CHAPTER 2 Easement of necessity

Easement of necessity: Sn 13

i) An Easement of necessity is an easement without which the property cannot be used at all. Convenience is not the test but absolute necessity is the test. When one person transfers immovable property to another, if an easement in other immovable property of the transferor is necessary for enjoyment the property transferred, the transferee is entitled to such easement.


Eg.:

(a) A sells a land called B used for agricultural purposes. The land is sold to C. The land is accessible only by passing through A's land. C is entitled, to the right of way by necessity for agricultural purposes.


(b) A the owner of a house sells B a factory built on the adjoining land. The transferee C has a right to run the factory & to pollute the air, when necessary, with smoke and vapors from the factory.


c) A sells his land called B over which A had a right of way to bring water. C is the buyer. For A to enjoy his house the right of way to bring water is absolutely necessary. Hence A has a right over the land B.


ii) When a partition is made of the joint property of several persons, if an easement over the share of one of them is necessary for enjoyment of share of the other coparcener the latter shall be entitled to such easement. In a partition A becomes the owner of an upper room on the I floor. B becomes the owner of the room immediately beneath it. A is entitled to the support from B's room as it is absolutely necessary for his safety.

Leading cases: Morgan Vs. Kirby. Gajapathi Vs. Raja of Vijayanagaran.



Quasi-Easement. Sn 13

When a person transfers immovable property to another then:

i) If an easement is apparent and continuous and necessary the transferee is entitled to such easement.

ii) If such an easement is apparent continuous and necessary to enjoy the said property the transferor has a right to such easement over the property transferred by him.

iii) In a partition if such an easement is apparent and continuous and necessary for enjoyment the share of one co-parcener over the other, he is entitled to such easement.



Examples:

a) A right attached to B's house to receive light and air through a window without obstruction by his neighbour A . This is a continuous Easement.


b)Rights attached to As land to lead water across B's land by an aqueduct and to draw off water by a stream. The drain is discover able by careful inspection. This is an apparent easement.


Easements are called 'quasi', as those arising out of circumstances i .e., when the common properties are converted into tenements by sale, mortgage partition etc. In such a case, there is an 'implied grant'. There is no express grant or transfer. Hence, in a sale or partition, even if there is no grant of such an easement, the courts construe that there is an implied transfer of an easement. (The leading case is Pyer V Carter).


Prescriptive Easements:

Sn. 15, of the Easement Act provides for the acquisition of prescriptive easement (Sn.25 of the Limitation Act is also the same) The essential requisites for the acquisition are:

a) The right must be definite and certain.

b)It must have been enjoyed independently of any agreement with the owner of the land over which the right is claimed.

c) It must be enjoyed:

(i) Peaceably

(ii) Openly

(iii) as of right

(iv) as an easement

(v) without any interruption

(vi) for a continuous period of 20 years.

d)In respect of .government land, the period is 30 years.


Computation of 20 years: This is a period ending within 2 years next before the institution of the prescriptive easementory suit. Mere enjoyment for over 20 years gives an inchoate (incomplete) right, but to acquire a prescriptive easement a suit must be filed and a decree obtained from the court.

Eg.:

(i) A built a house with a window facing the land of C in 1960. C built in 1979, a-house which cut off the light and air from A's window. A objected & filed a case in 1983 to remove the obstruction.The suit is to be dismissed: the period of 20 years is not completed (I960 to

1979) only 19 years completed.


(ii) A sues B for obstructing the right of way. B admits the obstruction but denies the right of way. B proves that A had taken written permission at one point of time in 20 years. A suit is to be dismissed. The enjoyment is not for 20 full years.


(iii) A was receiving light and air through a window facing D's land for 30 years. D built a house in 1982, obstructing the light & air. A must file a suit within 1984 against B, to remove the obstruction, (i.e., within 2 years).


Exceptions:

ie, what cannot be acquired:

a) A right which tends to destroy the servient tenement, cannot be acquired by prescription. No prescriptive right can be acquired to an open area to get light and air.

b) There is no prescriptive right in respect of surface water in undefined channels.

c) A right to underground water channels which are undefined.

d) For overhanging of branches over another's land, there is no prescriptive title.



Customary Easement. (Sn.18)

An easement may be acquired by virtue of local custom such an easement is called customary Easement.

Eg.:

(i) By the custom of a village every cultivator was entitled to graze his cattle on the common pasture. This is a customary easement.


(ii) People living in a township have the right to bury the dead in a particular place. This is a customary easement.


A customary easement relating to sports and recreation or religious observations are well known. Right to ferry, Riparian right to use water, are examples. Customaryright of fisherman to fish in a river or sea. These easements arise out of local customs which are well established and be enjoyed by any owner of land situated in the locality. Hence, there will be a fluctuating body of persons enjoying this right. Courts take judicial notice of these easements. A claimed that his right of privacy was affected by B, who built a house with wide windows to command a view of the interiors of the house of A. Held, the local custom was confined to Zanana and did not apply to A.





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