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property_law:easement:easements-restrictive-of-certain-rights

Easements restrictive of certain rights

Section 7 of The Indian Easements Act, 1882.

Easements are restrictions of one or other of the following rights (namely):-

(a)Exclusive right to enjoy. The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.
(b) Rights to advantages arising from situation. The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

Illustrations of the Rights above referred to:
(a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.
(b) The right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.
(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonable by noise or vibration caused by any other person.
(d) The right of every owner of land to so much light and air as pass vertically thereto.
(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 within such owner's limits without material alteration in quantity or temperature.
(i) The right of every owner of upper land that water naturally rising in, or falling on such land, and not passing in defined channels, shall be allowed by the owner of 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, tide or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.

Relation of easements to rights of property

If A is an owner of a field X, he possesses an indefinite number of rights over it ; he can walk over it, he can build upon it, he can dig under it, he can exclude others from it, he can sell, mortgage or make a gift of it, he is also entitled to all its products and if any land is added to it, say, by alluvion, he is entitled to it, in short, he is entitled to all the lawful uses of it too numerous to be mentioned. Now suppose A’s neighbour B has got a right of way over the field X. What is the nature of this right? In the first place this is a definite right of user and enjoyment as distinguished from the right of ownership which confers an indefinite power to apply the land to all lawful uses or purposes. Again, this right does not give B any right of property in A's land, but the existence of B’s right of way restricts the exercise of A’s right of ownership in some respects.

For example A, as owner of the field, has got a right to exclude all from it but he cannot exclude B while exercising his right of way. Again, A has got a right to build on his land but on account of the right of B he cannot now so build as not to leave a reasonable passage for B to pass.

Relation of easements to natural rights

Besides the ordinary rights of property, which are exercised within the limits of the land, there are certain rights which attach to land as incident to ownership, and which entitle the owner to enjoy the natural advantages arising from its situation in relation to other lands in its vicinity. For example, 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. The right of every owner of upper land that water naturally rising in, or falling on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally to it. These rights, which are very like easements, are generally called, “natural rights” and are also sometimes termed as “natural easements”. These natural rights are not granted to, or acquired by, the owner of land, since he possesses them already, simply because he is the owner of the land. These rights are secured to every owner of land by the common law of the country. They owe their origin to the dispositions and arrangements of nature and are purely negative in their character. Easements also arise by imposing restrictions on these natural rights. For example, the right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons is a natural right, but a neighbour may acquire a right, say, by prescription, to pollute such air with the smoke and vapours from his factory.

Summary

Thus we see that easements are restrictions of

  1. the ordinary rights of property, or
  2. of natural rights.

Though easements are restrictions of ordinary rights of , property or of natural rights but the converse is hot necessarily true, i.e., every restriction of an ordinary right of property or of a natural right is not necessarily an easement, for the law has limited the number of easements to certain well-known and well defined rights, and will not permit obligations o£ a novel and fanciful character to be created so as to pass with the servient heritage to any person into whose occupation it may happen to come. This limitation is based on grounds of expediency. It has been held that the right of one person to rear fish in another’s’ tank is quite a novel right which a court of law cannot recognise. But although an unknown and unusual obligation cannot be attached to land so as to pass with it into whatsoever hands the land may go, there is nothing to prevent a grantor binding himself by covenant to allow any right he pleases over his property. But if a right comes within the four corners of the statutory definition of an easement, whether it be a new one or a novel one, the Court is bound to give effect to it.

Examples for the illustrations

Illustrations (a), (d) and (g) are examples of rights of property and the remaining examples are those of natural rights. Examples of easements which would be restrictions of the rights mentioned in the illustrations are given below:

  1. A neighbour by acquiring a right to receive light and air through a window in his room may prevent the owner of an adjacent land from building on it.
  2. A neighbour may acquire a right to pollute the air passing to an adjacent land with the smoke and vapours arising from his factory.
  3. A person may acquire a right to interfere with the physical comfort of his neighbour by noise and vibrations made on his land.
  4. A person may acquire a right to project his eaves over his neighbour’s land so as to cut off such light and air.
  5. A peeson may acquire a right to remove the adjacent or subjacent soil so as to cause subsidence of his neighbour’s land.
  6. A person may acquire a right as an easement to pollute the water which naturally passes or percolates through the land of his neighbour.
  7. A person may acquire a right to use water collected by his neighbour from water flowing in undefined channels on or under his land.
  8. A person may acquire an easement to divert such water and convey it to his own land.
  9. The owner of lower land may acquire an easement to obstruct the flow of such water on his land.
  10. The upper riparian owner may acquire an easement to pollute the water or to divert and diminish the quantity of water to which the lower riparian owner is entitled.

Note: Where easements are created by the restrictions of natural rights, these rights are not extinguished but remain suspended during the continuance of these adverse easements and when these easements are extinguished, natural rights revive.

Important Case Laws

  1. When the owner of lower land builds upon his land so as to obstruct the flow of water from the upper land, the owner of the latter is only entitled to a decree directing the owner of the former to make provision for the carrying off of rain-water.1)
  2. A person has no right to obstruct the water of a natural stream except to the extent to which he has had prescriptive use thereof.2)
  3. An owner of upper land has a right to allow the surface water to flow away in the usual course of nature upon the lower lands of his neighbour but he cannot do this, however, by an artificial discharge upon his neighbour’s land unless he has acquired an easement.
1)
Ambica Saran Singh v. Debi Saran Singh.
2)
Rama Bhatta & Others v. Krishna Bhatta & Others (High Court Of Kerala) Second Appeal No. 257 & 277 Of 1956


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