The Indian Easements Act, 1882

THE INDIAN EASEMENTS ACT, 1882

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THE INDIAN EASEMENTS ACT, 1882 _______ ARRANGEMENT OF SECTIONS _______ PREAMBLE PRELIMINARY SECTIONS 1. CHAPTER I OF EASEMENTS GENERALLY 4. “Easement” defined. Continuous and discontinuous, apparent and non-apparent, easements. Easements restrictive of certain rights. (a) Exclusive right to enjoy. (b) Rights to advantages arising from situation. CHAPTER II THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS 8. Easements of necessity and quasi easements.

CHAPTER III

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CHAPTER III THE INCIDENTS OF EASEMENTS SECTIONS 20. Rules controlled by contract or title. Bar to use unconnected with enjoyment. Confinement of exercise of easement. Right to do acts to secure enjoyment. Liability for expenses necessary for preservation of easement.

SECTIONS

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Extinction by permanent change in dominant heritage. Extinction on permanent alteration of servient heritage by superior force. Extinction by destruction of either heritage. Servient owner not entitled to require continuance. Compensation for damage caused by extinguishment or suspension. CHAPTER VI LICENSES 52. “License” defined.

THE INDIAN EASEMENTS ACT, 1882

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Section 1 — Short title

Section 2 — Savings

Section 3 — Construction of certain references to Act 15 of 1877 and Act 9 of 1871

THE INDIAN EASEMENTS ACT, 1882 1 ACT NO. 5 OF 1882 [17th February, 1882.] An Act to define and amend the law relating to Easements and Licenses. Preamble.—WHEREAS it is expedient to define and amend the law relating to Easements and Licenses; It is hereby enacted as follows:— PRELIMINARY 1. Short title.—This Act may be called the Indian Easements Act, 1882. 2 Local extent.—It extends to the territories respectively administered by the Governor of Madras in Council and the Chief Commissioners of the Central Provinces and Coorg; Commencement.—and it shall come into force on the first day of July, 1882. STATE AMENDMENTS Karnataka Amendment of Central Act V of 1882.—In section 1 of the Indian Easements Act, 1882 (Central Act V of 1882) for the entry under the heading “Local extent”, the following entry shall be substituted, namely:— “It extends to the whole of the State of Karnataka”. [Vide Karnataka Act 33 of 1978, s.

4. “Easement” defined.—An easement is a right which the owner or occupier of certain

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Section 4 — “Easement” defined

Section 5 — Continuous and discontinuous, apparent and non-apparent, easements

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. 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 neighbour 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 on E’s land.

6. Easement for limited time or on condition.—An easement may be permanent, or for a term of

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Section 6 — Easement for limited time or on condition

Section 7 — Easements restrictive of certain rights

Section 8 — Who may impose easements

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. Easements restrictive of certain rights.—Easements are restrictions of one or other of the following rights (namely):— (a) Exclusive right to enjoy.—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. (b) Rights to advantages arising from situation.—The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance try 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 condition 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. 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.

9. Servient owners.—Subject to the provisions of section 8, a servient owner may impose on the

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Section 9 — Servient owners

Section 10 — Lessor and mortgagor

Section 11 — Lessee

Section 12 — Who may acquire easements

Section 13 — Easements of necessity and quasi easements

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’s consent, impose an easement thereon which will continue after the determination of his life-interest. (c) A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an easement on the land or on any part thereof. (d) A and B are lessees of the same lessor, A of a field X for a term of five years, and B of a field Y for a term of ten years. 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. 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.

other immovable property of the transferor or testator, the transferor or the legal representative of

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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 a different intention is expressed or necessarily implied, be entitled to such easement. 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. 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 fields, sells one to B, and retains the other. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect. (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 from B’s building. (j) A, the owner of two adjoining buildings, sells one to B, and the other to C.

14. Direction of way of necessity.—When [a right] to a way of necessity is created under

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Section 14 — Direction of way of necessity

Section 15 — Acquisition by prescription

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. Direction of way of necessity.—When [a right] to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out. Acquisition by prescription.—Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person’s land or things affixed thereto has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Explanation I.—Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease. 3 When the property over which a right is claimed under this section belongs to [Government] this 4 section shall be read as if, for the words “twenty years”, the words “ [thirty years]” were substituted.

16. Exclusion in favour of reversioner of servient heritage.—Provided that, when any

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Section 16 — Exclusion in favour of reversioner of servient heritage

Section 17 — Rights which cannot be acquired by prescription

Section 18 — Customary easement

Section 19 — Transfer of dominant heritage passes easement

Illustrations (a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862, to 1st January, 1882. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. Exclusion in favour of reversioner of servient heritage.—Provided that, when any land upon, over or from which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the said last-mentioned period of twenty years, in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land. Transfer of dominant heritage passes easement.—Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place.

CHAPTER III

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Section 20 — Rules controlled by contract or title

Section 21 — Bar to use unconnected with enjoyment

Section 22 — Exercise of easement Confinement of exercise of easement

Section 23 — Right to alter mode of enjoyment

Illustration A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues. 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.

24. Right to do acts to secure enjoyment.—The dominant owner is entitled , as against servient

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Section 24 — Right to do acts to secure enjoyment

Section 25 — Liability for expenses necessary for preservation of easement

Section 26 — Liability for damage from want of repair

Section 27 — Servient owner not bound to do anything

Right to do acts to secure enjoyment.—The dominant owner is entitled , as against servient owner, to do all acts necessary to secure the full 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.—Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights. 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. Liability for damage from want of repair.—Where an easement is enjoyed by means of an artificial work, the dominant owner is liable to make compensation for any damage to the servient 2 heritage arising from the want of repair of such work. Servient owner not bound to do anything.—The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient. B is not bound, as servient owner, to clear the watercourse or scour the sewer. (b) A grants a right of way through his land to B as owner of a field.

28. Extent of easements.—With respect to the extent of easements and the mode of their

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Section 28 — Extent of easements

Section 29 — Increase of easement

Section 30 — Partition of dominant heritage

Extent of easements.—With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:— Easement of necessity.—An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed. Other easements.—The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties and the purpose for which the right was imposed or acquired. In the absence of evidence as to such intention and purpose— (a) Right of way.—A right of way of any one kind does not include a right of way of any other kind; (b) Right to light or air acquired by grant.—The extent of a right to the passage of light or air to a certain window, door or other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument was made; (c) Prescriptive right to light or air.—The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used; (d) Prescriptive right to pollute air or water.—The extent of a prescriptive right to pollute air or water is the extent of the pollution at the commencement of the period of user on completion of which the right arose; and (e) Other prescriptive rights.—The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right. Increase of easement.—The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement. Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the easement is proportionately increased, and, if the dominant heritage is diminished by dilluvion, the easement is proportionately diminished. Save as aforesaid, no easement is affected by any change in the extent of the dominant or the servient heritage.

31. Obstruction in case of excessive user.—In the case of excessive user of an easement the

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Section 31 — Obstruction in case of excessive user

Section 32 — Right to enjoyment without disturbance

Section 33 — Suit for disturbance of easement

Section 34 — When cause of action arises for removal of support

A and B are each entitled, in respect of his heritage, to draw from the well fifty buckets a day; but the amount drawn by both must not exceed fifty buckets a day. (c) A, having in respect of his house an easement of light, divides the house into three distinct heritages. 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. B cannot obstruct the excessive user. Right to enjoyment without disturbance.—The owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person. A may sue C for compensation, not for the entry, but for the obstruction. 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.

35. Injunction to restrain disturbance.—Subject to the provisions of the Specific Relief Act,

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Section 35 — Injunction to restrain disturbance

Section 36 — Abatement of obstruction of easement

Section 37 — Extinction by dissolution of right of servient owner

Section 38 — Extinction by release

Injunction to restrain disturbance.—Subject to the provisions of the Specific Relief Act, 1 1877 (1 of 1877), sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement— (a) if the easement is actually disturbed—when compensation for such disturbance might be recovered under this Chapter; (b) if the disturbance is only threatened or intended—when the act threatened or intended must necessarily, if performed, disturb the easement. 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. B’s easement 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.

C’s land. The easement is impliedly released.

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Section 39 — Extinction by revocation

Section 40 — Extinction on expiration of limited period or happening of dissolving condition

Section 41 — Extinction on termination of necessity

Section 42 — Extinction of useless easement

Section 43 — Extinction by permanent change in dominant heritage

Section 44 — Extinction on permanent alteration of servient heritage by superior force

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. This 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 then purports to release the easement. 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.

Illustration

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Section 45 — Extinction by destruction of either heritage

Section 46 — Extinction by unity of ownership

Section 47 — Extinction by non-enjoyment

Illustration (a) A grants to B, as the owner of a certain house, a right to fish in a river running through A’s land. The river changes its course permanently and runs through C’s land. B’s easement is extinguished. (b) Access to a path over which A has a right of way is permanently cut off by an earthquake. Extinction by destruction of either heritage.—An easement is extinguished when either the dominant or the servient heritage is completely destroyed. Illustration A has a right of way over a road running along the foot of a sea-cliff. The road is washed away by a permanent encroachment of the sea.

An easement is not extinguished under this section—

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Section 48 — Extinction of accessory rights

Section 49 — Suspension of easement

Section 50 — Servient owner not entitled to require continuance

Section 51 — Revival of easements

An easement is not extinguished under this section— (a) where the cessation is in pursuance of a contract between the dominant and servient owners; (b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period, or (c) where the easement is a necessary easement. Where several heritages are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement. Extinction of accessory rights.—When an easement is extinguished, the rights (if any) accessory thereto are also extinguished. The easement to draw water is extinguished under section 47. 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 dominant 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 18

the unity of ownership was produced is set aside by the decree of a competent Court. A necessary

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Section 52 — “License” defined

Section 53 — Who may grant license

Section 54 — Grant may be express or implied

Section 55 — Accessory licenses annexed by law

Section 56 — License when transferable

Section 57 — Grantor’s duty to disclose defects

Section 58 — Grantor’s duty not to render property unsafe

Section 59 — Grantor’s transferee not bound by license

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. Accessory licenses annexed by law.—All licenses necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right.

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

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Section 60 — License when revocable

Section 61 — Revocation express or implied

Section 62 — License when deemed revoked

Section 63 — Licensee’s rights on revocation

Section 64 — Licensee’s rights on eviction

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. Revocation express or implied.—The revocation of a license may be express or implied. The license is revoked. (b) A, the owner of a field, grants a license to B to stack hay on the field. 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 condition is fulfilled; (d) where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can not 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. Licensee’s rights on revocation.—Where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property. 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. ______ 20