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property_law:easement:necessity-quasi-easement

Easements of necessity and quasi easements

Section 13 of The Indian Easements Act, 1882.

Where one person transfers or bequeaths immovable property to another:
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons,
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

The easements mentioned in this section, clauses (a) , (c) and (e), are called easements of necessity.

Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.

Illustrations (a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A 's adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A 's adjoining land to the field sold.
(b) A, the owner of two fields, sells one to B, and retains the other. The field retained was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to B. A is entitled to a right of way, for agricultural purposes only, over B 's field to the field retained.
(c) A sells B a house with windows overlooking A 's land, which A retains. The light which passes over A 's land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.
(d) A sells B a house with windows overlooking A 's land. The light passing over A 's land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A 's hands.
(e) A is the owner of a house and adjoining land. The house has windows over-looking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such right.
(f) A is the owner of a house and adjoining land. The house has windows over-looking the land. A, retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.
(g) 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.
(h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z. B is entitled to the benefit of all gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect.
(i) A, the owner of two adjoining buildings, sells one to B, retaining the other. B is entitled to a right to lateral support from A 's building, and A is entitled to a right to lateral support from B 's building. (j) A, the owner of two adjoining buildings, sells one to B and the other to C. C is entitled to lateral support from B 's building, and B is entitled to lateral support from C 's building.
(k) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of lateral and subjacent support from A 's land as is necessary for the safety of the house.
(l) Under the Land Acquisition Act, 1870 (10 of 1870) 1, a Railway Company compulsorily acquires a portion of B 's land for the purpose of making a siding. The Company is entitled to such amount of lateral support from B 's adjoining land as is essential for the safety of the siding.
(m) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it, A is entitled to such amount of vertical support from B 's portion as is essential for the safety of the upper room.
(n) A lets a house and grounds to B for a particular business. B has no access to them other than by crossing A 's land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds.

How quasi-easements and easements of necessity arise

This section tells us how quasi-easements and easements of necessity come into existence. One of two things must happen, namely; either

  1. the person who is owner of two adjoining properties must transfer or bequeath one of them and retain the other or transfer or bequeath one of them to one and another to another, or
  2. a joint property of several persons be partitioned among them.

If an easement in one property or share is necessary for enjoying the other, such an easement shall be allowed. Clauses (a), (c) and (e) deal with such cases. Necessary here means absolutely necessary. Illustrations (a), (b), (g), (k), (l), (m) and (n) are examples of easements of necessity.

But if an easement in one property or part is not absolutely necessary for enjoying the other, it is only necessary for enjoying the other, as it was enjoyed when both properties had one owner then, if such an easement is apparent and continuous, it shall continue to be enjoyed as before. Such easements are called quasi-easements. Clauses (b), (d) and (f) deal with quasi-easements, and illustrations (c), (d), (e), (f), (h), (i) and (j) are examples of such easements.

When ownership of both properties vested in one person these conveniences which were enjoyed by the owner on one of his properties for the better enjoyment of the other although they resembled easements were not easements strictly so called as a person cannot have an easement over his own property, but on the separation of ownership they became true easements.

Principle of the rule

The law presumes that when a person transfers a part of his property to another it is the intention of the parties that the transferee should have the means of using the thing transferred and therefore that he should have all rights and powers in and over the transferor’s other property which might be requisite for this purpose.

Explanation for the illustrations

Illustrations (c and d)

The right to receive light and air through a window is a continuous and apparent easement.

Illustration (e)

In this illustration the owner of two properties sells one to one person and the other to another, in this case also the same result would follow as when he sells the one and retains the other.

Illustration (g)

Because the committing of this nuisance is absolutely necessary for the working of the factory, if this is not allowed, the factory would be quite useless.

Illustration (h)

In this illustration it is assumed that the drains and gutters common to the two houses are for the passage of rain-water only, for if they are also for sullage or other water as well which requires the act of man for its use, the easement would become discontinuous and according to the rule a quasi-easement does not arise in the case of discontinuous easements. And if the illustration refers to drains and gutters for both kinds of water it is not in accordance with law.

Illustrations (i and j)

A right to lateral support from one building to another is an apparent and continuous easement.

Illustration (k)

The natural right to adjacent and subjacent support referred to in illustration (e) to section 7 exists only for land in its natural condition and not for land which is weighted by buildings or subjected to artificial pressure but here the land is transferred expressly for the purpose of building hence so much support must be rendered as is necessary for the safety of the building.

Illustration (l)

This illustrates last para of this section, i.e., where land passes to another by operation of law.

Illustration (m)

Here also on partition the upper room which falls to the share of one co-owner cannot stand unless supported by the lower portion. This is an example of an easement of necessity. But when a house having windows, drains or parnalas is partitioned, the right to receive light and air, or to discharge water, will be enjoyed by the owner of the share to which they are attached in the form of quasi-easements.

Illustration (n)

In this illustration an easement of necessity arises in favour of the land let to a tenant over other land of his landlord, and this is in accordance with the principle of this section for letting is transfer of immovable property. It is based on the principle that a man cannot derogate from his grant. If a man lets a house and grounds for a particular business he cannot object if it is absolutely necessary to cross his other land in order to carry on that business. He must have taken this fact into consideration when letting the property and this use of his other land is implied in the grant. But the use of the term easement for this right is not very happy as in this case both the tenements are the property of one person. It has been held under section 12 that a tenant cannot acquire prescriptive easement in favour of the land held under the lease.

Direction of way of necessity

Section 14 of The Indian Easements Act, 1882.

When a right to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.

Way of necessity: When once a way of necessity has been ascertained neither the dominant owner nor the servient owner has the right to vary it . It must remain the same way so long as it continues. If the way of necessity is destroyed, the dominant owner has the right to another and if the servient owner fails to set it out, he may do so himself.

Case Laws

  1. Incident of easement of necessity would remain inert, inoperative and dormant till there is absolute necessity that would make the legal incident active and enforceable. Thus, it will not stand terminated or extinguished on establishment of an alternative way, but would remain inactive, inoperative so long as an alternative means of access available to the property and will revive as and when an absolute necessity comes out.1)
  2. An easement of necessity runs with the property like any other right appurtenant thereto and no express words are necessary for its conveyance or its reservation thereof. It is co existent and coextensive incident which would arise on severance of tenements. When there is severance of tenements, an easement of necessity would also originate as an incident to it, attached to the property severed.2)
  3. When there are other way to ingress and egress, the easement of necessity cannot be claimed merely on the ground that other ways are inconvenient. Further the right of way as easement of necessity implies that there is no other means of access, however, inconvenient.3)
  4. Quasi easement defined under S.13 Clause (b), (d) and (f), Clause (b), (d) and (f) to S.15 of the Easement Act would stand attracted only when there is an easement and is apparent and continuous. A right of way will not satisfy continuous easement, as such, there cannot be any quasi easement for a way.4)
  5. An easement of necessity means an easement which is absolutely necessary for the use of the dominant heritage and not one which is merely necessary for the more reasonable and convenient enjoyment of it.5)
  6. Easement of necessity and easement by prescription cannot operate together in respect of any immovable property. Claims based on easement by prescription and easement of necessity taken up together in the pleadings by plaintiff are contradictory to one another and therefore the plaintiff has to opt to adhere to one at the time of adducing evidence.6)
  7. An easement of necessity cannot arise in any other way than on severance of tenements. When the plaintiff claimed a right of way over the defendant’s garden and it was found that the defendant’s holding was distinct from the plaintiff’s and that although they adjoined there was no suggestion that they had ever belonged to the same owner and it appeared that they had been bought by the plaintiff and defendant at different times. Held that under the circumstances no question of easement of necessity could arise.7)
  8. The plaintiff and defendant jointly owned a plot of land on which there was a well. Upon partition that part of the land on which the well was situate fell to the share of the plaintiff and the well was allotted to him without reserving any right to the defendant — held, that the defendant had no easement of necessity in respect of the well as he could dig another well for the enjoyment of his land.8)
  9. The test of an easement of necessity is necessity and not convenience.9)
  10. Water from one part of a house flowed to the other part but not through any definite course. Afterwards the house was partitioned and a party wall was put up. Held that the owner of the portion from which the water flowed could not claim an easement to collect all the water at one place and from there to discharge it into the portion allotted to another as it would impose a burden different from what it existed before.

Judiciary Mains Questions

  1. Certain property was partitioned between two co-owners. The house allotted to the defendant was surrounded by land allotted to the plaintiff. It was found that it was necessary for the defendant for the reasonable enjoyment of his house to pass over the plaintiff’s land, but that a door could be opened on defendant’s land, which however would diminish the utility of the house. Is the defendant entitled to have the door, situate in the land allotted to the plaintiff on partition, kept open to enable him to have access to his house.
  2. X. and Y. are two tenements of A, who uses each for the convenience of the other. X gets into the hands of B, and Y into the hands of C. Discuss the rights of B and C in respect of each other’s tenements.
  3. How do alterations and partition of the dominant heritage affect the easement annexed thereto?
1) , 2)
2020 (6) KLT 104
3)
AIR 2020 Mad. 72
4)
2020 (4) KHC 165
5)
33 AII 467
6)
2018 (1) KLT 772
7)
46 I. C., 327.
8)
Gaddar v. Kalla
9)
28 Mad., 495


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