LawPage

Notes and Articles for Law students

User Tools

Site Tools


property_law:easement:disturbance-of-easements

The disturbance of easements

Disturbance of easements is the lawful obstruction, or annoyances caused by the infringement of rights of easements. Chapter IV, Sections 32 to 36 of the Indian Easements Act, 1882 deal with disturbance of easements.

Right to enjoyment without disturbance

Section 32 of The Indian Easements Act, 1882.

The owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person.

Illustration
A, as owner of a house, has a right of way over Bs land. C unlawfully enters on Bs land, and obstructs A in his right of way. A may sue C for compensation, not for entry, but for the obstruction.

Any other person: The disturbance may be caused by the servient owner or his licensee or even by a trespasser, as an easement is a right in rem whoever creates disturbance will be liable for it to the dominant owner.

In Joseph v. State of Kerala1) the Hon'ble High Court of Kerala held that “construction of a building cannot be held as disturbance. When an institution authorised and permissible to be put up comes to existence, it may not be possible for the quarry owner, whose property is situated nearby, to contend that he having been permitted to occupy and exploit his properties, others are automatically subjected to a disability for all time to come ”. The court summed up that for the Construction of a school building consent from the neighbouring landowner is not required.

Suit for disturbance of easement

Section 33 of The Indian Easements Act, 1882.

The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto: provided that the disturbance has actually caused substantial damage to the plaintiff.

Explanation I: The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and section 34.
Explanation II: Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.
Explanation III: Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.

Illustrations
(a) A places a permanent obstruction in a path over which B, as tenant of Cs house, has a right of way. This is substantial damage to C, for it may affect the evidence of his reversionary right to the easement.

(b) A as owner of a house, has a right to walk along one side of Bs house. B builds a verandah overhanging the way about ten feet from the ground, and so as not to occasion any inconvenience to foot-passengers using the way. This is not substantial damage to A.

Or of any right accessory thereto

When an easement is acquired in any manner the accessory right to do acts necessary to secure, the full enjoyment of the easement is also acquired with it. For example, if A has an easement of support from B’s wall and the wall gives way, A has a right to enter upon B’s land and repair the wall. Therefore, if A is interfered with in any manner from repairing the wall he has a good cause of action for the disturbance of the accessory right.

Explanation I

This Explanation lays down what amounts to substantial damage generally and Explanations II and III give the meanings of substantial damage with special reference to light and air.

By affecting the evidence of the easement

For instance, A, as owner of a house, has a right to flow sullage water from his latrine through a drain passing through his neighbour B’s land. B digs up the drain and removes all traces of it. This is substantial damage to A as it affects the evidence of his easement. Another example is furnished by illustration (a) of this section.

Explanation II

Section 33 shows that no compensation can be recovered for the infringement of a right of easement to receive light through a window, door, or other opening if the interference does not amount to substantial damage. As to what constitutes substantial damage in such cases is given in this Explanation. Section 33 limits the operations of sections 15 and 28 of the Act. Section 15 describes how a prescriptive easement is acquired and lays down that the right thus acquired is an absolute right. Section 28 gives the extent of the prescriptive right to light or air and says that it is that quantity of light or air which has been accustomed to enter the opening during the whole of the prescriptive period irrespective of the purposes for which it has heal used. If sections 15 and 28, which respectively define the nature and the extent of such right, stood alone the legitimate inference would have been that a prescriptive easement of light and air could not be interfered with in any way even if no substantial damage, within the meaning of Explanation II, could be proved ; for otherwise what would have been the force of the words “absolute right” in section 15 and the words “irrespective of the purposes for which it has been used” in section 28. This view has also found favour with some judges and in Kunni Lal v. Kundan Bibi2) Aikman, J. held that the definition of the extent of a prescriptive right to light and air under the Easement Act was not in accord with the English law as laid down in Colls v. Home and Colonial Stores3) and Kine v. Jolly4) In this case it was proved that the blocking up of the window had done little or no harm as there was another window through which the light passed, and the room was still sufficiently lighted. It was argued that as long as a room had sufficient light, it did not matter that it could not, owing to some act of the defendant, have all the light that passed to it through a particular hole. That the test was whether the obstruction complained of amounted to a nuisance. But these contentions were overruled and injunction was granted for the demolition of the construction. But the current of recent decisions has followed the English rule and we may say that the law is now established that a suit for compensation for the disturbance of an easement of light is not maintainable unless substantial damage is proved. In Durga Prasad v. Lachhmi Narayan5) a window was entirely blocked by the construction of a wall against it, it was held that the plaintiff had no absolute right to protect his window against obstruction. He had a right to the access of sufficient light and air through his window, but if there was already a sufficient access of light and air to his house through other openings therein and the obstruction caused to the window did not materially or in any measure interfere with the sufficiency of the access of such light and air, the plaintiff was not entitled to any relief.

In Framji Shapurji v. Framji Edulji6) it has been held that where a plaintiff, having several sources of light, does anything permanent so as to materially interfere with any one of them and to considerably diminish the light coming therefrom, his act will be treated as equivalent to a surrender of his right, and the question of material diminution of comfort must be deter- mined as if the light still substantially exists. To deter- mine the question of physical comfort by the light of such diminution caused by the plaintiff’s own act would be to impose a greater burden on the servient heritage than it is liable to according to law.

Quaerie

But what if there are separate servient heritages for the different sources of light and if one of the servient owners obstructs one source of light for which the dominant owner cannot bring an action because his physical comfort has not been materially interfered with and as this diminution is not caused by his act, increased burden under these circumstances, if the ruling correctly states the law, can be thrown on other servient heritages and for no fault of theirs. One solution seems to be that each servient owner should be entitled to obstruct only so much light as does not throw any additional burden on any servient heritage than to which it is already subject and for this the quantity that enters each aperture and the quantity of light that can be dispensed with or obstructed without causing any harm to the dominant owner will have to be taken into consideration and of this latter light each servient owner will be entitled to obstruct in proportion to the light that enters through the aperture on his side. A very tedious process indeed.

Framji Shapurji v. Framji Edulji7), Paul vs Robson8), Gajadhar v. Kishori Lal, Gur Prasad Mukerji v. Btshun Dut9), Durga Prasad v. Lachmi Narain10) are the leading cases in which it has been held that the right to light and air is only a qualified one. These cases lay down that the owner of a dominant heritage does not obtain by his easement a right to all the light he has enjoyed during the period of prescription. In Esa Abbas Sait v. Jacob Haroon Sait, it was held that the provision in regard to the extent of a prescriptive right to light is not in accord with the view taken in Colls v. Home and Colonial Stores case but that no invasion of such right will give a right to compensation unless substantial damage is caused within the meaning of S. 33. Kunni Lal v. Kundan Bibi,11) is probably the only Indian case under the Act in which the prescriptive right to light and air was held absolute and indefeasible and the provisions of S. 33 were altogether disregarded. The case of Nand Kishore Balgovan v. Bhagubhai, which is cited with approval in the above case was decided on the assumption that there was material interference in the ordinary physical comfort of the plaintiff. But this much can be said in favour of the view that holds such a right indefeasible that at the time of the passing of the Indian Easements Act of 1882, the prevailing view based on the 3rd section of the Prescription Act was that the right which was acquired by the so-called statutory prescription was a right to a continuance of the whole or substantially the whole quantity of light which had come to the window during a period of twenty years.12)

It is rather difficult to reconcile the provisions of sections 15, 28 and 33, but the law as, at present, established seems to be that if a person has been receiving light and air through an opening in his house in the manner required by section 15 for the acquisition of prescriptive right to light and air, he has, in fact, not acquired a right to the whole light and air which he received throughout the whole of the statutory period but to only so much as is necessary for his ordinary physical comfort or for carrying on his accustomed business in the dominant heritage as beneficially as before the disturbance, for the rest of the light and air can be obstructed with impunity by the servient owner and if the whole of the light and air can be so obstructed the servient owner will be entitled to do so. This result seems to be directly against the spirit and the wordings of sections 15 and 28. It is rather unfortunate that no illustrations in respect of the right to light and air have been appended to any of these sections to throw some light on this point.

It is clear that when a suit for compensation for the disturbance of an easement does not lie a suit for an injunction also can not lie.13) The leading English case on this point is Colls v. Home and Colonial Stores Ltd.14) The substance of the decision in the case is as follows: “ To constitute an actionable obstruction of ancient lights it is not enough that the light is less than before, there must be a substantial privation of light, enough to render the occupation of the house uncomfortable according to the ordinary notions of mankind and, in the case of business premises to prevent the plaintiff from carrying on his business as beneficially as before.” In the course of his judgment in this case, Lord Lindley said: “The general principle deducible from previous authorities appears to be that the right to light is in truth no more than a right to be protected against a particular form of nuisance (i.e., nuisance caused by the erection of buildings), and that an (action for the obstruction of light which has, in fact, been used and enjoyed for twenty years without interruption or written consent, cannot be sustained unless the obstruction amounts to an actionable nuisance.”

Explanation III

The same remarks apply to this Explanation as to Explanation II above.

Important Case Laws

  1. The plaintiff has no absolute right to protect his window against obstruction. He has a right to the access of sufficient light and air through his window but if there is already a sufficient access of light and air to his house through other openings therein and the obstruction caused to the window does not materially or in any measure interfere with the sufficiency of the access of such light and air the plaintiff is not entitled to any relief.15)
  2. Plaintiff filed suit for temporary injunction on ground that staircase constructed by defendant obstructing window of kitchen of plaintiff. Some space was available between plaintiff's window and staircase of defendant. There are two doors for the kitchen in dispute, one is in the north which is opening in the chowk, whereas other door is in the east which opens in another room. There is one ventilator over the one door. Thus, apertures are in addition to the window in dispute which is opening in the south of the kitchen. There cannot be sufficient air and light from a door opening in another room and has no reach to the air and light from open place or direct from the sky. Decree for removal of obstruction by closing said window held proper.16)
  3. The owner of the servient tenement could reduce the access of light and air to the window of a dominant owner provided he did not so diminish it as to make it less than what the owner of the dominant tenement required for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings.17)
  4. As regards an easement of light, there is no rule defining the measure of the dominant owner’s right or requiring an angle of 45° through which the rays of the sun are to be received. To sustain an action there must be a substantial privation of light enough to render the occupation of the house uncomfortable according to ordinary notions.18)
  5. Defendant's unit situated towards south side of plaintiff's unit. Plea by defendant that sun is rising in East and setting in West via southern side therefore no question of obstruction of light from north side cannot be accepted because sun being vertical on the Earth, provides light to north side also all the time throughout the day may be more or less for some hours in particular direction19)
  6. Ordinarily the plaintiff, if he is entitled to relief in respect of disturbance of an easement of light or air, is entitled to an injunction rather than to damages. It is open to him, of course, to be content with damages, but section 35 of the Act shows that he is not entitled to an injunction except in cases where he would be entitled to recover damages. Where the plaintiff comes into court at once when the disturbance is threatened and the defendant completes his structures pending the suit he does so at his peril.20)
  7. There is no infringement of an easement of light if the disturbance does not amount to an actionable nuisance.21)
  8. The extent of a prescriptive right to light and air allowed by s. 28 is not in accord with the view taken in Colls v. Home and Colonial Stores case but no invasion of such right will give a right to compensation unless substantial damage is caused within the meaning of s. 33.22)
  9. Any act by which the control of light and air are taken out of the hands of the person entitled to them or by which the access of light and air to the window of a dwelling house is interfered with is prima facie an injury of a serious character.23)
  10. Right of light and air: As regards right of light and air is concerned, the right to vertical light and air is recognised but there is no question of person having a right of light and air coming to his property laterally24)

Important Questions

  1. What constitutes an actionable obstruction of ancient lights ?
  2. Can there be an infringement of a right to light if the act complained of does not amount to a nuisance ?

When cause of action arises for removal of support

Section 34 of The Indian Easements Act, 1882.

The removal of the means of support to which a dominant owner is entitled does not give rise to a right to recover compensation unless and until substantial damage is actually sustained.

Principle

The section requires that in order to constitute a disturbance of an easement of support and found a claim for damages, there must be actual and substantial damage caused . The doctrine that a man should not be restricted in the user of his own property unless and until it causes actual damage to his neighbour applies to easements of this character.

Cause of action

In cases of easements of support the tort does not consist in removing the support, but in causing damage to the plaintiff’s land or building, hence, as often as the damage is caused a new cause of action arises. The causa causans is, no doubt, the removal of the support, but the cause of action is the damage.

It must be noted that only the damage ensuing on the removal of the means of support is actionable and not that caused by the support falling down for want of repairs; for it is not the duty of the servient owner to keep the support standing and in repair.

Injunction to restrain disturbance

Section 35 of The Indian Easements Act, 1882.

Subject to the provisions of the Specific Relief Act, 1963, sections 36 to 42 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-

(a) if the easement is actually disturbed - when compensation for such disturbance might be recovered under this Chapter;
(b) if the disturbance is only threatened or intended - when the act threatened or intended must necessarily, if performed, disturb the easement.

Injunction when granted: An injunction is granted when substantial injury is caused.

Injunction when refused: Mandatory injunction may be refused if the plaintiff is guilty of laches and delay.

Sibabhai Chawan and Others v. Sabitribai Jain25)

Summary:The land in question was a public road. The plaintiff's easementary right was obstructed by construction of the wall on the suit land by the defendants. The plaintiff had cause of action against the defendants only. Held suit for injunction against defendant, maintainable.

Ratio: No person has any right to make a construction over the land belonging to the Government and obstruct the easementary right of the persons residing in the locality.

Abatement of obstruction of easement

Section 36 of The Indian Easements Act, 1882.

Notwithstanding the provisions of section 24, the dominant owner cannot himself abate a wrongful obstruction of an easement.

The dominant owner is forbidden to abate a wrongful obstruction of an easement himself lest it should lead to a breach of the peace.

1)
2003 KHC 1115
2)
29 All., 571
3)
1904 A. C., 179
4)
1905 1 Ch., 480
5)
22 ALJ 314
6) , 7)
1905 7 Bom. LR 325
8)
1914 42 Cal., 46
9)
1924 All., 816
10)
1924 22 ALJ 314
11)
1907 4 ALJ 477
12)
Vide Calcraft v. Thompson and Scott v. Pope.
13)
Vide S. 35, Cl. (a).
14)
1904 AC 179
15)
Durga Prasad V. Lachmi Narayan
16)
AIR 2005 Raj. 127
17)
Gur Prasad Mukerji v. Bishun Dut
18)
Chandan Kunwar v. Narain
19)
AIR 1999 Raj. 229
20)
Gajadhar v. Kishori Lal
21)
Paul V. Robson
22)
Esa Abbas Sait v. Jacob Haroon Sait
23)
Nandkishore v. Bhagabhai, 8 Bom., 95
24)
AIR 1990 Kar. 236
25)
2018 KHC 4415


Navigation: Home»Property Law

Created on 2021/04/07 09:02 by LawPage • Last modified on 2021/04/09 22:26 (external edit)