other residents of Agra and the right is not merely a personal right but is annexed to his house. On the other hand a customary right to burn Holi on another’s land does not belong to any particular individual and is not appurtenant to any land but is the common right of the Hindus of a particular locality

Amar Singh and Others v. Kehar Singh and Others.1)

  • An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it.
  • A customary right is not easement.
  • An easement belongs to a determinate person or persons in respect of his or their land.
  • A fluctuating body of persons like the inhabitants of the locality cannot claim an easement.
  • Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general.

Distinction between custom and prescription as the means of acquiring easements

To acquire an easement by prescription, enjoyment of the right for the full statutory period is necessary but no fixed period of enjoyment is necessary in the case of a customary easement only compliance with the conditions required by the custom is sufficient. Again, the custom by virtue of which an easement is claimed must be reasonable but an easement acquired by prescription need not be so. Lastly, the easement by prescription belongs only to the individual whereas the custom on which an easement is founded must appertain to many as a class.

Requisites of a valid custom

A custom to be valid must be

  1. reasonable,
  2. certain, and
  3. not inconsistent with enacted law.

But English common law rule of immemorial user is not required to establish a custom in India. It is sufficient if the right has been enjoyed for such a length of time as to suggest that by agreement or otherwise the usage had become the customary law of the particular locality.

Different kinds of customary easements

F. Peacock has classified easements arising by custom into four classes:

  1. Right of pasturage,
  2. right of privacy,
  3. rights of sport and recreation, and
  4. rights connected with religious observances.

Of these, an example of a right of pasturage arising by local custom is given in illustration (a) to section 18 and of the right of privacy in illustration (b). As regards 3 and 4 they are not strictly speaking easements and examples of these, such as holding horse-races or burning Holi or exhibiting tazias, on another’s land have already been given above under “customary rights”. Besides the above other easements can be acquired if the custom is reasonable, for example, by tenants to use land in Abadi for crushing sugar-cane, to take earth from waste land, to repair houses in a village after inundation.

Right of privacy

In England the right of privacy by custom is not recognised, it may arise by covenant or grant. But in India, on account of the custom of secluding females such a right is of great importance.

Each case in which a right of privacy is in dispute must be decided on its particular facts. The primary question will be, does the privacy in fact and substantially exist and has it been and is it in fact enjoyed? The house or portion of the house which is not meant to be occupied by females and consequently is not ordinarily excluded from observation will not be protected, for example, sitting-room for males, or a shop. Similarly, the roof of a house will not come under the category unless it is proved that in respect of it the right has, in fact, been enjoyed. If it is found that it did substantially exist and was enjoyed, the next question would be, “was that privacy substantially or materially interfered with by acts done by the defendant, without the consent or acquiescence of the person seeking relief against those acts?” Suppose an aperture is opened, for light and air only and not for view, in the wall of a room above a man’s height so that nothing can be seen by standing on the floor but if the aperture is reached by means of a ladder the Zenan, portion of the neighbour’s house is overlooked. Is the opening of such an aperture a substantial and material invasion of the neighbour’s privacy ? The answer depend on the facts of the case. If the aperture is only a little above a man’s height from the floor it may be but if it sufficiently high so that there is little possibility of its being used for looking through then it is not.

Important Case Laws

  1. User of land in Abadi by tenants for crushing sugar cane, extracting and boiling the juice may be acquired as a customary easement.2)
  2. Customary right of Privacy: Defendant's house's window overlooking only the outer courtyard of plaintiff's house. Court held that there can be no right of privacy in this case.3)
  3. A custom by which earth is taken from a piece of land to repair houses in a village after inundation is not unreasonable.4)
  4. Claim of Mohammedan residents of a village to bury their dead in a grove is not a customary easement as it is not appurtenant to any land but is a customary right in the nature of an easement.5)

    Note: In this case the right was recognized in the entire area of the grove ; such a right cannot be acquired as a prescriptive easement as it tends to the total destruction of the servient heritage, also it cannot be acquired in virtue of a local custom as such custom would be unreasonable.

  5. Where the defendant opened certain apertures towards the plaintiff’s house which was already overlooked by the defendant’s house in several places the court held, that there was a substantial and material invasion of the right of privacy. The apertures would permit a person to look on without being observed which could be guarded against from an open space.6)
  6. A right of privacy is a right which attaches to property and is not dependent on the religion of the owner.7)
  7. Where customary use is set up but the custom is unreasonable, an easement cannot be acquired in respect of it.8)

Important Questions

  1. What must a person complaining of an invasion of privacy prove? What is his remedy if no easement of privacy exists?
  2. Distinguish between custom and prescription as means of acquiring easements ; and state what characteristics must mark a custom by virtue of which an easement is claimed.
  3. Is the right to undisturbed privacy recognized in this country? If the plaintiff succeeds, in the case of an invasion of privacy, in what form would you grant him decree?
1)
1995 KHC 1884
2)
Rajab Ali v. Rajjoo Khan
3)
AIR 1981 All. 342
4)
Babu Kikoo Mohtan v. Narain Sahu
5)
Mathura Prasad v. Karim Baksh and another
6)
Abdul Rahman v. Bhagwan Das
7)
Ablau Rahman v. D. Emile
8)
Fakkir Mohammad Rowthen v. Pichai Thevan


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