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property_law:easement:incidents-of-easements

Incidents of easements

Incidents of easements means things which usually appertain to or follow easements. Chapter III, Sections 20 to 31 of the Indian Easements Act, 1882 deal with incidents of easements.

Rules controlled by contract or title

Section 20 of The Indian Easements Act, 1882.

The rules contained in this Chapter are controlled by any contract between the dominant and servient owners relating to the servient heritage, and by the provisions of the instrument or decree, if any, by which the easement referred to was imposed. Incidents of customary easements. And when any incident of any customary easement is inconsistent with such rules, nothing in this Chapter shall affect such incident.

Para 1: The incidents described in this chapter may be varied or dispensed with by any contract between the owners of dominant and servient heritages or by any instrument or decree by which the easement was created.

Para 2: This para lays down that there may be incidents of customary easements which do not conform to the rules contained in this chapter. It has been held that a customary easement of a more extensive nature than that indicated in the chapter may be acquired, e.g., a custom to cut wood and sell them for purposes unconnected with the dominant heritage.

Bar to use unconnected with enjoyment

Section 21 of The Indian Easements Act, 1882.

An easement must not be used for any purpose not connected with the enjoyment of the dominant heritage.

Illustrations
(a) A, as owner of a farm Y, has a right of way over Bs land to Y. Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y. He must not use the easement for the purpose of passing to and from Z.
(b) A, as owner of a certain house, has a right of way to and from it. For the purpose of passing to and from the house, the right may be used, not only by A, but by the members of his family, his guests, lodgers, servants, workmen, visitors and customers; for this is a purpose connected with the enjoyment of the dominant heritage. So, if a lets the house, he may use the right of way for the purpose of collecting the rent and seeing that the house is kept in repair.

This principle is embodied in the definition of easement itself which says that an easement is a right which the dominant owner possesses for the beneficial enjoyment of his land.

For example, if a person has an easement of quarrying stones from another’s quarry he may take as much stone as is required for repairing or building the dominant heritage but not for selling.

Exercise of easement

Section 22 of The Indian Easements Act, 1882.

The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, (Confinement of exercise of easement:) when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.

Illustrations
(a) A has a right of way over Bs field. A must enter the way at either end and not at any intermediate point.
(b) A has a right annexed to his house to cut thatching-grass in Bs swamp. A, when exercising his easement, must cut the grass so that the plants may not be destroyed.

Principle

An easement is a restriction of the ordinary rights of property and hence imposes a burden on the servient tenement, it is, therefore, desirable that such burden shall be made as light as possible provided no interference with the reasonable enjoyment of the easement is caused by the servient owner.

Rights of servient owner

The right of easement must not be exercised in such a way as to unnecessarily interfere with the exercise of the rights of property by the servient owner. The servient owner may do anything on his tenement provided it does not interfere with the reasonable exercise of his right by the dominant owner. For example, if A has a right of way to his house along a pathway belonging to B, B may construct a verandah projecting over that pathway provided by so doing he does not substantially obstruct A’s right of way.

The servient owner has the right to set out the line of way to be followed by the dominant owner, and if he fails to set it out, the dominant owner must take the nearest way he can. He cannot claim the right of passage in a tortuous and indirect course between the termini.1)

Right to alter mode of enjoyment

Section 23 of The Indian Easements Act, 1882.

Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage.

Exception: The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage.

Illustrations
(a) A, the owner of a saw-mill, has a right to a flow of water sufficient to work the mill. He may convert the saw-mill into a corn-mill, provided that it can be worked by the same amount of water.
(b) A has a right to discharge on Bs land the rain-water from the eaves of As house. This does not entitle A to advance his eaves if, by so doing, he imposes a greater burden on Bs land.
(c) A as the owner of a paper-mill, acquires a right to pollute a stream by pouring in the refuse-liquor produced by making in the mill paper from rags. He may pollute the stream by pouring in similar liquor produced by making in the mill paper by a new process from bamboos, provided that he does not substantially increase the amount, or injuriously change the nature, of the pollution.
(d) A, a riparian owner, acquires, as against the lower riparian owners, a prescriptive right to pollute a stream by throwing saw-dust into it. This does not entitle A to pollute the stream by discharging into it poisonous liquor.

Principle

An easement is not lost by a slight variation in the enjoyment of it. To hold that any the slightest variation in the enjoyment of an easement would destroy it, would virtually do away with all easements, as by the effect of natural causes some change must, in the course of time, naturally take place. It has been held that the height of projecting eaves can be raised provided an increased burden is not thrown on the servient heritage. A right to the flow of water or to pollute a stream is not necessarily affected by the conversion of the dominant mill into a different kind of mill, or by using a different material for the manufacture of goods.

Important Case Laws

  1. There is no right of easement to discharge polluted water from the drain pipe of one's house or property to the canal passing through another person's land.2)
  2. The defendant had a right to discharge water from his thatched roof to the plaintiff’s roof. He pulled down his house and built a three-storied house with spouts on his roof to discharge water on the plaintiff’s land. Held that the burden on the plaintiff’s land was increased within the meaning of section 23.
  3. The height of projecting eaves can be raised provided an increased burden is not thrown on the servient heritage.3)
  4. A change by the dominant owner not in the purpose for which a way is used, or in the direction of the way, but in the system by which such a purpose is effected, is not necessarily such a material aggravation of the easement as to entitle the servient owner to its discontinuance. Thus an easement of way used for the purpose of cleaning the privies of the dominant owner is not materially aggravated by a change of system which causes such privies to be cleansed daily instead of less frequently as before.4)
  5. If a person, having easement of light, pulls down his house and rebuilds it, he is entitled to the easements acquired if he is getting through the new aperture the same or substantially the same part of the light which passed through the old aperture.
  6. Where a person acquires a right of easement for the outlet of water which is of a limited kind, he cannot be allowed to increase the extent or alter the mode of enjoyment so as to cast an additional burden on the servient heritage . “if a man has a right to send clean water through my drain and chooses to send dirty water, every particle of the water ought to be stopped, because it is all dirty“.5)
  7. Where the defendants, who were found to have a right of letting the rain-water flow generally from their roof on to the plaintiff's land, collected all such water and discharged it on to the plaintiff’s land through one spout : Held that this amounted to an alteration of the easement rendering it more onerous on the plaintiff’s land and that the original condition of the roof should be restored.6)

Right to do acts to secure enjoyment

Section 24 of The Indian Easements Act, 1882.

The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible, and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.

Accessory rights: Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.

Illustrations
(a) A has an easement to lay pipes in Bs land to convey water to As cistern. A may enter and dig the land in order to mend the pipes, but he must restore the surface to its original state.
(b) A has an easement of a drain through Bs land. The sewer with which the drain communicates is altered. A may enter upon Bs land and alter the drain, to adapt it to the new sewer, provided that he does not thereby impose any additional burden on Bs land.
(c) A, as owner of a certain house, has a right of way over Bs land. The way is out of repair, or a tree is blown down and falls across it. A may enter on Bs land and repair the way or remove the tree from it.
(d) A, as owner of a certain field, has a right of way over Bs land. B renders the way impassable. A may deviate from the way and pass over the adjoining land of B, provided that the deviation is reasonable.
(e) A, as owner of a certain house, has a right of way over Bs field. A may remove rocks to make the way.
(f) A has an easement of support from Bs wall. The wall gives way. A may enter upon Bs land and repair the wall.
(g) A has an easement to have his land flooded by means of a dam in Bs stream. The dam is half swept away by an inundation. A may enter upon Bs land and repair the dam.

Principle

It is justice and good reason and an undoubted principle of law that when a man has an easement granted to him he should have the right to do all such acts as are necessary to make the grant effective. Such rights are also called accessory easements. They are analogous to easements of necessity and arise in the same manner, i.e., by presumption of law.

The right extends to entering upon the servient heritage and putting the subject of the easement into a suitable condition for the exercise and full enjoyment of the right, even though it was not so at the time of the grant and has never been in that state before.7)

Illustration (d) of this section shows that if by an act of the servient owner the easement cannot be enjoyed in the usual manner the dominant owner may enjoy the easement over the other adjoining property of the servient owner.

Question: A acquires a prescriptive right to have the branches 'of his tree overhanging B’s land. Has A a right to go on B’s land to pick the fruit off the branches?

Important Case Laws

  1. If repairs can be done from the dominant tenement, the servient owner will not be restrained from using his land so as to prevent repair from the servient tenement.8)
  2. A right to go on a neighbour’s, land to pick the fruit of overhanging trees is not accessory to the right to have such trees overhanging. It is a distinct right.9)

Note: As already seen, the right to have trees overhanging neighbour’s land is not a right which can be acquired by prescription. Such a right cannot also be acquired as a customary easement.

Liability for expenses necessary for preservation of easement

Section 25 of The Indian Easements Act, 1882.

The expenses incurred in constructing works, or making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant owner.

The servient owner cannot be required to do any positive acts for the benefit of the dominant owner10) and therefore if any acts are required to be done they must be done by the dominant owner and expenses also must be borne by him.

Liability for damage from want of repair

Section 26 of The Indian Easements Act, 1882.

Where an easement is enjoyed by means of an artificial work, the dominant owner is liable to make compensation for any damage to the servient heritage arising from the want of repair of such work.

This section casts a duty on the dominant owner to see that no damage is done to the servient owner by want of repairs of any artificial work by means of which the easement is enjoyed or to make amends for it.

Question: A has an easement of bringing water across B’s land by means of pipes from a natural stream. The pipes, not being kept in proper repair, become blocked, and the water, in consequence, floods B’s house. Can B sue A for damages for the flooding of his house?

Servient owner not bound to do anything

Section 27 of The Indian Easements Act, 1882.

The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient.

Illustrations
(a) A, as owner of a house, has a right to lead water and send sewage through Bs land. B is not bound, as servient owner, to clear the water-course or scour the sewer.
(b) A grants a right of way through his land to B as owner of a field. A may feed his cattle on grass growing on the way, provided that Bs right of way is not thereby obstructed; but he must not build a wall at the end of his land so as to prevent B from going beyond it, nor must he narrow the way so as to render the exercise of the right less easy than it was at the date of the grant.
(c) A, in respect of his house, is entitled to an easement of support from Bs wall. B is not bound, as servient owner, to keep the wall standing and in repair. But he must not pull down or weaken the wall so as to make it incapable of rendering the necessary support.
(d) A, in respect of his mill, is entitled to a water-course through Bs land. B must not drive stakes so as to obstruct the water-course.
(e) A, in respect of his house, is entitled to a certain quantity of light passing over Bs land. B must not plant trees so as to obstruct the passage to As windows of that quantity of light.

Nature of servient owner’s duty The obligation resting on the servient owner is of a negative character, that is, he must not do any act tending to restrict the easement or to render its exercise less convenient but consistently with such duty he may use the servient heritage in any way he pleases. The same principle is embodied in the maxim that no easement could consist in faciendo i.e., the essence of the easement could never consist in something to be done by the owner of the servient estate.

Extent of easements

Section 28 of The Indian Easements Act, 1882.

With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:

Easement of necessity: An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed.

Other easements: The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired.

In the absence of evidence as to such intention and purpose
(a) Right of way. A right of way of any one kind does not include a right of way of any other kind;
(b) Right to light or air acquired by grant. The extent of a right to the passage of light or air to a certain window, door or other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument was made;
(c) Prescriptive right to light or air. The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used;
(d) Prescriptive right to pollute air or water. The extent of a prescriptive right to pollute air or water is the extent of the pollution at the commencement of the period of user on completion of which the right arose; and
(e) Other prescriptive rights. The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right.

Extent of easement of necessity

The extent of an easement of necessity is measured with the necessity existing at the time when such easement arose and not that necessity which may subsequently. arise, say, on account of an extension of the dominant heritage. For instance, A, the owner of a house, sells 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 enlarges his works and greater quantity of vapours and smoke are given out B will not acquire aright to pollute the air with smoke and vapours to such greater extent.

Extent of other easements

The extent and mode of enjoyment of easements other than those of necessity depends on the question what was the intention of the parties and for what purpose the right was imposed or acquired.

Clause (a): Thus where a plaintiff claimed a right of way for cattle but only proved a carriage way, it was held that a carriage way did not necessarily include a way for cattle. A user of way for agricultural purposes does not authorize the use for the purpose of carting building materials to a place on which houses were to be erected.

Clause (b): That is, if an easement of light or air is granted by a will or other non-testamentary instrument the extent of the right is the quantity of light or air that entered the opening on the death of the testator or the date of the instrument. It should he remembered that the extent of the right mentioned here will be taken only in the absence of the intention of the parties and the purpose for which the right was imposed. As to what would amount to the disturbance of such right vide comments on section 33

Clause (c): As to whether the right to receive light or air to the extent mentioned in this para is an absolute or a qualified right of the dominant owner as also what would amount to the disturbance of such right vide comments on section 33.

Clause (d): The object of the rule is that if the amount of the pollution has increased during the prescriptive period the dominant owner is not entitled to that degree of pollution which he caused at the end of the prescriptive period because he did not enjoy to that extent during the whole of the prescriptive period. The amount of pollution which continued throughout the period must be the least.

According to Explanation IV to section 15, in the case of an easement to pollute water, the period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. The same rule ought to apply in the case of an easement to pollute air.

Clause (e): “By the accustomed user of the right,” that is, the manner in, and the extent to, which the right has been exercised during the prescriptive period. For instance, a man cannot make use of a way during the prescriptive period for a particular purpose, and then when he has acquired an easement claim to use the way for an entirely different purpose. But the number of occasions on which the right may be enjoyed need not be limited to the number of occasions on which it can be shown to have been enjoyed and the right can be exercised at all convenient times for the purpose for which it was granted or acquired.

Important Case Laws

  1. The combined effect of sections 28 and 35 is that the mere circumstance that a plaintiff has a prescriptive right to the quantity of light which has entered certain opening of his house will not give him a cause of action against the servient owner for disturbance caused to that right, but he must prove that such disturbance had either actually interfered with his physical comfort or prevented him from carrying on his accustomed business as beneficially as he had done before.11)
  2. 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.12)
  3. The easement of necessity arises when there is piece meal sale or transfer of property, leaving a particular portion landlocked and without access. Such easement of necessity cannot arise on the land of a third party, as in the present case.13)

Increase of easement

Section 29 of The Indian Easements Act, 1882.

The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement.

Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the easement is proportionately increased, and if the dominant heritage is diminished by diluvion, the easement is proportionately diminished.

Save as aforesaid, no easement is affected by any change in the extent of the dominant or the servient heritage.

Illustrations
(a) A, the owner of a mill, has acquired a prescriptive right to divert to his mill part of the water of a stream. A alters the machinery of his mill. He cannot thereby increase his right to divert water.
(b) A has acquired an easement to pollute a stream by carrying on a manufacture on its banks by which a certain quantity of foul matter is discharged into it. A extends his works and thereby increases the quantity discharged. He is responsible to the lower riparian owners for injury done by such increase.
(c) A, as the owner of a farm, has a right to take, for the purpose of manuring his farm, leaves which have fallen from the trees on Bs land. A buys a field and unites it to his farm. A is not thereby entitled to take leaves to manure this field.

The rule is that no easement is affected by any change in either heritage to which two exceptions are laid down, viz., those given in paras, 1 and 2 of this section.

Important Case Laws

  1. The pulling down of the old house and the building of a new one in its place does not of itself extinguish the easement; the real question to be determined is whether by reason of the alteration a different and greater burden has been imposed on the servient tenement.14)
  2. No alteration in the plan of the building, either by advancing or setting back the building, will destroy the right to light and air so long as the owner of the dominant tenement can show that he is using through the new apertures in the wall of the new building the same or substantial part of the same light which passed through the old apertures in the old building.15)

Partition of dominant heritage

Section 30 of The Indian Easements Act, 1882.

Where a dominant heritage is divided between two or more persons, the easement becomes annexed to each of the shares, but not so as to increase substantially the burden on the servient heritage: provided that such annexation is consistent with the terms of the instrument, decree or revenue proceeding (if any) under which the division was made, and, in the case of prescriptive rights, with the user during the prescriptive period.

Illustrations
(a) A house to which a right of way by a particular path is annexed is divided into two parts, one of which is granted to A, the other to B. Each is entitled, in respect of his part, to a right of way by the same path.
(b) A house to which is annexed the right of drawing water from a well to the extent of fifty buckets a day is divided into two distinct heritages, one of which is granted to A, the other to B. A and B are each entitled, in respect of his heritage, to draw from the well fifty buckets a day; but the amount drawn by both must not exceed fifty buckets a day.
(c) A, having in respect of his house an easement of light, divides the house into three distinct heritages. Each of these continues to have the right to have its windows unobstructed.

The severance or partition of the dominant heritage into two or more parts annexes all its easements to the several parts, but the limits of the rights remain what they were at the time of the severance, for no additional burden can, by reason thereof, be imposed on the servient heritage.

Obstruction in case of excessive user

Section 31 of The Indian Easements Act, 1882.

In the case of excessive user of an easement the servient owner may, without prejudice to any other remedies to which he may be entitled, obstruct the user, but only on the servient heritage: provided that such user cannot be obstructed when the obstruction would interfere with the lawful enjoyment of the easement.

Illustration
A, having a right to the free passage over Bs land of light to four windows, six feet by four feet, increases their size and number. It is impossible to obstruct the passage of light to the new windows without also obstructing the passage of light to the ancient windows. B cannot obstruct the excessive user.

The servient owner may obstruct excessive user

For instance, if a dominant owner is entitled to draw fifty buckets of water daily from the servient owner’s well and he attempts to draw more he may be obstructed ; or if a dominant owner is entitled to discharge only rainwater from his drain and attempts to flow sullage water through it when there is no rain the servient owner may stop the drain.

Such user cannot be obstructed, etc.

In this section the principle laid down by the House of Lords in Tapling v. Jones has been recognised. There it was held that if the owner of ancient lights opens new windows or enlarges his old ones, the adjoining proprietor may so build as to obstruct the new openings ; provided he can do so without obstructing the old ones ; otherwise he may not obstruct at all. The ruling is based on the principle that the opening of a new window or an enlarging of an old one is an exercise of the right of ownership and an innocent act in the eye of the law which cannot destroy the existing right of the dominant owner to receive light through the old aperture or apertures, the adjoining owner is at liberty to build up against the new or enlarged openings but not so as to shut out the old openings.

1)
Syed Hamid Hossain v. Gervain
2)
AIR 2017 NOC 720
3)
Mulia Bhava v. Sandar Dava
4)
Jaaulal Mullick V, Gopal Chandra Mukerji
5)
Gajadhar v. Kishori Lal
6)
Abdul Ghafoor v. Abdul Majid
7)
Newcomen v. Coulson
8)
Himat Lal v. Bhikhabhai
9)
Naik Parshotam Ghela v. Gandarp Fatelal Gokuldas
10)
Section. 27
11) , 15)
Framji Shapurji v. Framji Edulji
12)
Gur Prasad Mukerji v. Bishan Dut, 1924 All., 816
13)
2019 KHC 4431
14)
Caspers v. Raj Kumar


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Created on 2021/04/05 09:28 by LawPage • Last modified on 2021/04/09 22:26 (external edit)