NAME: SOWMIYA.

R
CLASS:. “C” SECTION
COURSE: B.COM LLB( HON’S)
REG.NO: HB18136
SUBJECT: PROPERTY LAW

FACULTY SIGN,

Table of Contents
▪ Incidents of easements
▪ Rules controlled by contract or title
▪ Bar to use unconnected with enjoyment
▪ Exercise of easement
▪ Principle
▪ Rights of servient owner
 ▪ Right to alter mode of enjoyment
▪ Principle
▪ Important Case Laws
▪ Right to do acts to secure enjoyment
▪ Principle
▪ Important Case Laws
▪ Liability for expenses necessary for preservation of easement
▪ Liability for damage from want of repair
▪ Servient owner not bound to do anything
▪ Extent of easements
▪ Extent of easement of necessity
▪ Extent of other easements
▪ Important Case Laws
▪ Increase of easement
▪ Important Case Laws
▪ Partition of dominant heritage
▪ Obstruction in case of excessive user
▪ The servient owner may obstruct excessive user
▪ Such user cannot be obstructed, etc.

Introduction:
INCIDENTS OF EASEMENTS
Incidents of easements-which means things which usually appertain to or follow
easements. Chapter III, Sections 20 to 31 of the Indian Easements Act, 1882 deals
incidents of easements.

The Rules controlled by contract or title :

Section 20 of The Indian Easements Act, 1882.

• In this Chapter the rules 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.

• the Incidents of customary easements And when any incident of any

customary easement is such rules, Chapter shall affect such incident.
 • This chapter described The incidents may be varied or dispensed with by
any contract between the dominant owners and servient heritages or by any
instrument or decree by the easement was created.

there may be incidents of customary easements which do not confirm to the

rules in this chapter. customary easement of a more extensive nature than
that indicated in the chapter may be acquired, e.g., a custom to cut wood and
sell them for purposes unconnected with the dominant heritage.

Bar to use unconnected with enjoyment

Section 21 of The Indian Easements Act, 1882.

An easement must not be used for any purpose not connected with the enjoyment
of the dominant heritage.

This principle is itself which says that an easement is a right which the dominant
owner possesses for the beneficial enjoyment of his land.

For example, if a person has an easement of quarrying stones from another’s

quarry he may take as much stone as is required for repairing or building the
dominant heritage but not for selling. Its not used for enjoyment purpose of
dominant heritage.

Exercise of easement
Section 22 of The Indian Easements Act, 1882.

The dominant owner must exercise his right in the mode which is least onerous to
the servient owner; and, (Confinement of exercise of easement:) 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.
Principle

the ordinary rights of property and hence imposes a burden on the servient tenant
but the easement is restricted, it is, therefore, desirable that such burden shall be
made as light as possible provided no interference with the reasonable enjoyment
of the easement is caused by the servient owner.

servient owner rights

right of easement must not be exercised in such a way as to unnecessarily interfere

with the exercise of the rights of property by the servient owner. The servient
owner may do anything on his tenement provided it does not interfere with the
reasonable exercise of his right by the dominant owner.

For example, if A has a right of way to his house along a pathway belonging to B,
B may construct a verandah projecting over that pathway provided by so doing he
does not substantially obstruct A’s right of way.

The servient owner has the right to set out the line of way to be followed by the
dominant owner, and if he fails to set it out, the dominant owner must take the
nearest way he can. He cannot claim the right of passage in a tortuous and indirect
course between the terminal

alter mode of enjoyment Rights

Section 23 of The Indian Easements Act, 1882.

section 22, 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 the dominant owner does not thereby impose any
additional burden on the servient heritage.

Principle

An easement is not lost by a slight variation in the enjoyment of it. To hold that
any the slightest variation in the enjoyment of an easement would destroy it, would
virtually do away with all easements, as by the effect of natural causes some
change must, in the course of time, naturally take place.

It has been held that the height of projecting eaves can be raised provided an
increased burden is not thrown on the servient heritage. A right to the flow of
water or to pollute a stream is not necessarily affected by the conversion of the
dominant mill into a different kind of mill, or by using a different material for the
manufacture of goods.

Case laws

SYED HAMID HOSSAIN v. GERVAIN

In this case no Right of easement to discharge polluted water from the drain
pipe of one's house or property to the canal passing through another person's
land.

AIR 2017 NOC 720

The defendant had a right to discharge water from his thatched roof to the
plaintiff’s roof. He pulled down his house and built a three-storied house with
spouts on his roof to discharge water on the plaintiff’s land. Held that the burden
on the plaintiff’s land was increased within the meaning of section 23
MULIA BHAVA V. SANDAR DAVA
The height of projecting eaves can be raised provided an increased burden is not
thrown on the servient heritage.
JAAULAL MULLICK V, GOPAL CHANDRA MUKERJI
The Dominant owner no changed t in the purpose for which a way is used, or in the
direction of the way, but in the system by which such a purpose is effected, is not
necessarily such a material aggravation of the easement as to entitle the servient
owner to its discontinuance. Thus an easement of way used for the purpose of
cleaning the privies of the dominant owner is not materially aggravated by a
change of system which causes such privies to be cleansed daily instead of less
frequently as before.

GAJADHAR V. KISHORI LAL

a person, having easement of light, pulls down his house and rebuilds it, he is
entitled to the easements acquired if he is getting through the new aperture the
same or substantially the same part of the light which passed through the old
aperture.
ABDUL GHAFOOR V. ABDUL MAJID
The right of easement a person acquires a outlet of water which is of a limited
kind, he cannot be allowed to increase the extent or alter the mode of enjoyment so
as to cast an additional burden on the servient heritage . “if a man has a right to
send clean water through my drain and chooses to send dirty water, every particle
of the water ought to be stopped, because it is all dirty“.

NEWCOMEN V. COULSON

Where the defendants, who were found to have a right of letting the rain-water
flow generally from their roof on to the plaintiff's land, collected all such water and
discharged it on to the plaintiff’s land through one spout : Held that this amounted
to an alteration of the easement rendering it more onerous on the plaintiff’s land
and that the original condition of the roof should be restored.

acts to secure enjoyment of rights

Section 24 of The Indian Easements Act, 1882.

The dominant owner is entitled, as against the 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.

Principle

It is justice and good reason and an undoubted principle of law that when a man
has an easement granted to him he should have the right to do all such acts as are
necessary to make the grant effective. Such rights are also called accessory
easements. They are analogous to easements of necessity and arise in the same
manner, i.e., by presumption of law.
The right extends to entering upon the servient heritage and putting the subject of
the easement into a suitable condition for the exercise and full enjoyment of the
right, even though it was not so at the time of the grant and has never been in that
state before.

Important Case Laws

1. If repairs can be done from the dominant tenement, the servient owner will not
be restrained from using his land so as to prevent repair from the servient
tenement.8)
A right to go on a neighbour’s, land to pick the fruit of overhanging trees is not
accessory to the right to have such trees overhanging. It is a distinct right. 9)
As already seen, the right to have trees overhanging neighbour’s land is not a right
which can be acquired by prescription. Such a right cannot also be acquired as a
customary easement. Liability for expenses necessary for preservation of
easement

Section 25 of The Indian Easements Act, 1882.

The expenses incurred in constructing works, or making repairs, or doing any other
act necessary for the use or preservation of an easement, must be defrayed by the
dominant owner.

The servient owner cannot be required to do any positive acts for the benefit of the
dominant owner10) and therefore if any acts are required to be done they must be
done by the dominant owner and expenses also must be borne by him.

Liability for damage from want of repair

Section 26 of The Indian Easements Act, 1882.

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 heritage arising from
the want of repair of such work.

This section casts a duty on the dominant owner to see that no damage is done to
the servient owner by want of repairs of any artificial work by means of which the
easement is enjoyed or to make amends for it.
Servient owner not bound to do anything
Section 27 of The Indian Easements Act, 1882.

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.
as to obstruct the passage to As windows of that quantity of light.

Nature of servient owner’s duty The obligation resting on the servient owner is
of a negative character, that is, he must not do any act tending to restrict the
easement or to render its exercise less convenient but consistently with such duty
he may use the servient heritage in any way he pleases. The same principle is
embodied in the maxim that no easement could consist in faciendo i.e., the essence
of the easement could never consist in something to be done by the owner of the
servient estate.

Extent of easements
Section 28 of The Indian Easements Act, 1882.

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.

Extent of easement of necessity

The extent of an easement of necessity is measured with the necessity existing at

the time when such easement arose and not that necessity which may subsequently.
arise, say, on account of an extension of the dominant heritage. For instance, A, the
owner of a house, sells a factory built on adjoining land. B is entitled as against A
to pollute the air, when necessary, with smoke and vapours from the factory but if
B enlarges his works and greater quantity of vapours and smoke are given out B
will not acquire aright to pollute the air with smoke and vapours to such greater
extent.

Extent of other easements

The extent and mode of enjoyment of easements other than those of necessity
depends on the question what was the intention of the parties and for what purpose
the right was imposed or acquired.

Clause (a): Thus where a plaintiff claimed a right of way for cattle but only proved
a carriage way, it was held that a carriage way did not necessarily include a way
for cattle. A user of way for agricultural purposes does not authorize the use for the
purpose of carting building materials to a place on which houses were to be
erected.

Clause (b): That is, if an easement of light or air is granted by a will or other non-
testamentary instrument the extent of the right is the quantity of light or air that
entered the opening on the death of the testator or the date of the instrument. It
should he remembered that the extent of the right mentioned here will be taken
only in the absence of the intention of the parties and the purpose for which the
right was imposed. As to what would amount to the disturbance of such right vide
comments on section 33
Clause (c): As to whether the right to receive light or air to the extent mentioned in
this para is an absolute or a qualified right of the dominant owner as also what
would amount to the disturbance of such right vide comments on section 33.

Clause (d): The object of the rule is that if the amount of the pollution has
increased during the prescriptive period the dominant owner is not entitled to that
degree of pollution which he caused at the end of the prescriptive period because
he did not enjoy to that extent during the whole of the prescriptive period. The
amount of pollution which continued throughout the period must be the least.

According to Explanation IV to section 15, in the case of an easement to pollute

water, the period of twenty years begins when the pollution first prejudices
perceptibly the servient heritage. The same rule ought to apply in the case of an
easement to pollute air.

Clause (e): “By the accustomed user of the right,” that is, the manner in, and the
extent to, which the right has been exercised during the prescriptive period. For
instance, a man cannot make use of a way during the prescriptive period for a
particular purpose, and then when he has acquired an easement claim to use the
way for an entirely different purpose. But the number of occasions on which the
right may be enjoyed need not be limited to the number of occasions on which it
can be shown to have been enjoyed and the right can be exercised at all convenient
times for the purpose for which it was granted or acquired.

IMPORTANT CASE LAWS

1. The combined effect of sections 28 and 35 is that the mere circumstance that a
plaintiff has a prescriptive right to the quantity of light which has entered
certain opening of his house will not give him a cause of action against the
servient owner for disturbance caused to that right, but he must prove that such
disturbance had either actually interfered with his physical comfort or prevented
him from carrying on his accustomed business as beneficially as he had done
before.
2. The owner of the servient tenement could reduce the access of light and air to
the window of a dominant owner provided he did not so diminish it as to make
it less than what the owner of the dominant tenement required for the ordinary
purposes of inhabitancy or business according to the ordinary notions of
mankind having regard to the locality and surroundings.
3. The easement of necessity arises when there is piece meal sale or transfer of
property, leaving a particular portion landlocked and without access. Such
 easement of necessity cannot arise on the land of a third party, as in the present
case.
Increase of easement
Section 29 of The Indian Easements Act, 1882.

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.

Important Case Laws

1. The pulling down of the old house and the building of a new one in its place
does not of itself extinguish the easement; the real question to be determined is
whether by reason of the alteration a different and greater burden has been
imposed on the servient tenement.
2. No alteration in the plan of the building, either by advancing or setting back the
building, will destroy the right to light and air so long as the owner of the
dominant tenement can show that he is using through the new apertures in the
wall of the new building the same or substantial part of the same light which
passed through the old apertures in the old building.
Partition of dominant heritage
Section 30 of The Indian Easements Act, 1882.

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 on 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.
Obstruction in case of excessive user
Section 31 of The Indian Easements Act, 1882.

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.

The servient owner may obstruct excessive user

For instance, if a dominant owner is entitled to draw fifty buckets of water daily
from the servient owner’s well and he attempts to draw more he may be obstructed
; or if a dominant owner is entitled to discharge only rainwater from his drain and
attempts to flow sullage water through it when there is no rain the servient owner
may stop the drain.

Such user cannot be obstructed, etc.

In this section the principle laid down by the House of Lords in Tapling v.
Jones has been recognised. There it was held that if the owner of ancient lights
opens new windows or enlarges his old ones, the adjoining proprietor may so build
as to obstruct the new openings ; provided he can do so without obstructing the old
ones ; otherwise he may not obstruct at all. The ruling is based on the principle that
the opening of a new window or an enlarging of an old one is an exercise of the
right of ownership and an innocent act in the eye of the law which cannot destroy
the existing right of the dominant owner to receive light through the old aperture or
apertures, the adjoining owner is at liberty to build up against the new or enlarged
openings but not so as to shut out the old openings.

1)
Syed Hamid Hossain v. Gervain
2)
AIR 2017 NOC 720
3)
Mulia Bhava v. Sandar Dava
4)
Jaaulal Mullick V, Gopal Chandra Mukerji
5)
Gajadhar v. Kishori Lal
6)
Abdul Ghafoor v. Abdul Majid
7)
Newcomen v. Coulson
8)
Himat Lal v. Bhikhabhai
9)
Naik Parshotam Ghela v. Gandarp Fatelal Gokuldas
10)
Section. 27
11)
Framji Shapurji v. Framji Edulji
12)
Gur Prasad Mukerji v. Bishan Dut, 1924 All., 816
13)
2019 KHC 4431
14)
Caspers v. Raj Kumar