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property_law:easement:prescription

Acquisition of easements by prescription

Section 15 of The Indian Easements Act, 1882.

Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

Explanation I: Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II: Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
Explanation III: Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV: In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.

When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words “twenty years” the words “thirty years” were substituted.

Illustrations
(a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto, as an easement and as of right, without interruption, from 1st January, 1862 to 1st January, 1882. The plaintiff is entitled to judgment.
(b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed “as an easement” for twenty years.
(c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.

In English law cases of easements of light and air are treated separately and different considerations apply in the case of each but Indian law makes no difference between easements of light and those of air.

The words “peaceable”, “open”, and “as of right,” which occur in section 15 correspond to the latin expressions nec vi (without force), nec clam (without stealth), nec precario (without permission) used in English books.

Prescription

It is one of the modes of rights full or fragmentary by enjoyment for full statutory period over the property of another.

Peaceably

It means without opposition. Enjoyment by force or violence, enjoyment during strife or contention of any kind, enjoyment continually disputed and interrupted (even when such interruption is not acquiesced in for one year) is not nec vi or peaceable. Repeated interruptions in fact, though each too short to operate as “an interruption” within the meaning of the Act, are good evidence to show that the user all through was contentious.

As an easement

The right must have been enjoyed “claiming title thereto as an easement” as distinguished from a claim of ownership. Acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an easement. Enjoyment during unity of possession is not enjoyment “as an easement”.

A tenant cannot acquire, for the beneficial enjoyment of other land of his own, or for land which he holds under a different landlord, an easement over the property comprised in his lease.

Effect of unity of possession

Suppose A, as the owner of a field X, exercises a right of way, as an easement over another field Y, belonging to B for fifteen years, and then he takes the field Y, on six years lease from B, and enters into possession of it. After the expiry of the term of the lease he again enjoys the right of way, as an easement, over the field Y. Has he acquired a right of easement by prescription over the field Y?

There was no clear case-law on this point. Mr. Mitra thinks that the Act contemplates a continuous enjoyment of the right for twenty years and as in this case the continuity of the enjoyment as an easement is broken the result is to destroy altogether the effect of the previous user. Hence in computing the period of twenty years, it is not allowable to exclude the time during which the unity continued, and to tack the period of subsequent enjoyment to that of the previous user, inclusion being allowed only under section 16 of the Act.

While, F. Peacock basing his opinion on some English decisions says that the interruption caused by the unit is not an adverse interruption under the statute but a mere suspension of the growing right and hence any valid enjoyment which preceded the unity could be tacked.

The true legal position which would govern the acquisition of prescriptive right under the Indian Act is as follows. Section 15 of the Indian Easements Act lays down that the enjoyment must be without interruption. The continuity of the enjoyment would he broken, if during the prescriptive period, the servient and the dominant tenements happen to combine and vest together in common ownership or possession. The period prior to such unity in ownership and possession would not be reckoned in computing the number of years of enjoyment. A fresh period of twenty years is necessary to acquire an easement after the cesser of the unity.1)

Interruption

For a thing to constitute interruption something should be done on the servient heritage or legal proceedings should be instituted in Court. Mere protests or verbal denial of the right claimed not followed by any act to prevent the user, will not constitute an interruption of the right or prevent its acquisition by prescription.

The words ”without interruption“ do not mean without cessation of user.

Openly

If the enjoyment is had secretly or by stealth in order to keep the fact of enjoyment from the knowledge of the servient owner, it is not nec clam or open. But so long as the enjoyment is not secret, it is not necessary that the servient owner should have actual knowledge of the user, his ignorance of the claimant’s enjoyment does not prevent the latter from acquiring the right under the Act.

Under English law knowledge of the servient owner is necessary and it is further necessary that he should be capable of acquiescence as this right is based on the theory of presumed grant.

As of right

The expression means “in the assertion of a right”. It is not necessary that the claimant should have enjoyed the easement “rightfully” , or “without trespass”. If he claims title to the easement, and the easement is not enjoyed under a license or permission from the owner of the servient heritage, his enjoyment is “as of right” or nec precario . A person who, during the requisite period of enjoyment asks the permission of the servient owner, does not assert a right to the easement.

In the case of the rights to light, air or support, the section does not require that such rights should be enjoyed by any person “claiming title thereto”, or that the user should be “open” or “as of right”.

In the case of rights to support, light or air it is not necessary that the dominant building should be occupied by any person. It is sufficient if the light or air or support has been received by the building.

Mere non-user for any particular period, at any particular time, during the prescribed period of acquisition is not necessarily fatal if the non-user be capable of explanation consistently with continued enjoyment “as of right”.

Expression 'as of right' should be understood just opposite to a permissive user and stands for user in derogation of right of title holder with an open assertion to use the same as means of access, for the purpose of S.15.2)

Enjoyed

The physical possibility of exercising or enjoying an easement, coupled with the determination to exercise and enjoy it on one’s own behalf, constitutes enjoyment.

Each of the said periods of twenty years … contested

The period of twenty years mentioned in the section must end within two years next before the institution of the suit brought to try the question of whether the right exists or not. This para makes it impossible to acquire a statutory prescriptive title to an easement until the claim thereto has been contested in a suit. If a man have the enjoyment of an easement for twenty years or more, and no suit is brought in which his right to the easement is called in question, he has only what may be termed an inchoate title, which may become complete or not by an enjoyment subsequent according as that enjoyment is or is not continue up to two years next before the commencement of such a suit. Thus if a suit be brought in which the existence of a right of way is called in question, and it is proved that the claimant of the right has enjoyed the use of the way from a period of fifty years before the commencement of the suit down to within three years of it, the claimant will not succeed in obtaining any light of way under the Act.

Property belonging to a person who cannot alienate it or impose an easement upon it, may be subject to an easement by prescription under this section.

Or any other easement

For instance ; rights of pasturage, profits aprendre, of fishing and ferry, to discharge smoke, smell, vapours, etc., right of way for sweeper etc.

Exclusion in favour of reversioner of servient heritage

Section 16 of The Indian Easements Act, 1882.

Provided that, when any land upon, over or from which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the said last-mentioned period of twenty years, in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land.

Illustration: A sues for a declaration that he is entitled to a right of way over B 's land, A proves that he has enjoyed the right for twenty-five years; but B shows that during ten of these years C had a life-interest in the land; that on C's death B became entitled to the land; and that within two years after C 's death he contested A 's claim to the right. The suit must be dismissed, as A, with reference to the provisions of this section, has only proved enjoyment for fifteen years.

Section explained: If the servient heritage has not been in the possession of the full owner but has been held, under a lease for a term of three years or upwards, or subject to a life-interest, then the period during which such term or interest continued shall be excluded if the person who becomes entitled after the determination of such term or interest resists the claim within three years after such determination.

The effect of this provision is to extend the period of enjoyment to twenty years plus the term of the lease or life-interest if the claim is resisted within the time allowed.

Rights which cannot be acquired by prescription

Section 16 of The Indian Easements Act, 1882.

Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights.
None of the following rights can be so acquired
(a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed;
(b) a right to the free passage of light or air to an open space of ground;
(c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise;
(d) a right to underground water not passing in a defined channel.

Clause (a)

A person who is owner of property has a right to all its lawful uses and if any person acquires an easement over it he only restricts the owner in the exercise of some one or more of these rights, he cannot restrict him from exercising any right at all as it would mean that the property is lost to the owner, hence the reason of the rule given in Clause (a), for instance, a person cannot acquire an easement to flood another’s land with water or to drive cattle promiscuously over the whole property as it will destroy all the ordinary uses of the property to the servient owner. Similarly a right which would destroy the usufruct of the property cannot be acquired by prescription, for example, a person may acquire an easement to cut thatching grass in another’s swamp but he cannot acquire a right to uproot the plants. But there is nothing in law to prevent the servient owner from granting such rights.

Clause (b)

This is implied in para 1 of section i5 where it is laid down that a prescriptive right to light or air can be acquired in respect of any building i.e., not for an open space. There is twofold reason for the rule;

  1. open space receives sufficient light vertically,
  2. to accede to such a right would be conferring little or no benefit on the dominant heritage and restricting the rights of owners of lands to a very large and unreasonable extent, for example, if two contiguous lands are owned by two different persons and twenty years have passed in this condition then none of them can build on his land as by so doing he will intercept some air or light which passed unobstructed before.

Hence the owner of an ancient windmill cannot prevent the owner of adjoining land from building so as to interrupt the passage of air to the mill.

Clause (c)

It is the right of every owner of land to collect and dispose of all surface water not flowing in a defined channel.3).

A right to surface water not flowing in a stream, and not permanently collected in a pool, tank, or otherwise; cannot be acquired by prescription as it would throw a burden on the whole surface of the land from which the water flows. But if the water flows in a defined channel or is collected in some tank, etc., then it can be drawn off from these and a right to it can be acquired.

Clause (d)

Similarly a right to water percolating through undefined channels underground cannot be acquired by prescription as it would throw a very large burden on the underground soil of the servient owner. Suppose A digs a well on his ground and this well is fed by water percolating through the soil of B, an owner of adjacent land. Now if such a right were recognized B could not dig sufficiently deep anywhere on his land as it would intercept some wafer flowing through underground channels to A’s well. Law allows B to dig on his land and intercept the whole of the water so as even to dry up A’s well. A has no remedy.

Important Cases

  1. Section 15 does not interfere with other titles and modes of acquisition and therefore where a party proves that he has been enjoying a right of way for a long series of years, he acquires a title thereto (by immemorial user) independently of the statute and the limitations prescribed by it; section 15 would have no application to such a case.4)
  2. The access referred to in this section is the access or freedom of passage over the servient heritage, as defined by the window or other aperture in the dominant heritage.
  3. The windows, etc., of a new building must be in a Sufficiently finished state at the date from which the period of twenty years is to be reckoned, but it is not necessary that the house should have been completed or used.5)
  4. A right of way imports a right of passing in a particular line and not to vary it at pleasure.
  5. The fifth para of section 15 which applies to both continuous and discontinuous easements seems to render it impossible to acquire a statutory prescriptive title to an easement until the claim thereto has been contested in a suit.6)
  6. Where Municipal servants had passed for more than twenty years over defendant’s land for the purpose of cleaning the plaintiffs privy. Held that the plaintiff could claim an easement based on such user by servants.7)
  7. Mere user of way by plaintiffs in common with general public will not confer on them an easement right by prescription – In other words, a right of easement cannot arise by prescription in favour of an individual, if the use of such easement has been participated in by general public.8)
  8. Mere protests or giving of notice is not interruption.9)
  9. In a previous suit between the same parties the defendant alleged interference of enjoyment by the plaintiff. Held that during the entire period of former litigation the defendant was not “quietly, peaceably and without interruption” enjoying the right of easement claimed and therefore the user proved cannot be added to any period prior to the interruption.10)
  10. Right to have trees overhanging a neighbour’s land is not an easement, and cannot be acquired by prescription though it may exist by express stipulation.11)

    Note:In the absence of such express stipulation, the owner of the overhanging trees is bound to permit the owner of the adjoining land to lop or cut them within the limits of the encroachment. A right of this kind, although it is of the nature of an easement, cannot be acquired by prescription, either because the use is, secret, i.e., not open or because the burden of the easement is liable to a perpetual change.

  11. The fact that the water which is discharged from a dominant tenement, flows over the surface of the servient tenement without a definite channel for its carriage, cannot prevent the acquisition of an easement.
  12. There can be no prescriptive right to a projection which has been erected merely for the purpose of ornamentation.
  13. Where the owner of a building, who is in the course of acquiring a right of easement by prescription has his house burnt down but begins immediately to rebuild it and places the windows exactly in the same position as the old ones, he can be regarded as enjoying the access and use of light and air continuously.12)
  14. By prescription, a right to bury the dead in land belonging to another cannot be acquired.13)
  15. The period of user must be twenty years ,or more ending within two years next before the institution of the suit wherein the claim to which such suit relates is contested.14)
  16. The plaintiff enjoyed an easement for 19 years 6 months and 19 days as required by section 15 when the defendant interfered. Held that the obstruction by defendant not acquiesced in for one year must be ignored for the purpose of calculating the period of twenty years. As the period of actual enjoyment and the period after obstruction up to the date of the institution of the suit together made up the full period of twenty years next before the institution of the suit, the plaintiff had established the right of easement.15)
  17. The Indian Act unlike the English Prescription Act places easements of light and air on the same footing. The only amount of light for a dwelling house which can be claimed by prescription, without actual grant, is such an amount as is reasonably necessary for the convenient and comfortable habitation of the house. There is no such right as a right to the uninterrupted flow of south breeze as such.
  18. Right to use another’s land for latrine cannot be acquired by prescription, for an easement of this description is unknown to law and the Court would not create a new species of easement.16)
  19. If the right is claimed on the ground of ownership but user under such claim is negatived, it cannot operate to found a right of easement. Acquisition by prescription must be by a definite person or persons either natural or juristic and a fluctuating and uncertain body like the inhabitants of a village cannot do so.17)
  20. A man is not finally precluded from claiming the benefit of an easement merely because in the course of legal proceedings he made an unfounded claim to be owner however strong evidence such a claim might be against him. But acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an easement.18)
  21. A right of way or other easement must be definite and not so large as to destroy all the ordinary uses of the servient property and make it impossible that it should ever be used for any useful purpose. A right to drive cattle across a forest not along an existing defined track through it but straggling promiscuously through the whole of the forest generally, can’t be acquired by prescription.19)

Important Questions for Judiciary Mains

  1. Explain “grants of easements by operation of law”.
    • This is the same thing as acquisition of easements by prescription.
  2. Can a person acquire a prescriptive right to access of light for the windows of a house which has never beer occupied ?
1)
See Sri. B. Shankaranarayana Bhat vs Sri. B. Subramanya Bhat on 23 July, 2020
2)
2020 (2) KLT 653
3)
vide ill. (g) to section 7
4)
See 29 M. L. J., 685, AIR 1961 SC 1821
5)
1894, 3 Ch., 659.
6)
Sultan Ahmad V. Waliullah
7)
24 Bom. LR
8)
2020 (6) KLT 645
9)
21 Bom. LR 709
10)
Kidar Nath v. Sohan Lal
11)
Beharilal v. Ghisalal
12)
67 I.C., 250
13)
1924 Lah., 492
14)
Mohammad Maruf v. Sultan Ahmed.
15)
Sarwan Singh v. Chattar Singh
16)
29 I. C., 865.
17)
Phakir Mohammad Rowthen v. Pichai Thevan
18)
Subha Rao v. Laxmana Rao
19)
Lal Bahadur v. Rameshwar Dayal


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Created on 2021/04/03 14:50 by LawPage • Last modified on 2021/04/09 22:26 (external edit)