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property_law:easement:restrictive-easements

Restrictive Easements

An easement is an interest in the land of another that gives the owner of the easement the limited right to use another’s property or to prevent the property owner’s use of his or her property. It is a non-possessory restricted right to a specific use or activity on the land of another that is less than ownership ,but may be a permanent right or a right for a limited period of time.

An easement may be affirmative or negative

An affirmative easement gives a landowner the right to use the land of another (e.g., crossing it or using water from it), while a negative easement, by contrast, prohibits the landowner from using his land in ways that would affect the holder of the easement.

Restrictive easements are also called “negative easements” as their use is normally prohibitive, such as a common “non-vehicular access” easement as shown along a main thoroughfare where the governmental entity needs to restrict access. Therefore, a restrictive easement is a condition placed on land by its owner or by government that in some way limits its use, usually regarding the types of structures which may be built there or what may be done with the ground itself.

Restrictive covenants

In many ways, restrictive covenants act like “negative easements”, prohibiting the burdened property owner from doing something, rather than granting the benefiting party to a right of use.

It is possible to attach to land an obligation not to do something on it, in such a way that that obligation extends to future owners. This is known as a restrictive covenant. Restrictive covenants take effect primarily as contracts, meaning that liability between the original parties persists, even when one or both of them has parted with the land to which the covenant relates. Whilst the benefit and burden of a restrictive covenant can pass to future owners upon the sale of the land to which it relates, the burden of positive covenants cannot. In the context of property and land use, a restrictive covenant is a promise of the respective landowner to not do something on the property. Stated differently, a restrictive covenant obligates the property owner to refrain from some specific activity or use on their property.

Easements Restrictive of Certain Rights

According to section 7 of the Easements Act, easements are restrictions of one or other of the following rights, namely

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

Illustrations

(a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.
(b) The right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.
(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibration caused by any other person.
(d) The right of every owner of land to so much light and air as pass vertically thereto.
(e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person. Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
(f) The right of every owner of land that, within his own limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons.
(g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.
(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owners limits without material alteration in quantity or temperature.
(i) The right of every owner of upper land that water naturally rising in, or falling on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.
(j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners.

Every piece of land carries with it the rights mentioned in clause (a) and (b) of section 7 of the Easement Act namely:

(a) the exclusive right to enjoy and dispose of the same; the exclusive right to enjoy and dispose of all accessions thereto;
(b) the right to enjoy, without disturbance by another, the natural advantages arising from its situation.

Natural rights are those incidents and advantages which are provided by nature for the use and enjoyment of certain property. They are regarded by law as incident to the ownership of land and as inherent in land by the law of nature. They are rights in rem enforceable against all the world, subject only to curtailment by an easement.

A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course. Section 7 makes it clear that any owner of immovable property would have to right to enjoy all the natural advantage of the property and subject to the restrictions only by easement. In other words, the natural advantages (also called natural rights or natural easements are incidents of a property. They are inherently available to the owner of the property, subject to only the restrictions of easements. 1)

Section 7 of the Act relates to natural right

Section 7 (b) of the Act specifically ensures that there is a right in every owner of immoveable property subject to any law for the time being in force, to enjoy without disturbance by another, the natural advantages arising from its situation. Therefore, every owner or possessor of a building site including a building built thereon or an agricultural land is entitled to enjoy all the natural advantages that arise from its situation without disturbance by another, of course, subject to any other law for the time being in force.2)

Water falling on higher level land; a natural right

The right of a proprietor of land situated on a higher level to discharge the water falling on his land through the land adjoining to it at a lower level is a natural right and it continues as long as the lay of the land continues. This natural right is specifically recognised by clause (b) of section 7 of the Indian Easements Act, 1882. It specifically provides that it is the right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another, the natural advantages arising from its situation. Illustrations (g) and (i) to section 7 of the Act further clarify the position.

Section 7, Illustration (d) and makes the adjoining tenement a servient one on which the burden is cast of not doing anything which would prevent the exercise of that easementary right, he can come forward with a suit claiming his right to easement whenever that right is sought to be interfered with. But if a owner of a property happens to sleep over his rights for a period of 20 years and allows the adjoining owner or even the trespasser acquiring an easementary right to obstruct lateral light and air coming to him ,he would have been held to have acquiesced in it. He cannot turn round at the end of the period of 20 years and ask for his rights which have become extinguished by the acquisition of easementary rights by the other party to be protected by court.3)

Illustration (g) specifically provides that, it is the right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel. Illustration (i) further clarifies that, it is the right of every owner of upper land that water naturally rising in, or falling, on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.4)

In the case of Sheik Hussain vs Pachipulusu5) the court considered the natural right of owner of upper land to discharge surface water falling on the lower land. Where two contiguous fields belong to different proprietors, one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive the water that falls from the superior. If the water which would otherwise fall from the higher ground insensibly without hurting the inferior tenement should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is without the positive constitution of any servitude, bound to receive that body of water on his property. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has been unduly and unreasonably increased by operations which are in aemulationem vicini. But he is under no legal obligation to receive foreign water brought to the surface of his neighbour’s property by artificial means; and there is no distinction in principle between water raised from a mine below the level of the surface of either property and water artificially conveyed from a distant stream. One land owner cannot by altering the condition of his land, deprive the owner of the adjoining land of the privilege of using his own as he might have done before.6)

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

1)
Mohamed Gani vs Habibullah, (1999) 2 MLJ 609
2)
G Ramakrishna Kamath vs Aithappa Maistry, ILR 1989 Kar 1901; 1989 (2) Kar LJ 56
3)
Moidin Kunhi Beavy vs K. Gopalakrishna Mallya, AIR 1953 Mad 849, (1953) 1 MLJ 816
4)
G Ramakrishna Kamath vs Aithappa Maistry, ILR 1989 KAR 1901; 1989 (2) Kar LJ 56
5)
AIR 1926 Madras 449
6)
Vide: G. Ramakrishna Kamath vs Aithappa Maistry, ILR 1989 Kar 1901; 1989 (2) Kar LJ 56


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Created on 2021/03/21 11:04 by LawPage • Last modified on 2021/04/09 22:26 (external edit)