11g Easements [1882 : Act V
THE EASEMENTS ACT, 1882
CONTENTS
‘PREAMBLE
PRELIMINARY
‘Sactions
1. Short title.
Local extent. [Omitted].
Commencement.
2. Savitigs. i : :
3. Construction of certain references to Act XV of 1877
and Act IX of 1871. -
OHAPTER I
‘Or EAsements GENERALLY
4. “Easement” defined.
Dominant and servient heritages and owners.
5. Continuous and discontinuous, apparent and non-
apparent, easements,
6. Easement for limited time or on condition,
7. Easements restrictive of certain rights.
(@) Exclusive right to onjuy.
( Rights to advantages arising fiom situation.
CHAPTER Ji
‘Tue TMpOsiTion, ACQUISITION AND TRANS OF EASEMENTS
8, Who may impose easements.
9. Servient owners.
10, Lessor and mortgagor.
11, Lessee.
12, Who may acquire casements.
13, Easements of necessity and quasi easements.
14, Direction of way of necessity.
15, “Acquisition by prescription.
16, Exclusion in favour of reversioner of servient heritage.
17, Rights which cannot be acquired by prescription.
18, Customary easements.
19, Transfer of dominant heritage passes easement, 1882 : Act V] Easements us
CHAPTER It
Secrions
Tue INCIDENTS OF EASEMENTS
20. Rules controlled by contract or title.
Incidents of customary easements:
21. Bar to use unconnected with enjoyment.
22. Exercise of easement.
Confinement of exercise of casement.
23. Right to alter mode of enjoyment.
24, Right to do acts to secure enjoyment.
Accessory rights.
25. Liability for expenses necessary for preservation of
easement,
26. Liability for damage from want of repair.
27, Servient owner not bound to do unything.
28, Extent of easements,
Easement of necessity.
Other Easements—
@ Right of way.
©) Right to light or air acquired by grant.
(© Prescriptive right to light or air.
@ Prescriptive right to pollute air or water.
(e) Other prescriptive rights.
29. Increase of casement.
30. Partition of dominant heritage.
31. Obstruction in case of excessive user.
CHAPTER IV
Tw: DisturpaNce OF EASuMENTS
32. Right to enjoyment without disturbance.
33. Suit for disturbance of casement.
34. When cause of action arises for removal of support.
35, Injunction to restrain disturbanco.
36. Abatement of obstruction of cascment.
CHAPTER V
‘Tue EXTINCTION, SUSPENSION AnD Reviy AL OF EASEMENTS
37.
Extinction by dissolution of right of servient owner. @
49.
50.
oe
52,
53.
55.
56,
57.
58,
59,
60.
61.
62.
63.
.- Extinction by desifuction of cither heritage.
Easements [1882 : Act V
Extinction on expiration of limited period or happen-
ing of issolving condition.
Extinction on termination of necessity,
Extinction of useless casement,
Extinction by permanent change in dominant heritage,
Extinction on permanent alteration of servient heritage
by superior force.
Extinction by unity of ownership.
Extinction by non-cnjoyment.
Extinction of accessory rights.
Suspension of easement.
Servient owner not entitled to require continuance,
Compensation for damage caused by extinguishment or
suspension, :
Revival of easements.
CHAPTER V1
Licenses,
“License” defined.
Who may grant license.
Grant may be express or implied.
Accessory licenses annexed by law.
License when transferable. &
Grantor’s duty to disclose defects.
Grantor’s duty not to render property unsafe.
Grantor’s transferee not bound by license,
License when revocable.
Revocation express or implied.
License when deemed revoked, a
Licensee's rights on revocation.
Licensee’s rights on eviction. S&S
1882 : Act V] Easements 7
(Preliminary)
‘Acr No. V oF 1882
(17th February, 1882)
An Act to define and amend the Law relating to Easements and
Licenses.
WHEREAS itis expedient to define and amend the law relating
to easements and licenses; It is horchy enacted as follows :—
PRELIMINARY
This Act may be cilled the * Easements Act, 1882,
(Local Extent.) Omitted by A, O., 1949, Schedule.
and it shall come into force on the first day of July, 1882.
L
2." Nothing herein contained shall be deemei to affect any law
“not hereby expressly tepealed; or to derognte:from—
(a) any right of the *[Ciovernmient] 1 royulate the collec-
tion, retention and distribution of the water of rivers
and streams flowing in natural chunnels, and of natural
lakes and pends, or uf the water Mowing, collected,
retained or distributed in or by uny channel or other
Work constructed at the public expense for irrigation:
(b) any customary or other right (not being a license) in
oF over immovable property which the *[{Government],
the public or any person may possess irrespective of
other immoveable property: o
} For Statement of Objects and Reasons, sce Gazette of India, 1880,
fe wre 98 For Report ofthe Select Committe, see bid Pt. V, p. 10813 and
for Proceedings in Council, see ibid, 1881, Supplement, np. 687 and 766; and
‘ibid., 1882, Supplement, p. 172.
his Act had been extended 1 Sind which wus asministered by the
Governor of Bombay in Council by Act VIII of I8yI.
This Act had been applied to Phulera in the Exchuled Area of Upper
Tanauval to the extent the Act is applicable in the N.-W.F.V. subject tocavtaia
modifications; and also extended! to the Exchided Art uf Upper Tanawal
(NAW-EP) other than Phulera with effect from such slote and. subject to
Geet, medications as may be notified, se N.AW.E.P (Upper Tanawal)
Excluded Area) Laws Regulation, 1950. This Act has boon extended to the
Gieke of Pakistan by the Central Laws (Statuto Reform) Ordinance, 1960
1 of 1960), s. 3 and 2nd Sch. (with cifect from the Lith October, 1985),
? The word “Indian” omitied by A. O., 1949, Sch
Z Subs. by A.0., 1961, Art. 2 (vith effect from the 23d March, 1956),
for “Crown” which had been subs. by A. 0., 1937, lor “Govt
Preamble.
Short title,
‘Commencement.
Savings. Construction of
certain references
to Act XV of
1877 and Act IX
of 1871.
“Basement”
fined.
Dominant and
servient heri-
‘tages and
owners.
118 Easements (1882 : Act V
+ @reliminary. Chapter 1—Of Easements generally)
© any right acquired, or arising out of a relation created,
before this Act comes into force,
'[3. All references in any Act or Regulation to sections 26
and 27 of the Indian Limitation Act, 18772, or to sections. 27 and
28 of Act No. IX of 1871? shall, in the territories to which this
Act extends, be read as made to sections 15 and 16 of this Act.]
CHAPTER 1
i Or EAseMenrs GENPRALLY
4. An easement is a right which the owner or occupier of
Certain land possesses, as such, for the beneficial enjoyment of
that land, to do and continue to do something, or to prevent and
Continue to prevent something being done, in or upon, orin
tespect of, certain other land not his own,
The land for the beneficial enjoyment of which the right exists
is called the dominant heritage, and the owner or occupier thereof
the dominant owner; the land on which the liability is imposed
is called the servient heritage, and the owner or occupier thereof
the servient owner,
Explanation —In the first and second clauses of this section,
the expression “land” includes also things permanently attached
to the earth: the expression “beneficial enjoyment” includes also
Possible convenience, remote advantage, and even a mere ame.
nity; and the expression “to do something” includes removal and
appropriation by the dominant owner, for the beneficial enjoy-
‘ment of the dominant heritage, of any part of the soil of the sere
vient heritage or anything growing or subsisting thereon.
Musteations
(@) A, as the owner of u certain house, has « right of way thither over his
neighbour B’s land for purposes connected wi h the bs ficial enjoyment of the
house. This is an casenient.
@) - A, as the owner of a certuln lnnise, has tho right to go on his neigh
bour B's land, and to talo wate: fur thn puuposes of his household out of a
spring therein. This is in casement.
1 Subs. by the Repeating and Amending Act, 1914 (10 of 1914), 6. 2 and
Sch. I, for the original section.
2 Rep. by the Limitation Aci, 1908 (9 of 1908).
Rep. by the Indian Limitation Act, 1877 (15 of 1877),
XV of
1877, fe
1882 : Act V] Easements ng
(Chapter 1—Of Easemeis generally)
© Asas the owner of a certain house, has the right to conduct water
from B's stream to supply the fountsins in the garden attached to the house,
This is an easement.
(2) "A, as the owner of a certain house and frm, has the right to graze
2 certain number of bis own cattle on B's fell, a 10 take, for the purpose of
being used in the house, by hinnelf, his fanly, wussts lodgers and servants,
water or fish out of (C's tank. or timber out of I's wood, or to use, for the
Purpose of manuring his land, the Keayes which hse fallen: from the troes on
E's land. These are easements,
(6) A dedicates to the public the right 10 occupy the surface of certain
land for the purpose uf passing and re-passing. ‘This right is not an easement
> PD. A is bound to cleanse a watercourse runing through his land and
Keep it free from obstruction for the benefit of i, a lower riparian owaer
This is not an easement
S. Easements are either continuous or discontinuous,
apparent or non-apparent.
‘A continuous easement is one whose enjoyment is, or may be,
continual without the act of man.
A discontinuous easement is one that needs the act of man for
its enjoyment,
‘An apparent easement is one the existence of which is shown
by some permanent sign which, upon careful inspection by a
‘competent person, would be visible to him,
A non-apparent easement is one that hi no such sign.
Mastrations
2, A tight annened to B's huuso to secsve light by the windows without
obstruction by his neighbour A. This ‘Continous easement,
@) A right of way annexed to A'S house over B’s land. This is a dis-
contiauous easement.
© _ Rights annexed to A’s jand to lead water thither across Bs Jand by
an aqueduct and to draw off water thence by a drain, The drain would be
discovered upon careful inspection by person conversant with such matters,
‘These are apparent easements.
(@) A tight annexed 10 A’s house to prevent B from building on his
own land. This is a non-apparent easement.
6. An easement may be permanent, or fora term of years or
otter limited period, or subject to periodical interruption, or
exercisable only at a certain place, or at certain times, or between
certain hours, or for a particular purpose, or on conditon that it
shall commence or become void or voidable on the happening of
2 specified event or the performance or non-performance ef a
specified act.
‘Continuous and
discontiquous,
apparent and
non-apparent,
‘easements,
Easement for
limited time or
on condition, advantages aris-
120 Easements [1882 : Act V
(Chapter 1.—-Of Easements generally)
7. Easements are restrictions of one or other of the following
rights (namely):—
(@) The exclusive right of every owner of immoveable
Property (subject to any law for the time being in
force) to enjoy and dispose of the same and all producte
thereof and accessions thereto.
(©) The right of every owner of immoveable property
(Gubject to any law for the time being in force) to enjoy
Without disturbance by another the natural advantages
arising from its situation,
Mlustrations of the rights above referred to
(2) The exclusive right of every owner of land ina towa to build on such
‘and, subject to any municipal law for the time being in force
(© The tisht of every owner of land that the air passing thereto shall
‘not be unreasonably polluted by other persons,
(0), The tight of every owner of a houso that hiv physical comfort shall
nor be intorfored with materially and unreasonably by noise or vibration
caused by any other person,
Gite right of every owner of land to so much light and air as pass
vertically thereto.
(6) The right of every owner of land thnt such Iu d, in its natural eon
ion, shall have the suppc it naturilly rendered by tho subjacent and adjacent
soil of another person.
Esplanation—Land is in its watural gonstition whe itis not excavated
and ot subjected to artificial pressuro; ant thu “subjacort and adjacent cate
‘mentioned in ths illustration means such soll only us in ls natural condita
Would support the dominant heritige in its naturat condition,
G) Tho right of every owner of land that, within his own Limits, the
ater which naturally passes or percolates by, over or theough his land zbalt
ot before so passing or percolating, be unreasonably polluted by other
Persons.
G) The right of every owner of lang to collect and dispose within his
own limits of all water under the land which does not pass ia a defined chaneel
and all water on its surface which docs not pass in a defined channel
(i) |The right of every ownor 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 tho water of such lake or
Pond shall be allowed by other persons to remain within such owner's limit
Without material alteration in quantity or temperature,
(The tight of every owner of upper land that water naturally rising
in, of falling, on such land, and not passing in defined chiannols, shall be allowed,
by the owner of adjacent lower land to run naturally teeto, 1882 : Act V] Easements
(Chapter —Of Easements generally. Chapter I—The
Imposition, Acquisition and Transfer of Easements.)
121
+e GQ) The right of every owner of lund abutting on a natural stream, lake
” OF pond to use and e nsuine its water fr drinkir., household purposes and
watering his caitlo aml shesp; andthe right of eveiy such owner to use cad
H consume the water for irrigating such land and for the puxposes of any mane,
factory situate thereon: Provide! that ho does vt thereby cause material
injury to other like owners.
Explanation —A natural stream is 0 sireann, whether permanent or intere
mitten, tidal or tdeless, on the surfaee of fand! or underground, which flows
by the operation of naturo only and in a natural and known course,
t :
! “CHAPTER 11
‘THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS
8. An easement may be imposed by any one in the circums-
tances, and to the extent, in and to which he may transfer his
interest in the heritage on which the liability is to be imposed.
Ailustrations
. (@) Ais tenant of B’s land under a lease for an unexpired term of twenty
years, and has power to transfer his interest under the lease. A may impose an
casement on the land to continue during the time that the lease exists or for
any shorter period.
6) Ais tenant for his life of cer
A cannot, unless with 18's consent,
continue after the determi
lanl with remainder to B absolutely!
impose an easement thereon which will
ion of his lifeinteres
© A, Band C are co-owners of certain lan! A cannot, without the
Consent of B and C, impose an casement on tho kan! or on any part thereof.
(@)_A and B are lessoes of the same lessor, A ola field X for a term of
five years, and Bof a field Y for a term of ten years, A's interest untder his lease
is transferable; B's is not. A may impose on X, in favour of B, a right
of way terminable with A’s lease,
9. Subject to the provisions of section 8, a servient owner
may impose on the scrvient heritage any easement that does not
lessen the utility of the existing easement. But he cannot, with-
‘out the consent of the dominant owner, impose an‘easement on
the servient heritage which would lessen such utility.
Mlustrations
(@)_A bas, in respect of his mill, a vight 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.
i ©) A has, in respect of his house, right of way over B's land, B may
grant to C, as the owner of a ncighbouri 1g farm, tho right to feed his cattle
a ‘on the grass growing on th way: Provided that A's right of way is not thereby
obstructed.
Who may im-
ose easements.
Servient owners. Lessor aind
mortgagor.
Who may
acquire easo-
ments.
Easements of
necessity and
‘quasi easements,
122 asements [1882 : Act V
(Chapter H1-—Dhe Iposition, Acquisition and Transfer
of Easements.)
10. Subject to the provisions of section 8, a lessor may impose,
on the property leased, any casement that docs not derogate
- from the rights of the lessee as such, and a mortgagor may im.
Pose, on the properly mortgaged, any easoment that does not
tender the security insufficient. But a lessor or mortgagor can-
not, without the consent of the lessee or mortgagee, impose any
other easement on such property, unless it be to take effect on
the termination of the lease or the redemption of the mortgage.
Explanation —A security is insuflcient within the meaning
Of this section unless the value of themortyaged property exceeds
by one-third, or, if consisting of buildings, exceeds by one-half,
the amount for the time being due on the mortgage.
A. No lessee or other person having a derivative interest may
impose on the property held by hini as such an easement to take
effect after the expiration of his own interest, or in derogation of
the right of the lessor or the superior pprojictor,
12. An casement may be acquired by the owner of the ime
moveable property for the beneficial enjoymentof which the right
is created, or on his behalf, by any person in possession of the
same.
One of two or more co-owners of immoveable property may,
as such, with or without the consent of the other or others, acquire
an easement for the beneficial enjoyment of such property,
No lessee of immoveable property can acquire, for the bene-
ficial enjoyment of other immoveable property of his own, an
easement in or over the properly edmprised in his lease.
13. Where one person transfers or bequeaths immoveable
Property to another,—
(@) if an casement in other immoveable property of the
transferor or testator is necessary for enjoying the sub~
ject of the transfer or bequest, the transferee or legatee
shall be entitled to such easement: or
(b) if such an casement 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 logatee shall, unless a different intention
is expressed or necessarily implied, he entitled to such
easement ;
(©) ifan easement in the subject of the (ransfer or bequest
is necessary for enjoying other inmoveable property 1882; Act V] Easements 123
: (Chapter 11.—The Imposition, Acquitition and Transfer
of Easements.)
te of the transferor or testator, ts transferor or the legal
! representative of the testator shall be entitled to such
| easement; or
i (@) if such’an casement is apparent and continuous and
necessary for enjoying the suid 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 neces-
sarily implied, be entitled Lo such easement.
|
; : :
Where a partition
S persons,—
made of the joint property of several
(©) ifan 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 casement, or
(6) if such an casement 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 im-
plied, be entitled to such casement.
The easements mentioned in this section, clauses (a), (e) and
(©) are called easements of necessity.
Where immoveable property passes by operation of law, the
persons from and fo whom itso passes ire for the purpose of this
section, to be dessned, rospwclively, thn triusferor and transferee,
Mlustrations
wed! for ayricultund purposes only, It is in-
‘A's adjoining land or by trespassing on the
for agricultural purposes only,
(@)_ Asolls B a field thon
accessible except by pissing 01
Jand of a stranger. B is entitled to a right of way,
over A’s adjoining and to the ficld sold.
(0) A, the owner of two fields, solls one to B, and retains the other,
‘The field retained was, at the dato of the sale, used for agricultural purposes
only, and is inaccessible cxcopt by passing over the field sold to B. Ais entitled
to a right of way, for agricultural purposes only, over BYs field to the field
retained,
© _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 sule took effect. B is entitled to
the light, and A cannot afterwards obstruct it by building on his land.
@) A sells B a-house with windows overlooking A’s land. The light
passing over A’s land to the windows is nccessary 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 tho land, for he takes it subject
to the burdens to which it was subject in A’s lands. 124 Easements [1882 : Act V
(Chapter H-—The Imposition, Acquisition and Transfer
of Easements.)
(2) Ais the owner of a house and adjoining land, The house ‘has windows
Fn Goking the land. A sinwulancously sells the house to Bang the land to C.
Tho light passing over the land is necessary for enjoying the house as it was
gelored whea the sal took effect, Hare A implcily gronte Bre right to the
Tihs and C takes the tand subject (o the resretion sey he ‘may not build
80 a8 to obstruct such light.
CP, Ais the owner ofa house and adjoining land. The house has windows
Sxeriocking the land. A, retaining the house, sells the land to B, without
saPeessly reserving any easement. The light passing over the land ic necessary
{or gtloying the house as it was enjoyed when the sila took sf a is entitled
{0 the light, and B cannot build on the fand so ix to obseuct see light.
G2) | As the owner of a house, solls B a fuctory built on adjoining land,
B is entitled, as against A, to pollute the ait, when Necessary, with smoke
and“vapours from the factory.
0) Ar the owner of two adjoining houses, Y and Z, sells ¥ to B, and
{puaios 2. B is entitled to the benofit ofall the yutiors and draies common to
the two houses and nocessary for enjoying Yas it wes enjoyed when the
Sale took effet, and A is entitled to the benefit ot all tho gue ae drains
When the le ite ROUSES and necessary For enjoying Z as it was enforce
when the sale took effect.
CO, Bethe owner of wo adjining buildings sels one to B, retain i the
other. B is entitled to a right to literal suyysit fan Are building, and A is
entitled to a right to Lueral support tron B's buibiing
G)_Ay the owner of tw2 adioin Wings, sells one to B and the
other to C. Cis entitled to lateral sup W'S Iwilding, and B is entitled
“to Iateral support from C's. biking
(A, Brants lands to B foe the purpose oF building a house thereon
2 tatiled to such amount of latcral and subjacent support eve A and
as is necessary for the safely of the house
( | Under the Lani! Acquisition Act, 18701, a Railway Company come
Pulsorily acquires a portion of B's land for the purpose of “maky ig @ siding,
rane, Company is entitled to such amount of lateral support from Bre adjoining
land as is essential for the safety of the siding.
Gin Owing to the partition of joint property, A becomes the owner of
paneer room in a building, and B becomes the owner of the portion ofthe
Building immediately beneath it. A is entitled to such amount of varie
Support from B's portion as is essential for the safety of the upper seen
(2) (A lets house and grounds to B fora particular business, “B hac ne
wad cwes rer other than by crossing A's land. Dis entitled to. a right or
RAY vor that land suitable (o the business to bo eatried on by B in thotreae
and grounds.
14. When 7a right] 10 & 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; hut it must be rea,
Sonably convenient for the dominant owner,
J See now the Land Acquisition Act, 1894 (1 of 1894)
Subs. by the Amending Act, N91 (12 of 1ND1), for “ight”.
X of
1870, 1882 : Act V] Easements 125
(Chapter I1—The Imposition, Acquisition and Transfer
of Easements.)
When the person so entitled to set out the way refuses or
neglects to do so, the dominant owner may set it out.
15. Where she access and use ul ligut 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 ycars next before the institution of
the suit wherein the claim to which such period relates is
contested.
Explanation —Nothing is an enjoyment within the meaning
of this section when it has been had in pursuance of an agree-
ment with the owner or occupier of the j-ropetty over which the
right is claimed, and it'is apparent from the agreement that such
right has not been granted «is an easenwat, or, if granted as an
easement, that it has been granted for a limited period, or subject
to a condition on the futlilment of which it is to cease.
Explanation 11, —Nothing is an interruption within the mean-
g of this section unless where there is «wn 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 11.—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 1V.—In the case of an casement to poliute water,
the said period of twenty ycars begins when the pollution first
Prejudices perceptibly the scrvient heritage.
Acquisition by
Prescription. Exclusion in
favour of re-
Vorsioner of ser=
vient heritage.
126 Easements [1882 : Act V
, (Chapter I-—The ‘Imposition, Acquisition and
Transfer of Hasements.)
‘When the property over whicli « right is aimed under this
section belongs to '[the Government], this section shall be read
as if, for the words “twenty years” the words “sixty years” were
substituted,
Muustrations
@ _ A suit is brought in 1883 for obstructing a right of way. The defen.
dant 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 Ist January, 1882. The plaintiff is entitled to judgment.
(®) Ina 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 serviont heritage
as lessee thereof and enjoyed the riglht as such lessee. The suit shall be dis.
missed, for the right of way fas not boen enjoyed “is an easement” for
twenty years.
(© Ina like suit the plaintiff shows (hat the right was peaceably and
openly enjoyed by him for twenty ‘The veferant proves that the
plaintiff on one oceasion during the twenty years hud wimitted that the user
‘Was not of right and asked his leave to enjoy the right Che suit shall be dis-
tnissed, forthe right of way has not been enjoyed “of right” for twenty
years.
16. 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 coutinuance 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.
Mlustration
A sues for a declaration that he is entitled (0 a sight of way over B’s land.
A proves that he has enjoyed the right for iwenty-five years; but B shows that
during ten of theso years C had a life-interest in the land; that on C’s death B
became entitled to the land ; and that within wo 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.
' The original word “Govt.” has successively been amended by A. O.,
1937, and A.O.,1961, Art. 2 (with effect from the 23rd March, 1956), to read
as above. 1882 : Act V] Easements 127
(Chapter 11.—The Imposition, Acquisition and Transfer
of Easements.)
17. ‘Easements acquired under section 15 are said to be
acquired by prescription, and are called prescriptive tights.
None of the following rights can be so acquire
(@) 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;
(0) a right to the free passage of light or air to an open
space of ground;
© aright to surface-water not flowing in a stream and
not permanently collected in a pool, tank or other-
wise;
@) a sight to underground water not passing in a defined
channel.
18. An easement may be acquired in virtue of a local custom.
Such easements are called customary casements.
Mustrations
(@) By the custom of a certain village every cultivator of village land is
entitled, as such, to graze his cattle on the common pasture. A, having be-
come the tenant of a plot of uncultivated land in the village, breaks up and
cultivates that plot. He thereby acquires an casement to graze his cattle in
accordance with the custom.
(@) _ By the custom of a certain town no owner or occupier of a house
can open a new window therein so as substantially to invade his neighbour's
privacy. A builds house in the town near B’s house, A thereupon acquires an
‘easement that B shall not open new windows in his house so as to command
a view of the portions of A's house which are ordinarily excluded ftom
observation, and B acquires a like easement with respect to A’s house.
19. Where the dominant heritage is transferred or devolves,
by act of parties or by operation of law, the transfer or devolu-
tion shall, unless a contrary intention appt rs, be deemed to pass
the easement to the person in whose favour the. transfer or
devolution takes place,
Musiration
A has certain land to which a right of way is annexed. A lets the land to B
for twenty years. The right of way vests in B and his legal representative so
Jong as the lease continues.
Rights which
cannot be acqui-
red by preserip-
tion,
‘Customary ease-
ments.
Transfer of do-
minant heritage
passes easement. Rules controlled
by contract or
title,
Incidents of cus-
tomary ease-
ments.
Bar to use un-
connected with
enjoyment.
Exercise of ease-
ment.
Confinement of
exercise of ease-
ment.
Right to alter
mode of enjoy-
‘ment,
128 Easements [1882 ; Act V
(Chapter H11—The Incidens of Kasements)
CHAPTER uf
THE INCIDENTS OF EASEMENTS
20." The rules coniained 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.
And when any incident of any customary easement is incon-
sistent with such rules, nothing in this chapter shall affect such
incident, =
21, An easement must not be used for any purpose not
Connected with the enjoyment of the dominant heritage.
Mlustrations
G@) Ay as owner of a farm Vy has a right of way over B's land to Y.
Lying beyond Y, A has another farm Z, the benctlcia enjoyment of which ig
Pot necessary for the benel cial enjuynicut at V. Ment. not use the easement
for the purpose of passing to and trom
(©) A, as owner of u certai e, luis a right ws! way to and from it.
FoF the purpose of passing (0 anu! fron the hunts, the tight may be used, not
only by, A, but by the menbers uf '» his guests, lodgers, servants,
Workmen, visitors and customers; for this is a puspose connected with the
enjoyment of the dominant heritnge. So, if A lets the lwuse, he may use the
Tight of way for the purpose of collecting the rent and sccing that the house is
kept in repair.
22. The dominant owner must exercise his right in the mode
which is least onerous to the serviont owner; and, when the ex.
ercise of an casement 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 sorvient owner, be so
confined.
Mustrations
(@) | A has a right of way over B's field. A must enter the way at either
end and not at any intermediate point.
(0) A has a right annexed to his house 10 cut dhatching-grass in B's
Swamp. A, when exercising his easement, must cut the grass 50 that the plants
may not be destroyed.
23. Subject to the provisions of section 2, the dominant
owner may, from time to time, alter the mode and place of enjoy-
ing the easement, provided that he docs not thi seby impose any
additional burden on the scrvient heritage.
m 4
1882 : Act Y] Easements 129
(Chapter 11—The Incidents af busements)
Exception—The dominant owner of a tight of way cannot
wire, even hough he does not
Pose any udditional burden on the servient heritage,
vary his line of passage at pl
thereby
Mlustrations
Co) As the owner of saw-mill, has a right to a flow of water sufficient
10 WOTK the mill. He may convert the saw-mill into a corn-mill, provided that
it can be worked by the same amount of water.
(0) A has a right to discharge on B's land the ruin-water from the eaves
of A's house. This does not entitle A to advance his eaves if, by 20 doing. he
imposes a greater burden on B's land.
in the mill paper from
ar liquor produced by
‘making in tho mill paper by a new process from bamihoos, provided that be
does not substantially increase the aunount, or injuriously change the nature
of the pollution,
(a). Ae @ riparian owner, acquires, as ayainst the lower riparian owners,
8 prescriptive right to pollute a sircam by throwing sawlust into it, This decy
ot entile A to pollute the stream by discharging int
24, The dominant owner is entitla
owner, to do all acts necessary to secure the ull 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.
Rights to do acts necessary to secure the full enjoyment of an
easement are called accessory rights.
Mlustrations
(@) A has ain easement to lay pipes in B's land to convey water to A’s
cistern, A may enter and dig the land in order to mend the pipes, but he
Must restore the surface to its original state,
(©) A has an casement of a drain through B’s land. ‘The sewer with which
the drain communicates is altered. A may enter upon B's land and aller ihe
Grain, to adapt it tothe new sewer, provided that he does not thereby impose
any additional burden on D's land.
(©) A, as ovner of a certain house, has a right of way over B's land. The
way is out of repair, or a tree is blown down and falls across it. A may enter oa
B's land and repair the way or remove the tree from it.
"But see s. 36, infra, as 10 abatement of obstruction of easement,
Right to do acts
to secure enjoy-
ment. Liability for ox-
Ponses necessary
for preservation
of easement.
Liability for
damage from}
‘want of repair.
Servieat owner
not bound to do
anything.
130 Easements [1882 : Act V
(Chapter 111—The Incidents of Easements)
@) A, as owner of a certain field, has a right of way over B’s land.
pipette the way impassable. A may deviate from the way and pass over the
adjoining land of B, provided that the deviation is reasonable.
* @_Ayas owner of a certain house, has a ight of way over B’s field,
A may remove rocks to make the way.
(A) A has an easement of support fram W's wall. The wall gives way.
A may enter upon B's land and repair the wall.
(2) "A has an easement to have his fand flooded by means of @ dam in
Bis stream. The dam is half swept away by an inundation. A may enter upon
Bis land and repair the dam.
28. The expenses incurred in constr ting works, or making
Fepairs, or doing uny other act necessury for the use or preserva
tion of an easement, must be defrayed by the dominant owner,
26. | Where an casement 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!
27. 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 uso the servient heritage in any way con-
sistent 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.
Mlustrations
o) As a5 owner of « house, Its a right 1 feud water and send sewage
through B’s land. B is not bound, as servient owner, to clear the watercourse or
scour the sewer.
(2) A grants a right of way trough his land to B as owner of a field,
A may feed his cattle on grass growing on the way, provided that B's right of
Nay is not thereby obstructed; but he must nol build a wall at the end of his
jand so as o prevent Bfrom going beyond it, nor must he narrow the way 50 a3
40 render the exercise of the right ess easy than it was at the date of the grat,
© Ay in respect of his house, is entvled te as asement of support from
Bos wall. B is not boun, as seivient owner, to keop the wall standing and in
repair, But he must not pull down or weaken the wall o as to make it incapable
Of rendering the necessary supp
62 Ay in respect of his mill, is emule to watercourse through B's
Jand. B must not derive stakes so as to obst 1882: Act V] Easements 131
(Chapter I! —The tnetdems uf Lusementsy
(©) Ay in respect of his house, is wntitlad 4 ‘ain quantity of light
passing over B's land. B inust nat plant trews su as ta obstruct the ‘Passage
to A’s windows of that qu: ly of tight.
28, With respect to the extent of eascnints and the mode
of their enjoyment, the following provisions shall take effect:—
An easement of necessity is co-extensive with the necessity
as it existed when the easement was imposed.
‘The extent of any other casement and the mode of its enjoy-
ment must be fixed with reference to the probable intention of
the parties and the purpose for which the tight was imposed or
acquired.
In the absence of evidence as to such intention and purpose—~
(@) 4 right of way of any one kind does not include a right
of way of any other kind:
(b) the extent of a right Lo the passage of light or air to a
certain window, door or other opening, imposed by a
testamentary or non-testamentary iastrument, is the
quantity of light or air that entered the opening at the
time the testator died or the non-teytamentary instru-
° ment was made :
(©) 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 hus been accustomed.
to enter that opening during the whole of the prescrip-
tive period irrespectively of the purposes for which
it has been used :
(@) 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
©) _ the extent of every other prescriptive right and the mode
of its enjoyment must be determined by the accustomed
user of the right.
29. 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
Extent of ease
ments.
Easement of
necessity.
‘Other easements.
Right of way.
Right to light or
air acquired by
grant.
Prescriptive right
to light or air.
Prescriptive right
to pollute air or
water,
Other prescrip-
tive rights.
Increase of easo-
ment,
eae
ee Partition of do-
‘ainant heritage,
Obstruction in
case of excessivo
user.
—~—
132 Easements [1882 : Act V
(Chapter H1L—The Incidents of' Easements)
heritage is diminished by diluvion, the easement is proportionately
diminished.
Save as aforesaid, no easement is wifoctd by any change in
the extent of the dominant or the servient heritage,
Mlustrations
(a) Ay the owner of a mill, has acquired u prescriptive right to divert
to his mill part of the water of « stream, A. alors the machinery of his mil
‘He cannot thereby increaso his right to divert water.
@) 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 dis.
charged into it, A extends his works and thereby increases the quantity dis
charged. He is responsible to the lower riparian owners for injury done by
‘such increase. .
(©) A, a5 the owner of a farm, has a right to take, for the purposo of
manuring his farm, leaves which havo fallen from the trees on B's land. A
buysaa field and unites it to his farm. A is not thereby entitled to take leaves
to manure this field.
30. Where 2 dominant heritage is divided between two or
more persons, the casement 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 cevenue-proceeding
(if any) under which the division was made, and, in the case of
Prescriptive rights, with the user during the prescriptive period.
Mlustrarions
(@) A house to which a right of way by a particular path is annexed is
divided into two parts, one of which is granted 10 A, the other to B. Each is
‘entitled, in respect of his part, to i right of way by the same path,
() 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 (wo distinct heritages, ono
Of which is granted to A, the other to B. A and B are cach entitled, in respect
Of his heritage, to draw from the well fifty buckets a day; but the amount
drawn by both must not exceed fily buckets a day.
© A, having in respoct of his house an easement of light, divides the
hhouse into three distinct heritages. Each of these continues to have the right
to have its windows unobstructed,
31. In the case of excessive user of an casement 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 1882 : Act V] Easements 133,
(Chapter Iil—The Incidents of Easements
Chapter 1V.—The Disturbance of Easements.)
obstruction would interfere with the lawful enjoyment of the ease-
ment.
Mustration
‘A, having a right to the froe passage over B’s land uf light to four windows,
six feet by four, increases their sizo and number. It is impossible to obstruct
the passage of light to the now windows without also obstcucting the passage
of light to the ancient windows. B cannot obstruct the excessive user.
CHAPTER IV
Tae Disrurnance ov Easnmuns
32. The owner or occupier of the dominant heritage is en-
titled to enjoy the easement without disturbance by any other
Person.
Mtusteation
A, as owner of a house, has a right of way over B’s land. Cunlawfully
enters on B’s fand, and obstructs A in his right of way. A may sue C for
compensation, not for the entry, but for the obstruction.
33. The owner of any interest in the dominant heritage,
or the occupier of such heritage, may institute a suit for compen-
sation for the disturbance of the casement or of any right accessory
thereto; ‘provided that the disturbance has actually caused
substantial damage to the plaintiff.
Explanation L—The doing of any act likely to injure the
plaintiff by affecting the evidence of the easement, or by
materially diminishing the value of the dominant heritage, is
substantial damage within the meaning of this section and sec-
tion 34.
Explanation I1.—Where the casement disturbed is a right to
the free passage of light passing to the openings in a house, no
damage is substantial within thy menuing of «his section unless
it falls within the first Explanation, or interferes materially with
the physical comfort of the plaintiff. or prevents him from carry-
ing om his accustomed Inisiness in tho dorainant heritage as bene-
ficially as he had dona previous to instituting the suit,
Explanation I.—Where the easement disturbed is a right to
the free passage of air to the openings ina house, damage is sub-
Right to enjoy-
ment without dis-
turbance,
Suit for distur-
‘bance of ease
ment. When cause of
action arises for
removal of sup-
port.
Injunction to
restrain distur-
bance.
Abatement of
obstruction of
casment.
Extinction by
dissolution of
right of servient
owner.
134 Easements [1882 : Act V
(Chapter IV.—The Disturbance of Easements. Chapter V.—
The Extinction, Suspension and Revis! of Easements.)
stantial within the meaning of this section if it interferes materially
with the physical comfort of the pluintitl, though itis not injurious
to his health.
Mlustrations
(a) A places a permanent obstruction in a path over which B, as tenant
of C's house, has a right of way. This is substantial damage to C, for it may
affect the evidence of his reversionary right to the casement.
@) A, as owner of a house, has a right to walk along one side of B's
house. B builds a verandah overhanging the way about ten feet from the
sround, and $0 a8 not to occasion any inconvenience to foot-passengers
using the way, This is not substantial damage to A.
34. The removal of the means of support to which a domi-
nant owner is entitled does not give rise to a right to recover
compensation unless and until substantial damage is actually
sustained.
35. Subject to the provisions of the Specific Relief Act, 1877,
sections 52 to 57 (both inclusive), an injunction may be granted
to restrain the disturbance of an casement
G@) if the cascment is actually disturbed—whea compen-
sation for such disturbance inight be recovered under
this Chapter:
(®) if the disturbance is only threatened or intended—when
the act threatened or intended must necessarily, if
performed, disturb the casement.
36. Notwithstanding the provisions of section 24, the domi
Rant owner cannot himself abate a wrongful obstruction of an
easement.
CHAPTER V
‘THe EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS
37. When, from a cause which preceded the imposition of
an easement, the person by whom it was imposed ceases to have
any right in the servient heritage, the easement is extinguished.
Exception.—Nothing in this section applics to an easement
lawfully imposed by a mortgagor in accordance with section 10, 1882 : Act V] Easements 135
(Chapter V.—The Extinction, Suspension and Revival of
Easements.)
Mlustrations
ogc transfers 1[Utipur] to B on condition that he does not marry C.
B imposes an easement on ![Ulipur). Then B omaeie CBS interest in
‘{Ulipur} ends, snd with ic tn easement is extinguite,
(0), Asin 1860, let ![Usipur] to B for thiny years trom the date of the
lease. 1B, in 1861, imposes an cisement on the land in favout of C , who
Faw the easement peaceably and openly as an easement wien interruption
for twenty-nine years. B's interest in I[Ulipur| then ends, and with it C's
easement,
© A and B, tenants of C, have permanent transferable interests. in
their, respective holdings. A inposes on his hholding sn easement to draw
Water from a tank for the purpose of in igating We lane. 4 enjoys the easement
for twenty years. Then A's rent falls into arreae and bic interest is sold. B’s
‘casement is extinguished,
12
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