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property_law:easement:extinction-suspension-revival

The extinction, suspension and revival of easements

Sections 37 to 51 of the Indian Easements Act deal with the extinction, suspension and revival of easements.

Extinction by dissolution of right of servient owner

Section 37 of The Indian Easements Act, 1882.

When, from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished.

Exception: Nothing in this section applies to an easement lawfully imposed by a mortgagor in accordance with section 10.

Illustrations
(a) A transfers Sultanpur to B on condition that he does not marry C. B imposes an easement on Sultanpur. Then B marries C. B 's interest in Sultanpur ends, and with it the easement is extinguished.
(b) A, in 1860, let Sultanpur to B for thirty years from the date of the lease. B, in 1861, imposes an easement on the land in favour of C, who enjoys the easement peaceably and openly as an easement without interruption for twenty-nine years, B 's interest in Sultanpur then ends, and with it C' s easement.
(c) A and B, tenants of C, have permanent transferable interests in their respective holdings. A imposes on his holding an easement to draw water from a tank for the purpose of irrigating B 's land. B enjoys the easement for twenty years. Then A 's rent falls into arrear and his interest is sold. B 's easement is extinguished.
(d) A mortgages Sultanpur to B, and lawfully imposes an easement on the land in favour of C in accordance with the provisions of section 10. The land is sold to D in satisfaction of the mortgage-debt. The easement is not thereby extinguished.

This section is a necessary corollary to Section 8 ; a person may impose an easement in the circumstances, and to the extent, in and to which he may transfer his interest in the servient heritage. If his interest in the servient heritage is liable to be defeated so the easement imposed by him should be.

Exception: Subject to the mortgage the mortgagor is an absolute owner of the property and can impose any easement on the mortgaged property that does not render the security insufficient. Such easement is not, therefore extinguished upon an alienation of the mortgaged property.

Illustration (c): Vide Section 11 where it is laid down that a lessee cannot impose on the property leased an easement to take effect after the expiration of his own interest. Again, here both A and B are tenants of a common landlord C, i.e., owner of the holdings of both A and B, is the same person. One of the essentials of a true easement is that there should be two distinct heritages owned by different persons, so, can the right enjoyed by B in the holding of A be called an easement? The illustration seems to lend support to the view that where tenants have got permanent and transferable interests in their holdings such a thing is possible. But vide 54 IC 943, where it has been held that a tenant of land, though having a permanent right of tenancy cannot acquire an easement by prescription in other lands of his lessor.

Extinction by release

Section 38 of The Indian Easements Act, 1882.

An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner. Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage. An easement may be released as to part only of the servient heritage.

Explanation I: An easement is impliedly released-
(a) where the dominant owner expressly authorises an act of a permanent nature to be done on the servient heritage, the necessary consequence of which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority;
(b) where any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future.

Explanation II: Mere non-user of an easement is not an implied release within the meaning of this section.

Illustrations
(a) A, B and C are co-owners of a house to which an easement is annexed. A, without the consent of B and C, releases the easement. This release is effectual only as against A and his legal representative.
(b) A grants B an easement over A's land for the beneficial enjoyment of his house. B assigns the house to C, B then purports to release the easement. The release is ineffectual. (c) A, having the right to discharge his eavesdroppings into B 's yard, expressly authorises B to build over this yard to a height which will interfere with the discharge. B builds accordingly. A 's easement is extinguished to the extent of the interference.
(d) A, having an easement of light to a window, builds up that window with bricks and mortar so as to manifest an intention to abandon the easement permanently. The easement is impliedly released.
(e) A, having a projecting roof by means of which he enjoys an easement to discharge eavesdroppings on B 's land, permanently alters and roof so as to direct the rain-water into a different channel and discharge it on C 's land. The easement is impliedly released.

The dominant owner may release an easement whenever he pleases, the servient owner has no right to require that it be continued. But the dominant owner cannot so release as to prejudice the rights of any other person who holds an interests in the dominant heritage. Illustrations (a) and (b) are examples of cases in which rights of third persons are affected and consequently the release is ineffectual to that extent. Illustration (c) is an example of partial release and illustrations (d) and (e) of implied release. Mere failure to keep the servient tenement in repair does not constitute an abandonment of the easement.

Extinction by revocation

Section 39 of The Indian Easements Act, 1882.

An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement.

If the servient owner at the time of granting an easement reserves the power of revoking it then by the exercise of such power he can extinguish the easement.

Extinction on expiration of limited period or happening of dissolving condition

Section 40 of The Indian Easements Act, 1882.

An easement is extinguished where it has been imposed for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfilled.

Examples: If an easement is imposed for a period of ten years only it will cease, ipso facto, on the expiry of the said term. Similarly, if an easement is granted to X on condition that he does not marry Y. The easement will be extinguished when X marries Y.

Extinction on termination of necessity

Section 41 of The Indian Easements Act, 1882.

An easement of necessity is extinguished when the necessity comes to an end.
Illustration: A grants B a field inaccessible except by passing over A's adjoining land. B afterwards purchases a part of that land over which he can pass to his field. The right of way over A's land which B had acquired is extinguished.

Principle

An easement of necessity arises when the dominant heritage cannot be enjoyed except by having an easement over the other property of the transferor or the transferee, as the case may be (section. 13) ; hence when such necessity no longer exists the easement also comes to an end. Easements of necessity are not permanent easements ; they are temporary and exist only so long as the necessity exists.

Case Laws

  • S.41 which deals with extinction on termination of necessity should be understood not as a permanent extinction; but capable of revival when contingency arises necessitating a means of access as an absolute necessity either due to total destruction of servient heritage or loss of available way under S.44, S.45 and S.46 : Achuthan Nair v. Vasudevan and Another.1)
  • Easement of necessity is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but it is one without which that tenement cannot be used at all. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to have bare use of his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access, however inconvenient, arises the legal necessity of burdening the servient owner ceases and the grant of necessity by implication of law is legally withdrawn or extinguished as statutorily recognised in S.41. Such an easement will last only so long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and S.41 is not applicable in such case. Velayudhan v. Padmanabhan2)
  • Where the easement of necessity to the use of lavatory and right of easement over conservancy lane constituting approach to lavatory acquired by previous owner was conveyed to the transferee. Transferee had been deprived of the use of lavatory for a long period of 33 years. Transferees must have some alternative arrangement to ease themselves which led to the further irrefutable conclusion that the necessity that was there for the transferee to use the suit lavatory was no longer there. When the necessity came to an end the easement of necessity was extinguished. See Ranganna T. (Deceased By L. Rs. ) v. Bhagirathi Bai and Another3)

Extinction of useless easement

Section 42 of The Indian Easements Act, 1882.

An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner.

Example: For instance, if A, as owner of a farm, has the right to use, for the purpose of manuring his farm, the leaves which have fallen from the trees on B’s land. A erects a factory on his farm. The easement to take leaves becomes useless.

Extinction by permanent change in dominant heritage

Section 43 of The Indian Easements Act, 1882.

Where, by any permanent change in the dominant heritage, the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement, the easement is extinguished unless:

(a) it was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the easement should be used; or
(b) the injury caused to the servient owner by the change is so slight that no reasonable person would complain of it; or
(c) the easement is an easement of necessity. Nothing in this section shall be deemed to apply to an easement entitling the dominant owner to support of the dominant heritage.

Effect of increase of burden by permanent change

If the increase cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement, the easement is extinguished. Three kinds of easements are excepted from this rule, namely ;

  1. easements of which the extent of user is intended to be unlimited,
  2. easements of necessity and
  3. easements of support.

The easement is also not extinguished when the injury caused to the servient owner by the change is very slight or trivial.

As regards easements of necessity it does not mean that the dominant owner by increasing the necessity by a change in the dominant heritage can increase the burden on the servient heritage, for an easement of necessity is co-extensive with the necessity as if existed when the easement was imposed (section. 28) and not as it subsequently became by change in the dominant heritage. For instance, A, the owner of a house, sells B a factory built on adjoining land. B is entitled as against A, to pollute the air when necessary, with smoke and vapours from the factory. But if B extends his works and thereby increases the quantity of smoke and vapours, he is responsible to A for any injury done by such increase. What is meant is this that the original easement in favour of B, will not be extinguished, as an easement of necessity is extinguished only when the necessity comes to an end.

As regards the easement of support if an additional weight is added to the existing building the easement is not extinguished but if the damage by excavation or otherwise would not have been caused but for the additional building no damages can be recovered.

The easement is also not extinguished if the injury caused to the servient owner is so slight that no reasonable person would complain of it, as law does not take account of trifles (de minimus non curat lex). A right to light is also not extinguished by enlarging the windows through which it is enjoyed as it is an innocent act and cannot be a cause of forfeiture of any existing right.

Case Laws

  1. Where the owner of a house had a right to discharge water from one privy in his house into the drain of another’s house, and he subsequently built a new privy in the house and connected that with the drain ; Held, the burden could be reduced without difficulty to its original limits by the drain from the new privy being blocked or cut away, and the easement was not extinguished.4)
  2. Dominant owner had a right to let rainwater drop from his eaves on to the roof of the servient owner from a distance of seven feet. Subsequently he raised the height of his roof to about twenty-one feet and instead of allowing the water to drop from the eaves he poured it down through pipes. Held that the burden on the servient heritage had increased and that, therefore, the easement was extinguished.5)

Extinction on permanent alteration of servient heritage by superior force

Section 44 of The Indian Easements Act, 1882.

An easement is extinguished where the servient heritage is by superior force so permanently altered that the dominant owner can no longer enjoy such easement: Provided that, where a way of necessity is destroyed by superior force, the dominant owner has a right to another way over the servient heritage; and the provisions of section 14 apply to such way.

Illustrations
(a) A grants to B, as the owner of a certain house, a right to fish in a river running through A's land. The river changes its course permanently and runs through C's land. B's easement is extinguished.
(b) Access to a path over which A has a right of way is permanently cut off by an earthquake. A's right is extinguished.

The plaintiff had a right to use the scavenger serviced latrine in the adjoining building of the defendant. Subsequently, the Municipality stopped scavenger service and insisted on conversion of the latrine into a septic tank latrine. Such conversion of the latrine would not extinguish the plaintiffs right to use the latrine because there was only a change in the mode of enjoyment : Soni Samaratamal Bhuraj and Others v. P. B. Nagireddy and Others.6)

Extinction by destruction of either heritage

Section 45 of The Indian Easements Act, 1882.

An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
Illustration: A has a right of way over a road running along the foot of a sea-cliff. The road is washed away by a permanent encroachment of the sea. A's easement is extinguished.

Sections 44 and 45 need no comment, illustrations explain their applications.

Extinction by unity of ownership

Section 46 of The Indian Easements Act, 1882.

An easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages.

Illustrations
(a) A, as the owner of a house, has a right of way over B 's field. A mortgages his house, and B mortgages his field to C. Then C forecloses both mortgages and becomes thereby absolute owner of both house and field. The right of way is extinguished.
(b) The dominant owner acquires only part of the servient heritage; the easement is not extinguished, except in the case illustrated in section 41.
(c) The servient owner acquires the dominant heritage in connection with a third person; the easement is not extinguished.
(d) The separate owners of two separate dominant heritages jointly acquire the heritage which is servient to the two separate heritages; the easements are not extinguished.
(e) The joint owners of the dominant heritage jointly acquire the servient heritage; the easement is extinguished.
(f) A single right of way exists over two servient heritages for the beneficial enjoyment of a single dominant heritage. The dominant owner acquires one only of the servient heritages. The easement is not extinguished.
(g) A has a right of way over B 's road. B dedicates the road to the public. A's right of way is not extinguished.

Extinction by merger: An easement is extinguished by unity of ownership because the dominant owner can do any act which the easement would entitle him to do, in virtue of his right of ownership of the servient heritage, and there is no need for the exercise of the easement at all. But in order to extinguish an easement by merger it is necessary that some person should be entitled to the absolute ownership of the whole of the dominant and servient heritages, so that the mere acquisition of qualified ownership on one hand or partial ownership on the other would not extinguish such easements as the illustrations to the section show. If a person is in possession of both heritages otherwise than as an absolute owner the easement is simply suspended and not extinguished. Vide S. 49.

Illustration (c): The easement is not extinguished because the servient owner does not become the absolute owner of the whole of the dominant heritage.

Illustration (d): Because none of the dominant owners is the absolute owner of the whole of the servient heritage.

Illustration (e): The easement is extinguished because the same persons, viz., the joint owners, are the absolute owners of both the heritages.

Illustration (f): As the right of way over the two servient heritages is one the easement enjoyed is a single easement and by acquiring only one heritage the dominant owner does not become the owner of the whole of the servient heritage. Vide last para, and illustration of section 47.

Illustration (g): Because A does not become owner of B’s road. Here the right to the road vests in the public of which A is only a member.

Extinction by non-enjoyment

Section 47 of The Indian Easements Act, 1882.

A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years. A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such. Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner; and, in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner:

Provided that if, in the case of a discontinuous easement, the dominant owner, within such period, registers, under the Indian Registration Act, 1877 (3 of 1877) , a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of the registration. Where an easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at other times, or between other hours, or for another purpose, does not prevent its extinction under this section.

The circumstance that, during the said period, no one was in possession of the servient heritage, or that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that the dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section.

An easement is not extinguished under this section:
(a) where the cessation is in pursuance of a contract between the dominant and servient owners;
(b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period; or
(c) where the easement is a necessary easement.

Where several heritages are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement.

Illustration: A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening heritage Y. Before the twenty years expire, A exercises his right of way over X. His rights of way over Y and Z are not extinguished.

Case to which section does not apply

It has already been pointed out under s. 15 that a title to a prescriptive easement does not become perfect until the claim to it has been established in a suit between the contending parties. If there has been no such suit, and consequently no Such acquisition of an easement, no question of release or extinguishment can arise.

Rendered impossible by the dominant owner

For instance, where the dominant owner blocks up the window through which the light had been received or he pulls down his house and erects a blank wall in the place of a wall in which there had been windows provided his act does not amount to an implied release under s. 38, Cl. (b) in which case the easement will at once be extinguished.

In the case of a continuous easement no act of man is required for its enjoyment, the mere existence of it is sufficient, consequently it will not cease to be enjoyed until its enjoyment is obstructed by the servient owner or rendered impossible by the dominant owner. But in the case of a discontinuous casement its non-user for twenty years extinguishes the easement even though the easement could not be enjoyed due to some cause over which the dominant owner had no control.

Case Laws

  1. A customary easement may become extinguished by non-user due to natural causes, for example, a tank may become unfit for use as an irrigation source.7) Vide also s. 44.
  2. A drain is a continuous easement, and mere non-user by itself, without more, will not extinguish the easement.8)
  3. Easement of necessity cannot extinguish under S.47. Easement of necessity is a necessary easement, hence an exception to S.47 is drawn under clause (c) therein by the Legislature.9)
  4. S.47 demands compliance of certain requirements; a total cessation of enjoyment for an unbroken period of 20 years. Said mandate cannot be diluted by applying either doctrine of estoppel by conduct or by doctrine of acquiescence.10)

Extinction of accessory right

Section 48 of The Indian Easements Act, 1882.

When an easement is extinguished, the rights (if any) accessory thereto are also extinguished.
Illustration: A has an easement to draw water from B's well. As accessory thereto, he has a right of way over B's land to and from the well. The easement to draw water is extinguished under section 47. The right of way is also extinguished.

An accessory right exists only to secure the enjoyment of the principle right hence, if the primary easement is extinguished the secondary easement must also come to an end with it.

Suspension of easement

Section 49 of The Indian Easements Act, 1882.

An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage for a limited interest therein, or when the servient owner becomes entitled to possession of the dominant heritage for a limited interest therein.

Example: For instance, when the dominant owner takes on lease the servient land from the servient owner and vice versa. The reason is that now the dominant owner can do any act which the easement would entitle him to do, in virtue o£ his possession of the servient heritage, and there is no need for the exercise of the easement at all. And when the servient owner takes on lease the dominant heritage then too there is no necessity for the exercise of the easement as the servient owner as owner in possession can put the servient heritage to any use he pleases.

Servient owner not entitled to require continuance

Section 50 of The Indian Easements Act, 1882.

The servient owner has no right to require that an easement be continued; and, notwithstanding the provisions of section 26, he is not entitled to compensation for damage caused to the servient heritage in consequence of the extinguishment or suspension of the easement, if the dominant owner has given to the servient owner such notice as will enable him, without unreasonable expense, to protect the servient heritage from such damage.

Compensation for damage caused by extinguishment or suspension: Where such notice has not been given, the servient owner is entitled to compensation for damage caused to the servient heritage in consequence of such extinguishment or suspension.

Illustration: A, in exercise of an easement, diverts to his canal the water of B's stream. The diversion continues for many years, and during that time the bed of the stream partly fills up. A then abandons his easement, and restores the stream to its ancient course. B's land is consequently flooded. B sues A for compensation for the damage caused by the flooding. It is proved that A gave B a month's notice of his intention to abandon the easement, and that such notice was sufficient to enable B, without unreasonable expense, to have prevented the damage. The suit must be dismissed.

Principle: The easement exists for the beneficial enjoyment of the dominant heritage only so if the servient heritage is also benefitted by the exercise of the easement no reciprocal easement is created in favour of the servient heritage, for example, if a person has acquired a right to discharge all the filthy water of his land on to the land of his neighbour who utilises it for manuring his fields, the neighbour cannot require the dominant owner to continue to exercise the easement for his benefit.

Revival of easement

Section 51 of The Indian Easements Act, 1882.

An easement extinguished under section 45 revives:
(a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion;
(b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site, and
(c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt upon the same site and in such a manner as not to impose a greater burden on the servient heritage.

An easement extinguished under section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by the decree of a competent Court. A necessary easement extinguished under the same section revives when the unity of ownership ceases from any other cause.

A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.

Illustration: A, as the absolute owner of field Y, has right of way thither over B's field Z. A obtains from B a lease of Z for twenty years. The easement is suspended so long as A remains lessee of Z. But when A assigns the lease to C, or surrenders it to B, the right of way revives.

Last para: When an easement is suspended there is cessation of an enjoyment of it as an easement and if this continues up to twenty years the easement is extinguished under section 47.

If the land over which easement is claimed has been held as demisee of it by the person who claims, for over twenty years, the right to the easement cannot be held to have been enjoyed separately from the right to demise during the period of the lease and the easement is extinguished.11)

1)
2021 (1) KLJ 24
2)
1988 (2) KLT 417
3)
1986 KHC 1811
4)
Parmeskwar Dayal v. Maharaj Charan
5)
Keshri Sakai Singh v. Hit Narain Singh
6)
AIR 1989 Kar. 117
7)
Bayya Sahu v. Krishnachandra
8)
Chinta Kundy Parvata Mina v. Lanka Sanyasi
9)
2021 (1) KLJ 24
10)
2019 (2) KLJ 94
11)
Kandha Nath v. Chemboli Valia Veetil


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Created on 2021/04/08 13:41 by LawPage • Last modified on 2021/04/09 22:26 (external edit)