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REMEDIES FOR DISTURBANCE OF EASEMENT[1]

Table of Contents

(Ss. 32 to 36)

QUESTION BANK

1. Define easement and explain remedies available for its disturbance.

SHORT NOTES

1) Remedies for disturbance of easement.

I. Right to enjoyment without disturbance (S. 32):–

The owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person.

Illustration

A, as the owner of a house, has the right of way over B’s land. C unlawfully enters B’s land and obstructs A in his right of way. A may sue C for compensation, not for the entry, but for the obstruction.

Thus, the right of easement is very useful, and nobody is allowed to interfere with the dominant heritage owner’s easementary right. Disturbing the right of easement is treated as a nuisance.

II. Remedies for disturbance in the enjoyment of easement:-

Following are some of the remedies available for disturbance in the enjoyment of easement, viz.

1) Right of compensation (S. 33):-

On disturbance in the enjoyment of elementary rights, the holder of elementary rights can institute a suit for compensation against the person creating a disturbance. However, to institute a suit, it is necessary that the plaintiff must show that he has suffered material loss or damage due to disturbance to the easement. Thus, this remedy is available after actual disturbance and after suffering a substantial loss.

Illustrations

a) A places a permanent obstruction in a path over which B, as a tenant of C’s hose, has the right of way. This is substantial damage to C, for it may affect the evidence of his reversionary right to the easement.
b) A, as the 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 ground so as not to cause any inconvenience to foot passengers using the way. This is not substantial damage to A.

2) Injunction to restrain disturbance (S. 35):-

The person threatened by the intended disturbance of easement may file a suit to seek an injunction restraining the proposed wrongdoer from carrying out the intended disturbance. However, if the disturbance continues, the holder of the right may file suit for (i) compensation for the damage he has suffered due to the disturbance and (ii) for an injunction from carrying future disturbance.

3) Abatement of obstruction of easement (S. 36):-

This section prohibits elementary right holders from taking the law into their own hands and abating obstruction alone. Rather, S. 36 expects the easement holder to file suit for abetment of obstruction. Thus, even though S. 24 authorises the dominant owner to defend his easement right, this section does not permit him to abate the easement on his own.

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