By Y. SRINIVASA RAO, Principal Senior Civil Judge, Tirupati . ——
TABLE OF CONTENTS:
- Who can acquire an easement?
- Easements of necessity and quasi-easements
- Acquisition by prescription
- Period of 20 years in respect of private persons while period of 30 years in respect of Government properties
Easement:— Easement MMeans a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit, any part of the soil belonging to another or anything growing in or attached to or subsisting upon, the land of another, Section 2(f), Limitation Act, 1963. It Implies continuity, State of Haryana v. State of Punjab, (2004) 12 SCC 673. A privilege without profit which the owner of one neighbouring tenement hate of another, existing in respect of their several tenements, by which the owner of the one (called the servient) tenement is obliged to suffer or not to do something on his own land, for the advantage of the owner of the other (called the dominant) tenement, e.g., a right of way, a right of passage of water. It is the servitus of the Civil Law. An easement is an incorporeal hereditament, which from its nature can only be created by grant: hence the origin of all easements may be referred to a grant by the owner of the servient tenement either expressed or implied. In the majority of cases the right is founded upon the implication of a grant, the terms of which can only be ascertained from the actual enjoyment of the easement. Easement means certain rights in the property of another, Manikrao v. Maheshkumar, (2011) 5 Mah LJ 345 (Bom). An easement implies continuity, State of Haryana v. State of Punjab, (2004) 12 SCC 673.
Who can acquire an easement?
Easements are certain rights in the property of another (Jura in re alieha). Section 12 of the Indian Easements Act (hereinafter referred to as ‘the Act’) provides as to who may acquire easements. The owner or on his behalf a person in possession of the immovable property can acquire easement for beneficial enjoyment of which right is created. Similarly one of two or more co-owners without consent of other can also acquire the same. But a lessee with a view to enjoy his owned other immovable property cannot acquire.
Customary easement under Section 18 of the Indian Easements Act :— It says as follows:—
“18. Customary easements.— An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”
In Halsbury’s Laws of England, Third Edition, Vol. 11 under Article 294 the word ‘custom’ has been defined thus:
“A custom is a particular rule which exists either actually or presumptively from time immemorial and has obtained the force of law in a particular locality”.
In the case of Lakshmidhar Misra v. Rangalal reported in AIR 1950 PC 56, the Privy Council observed in page No. 59 of the report thus:
“A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large. Fitch v. Rawling (1795) 2 HBI 393 : 3 RR 425. The custom, if established makes the local law of the district and it creates a right in each of the inhabitants irrespective of his estate or interest in any particular property.”
Easements of necessity and quasi-easements :—
Section 13 of the Indian Easements Act reads thus:
“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; or
(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 person,—
(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.
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.”
This section provides for easements of necessity and quasi-easements. The easements of necessity have been stated in section 13 (a), (c) and (e) while quasi-easements are mentioned in section 13 (b), (d) and (f). The easement of necessity thus cannot travel beyond what has been stated in section 13 (a), (c) and (e) and must flow from the incident of transfer or bequeath or partition of immovable properties. In the case at hand, by only stating in the plaint that the suit way was only way available and therefore, there was easement of necessity does not make it the easement of necessity in law or within the meaning of section 13 (a), (c) and (e) of the Act.
In Goddard on Easements, 7th Edn., at p. 559, it is stated as follows:
It is on this principle that easements of necessity are extinguished when the necessity ceases. It has been thought sometimes that the termination of the necessity would not affect the extinction of the easement, but that opinion has not been supported. The question was raised and determined in the case of Holmes v. Goring 2 Bing. 76, in which it was held that a way of necessity may be acquired at the time of the purchase of particular land, yet if the purchaser subsequently becomes possessed of other grounds over which he can pass, the necessity, and therefore the reason, for the existence of the right of way, is at an end, and the right itself also ceases; in support of this decision a passage from a note of Mr. Searjt Williams in the case of Pomfret v. Ricroft, was cited by Best, C.J., where it is said that a way of necessity, when the nature of it is considered, will be found to be nothing else than a way by grant; but added the Judge, a grant of no more than the circumstances which raise the implication of the grant require. See. (Saripella) Venkatapathiraju vs (Saripella) Subbaraju And Anr. AIR 1930 Mad 789.
Acquisition by prescription :—
Section 15 of the Indian Easements Act reads thus.
“15. 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.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
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.
Explanation II.— Nothing is an interruption within-the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
Explanation III.— Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV.— In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to the [Government], this section shall be read as if, for the words ‘twenty years’ the words [‘thirty years’] were substituted.”
Period of 20 years in respect of private persons while period of 30 years in respect of Government properties:—
Prescriptive right is founded on utility rather than on equity. In the above provisions of section 15 of the Act period of 20 years is mentioned in respect of private persons while period of 30 years is mentioned in respect of Government properties. The time necessary for giving rise to the presumption has been different in different nations and even different at different periods in the history of the same nation. Among Romans at one time possession once obtained nec vi, nec clam, nec precario could not be disturbed by force. This was changed by Justinian to twenty years in the case of those present. Justinian was emperor and had gained fame as Legislator:
(a) right must be certain,
(b) it must have been enjoyed,
(c) the enjoyment must be independent, and
(d) it must be peaceably and openly as of right without any interruption for-more than 20 years. See. Manikrao v. Maheshkumar, (2011) 5 Mah LJ 345.
Conclusion :— An easement is a right which the owner has for beneficial enjoyment over the land belonging to another. Section 38 of the Easements Act provides for extinguishment of easement right by release, the dominant owner releasing it, expressly or impliedly, to the servient owner. Such release can be made only in the circumstances and to the extent to which the dominant owner can alienate the dominant heritage. An easement may be released as to part only of the servient heritage. Section 41. Extinction on termination of necessity : An easement of necessity is extinguished when the necessity comes to an end.
An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.