EASEMENTS ACT, 1882:
Easement: An easement is a right which the owner or occupier of a certain land possess as such for the benfecial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon or do in respect of certain other land not of his own. Essence of easment is that it should be a right over property belonging not to owner but to some one else.
Easement by way of Law: (a) Easement by necessity (b) easement by prescription.
Easement by necessity: In order to claim easement by necessity the following elements must be fulfilled:
- As a result of division of land into two pieces and their connection with each other is in such a way that one cannot be enjoyed without other having privilege over another’s land . To put straight the beneficial enjoyment of one’s land is possible only, if there is a limitation or restraint on the absolute enjoyment of right of ownership in the land of another. Generally this arises for purpose of right of way.
- It must be noted that, if there is any other way or means through which the property can be enjoyed beneficially though it may be in convenient it’s not a ground to seek easement by way of necessity, to put straight, claiming right under this category depends upon absolute necessity.
- Easement right under this category can be claimed as long as necessity is existed, the movement it is seized the right ceases.
Easement by way of prescription:(a) If the enjoyment of easement would result destruction of right or property in which easement if claimed.
(b) If the right is for free passage of light or air through a open space or ground.
(c) Water not flowing in a stream and not permanently collected in pool or tank or otherwise.
(d) Similarly one cannot claim right under this category if the water in underground not flowing in defined channel.
Kinds of Easements:
classifies easements into: a) continuous b) discontinuous (c) apparent (d) non-apparent
(a) A continuous easement is one whose enjoyment is or may be continual without the act of man. Ex: A right annexed to A’s house to receive lght by the windows without obstruction by his neighbour.
(b) A discontinuous easement is one that needs the act of man for its enjoyment.Ex: A right of way annexed to A’s house over B’s land; because, to be enjoyed A must use it.
(c) An apparent easement is one the existence of which is shown by some permanet sign, which upon careful inspection by a competent person would be visible.Ex: A right is annexed to A’s land to lead water to it by an aqueduct across B’s land and from there, draw it off by a drain.
(d) A non-apparent easement is one, which has no such sign.Ex: A right annexed to A’s land to prevent from bilding on his own land.
Rights and liabilities of dominant owner (S.20 to 31):
- E must be used only for the enjoyment of the dominant heritage.
- Dominant owner must exercise his right in the mode which is least onerous to the serviernt owner.
- Dominat owner without imposing any addittional burden on the servient heritage, may, from time to time, alter the mode and place of enjoyment of E. However, if it is right of way, it cannot be varied at pleasure, even though he does not thereby impose any addittional burden on the servient heritage.
- Dominat owner is entitled to do all acts necessary to secure the full enjoyment of the E without determinent to the servient owner and servient hertiage.
- The expensees incurred for the acts done so as to use or preservation of an easemnet, must be defrayed by he dominat owner..
- If E is enjoyed by means of an artificial work, the dominat owner is liable to make compensation for any damage to the serviernt heritage arising from the want of repair of such work.(S.26).
- The servient owner is not bound to do any thing for the benefit of the dominat heritage. However, he must not do any act tending to restrict the E, or to render its exercise less convenient (S.27).
- The dominat owner cannot by merely altering or adding to the dominant heritage, subsantially incease an E. (S.29)
- If the dominat heritage is divided between two or more persons, the E, 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 terms of the instrument, decree or revenue proceeding under which the division was made, and, in the case of prescriptive rights, with the user during the prescriptive period.(S.30).
- In the case of excessive user of an E 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 obstruction would interefere with the lawful enjoyment of the E.(S.31).
- With respect to the extent of Es and mode of their enjoyment, the following provisions shall take effect.
How the Easement rights lost?
An easement extinguishes u/s 45 revives due to following circumstances:
(a) If the destroyed heritage before the expiry of twenty years restored by the deposit of alluvion.
(b) If the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and
(c) If the destroyed heritage is a building and before the expiry of twenty years, if it is rebuilt upon the same site provided it doesn’t impose greater burden on the servient heritage.
An easement extinguised u/s 46 revives when grant or bequest by which the unity of ownership was produced is setaside by the decree of a competent court. Easemnet of necessity extinguishes under the same section revives when the unity of ownership ceases from any other cause.
A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.
Remedy: A person who has fulfilled the above elements can claim either Easement by prescription or necessity as a matter of right can enjoy them and in the event of challenge made by any person can ask the court to declare them categorically by stating that they have acquired easementary right under the above said category.
How the Easementary rights are revived?
An easement extinguishes u/s 45 revives due to following circumstances:
(a) If the destroyed heritage before the expiry of twenty years restored by the deposit of alluvion.
(b) If the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and
(c) If the destroyed heritage is a building and before the expiry of twenty years, if it is rebuilt upon the same site provided it doesn’t impose greater burden on the servient heritage.
An easement extinguised u/s 46 revives when grant or bequest by which the unity of ownership was produced is setaside by the decree of a competent court. Easemnet of necessity extinguishes under the same section revives when the unity of ownership ceases from any other cause.
A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.
Remedy: A person who has fulfilled the above elements can claim either Easement by prescription or necessity as a matter of right can enjoy them and in the event of challenge made by any person can ask the court to declare them categorically by stating that they have acquired easementary right under the above said category