• Bare Act: Indian Easements Act, 1882

  • Preamble.- An Act to define and amend the law relating to Easements and Licenses.

    Whereas it is expedient to define and amend the law relating to Easements and Licenses;

    It is hereby enacted as follows: - 5 OF 1882

    PRELIMINARY

    1. Short title.- This Act may be called the Indian Easements Act, 1882.

    Local extent, commencement: It extends to the territories respectively administered by the Governor of Madras in Council and the Chief Commissioners of the Central Provinces and Coorg;

    It shall come into force on the first day of July, 1882.

    3. Construction of certain references to Act XV of 1877 and Act IX of 1871.- All references in any Act or Regulation to sections 26 and 27 of the Indian Limitation Act, 1877 or to sections 27 and 28 of Act No. IX of 1871, shall, in the territories to which this Act extends, be read as made to sections 15 and 16 of this Act.

    CHAPTER I: OF EASEMENTS GENERALLY

    4. “Easement” defined.- An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial 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 in respect of certain other land not his own. Dominant and servient heritages and owners The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.

    Explanation: In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, or any part of the soil of the servant heritage or anything growing or subsisting thereon.

    Illustrations

    (a) A, as the owner of a certain house, has a right of way thither over his neighbour B’s land for purposes connected with the beneficial enjoyment of the house. This is an easement.

    (b) A, as the owner of a certain house, has the right to go on his neighbours B’s land, and to take water for the purposes of his household out of a spring therein. This is an easement.

    (c) A, as the owner of a certain house, has the right to conduct water from B’s stream to supply the fountains in the garden attached to the house. This is an easement.

    (d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C's tank, or timber out of D's wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees onE’s land. These are easements.

    (e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement.

    (f) A is bound to cleanse a water course running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement.

    5. Continuous and discontinuous, apparent and non-apparent easements.- Easements are either continuous or discontinuous, apparent or non-apparent.

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

    A discontinuous easement is one that needs the act of man for its enjoyment.

    An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him.

    A non-apparent easement is one that has no such sign.

    Illustrations

    (a) A right annexed to B’s house to receive light by the windows without obstruction by his neighbour A. This is a continuous easement.

    (b) A right of way annexed to A’s house over B’s land. This is a discontinuous easement.

    (c) Rights annexed to A's land to lead water thither across B's land by an aqueduct and to draw off water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matters. These are apparent easements.

    (d) A right annexed to A's house to prevent B from building on his own land. This is a non-apparent easement.

    6. Easement for limited time or on condition.- An easement may be permanent, or for a term of years or other limited period, or subject to periodical interruption, or exercisable only at a certain place, or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence or become void or voidable on the happening of a specified event or the performance or non-performance of a specified act.

    7. Easements restrictive of certain rights.- Easements are restrictions of one or other of the following rights (namely):-

    Exclusive right to enjoy:

    (a) The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.

    Rights to advantages arising from situation:

    (b) The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

    Illustrations of the rights above referred to:

    (a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.

    (b) The right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.

    (c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibration caused by any other person.

    (d) The right of every owner of land to so much light and air as pass vertically thereto.

    (e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.

    Explanation: Land is in its natural conditions when it is not excavated and not subjected to artificial pressure, and the "subjacent and adjacent soil" mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.

    (f) The right of every owner of land that, within his own limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons.

    (g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.

    (h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner's limits without material alteration in quantity or temperature.

    (i) The right of every owner of upper land that water naturally rising in, or falling on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.

    (j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep, and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners.

    Explanation: A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.

    CHAPTER II: THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS

    8. Who may impose easements.- An easement may be imposed by any one 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 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 tenant for his life of certain land with remainder to B absolutely. A cannot, unless with B’ 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.

    9. Servient owners.- Subject to the provisions of section 8, a servient 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.

    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 stream. B may grant to 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 the way:

    Provided that A’s right of way is not thereby obstructed.

    10. Lessor and mortgagor.- Subject to the provisions of section 8, a lessor may impose, on the property leased, any easement that does not derogate from the rights of the lessee as such, and a mortgagor may impose, on the property mortgaged, any easement that does not render the security insufficient. But a lessor or mortgagor cannot, without the consent of the lessee or mortgagee, impose any other easement on such property, unless it be to take effect on the termination of the lease or the redemption of the mortgage.

    Explanation: A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.

    11. Lessee.- No lessee or other person having a derivative interest may impose on the property held by him as such an easement to take effect after the expiration of his own interest, or in derogation of the right of the lessor or the superior proprietor.

    12. Who may acquire easements.- An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.

    One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.

    No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease

    13. Easements of necessity and quasi easements.- Where one person transfers or bequeaths immovable property to another,-

    (a) 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; or

    (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;

    (c) 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; or

    (d) 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, unless a different intention is expressed or necessarily implied, be entitled to such easement.

    Where a partition is made of the joint property of several persons,-

    (e) 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; or

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

    The easements mentioned in this section, clauses (a), (c) and (e) are called easements of necessity.

    Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.

    Illustrations

    (a) A sells 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, the owner of two field, 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 agricultural purposes only, over B’s field to the field retained.

    (c) 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.

    (d) 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 he takes it subject to the burdens to which it was subject in A’s hands.

    (e) 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.

    (f) A is the owner of a house and adjoining land. The house has windows overlooking the land. A, retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.

    (g) 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.

    (h) A, the owner of two adjoining houses, Y and Z, sells 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 enjoyingY 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.

    (i) A, the owner of two adjoining buildings, sells one to B, retaining the other. B is entitled to a right to lateral support from A's building, and A is entitled to a right to lateral support fromB’s building.

    (j) 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.

    (k) A grants lands 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.

    (l) 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.

    (m) 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.

    (n) A lets a house and grounds to B for a particular business. B has no access to 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.

    17. Rights which cannot be acquired by prescription.- Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights.

    None of the following rights can be so acquired:-

    (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;

    (c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise;

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

    18. Customary easements.- An easement may be acquired in virtue of a local custom. Such easements are called 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 the village breaks up and cultivates that 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 which are ordinarily excluded from observation, and B acquires a like easement with respect to A’s house.

    CHAPTER III: THE INCIDENTS OF EASEMENTS

    20. Rules controlled by contract or title.- The rules contained in this Chapter are controlled by any contract between the dominant and servient owners relating to the servient heritage, and by the provisions of the instrument or decree, if any, by which the easement referred to was imposed.

    Incidents of customary easements

    And when any incident of any customary easement is inconsistent with such rules, nothing in this chapter shall affect such incident.

    21. Bar to use unconnected with enjoyment.- An easement must not be used for any purpose not connected with the enjoyment of the dominant heritage.

    Illustrations

    (a) A, as owner of a farm Y, has right of way over B's land to Y. Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y. He must not use the easement for the purpose of passing to and from Z.

    (b) A, as owner of a certain house, has a right of way to and from it. For the purpose of passing to and from the house, the right may be used, not only by A, but by the members of his family, his guests, lodgers, servants, workmen, visitors and customers; for this is a purpose, connected with the enjoyment of the dominant heritage. So, if A lets the house, he may use the right of way for the purpose of collecting the rent and seeing the house is kept in repair.

    22. Exercise of easement-Confinement of exercise of easement.- The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.

    Illustrations

    (a) A has a right of way over B's field. A must enter the way at either end and not at any intermediate point.

    (b) A has a right annexed to his house to cut thatching grass in B’s swamp. A, when exercising his easement, must cut the grass so that the plants may not be destroyed.

    23. Right to alter mode of enjoyment.- Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage.

    Exception: The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage.

    Illustrations

    (a) A, the owner of a saw-mill, has a right to a flow of water sufficient to work the mill. He may convert the saw-mill into a corn-meal:

    Provided that it can be worked by the same amount of water.

    (b) A has a right to discharge on B’s land the rain-water from the eaves of A's house. This does not entitle A to advance his eaves if, by so doing, he imposes a greater burden on B’s land.

    (c) A, as the owner of a paper-mill, acquires a right to pollute a stream by procuring in the refuse-liquor produced by making in the mill paper from rags. He may pollute the stream by pouring in similar liquor produced by making in the mill paper by a new process from bamboos:

    Provided that he does not substantially increase the amount, or injuriously change the nature, of the pollution.

    (d) A, a riparian owner, acquires as against the lower riparian owners, a prescriptive right to pollute a stream by throwing saw dust into it. This does not entitle A to pollute the stream by discharging into it poisonous liquor.

    24. Right to do acts to secure enjoyment.- The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the fully enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.

    Accessory rights:

    Right to do acts necessary to secure the full enjoyment of an easement are called accessory right.

    Illustrations

    (a) A has an easement to lay pipes in B's land to convey water to A's cistern. A may enter and dig the land in order to mend the pipes, but he must restore the surface to its original state.

    (b) A has an easement of a drain through B's land. The sewer with which the drain communicates is altered. A may enter upon B's land and alter the drain, to adapt it to the new sewer:

    Provided that he does not thereby impose any additional burden on B's land.

    (c) A, as owner of a certain house, has a right of way over B's land. The way is out of repair, or a tree is blown down and falls across it. A may enter on B's land repair the way or remove the tree from it.

    (d) A, as owner of a certain field, has a right of way over B's land. B renders the way impassable. A may deviate from the way and pass over the adjoining land to B:

    Provided that the deviation is reasonable.

    (e) A, as owner of a certain house, has a right of way over B's field. A may remove rocks to make the way.

    (f) A has an easement of support from B's wall. The wall gives way. A may enter upon B's land and repair the wall.

    (g) A has an easement to have his land flooded by means of a dam in B's stream. The dam is half swept by an inundation. A may enter upon B's land and repair the dam.

    25. Liability for expenses necessary for preservation of easement.- The expenses incurred in constructing works, or making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant owner.

    31. Obstruction in case of excessive user.- In the case of excessive user of an easement 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 interfere with the lawful enjoyment of the easement.

    Illustration

    A, having a right to the free passage over B's land of light to four windows, six feet by four, increases their size and number. It is impossible to obstruct the passage of light to the new windows without also obstructing the passage of light to the ancient windows. B cannot obstruct the excessive user.

    CHAPTER IV: THE DISTURBANCE OF EASEMENTS

    32. Right to enjoyment with out disturbance.- The owner or occupier of the dominant heritage is entitled to enjoyment the easement without disturbance by any other person.

    Illustration

    A, as owner of a house has a right of way over B’s land. C unlawfully enters on 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.

    33. Suit for disturbance of easement.- The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto:

    Provided that the disturbance has actually caused substantial damage to the plaintiff.

    Explanation I : 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, is substantial damage within the meaning of this section and section 34.

    Explanation II: Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.

    Explanation III: Where the easement disturbed is a right to the free passage of air to the opening in a house, damage is substantial within the meaning of this section, if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.

    Illustrations

    (a) A places a permanent obstruction in a path over which B, as tenant of C’s house, has a 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 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, and so as not to occasion any inconvenience to foot passengers using the way. This is not substantial damage to A.

    34. When cause of action arises for removal of support.- The removal of the means of support to which a dominant owner is entitled does not give rise to a right to recover compensation unless and until substantial damage is actually sustained.

    36. Abatement of obstruction of easement.- Notwithstanding the provisions of section 24, the dominant owner cannot himself abate a wrongful obstruction of an easement.

    CHAPTER V: THE EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS

    37. Extinction by dissolution of right of servient owner.- When, from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished.

    Exception: Nothing in this section applies to an easement lawfully imposed by a mortgagor in accordance with section 10.

    Illustrations

    (a) A transfers Sultanpur to B on condition that he does not marry C. B imposes an easement on Sultanpur. Then B marries C. B’s interest in Sultanpur ends, and with it the easement is extinguished.

    (b) A, in 1860, let Sultanpur to B for thirty years from the date of the lease. B, it 1861 imposes an easement on the land in favour of C, who enjoys the easement peaceably and openly as an easement without interruption for twenty-nine years, B’s interest in Sultanpur then ends, and with it C’s easement.

    (c) A and B, tenants of C, have permanent transferable interests in their respective holdings. A imposes on his holding an easement to draw water from a tank for the purpose of irrigating B’s land. B enjoys the easement for twenty years. Then A’s rent fall into arrear and his interest is sold. B’s easements is extinguished.

    (d) A mortgages Sultanpur to B, and lawfully imposes an easement on the land in favour of C in accordance with the provisions of section 10. The land is soled to D in satisfaction of the mortgage debt. The easement is not thereby extinguished.

    38. Extinction by release.- An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner. Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage.

    An easement may be released as to part only of the servient heritage.

    Explanation I: An easement is impliedly released

    (a) where the dominant owner expressly authorises an act of a permanent nature to be done on the servient heritage, the necessary consequence of which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority;

    (b) where any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future.

    Explanation II: Mere non-user of an easement is not an implied release within the meaning of this section.

    Illustrations

    (a) A, B and C are co-owners of a house to which an easement is annexed. A, without the consent of B and C, releases the easement. The release is effectual only as against A and his legal representative.

    (b) A, grants B an easement over A’s land for the beneficial enjoyment of his house. B assigns the house to C. B then purports to release the easement. The release is ineffectual.

    (c) A, having the right to discharge his eavesdroppings into B’s years, expressly authorises B to build over this year to a height which will interfere with the discharge. B builds accordingly. A’s easements is extinguished to the extent of the interference.

    (d) A, having an easement of light to a window, build up that window with bricks and mortar so as to manifest an intention to abandon the easement permanently. The easement is impliedly released.

    (e) A, having a projecting roof by means of which he enjoys an easement to discharge eavesdroppings on B’s land permanently alters the roof, so as to direct the rain-water into a different channel and discharge it on C’s land. The easement is impliedly released.

    39. Extinction by revocation.- An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement.

    40. Extinction on expiration of limited period or happening of dissolving condition.- An easement is extinguished where it has been imposed for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfilled.

    47. Extinction by non-enjoyment.- A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years. A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such. Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner; and, in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner:

    Provided that if, in the case of a discontinuous easement, the dominant owner, within such period, registers, under the Indian Registration Act, 1877 (3 of 1877), a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of the registration.

    Where an easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at other items, or between other hours, or for another purpose, does not prevent its extinction under this section.

    The circumstance that, during the said period no one was in possession of the servient heritage, or that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section.

    An easement is not extinguished under this section:

    49. Suspension of easement.- An easement is suspended when the dominant owner become entitled to possession of the servient heritage for a limited interest therein, or when the servient owner becomes entitled to possession of the dominant heritage for a limited interest therein.

    50. Servient owner not entitled to require continuance.- The servient owner has no right to require that an easement be continued; and notwithstanding the provisions of section 26, he is not entitled to compensation for damage caused to the servient heritage in consequence of the extinguishment or suspension of the easement, if the dominant owner has given to the servient owner such notice as will enable him, without unreasonable expense, to protect the servient heritage from such damage. Compensation for damages caused by extinguishment or suspension.

    Where such notice has not been given, the servient owner is entitled to compensation for damage caused to the servient heritage in consequence of such extinguishment or suspension.

    Illustration

    A, in exercise of an easement, diverts to his canal the water of B's stream. The diversion continues for many years, and during that time the bed of the stream partly fills up. A then abandons his easement, and restores the stream to its ancient course. B's land is consequently flooded. B sues A for compensation for the damage caused by the flooding. It is proved that A gave B a month’s notice of his intention to abandon the easement, and that such notice was sufficient to enable B, without unreasonable expense, to have prevented the damage. The suit must be dismissed.

    51. Revival of easements.- An easement extinguished under section 45 revives

    (a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion;

    (b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and

    (c) when the destroyed heritage is a dominate building and before twenty years have expired such building is rebuilt upon the same site and in such a manner as not to impose a greater burden on the servient heritage.

    An easement extinguished under section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by the decree of a competent court. A necessary easement extinguished 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.

    Illustration

    A, as the absolute owner of field Y, has a right of way thither over B's field Z. A obtains from B a lease of Z for twenty years. The easement is suspended so long as A remains lessee of Z. But when A assigns the lease to C, or surrenders it to B, right of way revives.

    CHAPTER VI: LICENSES

    52. "License" defined.- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.

    53. Who may grant license.- A license may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the license.

    54. Grant may be express or implied.- The grant of a license may be express or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license.

    56. License when transferable.- Unless a different intention is expressed or necessarily implied, license to attend a place of public entertainment may be transferred by the licensee; but, save as aforesaid, a license cannot be transferred by the licensee or exercised by his servient or agents.

    Illustrations

    (a) A grants B a right to walk over A's field whenever he pleases. The right is not annexed to any immovable property of B. The right cannot be transferred.

    (b) The Government grant B a license to erect and use temporary grain-sheds on Government land. In the absence of express provision to the contrary, B's servants may enter on the land for the purpose of erecting sheds, erect the same, deposit grain therein and remove grain therefrom.

    60. License when revocable.- A license may be revoked by the grantor, unless

    (a) it is coupled with a transfer of property and such transfer is in force;

    (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.

    61. Revocation express or implied.- The revocation of a License may be express or implied.

    Illustrations

    (a) A, the owner of a field, grants a license to B, to use a path across it. A with intent to revoke the license, locks a gate across the path. The license is revoked.

    (b) A, the owner of a field, grants a license to B to stack hay on the field. A lets or sells the field to C. The license is revoked.

    62. License when deemed revoked.- A license is deemed to be revoked

    (a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the license;

    (b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;

    (c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the conditions is fulfilled;

    (d) where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right;

    (e) where the Licensee becomes entitled to the absolute ownership of the property affected by the license;

    (f) where the license is granted for a specified purpose and the purpose is attained or abandoned, or becomes impracticable;

    (g) where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist;

    (h) where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee;

    (i) in the case of an accessory license, when the interest or right to which it is accessory ceases to exist.

    64. Licensee’s rights on eviction.- Where a license has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor.

    Kindly CLICK HERE or e-mail us at office@hellocounsel.com if you are facing any Legal Issue and want to have Legal Consultations with the empanelled Lawyers at Hello Counsel.

Live2Support.com
All original content on these pages is fingerprinted and certified by Digiprove