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THE IMPOSITION[1], ACQUISITION[2] AND TRANSFER OF EASEMENTS

Table of Contents

(Ss. 8 to 19)

QUESTION BANK

Q.1 What is an easement? States modes of its acquisition.

Q.2 Define easement. Explain easement by necessity.

Q.3. Discuss fully Customary Easement. What are the essentials of valid customs? Distinguish between customary easement and prescriptive easement?

SHORT NOTES

1) Easement of necessity.

2) Easement by prescription.

SYNOPSIS

Imposition of Easement by grant (S. 8)-

Who may impose easement?

1) Owner himself-

2) Limited interest owner-

3) Servient owner (S.9)-

Acquisition of easement by Prescription (S. 15)-

Rights which cannot be acquired by prescription (S. 17)-

III. Easement of necessity-

A) Easement of necessity (S. 13 and 14)

Easement of necessity comes in following situations-

1) Easement to transferee in transferor’s other immovable property-

2) Easement to transferor in transferee’s transferred property-

3) Easement at partition-

B) Easement of quasi-necessity-
a) Easement of quasi-necessity come in following situations-

1) Continuing enjoyment of existing easement by transferee in transferor’s other immovable property-

2) Continuing enjoyment of existing easement by transferor in transferee’s transferred property-

3) Continuing enjoyment of existing easement by sharer after partition-

b) Essentials of quasi-easement- ]

(a) Apparent easement-

(b) Continuous easement-

III. Acquisition of easement by Custom (S. 18)-

Difference between ‘customary easement’ and easement by ‘prescription’-

1) Time of enjoyment-

2) Who can claim?

3) Against whom it can be claimed.

4) Interruption requirement-

The topic deals with the imposition, acquisition and transfer of easements (from Ss. 8 to 19). Easement comes into existence either by the imposition of the land owner on his own land or by the acquisition by the owner of one land over another’s land.

I. Imposition of Easement by a grant (S. 8):-

The term imposition signifies the creation of an easement by the party on his own land for others’ benefit. The imposition of easement is created by express or implied grant, i.e. permission.

Who may impose easement?

Following persons may impose or grant an easement on their land, viz-

1) Owner himself:-

The owner of land may create an easement on his own land for the benefit of others’ land.

2) Limited interest owner[3]:-

An easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.

Illustrations

(a) A is a tenant of B’s land under a lease for an unexpired term of twenty years and has the power to transfer his interest under the lease. A may impose an easement on the land to continue during the time that the lease exists or for any shorter period.

(b) A is a tenant for his life of certain land with a reminder to B absolutely, A cannot, unless with B’s consent, impose an easement thereon which will continue after the determination of his life interest.

(c) A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an easement on the land or on any part thereof.

(d) A and B are lessees of the same lessor, A, of a field X for a term of five years and B of a field Y for a term of ten years. A’s interest under 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.

3) Servient owner (S.9):-

A servant 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. In other words, even the servant owner may create a new easement while another easement already exists.

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 steam. B may grant 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 that way, provided that A’s right of way is not thereby obstructed.

However, the servient owner’s right to create an easement is subject to the limitations imposed by S 8.

Illustration

A sued for a declaration that he is entitled to a right of way over B’s land. This proves that he has enjoyed the right for twenty-five years. But B shows that during ten of these years, C had a life interest in the land and that within two 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 the section, has only proved enjoyment for fifteen years.

II. Acquisition of easement by Prescription[4] (S. 15):-

Prescription means ‘acquiring any right by enjoying another person’s property for a definite period’.

1) As per S. 15, the following rights can be acquired by prescription:-

a) Right of access and use of light or air for a building.
b) Right of support to land.
c) Right of way.
d) Any other easement.

2) Other conditions to acquire the above rights by prescription:-

The right of easement claimed must have been enjoyed by the claimant-

i) peaceably,
ii) openly,

iii) as of right,

iv) as an easement,
v) without interruption,

However, 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 II).

vi) for twenty years; however, if the property against which easement is claimed belongs to the government, the period of enjoyment is thirty years (Explanation IV). Similarly, if the person claiming easement had enjoyed the servient heritage as a (a) life estate or (b) for three or more years from the grant, the period so enjoyed is to be excluded from computing the period of twenty years (S. 16).

Illustration

A sues for a declaration that he is entitled to a right of way over B’s land. This proves that he has enjoyed the right of twenty-five years. But shows that during ten of these years, C had a life –interest in the land; that on C’s death, B became entitled to the land: and that within two 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 the section, has only proved enjoyment for fifteen years.

vii) The use of easement should be adverse, i.e. without agreement with the servient heritage owner for the enjoyment of the easement. The explanation I to S. 15 provides that nothing is enjoyment if the enjoyment is had in pursuance of an agreement with the owner or occupier of the property, and it is apparent from such agreement that such right of enjoyment has not been granted as an easement, or if granted as an easement, granted for a limited period or subject to a condition on the fulfilment of which it is ceased.

Illustration

a) A suit was brought in 1883 for obstruction of a right of way. The defendant 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 to an easement and as of right, without interruption, from 1^st January 1862 to 1^st January 1882. The plaintiff is entitled to the easement.
b) In a 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 servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.
c) In a like suit, the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff, on one occasion during the twenty years, had admitted that the use was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.

Rights which cannot be acquired by prescription (S. 17):-

Following rights cannot be acquired through prescription viz:-

(a) 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;

(b) a right to the free passage of light or air to an open space of ground;

(d) a right to underground water not passing in a defined channel.

III. Easement of necessity[5]:-

A) Easement of necessity (S. 13 and 14):-

An easement of necessity is an easement without which the property cannot be used at all. S. 13 define ‘easement of necessity’ as follows.

(i) When two parts of the properties are under common ownership, and

(ii) one property is served from the other property, either in possession or in ownership or in both, by a transfer, bequest, partition or by an operation of law, and

(iii) these two properties are so situated that the one cannot be enjoyed without the exercise of the particular privilege or right in or upon or in respect of the other,

-such privilege or right is called easement of necessity.

In such a situation, the two properties are so situated that unless the owner is permitted to make some use of his neighbour’s land, the property would be useless and worthless for the owner.

a) Easement of necessity comes in the following situations:-

1) Easement to the transferee in the transferor’s other immovable property:-

Where one person transfers or bequeaths immovable property to another, if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement.

2) Easement to the transferor in the transferee’s transferred property:-

Where one person transfers or bequeaths immovable property to another and if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement.

3) Easement at partition:-

Where a partition is made of the joint property of several persons, and if an 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 easement.

Thus, the transferee or legatee, transferor or testator or his legal representatives and coparceners of the Joint Hindu Family can claim the easement of necessity.

b) Essentials of easement of necessity:-

Following are the essential elements of easement of necessity, viz.

(a) Easement of necessity arises when there is the severance of the property in two or more parts.

Such severance may have been affected either by transfer of property interviews, i.e., between living persons by way of sale, mortgage, lease, gift, partition etc. or transfer by will or succession after death or by the operation of law.

(b) Such easement shall be necessary for the enjoyment of the separated portion in the same way and to the same extent as the part has been enjoyed before severance.

Illustrations

(a) A sells to B a field then used for agricultural purposes only. It is inaccessible except by passing over A’s adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A’s adjoining land to the field sold.

(b) A an owner of two fields, sells one to B and retains the other. The field retained was, at the date of the sale, used for agricultural purposes only and is inaccessible except by passing over the field sold to B. A is entitled to a right of way, for the agricultural purpose only, over B’s filed to the field retailed.

(c) A, the owner of two adjoining buildings, sells one to B and the other to C. C is entitled to lateral support from B’s building, and B is entitled to lateral support from C’s building.

(d) A grants land to B for the purpose of building a house thereon. B is entitled to such amount of lateral and subjacent support from A’s land as is necessary for the safety of the house.

(e) Under the land acquisition Act 1870, a Railway Company compulsorily acquires a portion of B’s land for the purpose of making a siding. The Company is entitled to such amount of lateral support from B’s adjoining land as is essential for the safety of the siding.

(f) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it, A is entitled to such amount of vertical support from B’s portion as is essential for the safety of the upper room.

(g) A lets a house and grounds to B for a particular business. B has no access in them other than by crossing A’s land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds.

Thus, the right of way, right of drainage, right of support, right to flow water etc., are some of the illustrations of easement of necessity.

B) Easement of quasi-necessity:-

Quasi-easement means those easements which are not very essential but whose existence is implied. In other words, the quasi-easement is not ‘highly essential’, but it is considered to be necessary for the reasonable enjoyment of the property after it’s separated from the main property. In short, ‘quasi-easement’ are easement before the severance of the property because both parts before severance were under common ownership.

The rights that become quasi-necessity were present even before severance as ordinary rights of property.

a) Easement of quasi-necessity comes in the following situations:-

1) Continuing enjoyment of existing easement by the transferee in the transferor’s other immovable property:-

Where one person transfers or bequeaths immovable property to another, and if such an easement (already existing) is apparent and continuous and necessary for enjoying the transferred property as it was enjoyed before the transfer or bequest, the transferee or lessee shall be entitled to such easement (unless a different intention is expressed or necessarily implied).

2) Continuing enjoyment of existing easement by the transferor in transferee’s transferred property:-

Where one person transfers or bequeaths immovable property to another and if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall be entitled to such easement (unless a different intention is expressed or necessarily implied).

3) Continuing enjoyment of existing easement by sharer after partition:-

Where a partition is made of the joint or several persons and if such an easement is apparent and continuous and necessary for enjoying the share of latter as it was enjoyed when the partition took effect, he shall be entitled to such easement (unless a different intention is expressed or necessarily implied).

b) Essentials of easements of quasi-necessity:-

Following are the essential elements of easement of quasi necessity, viz.

(a) Apparent easement:-

(as already discussed)

(b) Continuous easement:-

A continuous easement is one whose enjoyment is or may be continued without the act of a man.

(c) These easements are necessary for the reasonable enjoyment of the property in the same manner as they were necessary for the dominant owner before the separation of the property.

Illustrations

i) 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 sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.
ii) A sells B a house with windows overlooking A’s land. The light passing over A’s land to the windows is necessary 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 the land, for C takes it subject to the burdens to which it was subject in A’s hands.

iii) A is the owner of a house and adjoining land. The house has windows overlooking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here, A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.

iv) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.
v) A, the owner of two adjoining houses, Y and Z, sell Y to B and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect.

Thus, the right of irrigation, right to air and light, right to way, right to flow water etc., are some of the illustrations of quasi-easement.

IV. Acquisition of easement by Custom[6] (S. 18):-

An easement may be acquired by virtue of a local custom. Such an easement is called a customary easement. Thus, the easement of pasturages, prayer and management of the temple, religious observances, right to water and irrigation, ferry, etc., are some of the customary easements.

Illustrations

(a) 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 become the tenant of a plot of uncultivated land in that village, breaks up and cultivates the plot. He, thereby, acquires an easement to graze his cattle in accordance with the custom.

(b) 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 a 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 that are ordinarily excluded from observation, and B acquires a like easement with respect to A’s house.

Difference between ‘customary easement’ and easement by ‘prescription’:-

1) Time of enjoyment:-

To get the right of easement by prescription, the adverse use of the property of another must be for twenty years. Whereas, even though no time is fixed to acquire an easement by custom, obviously, its use must be from time imperial. The customary easement is acquired by virtue of customary easement.

2) Who can claim?

A prescriptive easement is not limited to a particular locality. It belongs to a determinate person, whereas a customary easement belongs to all those members of the ascertained class, caste or community who happen to reside in that locality or class.

3) Against whom it can be claimed.

The enjoyment of customary easement does not go against the individual or servient owner; it always changes in class. However, the prescriptive easement should be claimed against an individual or servient owner.

4) Interruption requirement:-

The interruption required under S. 18 has very little technical meaning compared to the requirement under S. 15.

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