A STUDY ON INCIDENTS OF EASEMENTS

Submitted by:

Yash Gupta

(SM0117061)

3rd Year, B.A. LL.B (Hons.)

(5th semester)

Property Law

Faculty -In- Charge

Ms. Kasturi Gakul

National Law University and Judicial Academy, Assam

Guwahati
 TABLE OF CONTENTS

TABLE OF CASES.........................................................................................................................ii
TABLE OF STATUTES.................................................................................................................ii
INTRODUCTION...........................................................................................................................1
Literature Review......................................................................................................................2
Scope & Objectives....................................................................................................................2
Research Questions....................................................................................................................3
Research Methodology..............................................................................................................3
INCIDENTS OF EASEMENTS: A STUDY..................................................................................4
EXTENT OF EASEMENT.............................................................................................................6
Easement of Light......................................................................................................................7
Easement of Air..........................................................................................................................8
Easement of way.........................................................................................................................9
Easements in water....................................................................................................................9
MODE OF ENJOYMENT OF EASEMENTS..............................................................................11
REMEDIES FOR DISTURBANCE OF EASEMENTS...............................................................14
(1) SUIT FOR COMPENSATION............................................................................................14
(2) SUIT FOR INJUNCTION....................................................................................................15
CONCLUSION..............................................................................................................................17
BIBLIOGRAPHY.....................................................................................................................iii

i
TABLE OF CASES

1. Anguri vs. Jiuan Dass

2. Bala vs. Maharu
3. Cable vs. Bryant
4. City of London Brewery Co. vs. Tennant
5. Chunilal vs. Ramkishen
6. Cowper vs. Laidler
7. Daniel vs. Ferguson
8. Eshan Chandra vs. Nil Moni
9. Harvey vs. Walters
10. Jagannatha Raju vs. Raja of Vizianagaram
11. Jahn White & Suns vs. J. & M White
12. Krishan Kishore vs. Sankaran
13. Panchanon Ray vs. Fazlur Rahman
14. Paul vs. Robson
15. Rajani Kanta vs. Nirmal Chandra
16. Litchfield Speer vs. Queen Anne's Gate Syndicate Ltd.

TABLE OF STATUTES

 Indian Easements Act, 1882

ii
INTRODUCTION

1
Literature Review

In his book Law of Transfer of Property 1, G.C.V Subba Rao has made thorough study of
incidents of easements under Law of Transfer of Property. This book gives details about acts
necessary for the enjoyment of the easement and reference to the accessory rights or secondary
easements necessary for the full enjoyment of the primary easement. The book was very helpful
for the researcher for undertaking his research work. These details helped the researcher in
understanding the legal perspective of easement, its extent of easement, mode of enjoyment of
easements and remedies for disturbances of easement.

In his book Law of easements and Licenses 2, B.B Katiyar has talked about the various legal
provision of easement under Law of Transfer of Property. It gives idea about the extent and
mode of enjoyment of the various kinds of easements. There are several rules with regard to
Incidental Easements which are discussed in the project which enlightened the mind of the
researcher. This book with its detailed explanation helped the researcher in accumulating a lot of
information about the subject matter in hand and extent of easement which includes easement of
light, easement of air, easement of way, easement of water and easement of eaves dropping.

Scope & Objectives

Scope:
 The scope of this project is limited to study the incidents of easements under Easements
Act, 1882
Objectives:
 To understand the concept of incidents of easements.
 To study the extent of easement.
 To understand the modes of enjoyment of easement.
 To study the remedies for disturbance of easement.

1
Rao G.C.V. Subba, Law of Transfer of Property (Easement, Trust and Wills) (7 th ed. ALT Publications, Andhra
Pradesh 2012).
2
Katiyar B.B., Law of Easements and Licences (16th ed. Universal Law Publishing, LexisNexis 2017)

2
Research Questions

 What is the concept of incidents of easement under Easements Act, 1882?

 What are the extents and modes of enjoyment of easement under Easements Act, 1882?
 What are the remedies for disturbance of easement under Easements Act, 1882?

Research Methodology

Approach to Research: In this project doctrinal research was involved. Doctrinal Research is a
research in which secondary sources are used and materials are collected from libraries, archives,
etc. Books, journals, articles were used while making this project.

Types of Research: Explanatory type of research was used in this project, because the project
topic was not relatively new and unheard of and also because various concepts were needed to be
explained.

Sources of Data collection: Secondary source of data collection was used which involves in
collection of data from books, articles, websites, etc. No surveys or case studies were conducted.

3
 INCIDENTS OF EASEMENTS: A STUDY

The incidents of easements may be considered with reference to the liability of the dominant and
servient owners in regard to acts necessary for the enjoyment of the easement, for example
repairing the servient tenement. It can also be considered with reference to the accessory rights
or secondary easements necessary for the full enjoyment of the primary easement. Also, the
extent and mode of enjoyment of the various kinds of easements. The right of easements gives
rise to certain incidental rights, duties, benefits, etc., both on the dominant owner and servient
owner. The rules relating to such incidental right etc., are controlled by contracts between
dominant and servient owners relating to the servient heritage. However such contracts cannot
affect incidents arising out of customary easements. There are several rules with regard to
Incidental Easements which are as follows3:

 An easement must not be used for any purpose not connected with the enjoyment of the
dominant heritage.
Eg:- "A" an owner of a house lets it for rent, along with the land adjacent to it to "B".
Now "a" has a right of way in the land only for the purpose of collecting rent or repair.
 The dominant owner must exercise his right in such particular form that it creates least
inconvenience to the servient owner.
Eg:- "A" has a right of way over "B"'s field. "A" must use the established way and must
not create a new way.
 The mode of enjoyment of easements may be altered from time to time by the dominant
owner. However, additional burden cannot be imposed on the servient owner.
 The dominant owner has the Accessory Right which is the right to do acts necessary to
secure full enjoyment of the easement but by such acts inconvenience should not be
caused to the servient owner.
 The expenditure relating to construction or repair for the use and preservation of
easements must be borne by dominant owner.
 The damage caused to the servient heritage by means of artificial work must be
compensated by the dominant owner.

3
Katiyar, supra note 2.

4
 The servient heritage is not entitled to do anything for the enjoyment of the dominant
owner.
 In deciding the extent of easement and mode of its enjoyment the intention of the parties
and the purposes of which the easements was acquired must be considered.
 Easement can either be increased or decreased by alluvion or diluvion respectively. But it
cannot be increased by adding or mere altering to the dominant heritage.
 The easement becomes divided between the sharers when dominant heritage is divided
between two or more persons.
Eg.: There is a piece of land on which two houses are built and given to two different
persons. Each person is entitled for right of way.
 When an easement is used excessively by the servient owner, dominant heritage may
obstruct the user on the servient heritage only.

5
 EXTENT OF EASEMENT

The extent of easements require precise definition in order that the dominant owner may know
what would constitute an excessive user of his rights and the servient owner what would
constitute a wrongful obstruction on his part of the easement right

Section 28 of the Indian Easements Act provides:

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 coextensive 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 purpose4-

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 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 and 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.

4
Id.

6
(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.

In Anguri vs. Jiuan Dass, it was held that, it is open to the defendants-dominant owners to use
their property in any manner permitted by law and hence they cannot be restrained from opening
new windows, as customary right of privacy appears to have been pleaded or proved in this case.
However, if the defendants open any new windows, the plaintiffs servient owners are fully
entitled to block the same by raising the height of their walls and the defendants are not entitled
to break or damage the said or any portion thereof so as to remove the obstruction to their new
windows.5

Easement of Light

Paul vs. Robson: The enunciation of the law in Colls vs. Home & Colonial Stores, was approved
and applied by the Privy Council in Paul vs. Robson6 The case went up to the Privy Council from
the Calcutta High Court and the decision therein governs provinces like Bengal where the Indian
Easements Act is not in force. In a recent case, Rajani Kanta vs. Nirmal Chandra 7, following that
Privy Council decision, the Calcutta High Court has held that the following principles are
applicable in judging whether there has been an actionable obstruction of ancient lights:

 The plaintiff can insist on the preservation to him only of such quantity of light (and air)
as might be reasonably required for comfortable occupation and not of any excess even if
he had enjoyed it in the past.
 Even if a building is vacant for the statutory period, it can acquire easement rights over
the servient tenement.
 In considering whether the amount of light (and air) left unobstructed is sufficient for
comfortable occupation it is irrelevant that by making structural alterations on the
dominant tenement, the dominant owner can obtain better ventilation. The dominant
owner cannot be required to keep his doors open so as to compensate for the darkening of
the windows.

Easement of Air
5
A.I.R. 1988 S.C. 2024
6
41 LA. 180 ILR 42 Cal. 4627 M.L.J. 117 (PC); Krishan Kishore vs. Sankaran A.I.R. 1974 Ori. 89
7
A.I.R. 1945 Cal. 438.

7
Mode of Acquisition: There is no distinction between the acquisition of a right to light and of a
right to air8. A right to the access of air passing over the unlimited surface of neighbouring land
cannot, therefore, be acquired by prescription. It is only where such access is enjoyed either
through a definite aperture or through a definite channel over adjoining property that the right
can be acquired by prescription.

Extent of the Right: In England: The extent of the right to air in England is, however, not the
same as that of the right to light. The measure of interference with air that entitles the plaintiff to
relief is considerably different from that in regard to light. In City of London Brewery Co. vs.
Tennant9, Lord Selborne observes:

"Now the nature of the case which would have to be made for an injunction by reason of the
obstruction of air is toto caelo different from the case which has to be made for an injunction in
respect of light. It is only in rare and special cases involving danger to health, or at least
something very nearly approaching it, that the Court would be justified in interfering on the
ground of diminution of air.

In England on account of the cold climate the purpose of easement is to shut out the air and to let
in the light. Air is thus of less account than light and So in respect of it a cause of action accrues
only when interference has so far diminished its supply as to involve danger to health.

In India: In India, however, air is at least of as much importance as light. The extent of the right
to air has, therefore, been made co-extensive with the right to light 10. Explanation III to Sec. 33
of the Easement Act provides:

"Where the easement disturbed is a right to the free passage of air to the openings 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.

Easement of way
8
Cable vs. Bryant (1908) 1 Ch. 259.
9
(1873) 9 Ch. App. 212
10
Sec. 28, Cl. (c)

8
Kinds of Ways: Rights of way are of various kinds. An easement of way may be a footway
simpliciter or it may be a general right of way for foot passengers as well as for people on
horseback and for carts, carriages and other vehicles. Section 28, Cl. (a) of the Easements Act
provides thus:

"A right of way of anyone kind does not include a right of way of any other kind."

Rights of way may be divided into three classes11:

 Private Rights of Way: These belong to particular individuals, when they are vested in
them as owners of particular tenements they are easements properly so called. Such
easements have their origin in grant or prescription.
 Rights of way belonging to certain classes of persons: A right of way may be claimed by
a portion of the public, e.g., inhabitants of a village. These are not really easements
because they are not appurtenant to any tenement. Such rights have their origin in
custom.
 Public Rights of Way: Public rights of way in the full sense of the term exist for the
benefit of the public at large. These are created by legislative enactment or by dedication.
Dedication may be presumed from long user12. Only the full owner of land can dedicate it
to the public.

Easements in water

Restrictions on natural rights: We have seen that it is the natural right of a riparian proprietor to
use for riparian purposes the water of natural streams which flow past his land and to have the
water come to him undiminished in flow, quantity and quality and unaffected in temperature and
go from him without obstruction. These natural rights may be restricted in some manner when an
easement is acquired in respect of the water.

Prescriptive rights of Riparian Owners: An an easement to use more water than may be justified
by his riparian needs and so to diminish the quantity of water flowing to the lower heritor. In no
event, however, can such an easement extend to all the water of the stream and confer an
11
Chunilal vs. Ramkishen ILR 15 Cal. 460 (F.B.).
12
Panchanon Ray vs. Fazlur Rahman A.I.R. 1942 Cal. 505

9
exclusive right to use the whole of the running water.13 Easement rights arise also with reference
to the flow of the water. A riparian owner has no natural right to impound water flowing in
defined natural channels but is entitled only to use the water as it passes14. A right to impound
and divert water for the riparian purposes of a tenement can be acquired as an easement 15. A right
to conduct the water over the servient tenement in a particular way may be acquired as an
easement. Easements affecting the purity of the water may also be acquired.

Easement of Eaves droppings: One important easement in connection with water is that of
discharging rain water on to another's land from the eaves of a house. This is known as the
easement of eaves-dropping. Such an easement does not impose an obligation on the servient
owner to keep his land open and unbuilt for the reception of the water discharged. He can build
provided he makes other suitable arrangements for carrying of the water discharged on his land 16.
The easement is not lost by the dominant owner raising the house.17

MODE OF ENJOYMENT OF EASEMENTS

13
Jahn White & Suns vs. J. & M White (1906) A.C. 72
14
Jagannatha Raju vs. Raja of Vizianagaram A.I.R. 1937 Mad. 310
15
Eshan Chandra vs. Nil Moni ILR 35 Cal. 851
16
Bala vs. Maharu ILR 20 Bom. 788
17
Harvey vs. Walters (1872) LR. 8 C.P. 162

10
Provisions of the Easements Act: Some general rules relating to the manner in which easements
should be enjoyed are set forth in Chapter III Indian Easements Act. The provisions of that
chapter are subject to any contract between the parties or the custom that might have given rise
to the easement or Sec. 20 of the Act states thus:

Sec. 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."

The general rules as to the mode of enjoyment of easements are the following:

 Easement not to be used for purposes unconnected with the dominant tenement

Section 21 of the Easements Act runs thus:

Sec. 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.

Illustration:

A as owner of a farm Y, has a 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 that from Z.

 Easement should be confined to a determinate part of the servient tenement.

Sec. 22 of the Easements Act runs thus

Sec. 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.

Illustration:

11
(a) A has a right of way over B's fields. 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."

 Mode of enjoyment may be altered without imposing additional burden:-

Sec. 23 of the Easements Act provides as follows:

Sec.23."Right to Altermode of enjoyment:Subject to the provisions of section twenty-two, 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 mill, 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.

 The dominant owner cannot substantially increase an Easement by altering his tenement:
As a general rule the owner of a dominant tenement cannot by additional or changed user
thereof throw an increased or additional burden on the servient tenement. There is an
exception to this general rule. Where an easement is granted 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.

Secs. 29 and 30 of the Easements Act run as follows

12
Sec.29."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 diluvion, 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.

Illustrations:

a) A, the owner of a mill, has acquired a prescriptive right to divert to his mill part of the water
of a stream. A alters the machinery of his mill. He cannot thereby increase his right to divert
water.

Sec.30. Partition of Dominant heritage: Where a dominant heritage is divided between two or
more persons,, the easement becomes annexed to each of the shares, but not so as to increase
substantially the burden of the servient heritage: provided that such annexation is consistent with
the terms of the instrument, decree or revenue proceeding (if any) under which the division was
made, and in the case of prescriptive rights, with the user during the prescriptive period.

Illustrations:

(a)\A house to which is annexed the right of drawing water from a well to the extent of fifty
buckets a day is divided into two distinct heritages, one of which is granted to A, the other to B.
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.

13
 REMEDIES FOR DISTURBANCE OF EASEMENTS

The dominant owner's right is to enjoy his easement in the manner and to the extent stated in the
previous sections. He should not be obstructed in the lawful exercise of that right 18. Section 32 of
the Indian Easements Act runs thus:

Sec. 32. "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.

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."

The remedies for the infringement of an easement are: (1) suit for compensation, (2) suit for
injunction.

(1) SUIT FOR COMPENSATION

What Amounts to a Disturbance: A suit for compensation lies when there is a disturbance to an
easement provided substantial damage has been actually caused to the plaintiff. As to what
constitutes an actionable disturbance is stated in Secs, 33 and 34 of the Indian Easements Act.

Sec. 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 thirty-four.

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
18
Srivastava Ashok, The Transfer of Property Act with Easement Act (1st ed. Central Law Publications, Allahabad,
2014

14
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 openings
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.

Sec. 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."

(2) SUIT FOR INJUNCTION

Sec.35."Injunction to restrain disturbance: Subject to the provisions of the Specific Relief Act,
1877 (1 of 1877)19 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."

Injunction is the proper remedy: Where the plaintiff has established a clear right to an easement,
the Court should not award damages to him against his wish in lieu of an injunction. In Cowper
vs. Laidler20, Buckley, Jy observed thus:-"The Court has affirmed over and over again that the
jurisdiction to give damages, when it exists is not so to be used as in fact to enable defendant to
purchase from the plaintiff against his will, his legal right to the easement."

Interim injunction: If the defendant endeavours to anticipate the action of the Court by hurrying
on his building or evades service of notice for continuing his building, the Court may properly
grant an interlocutory mandatory injunction ordering him to pull down what he has built since
the commencement of the action.21
19
Specific Relief Act, 1963 (43 of 1963)
20
(1903) 2 Ch. 337 Smith vs. Smith (1875) 20 Eq. 500
21
Daniel vs. Ferguson (1891) 2 Ch. 27

15
Quia timet action: The Court has jurisdiction to entertain actions quia timet in cases of threatened
illegal obstruction of an easement of light. If the Court is able from the evidence to satisfy itself
that substantial damage will be caused by the building when completed, then the action will lie
and an injunction will be granted.22

CONCLUSION

It is concluded that Section 28 of the Indian Easements Act throws a light upon various aspects
of easement like easement of necessity, extent of easements and various rights. The incidents of

22
Litchfield Speer vs. Queen Anne's Gate Syndicate Ltd. (1919) 1 Ch. 407.

16
easements may be considered with reference to the liability of the dominant and servient owners
in regard to acts necessary for the enjoyment of the easement, for example repairing the servient
tenement. No easement is affected by any change in the extent of the dominant or the servient
heritage. 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
diluvion, the easement is proportionately diminished. The Court has jurisdiction to entertain
actions quia timet in cases of threatened illegal obstruction of an easement of light. If the Court is
able from the evidence to satisfy itself that substantial damage will be caused by the building
when completed, then the action will lie and an injunction will be granted. If the defendant
endeavours to anticipate the action of the Court by hurrying on his building or evades service of
notice for continuing his building, the Court may properly grant an interlocutory mandatory
injunction ordering him to pull down what he has built since the commencement of the action.

The judiciary has also shown a very evident interest in the cases of easements and the provisions
have been constantly been interpreted in different judicial manners. Therefore, cases of
easements are always to be taken in serious manner as well as are always to be taken interest in
by any researcher researching in the subject matters of property law.

17
18
 BIBLIOGRAPHY

Books

Agarwal S.K., Indian Easement Act, 13th ed. 2003, Central Law Agency, Allahabad.

Srivastava Ashok, The Transfer of Property Act with Easement Act, 1st ed. 2014, Central Law
Publications, Allahabad

Katiyar B.B., Law of Easements and Licences, 16th ed. 2017, Universal Law Publishing,
LexisNexis

Rao G.C.V. Subba, Law of Transfer of Property (Easement, Trust and Wills), 7 th ed. 2012, ALT
Publications, Andhra Pradesh.

Online Database

Manupatra

SCC Online

Articles

Pooja Kapur, An overview: Law of Easements in India.

Bodduman, Incidents of Easements.

iii