PROFESSIONAL PRACftCE

CHAPTER 19 L
likely to accure from the use to which the land acquired will be put; and
Seventhly, any outlay or improvements on or disposal of the land EASEMENTS
commenced. made or effected without the sanction of the
publication of the Notification under Section 4, Sub-section (1).
After the necessary enquiries have been completed, having heard
claimants and the acquiring body, the Land Acquisition Officer declares his
buildlllgOftheneighh9urwberebytheairan~ of o~ ho:
• . A huge screen wall erected at the . .
ldlllg
which shows: , Just facing the
True area of land. affected considerably. The occupants find th I tO the saId neIghbour's building are
(I)
(2)
Total amount of compensation payable. Itt and lighl. A peculiar siruation, is il not? ~~~ uncomf~le due to inadequate

(3)
Apportionment of compensation if there are twO or mort """",. ~h a property, a number of questions Wee ~ .Itec~ or e.ngllleer when he inspects
claimants. provided ~ is a consent to.that effect -aghbour behave in this peculiar w blttb to hIS trunci as to why should the
If the claimants are dissatisfied with the award, then they can IlCCCP' "'live and let othen live". ay and why should he not follow the theory of
amount under protest and request the LA.O. to refer the matter 10 the Cowt
necessary adjudication under Section 18 of the Act. propertyWell! That
and the is the
owner right connected
by erection of with the enjoyment
. of the immovable
e n t connected to the enjoyment ~f hO, .
The applicalion 10 the Collector requesting him to refer the matter 10 IkC40 me th .gh screen wall has done noth·
. tog wroog except to
when the claimants are nOI satisfied with the award, should be made within six righl prnrwortv I Immovable p.........rIV w·1h
'VY-" J may Dot be conveniently and full h ld . 'VI'¥"J, 1 OUI such
from the receipt of the notice from the Collector as regards declaralion called easements and these first found roc .. y e and enjoyed. Such rights are
from the date of award if the award is declared in presence . terVitudes. OgolllOD under Roman Law and ...."eTe called
is earlier and in other cases within six months from
At times the matter can be referred to the Court by the Collector What is an Easement?
.b<>u"fue,pr~"ionm." .ri~
under Section 30 either on account of defective titles or on account of a
as such, for the beneficial enjoym~nt ofe:=~r occupier of certaio land possesses,
An easement is a right wh·ch th
apportionment In case any dispute •• ROT Ih" d.,i...
of Ihe award, il is obligatOI)' on the part the Land Acquisition Officer to
such disputes to the Court for detennination inslead of deciding on his own
g) To do and continue to do something· or
To prevent and to continue to rev~t . .
(vide Section 30 and Section 31 of Land Acquisition Act). The ;PI""[ion",.""~1 or upon, or in respect of certa! othe'l~ethtnh~ from bemg done; in
compensation is a very difficult propostion and hence, the Collector ins""d 01 .Slration • illlU not IS own.
a risk in tbe matter refen the same to the Court as is stipulated in the Act. (a) •A' as the owner of a certain house has .
In apportionment of compensation each claimant is entitled to the neighbour 8's land for the pu 'co a nght .of way over his
his int~t which he has lost by compulsory acquisition. Thus, what is ,eq,ui,:d. enjoymeot oftbe house Th;~' rpose nnected WIth the beneficial
valued is variety of interests. rights and claims in land 10 tenus of money. .' . .., IS an easement.
A as the owner of certain bouse has .
. 8 's land, and to take water for the the nghl t~ go on his neighbour
(b)
The Land Acquisition Act, 1894 has been amended in 1984andthe
from the valuation poiot of view an: as under: spring therein. This is an tasement.putpOSt of hiS bousehold, out of a
(1) Original solatium allowance of 15% has been raised to 30%1
(2) Int~ at 12% P.A. on such market value for "7a::"!~:;::
on and from the date of publication oflhe notification Note:
(I) in respect of said land to the date oftbe award oflheC.ol\oOl
whereas under the Engl'ish La . eased ment ~cludes Profit-a-Prendre
Under the Indian Law the term .
from the date of taking possession of the land, whi.ch'''' iSld . w, It oes not mclude Profi
means nghl to remove and a ro . . ' t-a-Prendre
of the . h . . pp pnate for hiS own use any part of ·1
servIent entage, m short privilege of lakin ' SO l
from the land of another, e•g• R.;ght t0 __ I. g away something
l<U.e out fish from a tank.
 EASEMENTS
PROFESSIONAL PRAcrlCE

Otber Rigbts Resembling Eas( ment

Dominant Heritage . . t ofwhicb the'right of easement exists (I) NlturaJ Rights:
The land for the beneficial eflJoymen Do ' t heritage is that land whose These rights nonnally arise out of geographical configuration of the property
is called the Dominant beritag~. In other ~or~ ~"':'wner of the ~rvient heritage. and are inherent, in the propeny itself. These arise out of the natural situation of the
'owner is entitled to claim c~m con~esslO:ho i~~eflted by the provisions of the propeny, e.g. the right which the owner of land on a higher leyel has of discharging
It is the owner of the Donunant heritage his surplus water on his neighbour's land on a lower leve~ is a natural right and not
Easement Act. an easement
Servient Heritage . .' . beneficial enjoyment of the easements is Some of the Natura l Rigbts, Benefits Provided by Nature for tbe
The land on which the liability of f h servient heritage has to
co. ' heritage The owner 0 t e h Enjoyment of Man's Property
imposed is called the ~rvlent . . . nt and ownership of his land for t e (I) To receive air and light freely.
'flee a part ofbis absolute nght of enJoyme
(2) To receive light which falls vertically upon.the land but not light
::ficial enjoyment of the land of Dominant owner.
Ihrough adjacent plot.
Characteristic of Easement. (3) No right to pollute air.
I Owner or occupier ofland IS necessary. h' to pre yent and continue to (4) Right of support to land in its natural condition,.e.g., adjoining
2. The right to do and contindue to .doo~umpoe~ ~~~~°:espect of certain other land. owner digs tbe pit and fills it with water. That will interfere with
re something being one, m ' . the support of adjoining land.
P yent L._ ted in the owner or OCCUpier. (S) Right 10 drain rain water from higher plot to lower plot, but right
not his own must ~ ves .' f the Dominant heritage
The right should be fOI' th<d bedn,,'fisu"lca~ ~~~o:e:r~ automatically with !be
to discharge polluted water is not a natural right Such right should
J.
Sinee it is attached to an an . either be acquired by way of prescription or by way of easement.
sale of land and separate agreement IS ~t necessary· C.ses in wblcb tbe Natural Rigbts of tbe Ownen to Enjoy tbeir
A _ Owner of PQRS; access nO( possible
Property Exclusively are Restricted
Without passing over S's plot (RSTV), (I) Owner cannot develop the plot as be likes, but is subject 10 rules
A '" Sells to 'C' , ,. automatically transferred to and regulations of local bodies.
The right of passing over ~e:::: o~A.Bas':n easement, it is an easement (2) Fresh air should not be polluted.
provided right of way has been enJoy y . (3) Unreasonable noise or vibration which materaiily interferes with
necessity. p a one's physical comforts not allowed.
(4) Every owner ofland has a right to so much light and air as passes
A =Owner and vertically thereto.
Sells 10 'C' (5) Right of support of adjacent land in natural condition.
(6) No right to pass polluted water from higher to lower land.
R S Customlry Rights:
These an:: rights out of the custom, vested in favour of a large or
B =Owner

v
:=~~:g
It is
:~~~rf.::"~::~~!li:: of particular village or members ofcertain
an easement is always appurtenant to a tenernent,
T 1"1_Right to bury the dead at a certain burial ground; right to have Holi Festival on
_ Road - . piece ofland.
Thus, the right of way in favour ofa large and fluctuating body of persons will
' .m or upon wh'IC b the right of Dominant
SeMent heritage . III I d customary right, but if such right of way is meant fOf'beneficial enjoyment
4. Dominant owner that IS bo an 5
exercised must not belong to bod Ise's land and the heritage, this will be an easement In the latter case two aspects are
diffeent owners. This is a right over some ye .....11, """,,Il y, existence of dominant heritage ahd body of determinate persons to
not enjoy easement over his own land.
459
458 .
 PROFESSIONAL PRACTICE
EASEMENTS

enjoy the said easement

ii) If PQRS . .
RSTV. IS sold, the purchaser will have a right of way over land
CONTINUOUS AND DISCONTINUOUS EASEMENT
iii)
Continuous Easement Purchaser will have right to felch water from well if that is the onl
There are theeasemeots wbose enjoyment is continued without the act of man. source ofwatcr supply for the plot prior to sale. y
e.g., right to rective light from the neighbour's property is a continuous easement as Pr-----., Q
no act of man is required to do something. Similarly, a drain undC{ a property is also
a continuous easement. The doors and windows to receive air and light as well IS the
drains are also known as apparent easements as the same are visible ones.
A '--_ _.,.,...j
Discondnuous Easemeot
It requires the act of man for enjoyment, e.g., right to take water or fish from
, .® s
the neighbour's tank are the discontinuous easements which require a fresh act mI
every occasion.
A non-apparent easement is not visible, e.g., 'B' cannot consttuct over his T
land due to easement right fo •A', is a non·apparent easemenl
v
-Road_
The following are some of the important easements:
(I) Right to use and enjoy light and air from and over the property oftbe (c) By Prt'S(ripfion: The word prescriptio ... .
adjoining owner (easement of air and light) ~=tt:;:=ion for20yean. ~d ~=edS:::I:~:~~~:~:n~~
A prescriptive easeme:=: P~redbed y !he Easement Act, 1882.
(2) Right to access from the adjoining owner's land (easement of way).
(3) Right to run and maintain water and drain pipes through
neighbour's land (easement of drainage and water supply,. air and li~t to ~d for any bUild:u~ave ~~':!:~b7yh~:'oth~acclhess ~d
(4) Right of flow of water (ease'!lent of water course) WIthOUt IIlterruption and' 20 ~ Y erewlth
, I lor yean' And where su rt '"--
m Right of support for a building (easement of support). n s and or things affixed thereto has been
th
. bl . ppo I.IUfIl one
peacea y received by or by thin
ereto, as an easement, without interruption and for 20 years' And h g.
Modes of Acquiring Easement of way or any other easement b bee ' , w ere a
Out of the various modes of acquisition of the easements, three modes claiming title thereto an easem~nt, xc~;~ygbS:d ~Ihopenly .enjoyed. by any
important, viz. (a) by grant; (b) by necessity; and (c) by k;1O )" " '. .. WI UI IOtClTUptlon and
''-\ ~'iGt ..:a.t. N\~\roa.'i'l:lt~~an.~ooe ·
W \() \be e'k\m\., \1\ -aM \() ~\~~ \\t 'ma'J '\N\.\\tt 'li\!. \1\\tus\
The~t\'.\\I:)'S\lI:.\\~~'lol'&\.'IlSt()\\\~\~ ~\... ,~~~~~\
which the liability is to be imposed. Easements imposed in this manner are knoW!
However, it is necessary to obtain a declara
easements by grant ...... , Owner is entilled 10 the prescrip" tory order from the Court that
Illustration be filed . . lVe easemem claimed th . Th
WtthlO two years after the exp' f20 . erem. e SUit.
'A' is the tenant ofB's land under a lease for an unexpired period of20
I
,., ,_ ... absolute however long its use mai: years Without the same
the right
and has power to transfer his interest under the lease. He may i"m~po~..
~~an;,;:,::
theland to continue during the time the lease exists or for any 51 "'mmWb""en" th~~~:e~:~~;~~e 6Oea~mcnt right claimed ~Iongs to the
to lease conditions. Th ' 0 years and not 20 y_
us, to acquire easement by " . .
(b) By ~etesslty: Easement of necessity arises when one propeny (a) II b bee' prescnptlOn It must be proved that·
as n enjoyed peaceably' .
into two either by sale, mortgage, panition, etc. and they art so situated thai: (b) As an easement '
cannot be enjoyed without exercising a particular privilege in or upon the other. (c) Without imerruption' and
privilege is known as easement of necessity: (d) For 20 years. •
i) Complete plot PQTV belongs to one owner.
of Easement
When the peaceful enjoyment of the easement rights acquired by the owner

'6'
 PROFESSIONAL PRAcrtCE

of the Dominant tenement are interfered with it, it is said there is a disturbance of B's filed was by a way which "u~..,. through A' 6dd. '
the easement rights. By the tenn "Distunmce of easement" is meant any material
. I I .--...
~gncu ~ purpose but lately he convened his fieSd
S
"*'
It was d~ld~ that 'B' could not be merely altering !be 0..
Bs&:w_ .....
a IIIIbtt
: -. .
obstruction or threat of obstruction which may diminish or may be likely to diminish
materially the beneficial enjoyment ohhe easement . SUbstanllally mcrease the easemenl • •
The remedy of the owner of Dominanl heritage on disturbance of the easemeDl 3. ~ Dominant owner is entitled to all acts which are necessary for tk
rights is to 'approach the appropriate Court for an injunction restraining the persml enjoyment of the easements. Thus the Dom' . ,....
heri , m a n t owner can go 10 Sen-..
from interfering with his rights or for damages for the same depending upon the tage to repair the pathvray or to a1ler the drain line B t ' .
nature and eXlent of distutbance. thai the works should be made good and 00 • u It 15 compulsary
The suit for the disturbance in the easement of a right to the free passage
Servient heritage All th damage should be done to tht
be borne by th Do ' . e expenses of the preservation of the easements Itt 10
light cannot be instituted unless the Dominant owner proves: e mmant owner.
(i) That the light has been materially curtailed
Problems
(ii) That the action has made the Dominant tenement unhabitable.
(iii) That the Dominant owner is prevented from carrying on his The architect or the engineer ma be lied
in a nwnber of problems so far th y ca upon for his professional advice
trade or business on account of distwbance. Problem No. I as e easements are concerned.
(iv) That Dominant owner bas suffered substantial damages due 10
disturbance. To safeguard the in/enst ofhis client so thaI the easement righI' 0- nol . d
Th ....}, . '~ acqllll'f! '
e nel&.bout having a building will '" .
Conditions under which the Remedy of Injunctions (Injury) Is client's open plot or if both th 'ghbo stan ~nJoymg aIr and light from the
l
ileight it is likely that th :gh""bour ur an~ the chent have buildings of the same
Available , e nel may raIse add'f I fl .
When the damage to the Dominant tenement is not substantial, i.e., building and provide windows in th Ilona 001'$ over hIS existing
. e new work so as to enio . d I'
would not render it unfit for human habitation, Court may at its disretioD '~w,~ma. d lent's property having a building f I h 'gh ~ yaIr an Ight from the
compensation to the owner of the Dominantlenement. The Court in such case same will result in the prescriptive ~;: Ofe;a:!~ese are nOI checked in time, the
be satisfied on the following points before awarding damages: The neighbour will always open out the wi~
(i) lnjury of small nature? cornfon for the rooms. If the said wind . WS so as to get the maximwn
(ii) Will the money paymenl be appropriate? ~' . it will nol be possible for the cli~7t~11D :;:mtruc~ for a period of 20
(iii) Can the amount of money compensation be calculated? eijecllon being taken by the neighbour ft ha' Y e.lop hiS property due to the
a er vmg acquired the easements.
(iv) Would il be appropriate to give injunction?
The answm to the first three is yes and founh is DO. cO'Uurt~~:::~: PIal: Boundary
discretion to award damages (money compensation) rather than if
Extinction of Easements
The Indian Easements Act bas provided in all eleven diffeent ways
an easement may be extinguished. . Room
Client II
Essential Conditions for tbe Enjoyment of Easements
I. Easemenl can be enjoyed by Dominant heritage only. Ifan easement is Room
over the right of way, the same can be utilized by the Dominant
family and servants and nobody else.
2. In the enjoyment of the easement, the Servient owner should be Road
as low as possible. A Person having the easement rights of di>'borpo~
water from the eaves of a roof cannot increase the width of the Fig.
projection. The most reasonable way f '
. , . " ,. ." " . 0 protectmg the c1eint's interest under mea
'A' and '8' were the ownen of adjacent fields and ODe mode r IS to arrange for a short agreement between the neighbour and dat~

463
 PROFESSIONAL PRAcrlCE
in which it should be expressly mentioned that no easement rights arecla.im<:d l,y ,bo,
neighbour and as a licensee: he is allowed to enjoy the air and light from th< cl;cnt'"
property on payment of a nominal fee. The arrangement must also mention that
neighbour will not raise any objections in future when the client wants to 1i<v"I~, lb.!
propeny.
It usually happens tha the neighbour will oot agree to the proposal and
only COW'SC left at that time will be to block up the air and light of the ne;;ghl,..,~
windows. This is usually done by erecting a C.I. sheet screen with timber or
frame in the client's property and moreover the same should be sufficiently large
as to obstruct air and light. The said obstruction in the fonn of a C.l. sheet
should be maintained permanently if pOssible, or in the alternative continuous for
period of atleast one year. Notice to that effect should be given to the owner
said wall should be kept under observation daily and necessary notes should
of me same.
Ifit is desired 10 obstruct the air and light of the ",;ght~w, '"oxi';ting b"i1d1ill
the following factors should be thoroughly studied before advising the client
effect:
( I) Period of enjoyment.
(2) Alternation work if any carried out by the neighbour.
(3) Whether Jiglll and air are received from any other source.
(4) Whether a screet will make the rooms uncomfortable or not.
Protection of Easement Rights by C.I. Sheet Screen Wall
This recourse of providing C.I. Sheet Klttn wall annot be resorted 10 ,oJ""
years have passed as the Dominant owner will immediately move me court
the following grounds, {lamely:
(I) That he has ""l,ired th< l>reOoripl;verigh. o!· ...'men. ,md lhe . .
art: now interfered wilh.
(2) That the obstruction will make the rooms uncomfortable,
and finally unfit for human habitation.
(3) That the rents of the property will be affected.
(4) That the market value of the property will be diminished.
Problem No.2
PRESERVATION OF THE PRESCRIPTIVE RIGHTS OF EASEMENTS,
It is necessary- first to know whether the client is in a position of 11lrn_
owner having enjoyed air and light continuously and uninterrupted for a
more than 10 years. if the client has acquired the easement rights, necessary
should be taken to preserve the same.
Amonga
the most important are:
(I) When either the Dominant or Servient heritage is
destroyed.
EASEMENTS
(2) By reconstructing or altering the building msuch. waf • • _
more burden on Servient heritage.
If the Dominant tenements is pull down and recoostructioD is . . . . . . . . . .
• manner that the size and posirionof the windows as they existed Itt i¥ ' ....
then it will retain its rights of easement. This may not be possible due kt rules . .
rrgulatioos of local authority and also on account of advancement made iD pi a
ideas. However, it is essential for the Dominant owner to prove with the are--
precision that a portion atleast of the new and old windows coincide- so far. da'
position and sizes ate concerned. At times the Dominan owner will be entitled to
aher the mode and place of enjoying the easement provided DO additional bunb a
Ztposc:d on the Servient owner. Delay in construction by the Dominant OwnCf will DO(
mean the abandonment of his rights.
The easement rights ate not extinguisbed for the temporary- stoppage ofuse of
• same due to some calamities like fire or rain, elc. For example where the owner
of a building who is in the COUiSC of acquiring a righl of easement by prescription
lias his house burnt down, but begins immediately 10 rebuild his house 'and places the
windows exactly in the same position as the old ones, he can be regarded as enjoying
* access and use of light and air continuously and will be entitled to protection after
:lI years from the flf'St building. If, however, there is a delay in rebuilding, then that
. ght be evidence of an intention not to resume the use.
Where a person opens new windows in place of old ones, but has them larger
.size or al higher level, the easement for his new windows becomes a new casement
Qich be can acquire only by enjoying if for the required length of time. '
The projection of eaves of rooffor the discharge of rain water is an easement.
Ibe rights are acquired, the Dominant owner ifhe desires can raise the roof or add a
, but the projection has 10 be maintained of the same width:
It can well be argued that by raising an additional floor, the height from which
rain water is falling has increased with the result thai the Servient herilage is
IItIjccted to more burden. Since the projection of eaves is an easement and not a
'etary right over the Servient owner's property, and hence the Dominant owner
allowed to raise an additional floor.
If neces~ Sleps art: not taken it is likely thaI the Servient owner may not
higher construction on the ground that air and light of his rooms will be affected
~erably.
This can be overcome by two methods:
(I) Method ofco-operation.
(2) Legal action.
thod of co-operation
In Ihis case the joint measurements are taken of both the buildings and
.ussary plans prepared showing the angles of light for the various windows of the
.pbour. By mutual agreement, the neighbour may allow coDSlruction work to tbt
height so as not to decrease the original light angles of the windows, He may
46,
 PROFESSIONAl PRACflCE
'. also allow higher construction work to the original height so as not to decrease the
onginallight angles of the windows. He may also allow higher construction with !be
necessary set backs. The advantages of this method are:
(I) Saving in time and legal costs. . may arise.
(2) Posirion and sizes of windows can be altered during the course of
replanning of the building.
Legal Metbod
This method should be resorted to when the method of co-operation fails. For
this purpose it is necessary:
(I) To prepare the plans of both the buildings showing the position ofdac
windows together with their light angles.
(2) Necessary photographs of the buildings should be taken.
(3) Plans of the new building should be prepared taking care to see -
the position, size and plane of light angles are kept the same as
ex.isting originally and not altered at all.
(4) The construction work should be taken in hand after the eas.m. .
rights have been established and not before.
The plans, photographs, etc., are sent to the neighbour for his ",i·r,i, aoi.,'"
confinnation. If no reply is received within a stipulated time, period, then, the
become final and binding and the work of demolition can be proceeded with.
same is objected to, the matter will be referred to the Coon for its decision
work of demolition can be proceeded with after the Coun has given its decisi.n.
the matter.
Problem No.3
EFFECTS OF HURRYING ON A BUILDING WORK WHERE INJUNcrIO
ANTICIPATED'
Injunction is a judicial process prohibiting one party from interfering
destroying the legal rights of another party. The main purpose of the injunction
prevent future injuries, legal complications and to I
is decided by the Court.
There are thrtt. o/pe$ of injunctions:
J) Interim injunction.
2) Perpetual or permanent injunction.
3) Mandatory injunction.
Interim Injunction
It is a prohibitory order on the party from doing any act which might
irreparable loss and the same is gmated for a specified period. In . It is the natural right of every owner of the lani!. to enjoy the support of the
injunction. the Court takes an undertaking from the aggrieved pany
injunction) to pay such amount by the way of damages in case the
(against whom the injunction is taken) suffm damages due 10 the said'
the same to be decided by Court.
466
EASEMENTS
Permanent Injunction
It is a pennanent prohibitol}' order and usually granted when it is not possible
10 assess the actual damages that may result or to prevent legal complications thai
Mandatory InjuDction
(a) It sometimes happens that the client will be canying out certain works.
when the damages done due to the said works cannot be esrimated by any
of the known methods.
(b) It sometimes happens that the client will be carrying our work of the
additional floor in a burry knowing or no! knowing the easement rights
of the neighbour. The neighbour after consulting bis architect and
solicitor will apply for an injunction against the client. If the work is
under progress, interim injunction will be granted whereby the client is
required to stop the work till the matter is final ly decided by the Court.
If the work is carried out in spite of the injunction the client will be
committing the "Contempt of Court" for which the Court takes a very
serious view resulting in fine and imprisonment.
Under the above circumstances, il is advisable 10 settle the matter with the
aighbour by offering him adequate compensation so that he can release the easement
::tghts and the necessary documents are prepared to that effect which will save
tOOSiderable lime and legal cost.
If the works have already been carried OUI and if the court finds that it is nol
ible to ascertain the damages by any of the methods, then the court will grant
.ooatory injunction whereby the client is required to pull down the new construction
.oor: and restore the building to its original condition.
Factors for Estimadng Compensation when Easement R1gbts Are
!oteriered With
I. What is an adequate quntum of light to be retained by the Dominant
tenement to preven! an actionable nuisance?
2. How many sqUare feet of adequately lighted floor space will the
Dominant tenement lose when the Servient tenement is altered or
rebuilt?
3. What is the capital value of such loss of adequately lighted floor
space, and also the value of the general reduction of light due to the
alteration of the ServiC!lt tenement?
mentofSupports
of the neighbour's land in its natural condition. That means the neighbour cannot
in his plot in such a way that the soil below the foundations of the adjoining
. . That usually happens when a basement floor is proposed JUSl
467

toucbing the adjoining building. Since the adjoining o~. ~ the prescriptive
of easement of support from the neighbouring property. IllS l~ely that ,he,
the Court to safeguard his rights and also forthe safety .. I
it is essential either to shift the R.C.C. columns oftht DeW bUilding ..
eccentric R.C.C. footUlgs and excavation being done very ~ful~. To ~wre
of support, a building should have enjoyed such support WIthout mterrupt100
prescriptive period 0(20 y~. ~,f",c."'iI
A building with pile foundations does DOl have the problem (] .
yet the pile driving will cause a movement of soil such mal the f~l1ons
adjoining building are endangered and as such the adjoining owner will have
for compensation. ..
Another type of the support is on account oEthe partltlon wall berween
buildings and a few common cases are: . .rerferes with his development Similarly, rain waler from a pia( at a higher level will
(I) A common wall between lhe [wo buildings each owner bavmg
rights over the same. . IItt.se rights which are of utmost necessity from the health poim of view and for the
(2) Each building having an independent walliouchmg each other.
(3) A walt belonging to one owner over which there is an easement
afthe Dominant owner and the beams of his building may
the supports. . mdefmed natural channel for a number of years. For the purpose of drainage and for
If at any time one of the building is required 10 ~ removed. lIS
do so except the partition wall over which the necessary nghls of support ha. V',U.1I
acquird, or the said wall may be fonning support for the beams of the dj
building. .. P~UIJ"'"
If it is desired to raise the height of the pattlllon wall for the
additional floor, care should be taken 10 see that· (1) it ~s nol over loa~ed;
it requires strengthening the same should be don~ on one I . . .
may not allow any strengthening work to be camed ~ut on ~IS ~I~e, (3)
should be kept in a waler tight condition so as to avoid the hablhty ~C!r ~ges.
The right which a person has of going upon the land of hiS nelghoo.ur
erecting a scaffolding thereon, for the purpose of plastering and white washing
own wall, is in the nature of an easement though it is not an easement of
under Seclion 13 of the Indian Easements Act, 1882. . me land in an unnatural way or in the course draining operations collects the water
In a building if the ground and flISt floor belong to tw~ dlff~nt
the owner of the upper floor has got the easement of support for IS. over
ground floor. He can enter the groWld floor 10 provide props f~r repa1IS,
of the ground floor is not bound to cany out the repairs to hiS grou~ floor so
make the suppon for the first floor effective. Such a right of suppon IS nOI a
rigllt but an easement. .
With respect 10 the repairs of a panition wall over which an easement
it bas been laid down that where one adjoining owner possesses an
of the pattiion wall belonging to the other adjoining owner, and such halfb,Y~np<",
decay or otherwise passes into such a condition that the easement becomes u
...
EASEMENTS
• difficult of exercise then (a pan from any special local custom or express COOlraCt)
- Smient owner is not liable 10 repair bul each party is entitled 10 repair the other's
of the wall SO far as reasonably necessary for the enjoyment of any easement
-.pbedJy granled or reserved.
£.asement of Drainage
(fthe drains of a property or rain water from a property passes over a plOI for
)"Urs, the said property will acquire the prescriptive rights of drainage. That does
. . mean that the owner of the vacant piC! cannot develop his land or has to keep it
.,en for the drainage of his neighbour. The development should be carried out in
.til a manner so that the same does not interfere with the free flow of drain water.
lit has rights to divert Ihe drains from one comer of his land to another if the same
low 10 a plot al a lower level and the owner of the lowlying plot cannot interfere with
proIection of the properties.
'A' was the owner of Iand which was on a higher level than the adjoining land
which belonged 10 'B'. Rain water from A's land used to flow 0[1 to 8's land in an
better cultivation of his land' A' raised an embanlcmem on his land and dug a wide
channel nOI only in his land but also in thaI of B's. As a result of which the waler was
discharged with considerable force and in a concemtraled volume on B's land and
caused considerably more damage than natural flow would have caused.
In the above circwnstances 'B ' was entitled 10 obtain and injunction restraining
-A' from diverting the water along the new channel and directing bim to allow the
....Ier 10 flow on 10 B's land withoul causing more damage, than what the fonner
IBvilational flow would have caused.
The owner of the land on a lower level being subject to a disadvantages
mjoyed b)' oarure has to submit [0 all the consequences resulting from the owner of
lite upper land using the land in a natural way for the purpose of draining it or for the
purpose of agricultural operations. But if the owner oftbe land on a higher level uses
• one body and discharges it on B's land then although ' B' is boWld to receive that
body of water he has a cause of acrion if as a result, B's land is subject 10 a damage
~Ier than what it would have.receivcd as a result of the disadvantage imposed upon
.by nature.
'6,