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property_law:easement:servient-owners

Can a servient owner impose another Easement?

Section 8 of The Indian Easements Act, 1882: Servient owners.

Subject to the provisions of section 8, a servient owner may impose on the servient heritage any easement that does not lessen the utility of the existing easement. But he cannot, without the consent of the dominant owner, impose an easement on the servient heritage which would lessen such utility.

Illustrations:
(a) A has in respect of his mill, a right to the uninterrupted flow thereto, from sunrise to noon, of the water of B 's stream. B may grant to C the right to divert the water of the stream from noon to sunset: provided that A's supply is not thereby diminished.
(b) A has, in respect of his house, a right of way over B' s land. B may grant to C, as the owner of a neighbouring farm, the right to feed his cattle on the grass growing on the way: provided that A 's right of way is not thereby obstructed.

Yes, a servient owner may impose any new easement that does not lessen the utility of the existing easement.

Inconsistent and subordinate easements

A servient owner cannot impose an easement which is inconsistent with or lessens the utility of an already existing easement. Section 9 contemplates subordinate easements and illustrations to the section are examples of them. Subordinate easements though inconsistent in character do not lessen the utility of superior easements. In illustration (a) if “B” grants to “C” an easement to divert the water of his stream so as to interrupt or decrease the flow of water to A’s mill, the easement granted would be inconsistent. Or in illustration (b) if the path is narrowed and the huddling of the cattle into it obstructs A’s right of way the easement granted to C would be an inconsistent one. However the servient owner may with the consent of the dominant owner impose an easement on the servient heritage which would lessen the utility of the existing easement.1)

1)
See Daveshwar Prasad Tiwari and Another v. Kalyan Singh, 2007 KHC 7810.


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Created on 2021/04/02 10:32 by LawPage • Last modified on 2021/04/09 22:26 (external edit)