CHAPTE CUAPTER 1 Introduction GENERAL y it ay respect of privacy, light, air and discharge of water through drains.1 If aman hath a window in his own premises, another person having built a house very near to this, and living there with his family hath » and that man at the time of constructing such window forbids or impedes him, he shall not have power to make a window.! The basic principle of right of easement to light has also been reflected in English law of easement. An easement which is not in contravention of a statute or public policy is created by express grant or reservation. An easement of light and air may be acquired by express grant, contract or reservation. In Carr-Saunders v Dick McNeil Associates Ltd.2 the plaintiff claimed a prescriptive right to the use of light to two windows of his building and sought damages for obstruction of that right due to increase in the height of the defendant's building. The windows had been in the 1 See Halhed’s Gentoo Law, p. 162. 2 [1986]1 WLR 922 (Ch D).INTRODUCTION _ vars. But the rooms behind the; position for more than eee seen m vai estatsheuby the planner the (English) Prescr 1832 was an easement for the access of light to the bui ding, oto a particular room within the building so that bic exten Sinai vas not to be measured by the internal a rangemen x i ¢ building he inquiry would be whether the interference with Ee ; ght c ae uted the tort of nuisance was not to the amount of light tal 2n, ut to the amount of light left, the wrong consisting in the Gistuy bance of the dominant owner in the comfortable enjoyment of his property. in Vivada Cinthamani which is another ancient work on easements, various kinds of easements were mentioned at pages 124 and | As regards Muslim law, Hamilton's Edition of Hedaya at p. 132 shows that a right in the nature of an easement is acquired by one who digs a well in a waste land that no one shall dig within a certain distance of it so as to disturb the supply of water. The right to use water for purposes of irrigation are also recognised and defined in the same work [pages 37 & 136]. The same work refers to the right to discharge water on the terrace of another and recognised a claim of servitude [pages 71 & 146]. Tracing the origin of easement or servitude, if can be plainly said that this right is of great antiquit i 'y. The laws of every country recognise easement or servitude. Its origin is as ancient as that of property. Begrany rane Karformah (1869)3 Bengal LR 18 at 37. “zrah v Troyloltho Nath Rats 1 3 4 Soroop Chander 5 Begren v KhettraBackground of Easements Act 1882 in India 5 ements Act 188 é Towards the last quarter of the Nine Government of Great Britain took various ste jaws and (he compilation of a code of law was their despatch to the Secretary of the State dated 10th May 1877, the Government of India proposed several branches of substantive law of codification among which the subject of easements was one. ‘T he suggestion of the Governor General-in-Couneil was accepted by the Secretary of State and Mr. Witte STOKES, the then Law Member of the Government of India drew an Easement Bill, a rough draft of which was circulated in February 1878 to the local Governments for opinion and the result was a mass of criticism, some of which were searching and therefore welcome. The Bill was then revised and submitted to the Indian Law Commission consisting of Sir Cau TuRNER, MR. Justice West and Mr. WHITLEY Stoxes, who, in their report made the following observations: teenth Century, the PS to reform the Indian San accepted policy. In “The chief objections taken to the Bill are that, by informing people of their rights, it will Provoke litigation, and that it will abolish or otherwise interfere with easements recognised only by local usage. The former objection, if valid, is an objection to all positive law declaring rights and in a less degree, to every decision of a court of justice which enunciates a general rule respecting rights. But it is matter of ordinary experience that people are more prone to bring or resist claims to doubtful than to certain rights, that, in other words, litigation is promoted by doubts as to what is, and what is not a right recognised by the courts of justice. By its explicit declarations of the law on points now held doubtful by the people, the Bar and the Judges of the Subordinate Courts, the Bill appears likely to check, rather than increase, litigation. As to the latter objection that the Bill will interfere with the local usages, we have been unable to find in the papers submitted to us a single instance of a right in the nature of an easement that would have been affected in malam partem by the Bill; and we strongly suspect that many of its critics have confounded rights in gross with easements properly so called. “The Bill as revised by the Law Commission extends to the whole of British India; but as there are some parts of the country (e.g. Assam and British Burma) where the rights with which it deals are said to be practically unknown; as in others (e.g. the Punjab), it may, perhaps, be expedient to extend it to towns, leaving the rural districts entirely to their local usage. The local Governments are invited to state whether the extension of the6 INTRODUCTION — CS OEE proposed law should be made permissive. The Bill is now published in accordance with the permission of the Present Secretary of State for India, and save that the definition o¢ an apparent easement has been amended, that s. 13 Gs to easements of necessity) has been slightly altered so as express the Tecent decision of the Master of the Rolls in Mayor or Longon v Riggs, and that the commencement of the Act and the dates in the illustrations to s. 15 have been changed, it reproduces the draft as settled by the Law Commission.” 6 The Bill as revised by the Law Commission extended to the whole of British India except to the scheduled districts mentioned in Act XIV of 1874 and placed before the Council on 6th November 1880 and circulated to the local Governments for their opinions. Their opinions were highly conflicting. As a result of these conflicting opinions, Mr. Whitley Stokes proposed that the Bill in its then existing form might be extended to Madra Coorg and Central Provinces and be made extendible to other Parts of India at the option of the local Governments. The Bill was then referred to a Select Committee for settlement. The Bill as amended by the Select Committee and as applying only to the Presidency of Madras and all the Chief Commissionerships of the Central Provinces and Coorg, Was introduced, was passed into alawand came into force on the Ist day of July 1882. The Statement of Objects and Re: ons is reproduced below: ‘orm part of the Indian Civil Code, and mMpactly, the rul hts which a m, s relating to ‘an sometimes has 6 49LJ Chan Div 297. 7 Gazette of India 1880, Part V, p. 494,Applicability of the Act of the legal profession in the Judges’. There is much litigation in thec and a late Judge of the p ‘ [ unjab Chief C largely due to the fact that neither the the majority of the Courts, understan which such disputes st aml aa putes should be determined. The Bill ail based on the law of England which, being j , iiable and 5 : just, equitable and almost free from local Peculiarities, has in many cases, bee: held to regulate the subject in this country; but a few deviations (hereinafter specified) have been made from that law, and rules as to some matters which have not hitherto come under the cognizance of the English and Indian courts, have been adopted from the writing of modern jurists.” mufassal and to the subordinate ? of urban easements urt asserts that this is people themse nd the princ 1.3 Applicability of the Act As already pointed out, the Act in its original form extended to the territories respectively administered by the Governor of Madras in Council and the Chief Commissioners of the Central Provinces and ‘Coorg. By various Acts, Amendments and A.L.Os, the Indian Easements Act now applies to the following States and Union Territories: 1. ANDHRA PrapesH. [Vide Andhra A.L.O. 1953; Andhra Pradesh A.L.O. 1957; Andhra Pradesh A.L.O. 1961.] 2. Detut. [Vide Delhi Law Act 1915, Act VII of 1915 (Goa, Diu & Daman from 1978). The principles of the Act cannot be applied to pre-1978 cases in Goa] 3. GuJarAT. It was formerly part of the State of Bombay and the Act was extended by the Governor of Bombay in Council. ; 4. Haryana. [Vide Punjab Act XXIX of 1961 read with Haryana A.L.O. 1968}. 5. HIMACHAL PRabEsH. [Vide H.P. A.L.O. 1948]. 6. Karnataka. [Vide Karnataka Act XXXII of 1978]. 7. Kerata. [Vide Kerala ALO. 1956 and Kerala Act V of 1962]. 8. Mapua Prapesu. [ XXIII of 1958]. 9. CharrisGari. Carved out of Mi Vide M.P. A.L.O. 1956 and MP. Act adhya Pradesh. 5 47. 8 Mahadeo Tatu Naik v Ramagant Athmaram AIR 1985 Bom 3:icability of the Act of the legal profession in the mufassal and to the Judges’. There is much litigation int} ‘ase of urban easements and a late Judge of the Punjab Chief Court asserts that this is largely due to the fact that neither the people themse the majority of the Courts, understand the principles upon which such disputes should be determined. The Bill is mainly based on the law of England, which, being just, equitable and almost free from local peculiarities, has in many cases, been held to regulate the subject in this country; but a few deviations (hereinafter specified) have been made from that law, and rules as to some matters which have not hitherto come under the cognizance of the English and Indian courts, have been adopted from the writing of modern jurists.” subordinate 1.3, Applicability of the Act As already pointed out, the Act in its original form extended to the territories respectively administered by the Governor of Madras in Council and the Chief Commissioners of the Central Provinces and Coorg. By various Acts, Amendments and A.L.Os, the Indian Easements Act now applies to the following States and Union Territories: 1, ANDHRA PRADESH. [Vide Andhra A.L.O. 1953; Andhra Pradesh A.L.O. 1957; Andhra Pradesh A.L.O. 1961.] 2. DELHI. [Vide Delhi Law Act 1915, Act VII of 1915 (Goa, Diu & Daman from 1978). The principles of the Act cannot be applied to pre-1978 cases in Goa.]® 3. Gusarar. It was formerly part of the State of Bombay and the Act was extended by the Governor of Bombay in Council. 4. Haryana. [Vide Punjab Act XXIX of 1961 read with Haryana A.L.O. 1968]. 5. HIMACHAL PRADESH. [Vide H.P. A.L.O. 1948]. 6. Karnataka. [Vide Karnataka Act XXXII of 1978}. 7. Kerata. [Vide Kerala A.L.O. 1956 and Kerala Act V of 1962]. 8. Mapua PRADESH. [Vide M.P. A.L.O. 1956 and M.P. Act XXIII of 1958). . CHATTISGARH. Carved out of Madhya Pradesh. 2 8 Mahadeo Tatu Naik v Ramagant Athmaram AIR 1985 Bom 347. r 7%IyTRODUCTION __ 10, MAHARASHTRA [Formerly State of Bombay (vide Bombay A.1.0. 1956; Bombay Act IV of a 11. onissa. [Vide Orissa Act xxiv of 19671 12, Ponpicuerry. [Vide Act XXVI of 1968]. Punjab Act XXIX of 1961]. 13, PUNJAB. [Vide ie ea Section 1 of this Act and Tamil Nadu Act XXII of 1957. 16. UTTAR PRAD 17. UrraraNCHAL. Carved out of Uttar xtended to the following States: esi, [Vide Act VIII of 1891]. Pradesh: ‘The Act has not been e? 1. Assam. Bihar. |. Jharkhand. Carved out of Bihar. _ West Bengal. . Manipur. . Nagaland. . Sikkim. . Tripura. |. Arunachal Pradesh. |. Mizoram. and . Meghalaya. CS eon gaaRwn 1 1 In any State to which the Indian Easements Act applies, it is a complete, self-contained Code on the subject of easements, the Act being intended to define and amend the law relating to easements and licences.® In territories to which the Act has no application, there is an imposing array of authority for the view that there is no reason why the principles underlying the provisions of the Act should not be followed in so far as they embody the rules of equity, justice and good conscience.!° It is therefore settled law that the principles of the Easements Act would apply in all those States to which the Act has 9 ee eamble; Sital Chandra Chowdhary v Allan Dellaney 20 Cal WN 5 | 10 Per Tekchand Jain in Nunia Mal v Mahadev AIR 1962 Punj 299.__ __Cognate Acts dealing with easement in India not been extended, in accordance with the principles of justice, equity and good conscience.,!! __Inanappeal which came up before the Supreme Court from the judgment of the High Court of Gauhati, their Lordships held that since the Legislature did not intend the Easements Act to apply to Assam, the learned single Judge of the High Court could not have defeated that intendment by holding that “the defendant of the present case was protected by s. 60(b) of the Act”. The learned Judges pointed out that it was not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order, as it amounted to enacting legislation by the High Court, a power not vested in the judiciary. After referring to the conduct of the respondent in denying that he was a licensee of the appellant or had been given permissive use to raise temporary structures in the suit land for a period of two years and in setting up “title” to the suit land as “prospective purchaser” on the basis of an “oral agreement for sale” and claiming to be a possession as a “prospective purchaser”, which have been found by all the courts below to be false. Their Lordships observed, that even assuming that the principles of “justice, equity and good conscience” underlying the provisions of s. 60 (b) of the Easements Act could be attracted, the conduct of the respondent disentitled him to any relief on the basis of “justice, equity and good conscience”.!2 Cognate Acts dealing with easement in India (1) The Land Acquisition Act 1894, section 3, cl. (b), s. 147. (2) Section 147 of the Code of Criminal Procedure 1973. (3) Sections 25 and 26 of the Limitation Act 1963. (4) Sections 36 to 42 of the Specific Relief Act 1963. (8) Section 6(¢) and s. 8 of the Transfer of Property Act 1882 (6) Sections 6 and 32 of the Northern India Canal and Drainage Act 1873. (7) The Bengal Irrigation Act 1876. sh Chandra 11 Brij Bhukhan Kalwar v SDO, Siwan AIR 1955 Pat 1; Dwije fo Dutta v Kalyani Das Misra 1986(1) Civ LJ 202 (206) (Gaw); Umesh Chandra Goswamy v Pachi Gopal Barua 1989(1) Gat LR 310 B13); Baidyanath Dutta v Radheyshyam Dutta AIR 1979 Cal S7a0D: inst 12 Panchugopal Barua v Umesh Chandra Goswami AIR 1997 7 (1997)4 SCC 713; (1997) 1 SCJ 452; JT 19972) SC 554. |INTRODUCTION 10 a Woo 8) The Rajasthan Irrigation @ rainage Act 1954. ‘The Rajasthan Irrig d Di i 5: (8) Th 9) ‘The Bombay Irrigation Act 1879; and y Trrigi ) e Code of Civ Procedure 1908, Order XXXIX, rr. I to5 (10) The Cod i ill and the Act (s. 2) save: en ah of the Government to regulate the collection, right ‘ ° ralention and distribution of water of rivers and streams owing in natural channels and natural lakes and ponds or of the water flowing, collected, retained or distributed i or by any channel or other work constructe: ou eons ° expense for irrigation. The power of the executive ry out schemes of irrigation will thus remain unhampered. (The scope of this clause will be dealt with in detail under s. 7 of the Act). the Act saves any customary or other rights (not being a licence) in or over immovable properties which the Government, public or any person may possess irrespective of other immovable properties. This provision is introduced ex abundanti cautela to save the customary or other rights not conferred by licence. Such rights, when conferred by licence, are dealt with under Chapter VI; and © © saves any right acquired or arising out of relation created before this Act came into force. Thus all enactments not expressly repealed, such for example as, Forest Act and in the Punjab Act IV of 1872, s. 7, and in Oud Ay XVII of 1876, s. 4 are saved, “ “ Construction of certain references to Act XV of 1877 and Act IX of 1871 (s. 3) All references in any Act or Regulations to ss. 26 and 27 of the Indian Limitation Act 1877 Or ss. 27 and 28 of Limitatio Act 1871 shall, in territories to which this Act extends, be read as fae {0 ss. 15 and 16 of this Act. This proviso, w r originals. 3 which ran as fol eee SIO" IS in substitution of the “3. Repeal of Act XV of 187° : 7, ss. 26 3 Ss. 2 7 Limitation Act 1877 and the definition ofa eee ee Act are repealed in terri ti repee Of Easements General} SL Easements Generally W the Indian Limitation Act 9 i repealed by the Limitation ii oe of 198 3 Secon Act IX of 1871 corresponds to se on i Fespectively which in their turn eo 0f 1908. Sections 26 and.27 Of ActIX of 26 of Act XXXIV of 1963 respectively 27 of Act IX 1908 correspond to ss, 25 and 1.4 Of Easements Generally The Bill is divided into six chapters. GENERALLY, and opens with xclude all rights in gross, ie., ‘ership ofimmovable property. asement must beina corporeal can only be required not to do nveyance, remote advantage and d by Gale, “It is essential to the id conduce the beneficial enjoyment even a mere amenity. As observe validity of an easementthat itshoul of the dominant tenement”.13 An explanation declares in effect that there may be an easement entitling the dominant owner to remove and appropriate for his own use, as such, any part of the soil of the servient herita growing or subsisting thereon. Thus, in the Indian law, profit a prendre are also classified as easements provided they are appurtenant and are not in gross—thatis, a right exercisable by an indeterminate body of persons to take something from the land of others, but not for the mere beneficial enjoyment of a dominant tenement and hence not an easement within the meaning of the Easements Act. This, though in conformity with continental system of jurisprudence, isin comprehension of the English law, which reckons, for instance, as an easement, the right to take water from a spring on your neighbour's land, but denies that name to a right to take grass or gravel “It has been said” to quote MR. JUSTICE Markey, “that the distinction is that the first is for convenience only while the latter is for profit. But this, besides being avery slender distinction, is not always Bbseredl : ce right to take water is just as much an easement if the water be ma ge or anything Gale on Easements, 10th Ed., p. 490. Anemiscnais ts State of Bihar v Subodh Gopal AIR 1968 SC 281 (289); (1968) 1 S| G: EBL-SINTRODUCTION 2 nto al b erson who takes it, as if it be used beer, and sold by the pers t it, as if i by i 7 s ) Kk t S| poses. A eat an inaccordance with English law, easements oa continuous and discontinuous, apparent i S| ASC t to -apparent. An illustration to s. 5 shows that an casement i ain interference with privacy is recognised by the mu andis a negative easement. Such a right, founded as it is on. re on en a custom of secluding females, is of much importance in i 4 is recognised generally in the countries whose system is founded on the Civil Law; and the decisions of the High Courts adverse to such rights should not, in the opinion of the Indian Law Commission, be followed by the legislature. Section 7 [now section 6] declares that an easement may be for a limited period, or subject to periodical interruption, or exercisable only at a certain time or on condition. Sections 5 and6 i affirmative and negative, Easements being restrictions on the free use of property in others are regarded with disfavour by the law, and s. 8 [now section 7] accordingly declares that all easements are in derogation of one or other of certain rights incidental to the ownership of immovable Property. These are (a) the exclusive right (subject to existing law) to enjoy and dispose of immovable property and its products, and (b) the right of the owner of such ‘Property to the enjoyment of the natural advantages arising from its situation, such as unpolluted air, Imposition, acquisition and transfe ', fer of easement; ST MPOStTION, ACQUISTION AND TRANSFER OF pee eet 10. E ITS. i uoandl 1 [now sections 8, 9, 10 and 11) treat of the person eons er ns ituting easements, whether Permanent oe eee “rovision is made for the cases of lessees men torary. servient owners, lessors a a Bi ets trustees, isi nd mort; rs : decision of Madras High Court but deen ee Bill (her ‘ati © followin, Pewee Positionst ns from English law) does by writing T ofan easement to one of several co. viene tt Whomayacquireeasenersevitenced others, an casement fe © acquire, without the s, allowing ovinership, allowing alge (ne eenetit of the proesenSent Of the : also (inaccordance wi Y held j ‘With Lorp Key in Co. ‘NYON’:Imposition, acquisition and transfer of easements 13 in Large v Pitt) a lessee whose interestis permanent to acquire an casement over land held by same landlord, but forbiddin enjoyment of other land of his ownanea comprised in his lease, Nothing is easement by estoppel of the servient o: ance, when a person having norightto certainland Purportsto impose an easement upon it and afterwards acquires sufficiently provided for by the Sections 13 and 14 deal w: the rights which are absolute and transferable another like lessee of the acquire for the beneficial sement in respect of the land ‘aid of the acquisition of an 8 4 lessee to S matter seems Evidence Act. et out a way of necessity refuses or neglects todo s that the dominant owner Shall be entitled to set So the Bill declare: it out. But there is no rule, such as exists in England, that a way of necessity shall not be varied save with the consent of both dominant and servient owners, or unless the servient owner, renders it impassable. The imposition is intentional, as sucha rule would, itis said by an eminent authority, be opposed to Indian rural economy and convenience. The Bill then deals with the important subject of the acquisition of easements by long and continued Possession. Sections 15 and 16 correspond to ss. 26 and 27 of the Indian Limitation Act 1877, but with the addition, in s. 15, ofa provision that a prescriptive right to Support may, by user for twenty years, be acquired for land with things affixed thereto, and of explanations that nothing is an “enjoyment” when it has been had in pursuance of an agreement with the owner of the property over which the right is claimed and such right has not been granted as an easement, and that suspension of the enjoyment of an easement in pursuance of a contract between the dominant and servient owners is not such an interruption as will defeat a claim by prescription. Section 17 sets forth the limits to the acquisition of prescriptive rights. It agrees with the present law and14 INTRODUCTION as continued for 40 years) in ervient owner is ignorant of ing it. The Bill also provides, its English prototype (where the user hi making no provision for cases in whi the user or has been incapable of re: in accordance with a decision of the House of Lords, that a right tending to the destruction of the servient heritage cannot be acquired by prescription. Section 18 deals with customary easements, i.c., easements acquired in virtue of a local custom, such for example as the custom that every cultivator of village-land is entitled, as such, to graze his cattle on the common pasture, and the custom that no owner of a house can open a new window therein so as substantially to invade his neighbour's privacy. As an easement exists only for the beneficial enjoyment of a certain thing, it cannot be separated from that thing. Section 19, taken from the Transfer of Property Bill, accordingly declares that the transfer of a dominant heritage passes the easement, unless a contrary intention appears. ' Incidents of easements Chapter III deals with the user, the extent and other INCIDENTS OF EASEMENTS. The rules which it contains are expressly made subject to the incidents of customary easements, to contract and to the provisions of any instrument or of a decree by which an easement is imposed. As an easement exists only for the benefit of a certain heritage, it can be exercised only in the interest of that heritage and to supply its wants. Section 21 accordingly declares that an easement cannot be used for any purpose unconnected with the enjoyment of the dominant heritage. As the law does not favour restrictions on rights of property. Section 22 declares that an easement must be exercised in the mode least onerous to the servient owner, and allows him to confine such exercise to a determinate part of a servient heritage when this can be done without detriment to the dominant owner. Section 23 allows on the other hand, a corresponding privilege to the dominant owner by permitting him to alter the mode and place of enjoying his easement so long as such alteration imposes no additional burden on the servient heritage. By ss. 24, 25 and 26, the dominant owner may, in proper time and manner, do what is necessary to secure the full enjoyment of his easement bearing the expenses of constructing or repairing necessary works, and being liable for damage arising from their disrepair. As an easement is imposed on a thing, and not on its owner. Section 27 declares that the servient owner is not, as such, bound to do anything for the benefit of the dominant heritage. This__ Disturbance of easements a rule, however, like the others in the chapter, i saved by law, such for example ' owner of upper land shall in C} subject to local usage he Punjab usage t ait break his dam so z : ba lam SO as to ensure a certain modicum of water to the dominant owner of the lower land. Section 28 defines, in accordance with English decisions, the mode in which the extent of easements is to be de section 29 declares the law as to the increase of easements, including the ca noticed by Potheir, of increase of the dominant heritage by alluvion As easements are indivisible, as they cannot be acquired, exercised or lost in, or for the benefit of, an ideal part of a heritage. Section 30 declares that when the dominant heritage is divided, the easement becomes annexed to each of the shares, but not so as to increase substantially the burden on the servient heritage. The chapter concludes with a declaration that the servient owner may ordinarily obstruct an excessive user of an easement (but only on the servient heritage). This, of course, is without prejudice to any other remedy, such as a suit for compensation or an injunction, to which he may be entitled. Disturbance of easements Chapter IV, on the DISTURBANCE OF EASEMENTS after describing the general right to undisturbed enjoyment, proceeds (section 33) to provide that the owner of any interest in the dominant heritage, or the occupier of the heritage, may sue for a disturbance if it has caused him substantial damage. Such damage includes 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. As the law stands both in England and in India, as suit will lie for the disturbance of a right to light where the obstruction interferes materially with the comfort of the plaintiff. Butin the case of aright to air, the obstruction, tobe actionable, must amount toa nuisance (3 Beng 0.C. 18 at pages 45). It would seem that, in a country like India, the right to air is entitled to at least as much favour as the right to light and that we should not in this respect follow a law fashioned upon the wants of the inhabitants ofa northern country (15 Beng 361 at pages 367, 368). The Bill accordingly allows a suit for the obstruction of the free passage of air where it interferes materially with the plaintiff's physical comfort, although it is not injurious to his health. The period at which the cause of action arises when a right cl supportis disturbed is declared, by section 34, in cordancewith the decision in Bonomi v Backhouse [(1861)9 HLC 503}, and the Indian Limitation Act 1877, section 24, to be when the damage 's sustainedra INTRODUCTION «+ (In section 35) rulesas to injunctions to restrain disturbances are added 0 those already contained in the Sheets 7 oo Ins. 38 (now section 36), the right to abate awrongful of pete fon of light, air or water, is disallowed. This, though a od ion rom English law, will avoid the risk of riot and trespass, andisasteptaken in the direction in which all modern systems of law have tended, of forbidding private persons to redress their grievances by their own act. There is, itseems a contrary usage in the Sialkot District; but this will be saved by s. 2, Cl. (b). “Itis not every interference with the full enjoyment of an easement that amounts in law to a disturbance; there must be some sensible abridgment of the enjoyment of the tenement to which itis attached, although it is not necessary that there should be a total destruction of the easement. The injury complained of must be of a substantial nature, in the ordinary apprehension of mankind, and not one arising merely from the caprice or peculiar physical constitution of the party aggrieved”.15 Extinction, suspension and revival of easements Chapter V deals with the EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS. It first states eleven cases in which an easement may be extinguished as follows: @ by dissolution of the right of the person who imposed the easement [section 39 (now section 37); by release [section 40 (now section 38)]; by revocation [section 41 (now section 39)]; by expiration of the time imposed or the happenin, annexed thereto [section 4: © © d for which the easement was 8 of the dissolving condition 2 (now section 40)]: ©) inthe case ofan casement of necessity, when the necessity ends [section 43 (now section 41)]; {) when the easement become: circumstances beneficial [s (g) by alteration of the domin: section 43)] by alteration of the Section 44)}; incapable of being under any ection 44 (now section 42)]; ant heritage [section 45 (now = Servient heritage [section 48 (now 15" Gale on Easements, 16th Ea ‘¢ in Leon Asper Amusements . - e h Ed., p. 468. See i n n Carwash (1966)56 DLR (2d) 173.Extinction, suspension and revival of easements 7 @_ by destruction of either heritage [section 47 (now section 45)]; G)_ by unity of ownership [section 48 (now section 46)}; (k)_ by non-user [section 49 (now section 47)]. In most of these cases the reason for extinction is obvious. There, however, may need explanation. Useless restrictions of the rights of property are to be avoided, and s. 44 (now section 42) consequently declares that an easement which under no circumstances, can be advantageous to the dominant heritage shall cease to exist. Every easement is a right which the dominant owner would not require if he were also owner of the servient heritage. Section 48 [now section 46], therefore, declares that an easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages. The s. 47 treating of extinctive prescription, i.e., the extinction by non-user of prescriptive rights and other easements, requires fuller notice. As in the case of acquisition by prescription, the Bill does not assume that a fictitious grant has been made by the servient owner, so here the Bill rejects the doctrine that non-user is to be regarded merely as evidence from which a release may be implied [Rules on this difficult subject are given in section 47]. It will be seen that the same period is fixed for the loss of an easement by non-user as for its original acquisition by enjoyment; that this method of extinction is not confined (as seems to be the case in America) to prescriptive rights, and that no exception is made where the exercise of the easement has been prevented by force or by the theft of its subject. There is, in such cases, a de facto interruption of the dominant owner’s quasi-possession, even though he is unaware of the obstruction or ignorant of his right. Where the dominant owner exercises, during the prescriptive period, a right less extensive than that to which he is entitled, some systems lay down that his easement shall be reduced to the right actually exercised. The Bill omits all provisions on this head, partly because they are inconsistent with the indivisible nature of an easement, and partly because they would obviously encourage litigation. Nothing is said of the extinction of an easement by estoppel of the dominant owneras this matter seems sufficiently provided for by the Evidence Act. The extinction of rights accessory to easements is provided for by s. 56 [now section 48].18 INTRODUCTION The suspension of easements by unity of possession is then dealt with by s. 51 [now section 49]. Suspension by encroachment is not recognised by the Bill. Section 52 [now section 50] negatives any right of the servient owner to require that an easement should continue. It also negatives his right to demand compensation for damage caused by its extinguishment or suspension if the dominant owner has given him such notice as will enable him, without unreasonable expense to protect the servient heritage from such damage. Where such notice has not been given the servient owner will be entitled to compensation for damage caused to the servient heritage in consequence of such extinguishment or suspension. The Bill here deviates somewhat from the English law, as declared in Mason v The Shrewsbury and Hereford Railway Co.}6 Lastly, s. 53 [now section 51] deals with the revival of extinguished and suspended easements, and provides not only for the common case of a house pulled down for the Purpose of re- building, but also for that of a diluvigated heritage restored by alluvion. The law of easements is basically the law of neighbours and Concerns itself with rights which one as Owner or occupier of certain land possesses as such for the beneficial enjoyment of the land, todo 16 LRG QB 578, a The Easements Act 1882, s. 4. Section 3@) of the Land ‘Acquisi ° a Acquisiti 19. The Transfer of Property Act 1882 0 a Soa: 20 The Easements Act Te! ct 1882, 5. 4,Extinction, Suspension and revival of easements 19 The land for the beneficial o called the dominant heritage or nd th ofthe heritage or the tenement, adominantownns The teen eee the liability is imposed is called the servient herita se Fi on pe its owner or occupier, the servient owner? seorenenensand hjoyment of which the rights exist is tenemen pier Cat thee nant tenement usually Consists of a corporeal property, S authority for saying that a dominant tenement my consist partly of corporeal and partly of incorporeal ereditaments; for example, lands acquired bya Water Authority for the purpose of erecting reservoirs and rights in the lands of others for laying pipes. : An easement may be defined as a right annexed to land to utilise other land of different ownership in aparticularmanner (notinvolving the taking of any part of the natural produce of that land orofanypart of its soil) or to prevent the owner of the other land from utilising his Jand in a particular manner.* According to Gale® an easement is a privilege without profit which the owner of a neighbouring tenant hath of another existing in respect of their several tenements. According to American law an easement is a liberty, privilege or advantage without profit which the owner of one parcel of land may have in the lands of another; or, as conversely stated, it is a service which one estate owes to another, ora right or privilege in one man’s estate for the advantage or convenience of the owner of another estate.® In other words, it is a service which one estate owes to another, or a right or privilege in one’s estate for advantage or convenience of the owner of another estate. It is a right which is distinct from ownership to use in some way the land of another without any compensation. The easement may be continuous, apparent or non-apparent. An easement does not confer any proprietary or possessory right in the land affected: it merely imposes a particular restriction upon ct of which an easement, is enjoyed is d that over which the right is exercised and the expressions ‘dominant owner Halsbury’s Laws 2. Ibid. “The piece of land in respe called the dominant tenement an is called “the servient tenement” and ‘servient owner’ bear corresponding meanings. of England, 4th Ed., vol. 14, para 2. Re, Salvin’s Indenture [1938]2 All ER 498. Halsbury’s Laws of England, 4th Ed., vol. 14, p On Easements, 16th Ed., para 1-01. 28 CJS Easements § la. " ara 1. aneINTRODUCTION the proprietary rights of the owner of servient land. A right which entitles one person to the unrestricted use of the land of another may be an effective right to ownership or possession, but it cannot bean easement. Nor can the easement impose any pecuniary burden on the servient owner. The basis of every right of easement by whatever method it may have been acquired, is theoretically a grant from the servient owners. It may be expressed or it may be implied or it may be presumed from long and continued user for a certain period or it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.” The following illustration from the Easements Act 1882 is noteworthy. 20 Illustrations® @) A,asthe owner of acertain house, has aright of way thither over his neighbour B’s land forpurposes connected with the beneficial enjoyment of the house. This is an easement. _(®) A, as the owner of a certain house, has the right to go on his neighbour B's land, and to take water for the purposes of his household out of a spring therein. This is an easement. ‘ On as the owner of a certain house, has the right to conduct water rom Bs stream to supply the fountains in the gard , tre len attache house. This is an easement. ® can (@A,asthe owner of acertain house ai : acertain number of his own cattle on B's aan SeETen ie purpose of being used in the house, by himself, his family, guests, lodgers and servants, water r fish out of 's tank oF timber out of D's wood orto use, forthe purpose of manurng is lan, the leaves which hea tal an and. These are easements. fatten = O = eens a the publicthe right to occupy the surface of certain easement. Passing and repassing. This right is not an ( Ais bound t keep it frentvom a eons watercourse running through his], bes tion forthe benefit of B, al island and is is not an easement, atower riparian owner. ‘Legal easement’ is an ab} ‘ easem 1p istin ‘ a iat ent capable of subsisting at Jaw prescription. 3 namely b; ption. An easement which does not take ethene deed or as a legal easement takes S effect as an equitable interest and is cal S called an 7 Lochhiv Ghansara Singh AIR 1972 HI im Ly ra Si 8 See the Easements Act iaez, Tan P88: 1971 Sim LI apy 3 18.4. HP) 31,Extinction, suspension and vival of easements “equitable easement”. The term “equitable easement” is loosely but applied to various other equitable rights over lands which ‘asements within the strict statutory meaning of the erm. In Re, existence of an easement which are—(1) there must be a dominant Menborough Park! set out four requirements for the a servient tenement; (2) an easement must “accommodate” the dominant tenement; (3) dominant and servient owners must t different persons; (4) a right cannot amount to an easement unl it is capable of forming the subject-matter of an easement. An easement is distinct from a public right which is a right not restricted to the person owning the land, but is exercisable by any one, whether he owns land or not, merely by virtue of the general law. Itis also different from a customary right in that a customary right isexercisable by all who are included within the custom independently of the ownership of a dominant heritage and independently of any grant. A customary right differs from a public right in this that it is exercisable only by members of some local community and not by members of the public generally. Evidently, a custom should be of ancient origin; but such origin may be presumed if there has been long enjoyment and there is no proof of a later origin.!! It is no objection that the nature of the custom has changed with the times. One distinction of customary rights is that they are not lost by disuse or waiver.12 Some examples of these rights are: right to take water froma spout;! right to water cattle at a pond; right to play games;!5 right to dry nets on certain land;!6 right of burial or cremation in a particular site;!” right to take a religious procession along a public road;!8 the right of the inhabitants of a village to bathe ina tank from time immemorial used as of right.!9 A customary right should also be distinguished from a customary easement which is recognised by the Easements Act.2® 9 Halsbury’s Laws of England, 4th Ed., vol. 14, paras 5, 6. 10 [1956] Ch 131. 11 Mercer v Denner [1904]2 Ch 534; P. Karuppan Ambalam v S.V.K. Karuppan Ambalam AIR 1965 Mad 379. 12. Wyld v Silver [1963] Ch 243. 13. Harrop v Hirst (1868] LR 4 Ex 43. 14 Manning v Wasdale [1836]5 A&E 758. 15. New Windsor Corpn. v Mellor [1975] Ch 380. 16 Mercer v Denner (supra). 17 Mohidin v Sivalingappa 23 Bom 666. 18 Governor General in Council v Awadhott AIR 1946 Nag 228. 19 Channanan Pillai v Manu Puttar 1 MLJ 47. 20 The Easements Act 1882, s. 18.n INTRODUCTION nnn Aneasementalso differs froma restrictive covenant. A Testrictive covenant is always negative and is an equitable doctrine and applies where there is no privity of contract or estate. It is negative jn the sense that it merely binds the covenantor to refrain from doing a thing without requiring him to do any positive act. If the covenant requires the covenantor to “put his hand into the pocket’, it is not negative in nature.! But the form of the covenant may be deceptive, for a covenant to use a building for residential purposes, though positive in form, is negative in nature. In reality it is a prohibition against use for other purposes.? A covenant may at times contain both positive and negative elements, the negative element may alone be enforced, if they are severable. A positive covenant may also be enforced in certain cases, for example, a covenant not to build without submitting plans.3 The foundation of this doctrine was laid by Lorb CoTTeNHaM in Tulk vMoxhay‘ where a covenantto maintain the garden at Leicester Square uncovered with any buildings was held to be enforceable by the subsequent purchaser. It is, however, still unclear whether a covenant restraining alienation comes within this doctrine.5 But when a covenant in restraint of trade is called in question the burden of justifying it is laid on the party seeking to uphold it. The tests of justification have been authoritatively defined by Lorp CHANCELLOR BIRKENHEAD in these words: “A contract which is in restraint of trade cannot be enforced unless (a) it is reasonable as between the parties; (b) itis consistent with the interests of the public Every contract therefore which is impeached as being in restraint of trade must submit itself to the two standards indicated. Both still survive.”6 The restrictive covenants in the Present agreement, when submitted to these tests, are at once seen to present unusual features. In their Lordships’ opinion not only are the restrictive covenants, of the present agreement open to the objection that they constitute a purchase of protection “against mere competition”, but the terms } Haywood v Brunswick Permanent Benefit BS [1881]8 QBD 403 2 German v Chapman [1877]7 Ch D 271 3 Powell v Hemsley [1909]1 Ch 680. 4° (1848)2 Ph 774. 5 Caldy Manor Estate Ltd. v Farrell {1974]1 WLR 1303. 6 Mekllistrim v Ballymacelli 5 igott Co-operative Agricultural and Dairy ciety at p. 562.Easement and local customary rights ee 23 themselves of the covenant pass the test of reasonablen cin any event so wide that they cannot s between the parties.” Servitude It isa civil law term for casement in the common law. ‘The two terms are often used without any discrimination. Servitude is often described as an easement or as a species of incorporeal right derived from the civil law and closely corresponding to easement of thecommon law, orasaquasi-casement. Itis sometimes distinguished from easement being said to have wider significance. It is also distinguishable from ownership and usufruct. 1,5“fasement and licence? The chief distinction between an easement and a licence to use land in a particular manner is that whereas an easement cannot be extinguished merely at the will of the grantor except in certain specified modes, a licence is generally revocable at the will of the person who has given it. Moreover, a licence is merely personal, and does not run with the land; andadeed is generally necessary to grant an easement, but unnecessary to give alicence.’ Thus, a right in easement is a right in rem whereas a right in licence is a right in personam. An easement is assignable with the dominant tenement, but a licence cannot generally be assigned. A licence is a permissive right traceable to a grant from the licensor either expressly or impliedly, while an easement is acquired by assertive enjoyment by the dominant owner or by a negative covenant between the parties or by grants or by statute. An easement may be positive or negative in character, but a licence is always positive in character.1° An easement is distinguished from a licence as to the manner in which it is created and as to various characteristics or qualities. Whether a particular instrument or agreement creates an easement or licence depends on proper construction of the language of the instrument, in case of uncertainty or ambiguity in the light of the surrounding circumstances and the facts of the case. 1.6 Easement and local customary rights!! An casement is distinguishable from that class of right which is in effect quasi- 7 Vancouver Malt and Sake Brewing Co. Ltd. v Vancouver Breweries Ltd. AIR 1934 PC 101 at pp. 104 and 105. 8 28CJS Easements § Id, p. 625 See Halsbury’s Laws of England, 4th Ed., vol. 14, para 36. 10 See Gujarat Ginning & Mfg. Co. Ltd. v Motilal Hirabhai Spinning & Mfg. Co. Ltd, AIR 1936 PC 77; 63 IA 140; 40 CWN 417. 11 Halsbury’s Laws of England, 4th Ed., vol. 14, para 40. ©INTRODUCTION 24 sin particular locality under Special loca} d and fluctuating, bodies. of People ate f another person in a particular manner ¢ the land of a Quasi-easement is a right which is a t strictly easement because some easement and which Ee is customs whereby unde entitled to utilise the lan¢ and for a particular purpo' a analogous to but which is necessary element is wanting. dprofita prendre! The main distinction between A eae ta prendre is that whereas an easement only ent and a profi d : 5 nent oo versa right toutilise the servient tenementina Pare manner orto prevent the commission of some act on that tenement, a profit a prendre confers a right to take from the servient fenement some art of the soil of that tenement or minerals under it tor some part of its natural produce or the animals ferae naturae existing upon it. A it a prendre confers a right to take from the servient tenement Profit a p i ii Is under it or some some part of the soil of that tenement or mineral Soon SO. part of its natural produce or animals ferae naturae existing on it— per Winnoob, J. in Alfred Beckett Ltd. v Lions.!3 What is taken must be capable of ownership, for otherwise the right amounts to a mere easement. Whilst an easement is merely the right appurtenant to land to do something or require something not to be done, on the land of another, a profit a prendre is not merely the privilege to do but the right to take and use and is therefore, something more than an easement." Profits a prendre are closely related to easements and most of the law of easements relates also to profits. Like easements, they are incorporeal hereditaments, but unlike easements they are not necessarily annexed to property, but can exist in gross. This means, whereas a person cannot own a right of Way except as an incident of a dominant tenement, a person can own a right to fish a river without having any right in the area.16 § : 8 Positive easement an 12. Ibid, para 43, 13° [1967] Ch 44g,Easement and way leave 25 A negative easement is a right of a dominant owner to enjoy the servient tenement without impeding the right of enjoyment of the property by the servient owner. It is a prohibitive or restrictive right of enjoyment of easement. Some examples of positive or affirmative or assertive easements are as follows:!6 @) rights of way, (b) right to tunnel under another’s land, (© right in working mines to make soil banks on surface or quarries, @) right to nail fruit trees on a neighbour’s wall, (e) right to use the chimney of a neighbour's house for the passage of smoke, (f) right of landing nets, on another's land, (g) right to discharge rain water by a spout or protecting caves, (h) right to take water across a neighbour’s land by an artificial water course, @ right to pew in church. Some examples of negative easement are as follows: (@) right to receive air through a defined channel, () right to receive light for a building, (© right to support of building from land, (d) right to receive a flow of water in an artificial stream. 1.9 Apparent and non-apparent easement An apparent easement is also called continuous easement. This is an easement the existence of which appears from the construction or condition of one of the tenements so as to capable of being seen or known on inspection. A non-apparent easement is one which is discontinuous or noncontinuous.!7 1.10 Easement and way leave These rights of way leave were considered by the Court of Appeal in Newcastle-under-Lyme Corp. v Wolstanton Ltd.!8 where these rights were regarded neither as 16 Gale on Easements, 14th Ed., pp. 35-37. 17 See 28 CJS § 3c, p. 629. 18 [1947] Ch 427.INTRODUCTION 26 a rights of ownership nor easement, but rights sui juris which were exclusive rights of occupation. But in Central Electricity Generating ‘ennaway! the right of way-leave was regarded as much as easement. Though the right of way-leave is created by statute either for electricity wires and oil pipe-lines, yet there are differences between thesui generis right and true easement. The term way-leave originates from the principle that if one carries out commercial activities on another land which benefit him, he must pay rent or compensation.° In North-East Railway v Hastings! a way-leave created by agreement was considered by the House of Lords without deciding the question of status. Board v 1.11 Characteristics of easement Though the essential characteristics of easement are sometimes stated as six,” yet broadly speaking the essential characteristics of an easement are: (1) there must be a dominant and a servient tenement; (2) the easement must accommodate the dominant tenement; (3) the dominant and servient tenements must not be both owned and occupied by the same person; and (4) the easement must be capable of forming the subject- matter of a grant.3 There must be a dominant and a servient tenement It is an essential element of any easement that it is annexed to land, and that no person can possess an easement otherwise than in respect of and in amplification of his enjoyment of some estate or interest in a piece ofland.4An easement cannot exist in gross;5 but only as appurtenant toa dominant tenement. An easement is never “appendont” to land, 19 (1959]1 WLR 937. 20 Whitewham v Westminster Brymbo Co. [1896]2 Ch 578. 1 [1900] AC 260. 2. C. Mohammed v Ananthacharia AIR 1988 Ker 298. (Six characteristics are (1) there must be a dominant and servient tenement; (2) an easement must accommodate the dominant tenement; (3) the right of easement must be possessed forthe beneficial enjoyment ofthe dominant tenement; (@) dominant and servient owners must be different persons; (5) the right should entitle the dominant owner to do and continue to do something; (6) the something must be of a certain or well defined character and be capable of forming the subject-matter of a grant). 3 See Gale on Easement,16th Ed., pp. 6-8; Halsbury’s Laws of England, 4th Ed, vol. 14, para 7; Re, Ellenborough Park, Re, Davies, Powell v Maddison (1956] Ch 131 at 161; (1955]3 All ER 667 at 673 (CA). Alfred F. Beckett Ltd. v Lyons {1967}1 All ER 833, Rangeley v Midland Ry [1886]3 Ch App 306; Hawkins v Rutter (1892]1 onDominant tenement 27 but is an appurtenant to | the dominant and s ervi tenements. persons.8 and.6 There can be no casement without ient tenements.7 Th must be two ~the dominant and the servient—owned by two different , ‘The Word ‘appurtenant literally means ‘pertaining to or belonging to’. The word does not mean ‘adjacent to’. Therefore proximity of the eanenant land is not essential. What is essential is the concept of clonging for more beneficial enjoyment of the parent property. This being the Position, on ai “ on any transfer of the dominant tenement, the esement will pass with the land, so that the occupier forthe time being can enjoy Cven ifheis a mere lessee.!! Thus, ina way, aneasement is a land-locked right. ‘ating to the other land so as to make the former a ‘ment and the other a servient tenement. Easement Benerally involves two distinct tenements. One enjoys the easement, that is to which the enjoyment belongs, called the dominant tenement’ or‘dominant estate’ and the other on which the casement rests or is imposed called ‘the servient tenement’ or ‘servient estate’ !2 dominant tene: DOMINANT TENEMENT.|3 The dominant is appurtenant generally consists of corporeal real Property, namely land and buildings upon the land. An easement may be appurtenant to a wholly incorporeal hereditament or to a hereditament partly corporeal and partly incorporeal. The true test appurtenancy is the Propriety of relation between the principal and the adjunct, which may be found out by considering whether they so agree in nature and it tenement to which an easement Insome of the olderreports easements are spoken of asbeing“appendant” but this inaccuracy was due to the ambiguous translation of the word “pertinents” in old Latin pleadings. See Nicholas v Chamberlin [1806] Cro Jac 121. See also Tyrringham’s case [1584]4 Co Rep 366 7 Prabhavati Devi v Mahendra Narain Singh AIR 1981 Pat 13 LIR 542. 8 State of Gujarat Hiralal Motilal AIR 1980 Guj 146; (1980)21 GujLR 728, 9 Harnam Singh v Bhikimbar Singh AIR 1980 All 50 (52); 1980(6) ANLR 434 10 Leech v Shweder [1874]9 App Cas 463: 11 Thorpe v Brumfitt {1873]8 Ch App 650: . 12 Corpus Juris Secundrum, vol. 28, § 1, pp. 622-623. 13° Halsbury's Laws of England, 4th Ed., vol. 14, para 11. 1980 Pat G:ERt-sos INTRODUCTION 28 Pome 2B eae = able of union without any incongruity. In short quality as to be cap ect of which an easement is enjoyed is calleg the piece of land in resp c the “dominant tenement”. SERVIENT TENEMENT. The piece of land over which the right is xercised is called the servient tenement. The servient tenement eae be sufficiently ascertained to enable its area and boundaries to be defined and pointed out.'4 The easement must accommodate the dominant tenement The definition itself makes it clear that the easement is for the beneficial enjoyment of the dominant tenement. So a right cannot exist as an easement, unless it confers a benefit on the dominant tenement as such.15 An easement must accommodate and serve the dominant tenement thereby conferring on the dominant tenement a real and practical benefit in fact and must have some necessary connection with the dominant tenement as such.!° If the right claimed is not for the beneficial enjoyment of land, it cannot be an easement.!7 Soa right to bury or cremate dead bodies on another man’s land;!8 or a right to perform puja during Dussehra ina particular house! are not easements. The question whether there is an easement or not is a mixed question of law and fact.”° Itis not sufficient that the right should give the owner for the time being some personal advantage.! To reap this benefit, usually the servient tenement should be close enough to the dominant tenement; butitisnot necessary they should be contiguous: an easement can still exist even if they are separated by other land, provided that they are near enough for the dominant tenement to receive some benefit.’ So, a right of way may be acquired as an 14 Woodman v Pwilbach Colliery Co, Ltd. [1914] 111 LT 169 (CA); affirmed sub nom, Pwllach Colliery Co. Ltd. v Woodman [1915] AC 634 (House of Lords). Mason v Shrewsbury and Hereford Ry [1871] LR 6 QB 578. Halsbury’s Laws of England, 4th Ed., vol. 14, p. 9 Ramchandra Barik v Dibakar Das AIR 1944 Pat 278; S.C. Mul Gangabai AIR 1957 MP 44 Jogesh Chandra Roy v Niranjan De AIR 1935 Cal 357;39 CWN 387 (DB); Gopal Krishna Sial v Abdul Samad Chaudhuri AIR 1921 Cal 569; 34 CLI 3A S.C. Mukerii v Smt, Gangabai (supra). 0 Mohd. Yusuf v Suraj Bali Singh AIR 1930 All 338 (639) DB). Re, Ellenborough Park [1955]3 All ER 667. Todrick y Western National Omnibus Co. Ltd. 11924] Ch At 15 16 17 jivsmt. 18Easement must accommodate the dominant tenement 29 easement where the owner of the land owns or otherwise has aright to pass over the intervening land.? a has alse been held that s. 4 places no restrictions on the nature of the user o} the servient tenement by the owner or occupier of the dominant tenement. Itis also no objection that the easement benefits otherland in addition tothe dominant tenement.‘ A right of easement need not therefore necessarily be a right yielding direct benefit to the dominant tenement itself, but may consist of a right which may yield direct benefit to the owner or occupier of the property and only consequentially and indirectly be for the more beneficial utilisation ofthe dominanttenement. If, for example, the inhabitants, fora more beneficial living and enjoyment of the house, use the adjoining land for sitting and sleeping purposes, the user cannot but be deemed to be for the benefit of the occupants and consequentially for the beneficial enjoyment of the house itself, because if the user is an amenity for the residents of the house, it is bound to add to the value and enjoyment of the house.5 The following rights may be acquired as rights in easements: (@) A right for one person to advertise on land belonging to another person can be the subject of easement. (b) A right to graze cattle over the land of another can be acquired as an easement.7 (©) Aperson may acquire a prescriptive right of easement to flow water on the coparcenary land.§ (a) The owner of a property may cut a channel to fish prawns from Government canal to irrigate his land through the properties of others.® The following rights cannot be acquired as easements: (@) Right to ajman vriti is not an easement right." 3 Todrick v Western National Omnibus Co, Ltd. (supra); Pugh v Savage [1970]2 All ER 353; Harnam Singh v Bhikimbar Singh AIR 1980 All 50 (52); 1980(6) All LR 434. OEE Si y Mayor ete. of Godmanchester - . 5 Teer Shen Khan AIR 1973 All 98 (99); 1972 AI] WR (HC) 492 applying Re, Ellenborough Park {1955]2 All ER 38. Sri Sri Iswar Gopal Jew v Globe Theatres AIR 1947 Cal 200. Meruji v Kanaji AIR 1953 Sau 39. . Maharaj Singh v Baljit Singh AIR 1967 All 572. Varghese Poulose v K.I. Mathew AIR 1965 Ker 147. Ghisibai v Mangilal AIR 1953 MB 7. a Sean) r |INTRODUCTION —— uhammadans of a village to bury dead in and is a customary right. Neither the an easement nor the doctrine of lost grant (b) The right of M' another mar conception of can be applied to such right." (© Right to use public highway.'? (d) Aright to carry casts overa road or passage by resi either side of the village road.!% (© Along usage ofa lane as an open latrine cannot create any right as an easement.!4 () A right to commit nuisance by throwing night soil on another’s land cannot be acquired as an easement.!> ents on (g) Construction of edifice by a person with inscription on land of another does not create a right of easement.!6 The mere fact that an easement is acquired for the purposes of a business carried on in the dominant tenement does not disqualify as an easement.!7 So a person may acquire a right to fix a signboard on the adjoining property;!8 and to keep things for business purposes on the neighbouring land.!9 In order to establish an easementary right, the plaintiff must prove that he is the owner or occupier of a land for the beneficial enjoyment of which he has certain rights over the defendant’s land. The worship of a deity on another’s land is not necessary for the beneficial enjoyment of one’s own land. Similarly, it being common in villages and in towns for the owner of a well to allow neighbours to draw water for domestic purposes, it merely amounts to a licence and has nothing to do with the beneficial enjoyment of the land, unless water was meant for irrigating lands.29 The law of easement must be interpreted in the context of the Indian conditions.! 11 Ramzan Momin v Dasrath Rout AIR 1953 Pa Wards v lahi Bakhsh 40 Cal 297 (PC). 12. Saghir Ahmad v State of U.P. AIR 1954 SC SCI 819. Lal Mohd. v Emajuddin AIR 1964 Cal 548. 140 Bherulal vy Mohan Singh AIR 1966 23; 196 138 relying on Court of + (1955) 1 SCR 707; 1954 13 e Raj LW 497, 15 Bankey Lal v Kishen Lal AIR 1967 All 43; 1967 All LJ 107. 16 Irinjakuda Hank Lid. 1. St, Mary's Church AUR 1962 Ker 312, 17 Moody v Steyygles [187912 ChD 261 18 Ibid. By Gobeland v Greenhailf {1952}1 AIL ER 809, Nar Dayal v Chotai AIR 1963 All 32 1 Chheddu Singh v Kewal AIR 19Easement must ac mmodate the dominant tenement 31 But where M cut a channel from the Government canal to irrigate his land through certain lands of othe nd, pursuant loan agreement with them, they became entitled to take water from the channel to igate their lands, M becoming entitled to catch prawns in the channel passing through theit land, it w: in favour of Mw with the propert as held that the right created aninterest in immovable property and would pass y. The right was in the nature of easement.? On the question whether prawns were movable or immovable property, the Judge held obiter that “whatever might be the case regarding deep sea fish which live on some marine growth completely unconnected with the bed of the sea fathoms below, it cannot be said th: which live in shallow waters, a few nutriment or sustenance from the soil at prawns feet deep, do not get any underneath.”3 Merely because there is relationship of landlord and tenant between the occupier of the dominant tenement and servient tenement, the right of easement can be denied to the owner over the tenement held by the tenant. The plaintiff is the owner of two adjacent plots, one of which is given on lease to the defendant who denies the plaintiff any access to his plot through the leased out plot held by the defendant. The right of passage claimed by the plaintiff cannot be defeated on the ground that there is no specific pleading in the plaint claiming the right of passage as easement of necessity.4 But the contrary view on the question of pleading is to be found in Ibrahimkutty Koyakutty v Abdul Rahumankunju Ibrahimkutty.5 It has been held in that case that easement is a precarious and special ight. The right of easements one which a person claims over a land Which is not his own. The qualitative and the quantitative requirement for the different kinds of easements are to a great extent mutually exclusive. That is the reason why the courts have always insisted that whenever a right of easement is claimed, the pleadings should be precise and clear and not vague. It may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage.¢ Where the nature of the right regarding the enjoyment of pathway is 2 Varghese Poulose v K.I. Mathew AIR 1965 Ker 147. 7 3° Ibid. See also Venugopala Pillai v Thirunavulkarasu AIR 1949 Mad 148 (nutriment test). 4 Balbir Singh v Sawan Singh AIR 1987 P&H 174; (1986)90 Punj LR 632; (1987)1 Cur LJ (Civ & Cri) 79, 5 AIR 1993 Ker 91. C. Mohammed v Ananthachari AIR 1988 K ° 98; (19) T1037.