Modes of Acquisition of Easements:
The various modes of acquiring an easementaray right are as follows:
a) Express Grant: An easement is acquired by an express grant made in the deed of sale, mortgage or other transfers. The grantor uses express terms to convey his intention. If the value of the immovable property is above Rs.100/- it should be in writing and duly registered.
b) Implied Circumstances:
1. Easement of necessity :
i) Easement of necessity is an easement without which the property cannot be used at all.
When one person transfers his immovable property to another, if an easement in other immovable property of the transferor is necessary for enjoying the property transferred, the transferee is entitled to such easement.
(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 As land. G is entitled to the right of way by necessity for agricultural purposes.
(b) 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.
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 transfered by him.
iii) In a partition if such an easement is apparent and continuous and necessary for enjoying the share of one co-parcener over the other, he is entitled to such easement.
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 continu ous 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.
3. Acquisition by Prescription: 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 requisities 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:
(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.
(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 (1960 to1979) 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 20full years.
Customary Easement. (Sn.18)
An easement may be acquired by virtue of a local custom such easements are called customary Easements.
(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 kinown. Right to ferry, Riparean right to use water, are examples. Customary right 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.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.
Extinction of Easements.
The modes of extinction of an easement are specified in Sns. 37 to 47. i) Dissolution of Servient Owner's right. (Sn.37) If the grantor ceases to have any right in the servient tenement because of some reason preceding the imposition of an easement, then the right extinguishes.A in 1960 let Saltanpur to B for 20 years. B in 1961 imposed an easement on the land in favour of C. In 1980, B's interest came to an end; with this, the easement given to C also extinquished.
ii) Expiry of time or happening of an event.When the easement is for a limited period or is acquired on a certain condition, the easement ends when the time expires or the condition fulfilled.
iii) Extinction by release.When the dominant owner releases the easement to the servient owner, the easement is extinguished. The release may be express or implied.
A has a right to discharge water through the eaves to B's yard. A authorised 'B' to build to such a height as not to discharge water through the eaves. B builds. The right is extinguished.
iv) Termination of necessity.Easements of necessity become extinguished when the necessity comes to an end. A grants' B' a land which has an easement of necessity of right of passage over As land. B later buys a part of the land of A over which he may pass to reach his land. The necessity ends. Hence, the easement also ends.
v) Useless easement.When the easement is incapable of being beneficial at any time and under any circumstances, it ends.A grants a right to B, a doctor, the use of a dispensary. But, B takes sanyasa for ever. So not beneficial to him. Hence, the easementends.
vi) Permanent change in dominant heritage.When there is a permanent change in the dominent heritage, with the increase of burden on the tenement, the easement terminates (subject to certain exceptions).A has a hut where he is living. He has a right of way over B's land. The hut is demolished and a mini-theatre is built. The right of way stands extinguished
vii) Permanent alteration of servient heritage.If by Vis Major reasons, the servient tenement is destroyed, the easement comes to an end.A has a right of way over B's land. Due to earthquake B's land is cut off and has become a crator. The easement ends.
viii) Extinction by destruction of either of the heritages.If either the dominant or the servient is destroyed, the easement ends. The reason is there cannot be any easement without the two tenements.
ix) Unity by ownership:If the servient & dominants become one, i.e., by purchase etc., the easement ends.
x) Non-enjoyment.If the easement is not enjoyed for 20 years, the right extinguishes.
Suspension & revival of Easement: Suspension Sn. 49:
1. An easement is suspended, when the dominant owner becomes entitled to possession of the servient heritage for a limited interest.
2. When the servient owner, becomes entitled to possession of the dominant heritage for a limited interest, the easement is suspended.Here, when both the dominent & servient heritages become one, the easement is suspended.A has a right of way over B's land. A takes out B's land on rent for 2 years. The easement is suspended for 2 years.
Revival of Easement Sn. 51:
1. When an easement is extinguished by destruction of dominent or servient heritage, it revives.
a) if the heritage is restored in 20 years (by alluvial).
b) if rebuilt in 20 years.
2. In the case of unity of ownership, the easement survives by orders of a competent court.In the case of unity of ownership, if the unity ends for any other reason, the easement survives.
3.A suspended easement revives when the cause for suspen sion is removed. A has a right of way over B's land. A taken on rent B's land for 5 years. Easement is suspended. After 5 years, B rents out to C. The easement revives.