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INDIAN EASEMENTS ACT

Ministry of Law and Justice

Act nº 5 of 1882


  • Chapter 1
  • Chapter 2
  • Chapter 3
  • Chapter 4
  • Chapter 5
  • Chapter 6
  • Act nº 5 of 1882

Preamble

THE INDIAN EASEMENTS ACT, 18821

[Act, No. 5 of 1882]

[17th February, 1882]

PREAMBLE

An Act to define and amend the law relating to Easements and Licences.

whereas it is expedient to define and amend the law relating to Easements and Licences. It is hereby enacted as follows:--

1. For statement of Objects and reasons, see Gazette of India, 1880, Pt. V. p. 494; for Report of select Committee, see Gazette of India, Pt. V. p 1021; and for Proceeedings in Council, see Gazette of India, 1881, supplement pp. 687 and 766; and Gazette of India, 1882, Supplement, p. 172.


Section 1. Short title, extent and commencement

This Act may be called the Indian Easements Act, 1882.

Local extent. --it extends1to the territories respectively administered by the Governor of Madras in Council and the Chief Commissioners of the Central Provinces and Coorg.

Commencement. --And it shall come into force on the first day of July, 1882.

1. The Act was extended to-

(1) Ajmer-Merwara by notification under section 5of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1897, Pt.II. P. 1413;

(2) Bombay and U.P. by Act 8 of 1891 and continues in force, with modifications in the territory transferred to Delihi State, see the Delhi Laws Act, 1915 (7 of 1915), section And Schedule III:

(3) Whole of Madhya Pradesh by M.P. Act, 23 of 1958;

(4) Pondichery by Act 26 of 1968, section 3 and Schedule.

The Act has been repealed in its application to Bellary District by Mysore Act 14 of 1995.


Section 2. Savings

Nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from--

(a) any right of the1[Government] to regulate the collection, retention and dis­tribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation;

(b) any customary or other right (not being a licence) in or over immovable property which the1[Government], the public or any person may possess irrespective of other immovable property; or

(c) any right acquired, or arising out of a relation created, before this Act comes into force.

1. Substituted by the A.O. 1950, for "Crown".


Section 3. Construction of certain references to Act XV of 1877 and Act IX of 1871

1[3. Construction of certain references to Act XV of 1877 and Act IX of 1871

All references in any Act or Regulation to sections 26 and 27 of the Indian Limitation Act, 18772, or to sections 27 and 28 of Act No. IX of 18713, shall, in the territories to which this Act extends, be read as made to sections 15 and 16 of this Act.]

1. Substituted by Act 10 of 1914, section 2 and Schedule I, for section 3.

2. Rep. by Act 9 of 1908.

3. Rep. by Act 15 of 1877.


Chapter 1

Section 4. "Easement defined"

An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.

Dominant and servient heritages and owners.--The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.

Explanation.-- In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial en­joyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.

Illustrations

(a) A, as the owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoyment of the house. This is an easement.

(b) A, as the owner of a certain house, has the right to go on his neighbour B's land, and to take water for the purposes of his household, out of a spring therein. This is an easement.

(c) A, as the owner of a certain house, has the right to conduct water from B's stream to supply the fountain in the garden attached to the house. This is an easement.

(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C's tank, or timber out of D's wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees in E's land. These are easements.

(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement.

(f) A is bound to cleanse a water course running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement.

Section 5. Continuous and discontinuous, apparent and non-apparent easements

Easements are either continuous or discontinuous, apparent or non-apparent.

A continuous easement is one whose enjoyment is, or may be, continual without the act of man.

A discontinuous easement is one that needs the act of man for its enjoyment.

An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him.

A non-apparent easement is one that has no such sign.

Illustrations

(a) A right annexed to B's house to receive light by the windows without obstruction by his neighbour A. This is a continuous casement.

(b) A right of way annexed to A's house over B's land. This is a discontinuous easement.

(c) Rights annexed to, A's land to lead water thither across B's land by an aqueduct and to draw off water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matters. These are apparent easements.

(d) A right annexed to A's house to prevent Bfrom building on his own land. This is a non-apparent easement.

Section 6. Easement for limited time or on condition

An easement may be permanent, or for a term of years or other limited period, or subject to periodical interruption, or exercisable only at a certain place, or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence or become void or voidable on the happening of a specified event or the performance or non-performance of a specified Act.

Section 7. Easement restrictive of certain rights

Easement are restrictions of one or other of the following rights, namely:--

(a) Exclusive right to enjoy.--The exclusive right of every owner of immovable property (subject to any law for the time beingin force) to enjoy and dispose of the same and all products thereof and accessions thereto.

(b) Rights to advantages arising from situation.--The right of every owner of immovable property (subject to any law for thetime being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

Illustrations of the Rights above referred to

(a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.

(b) The right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.

(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonable by noise or vibration caused by any other person.

(d) The right of every owner of land to so much light and air as pass vertically thereto.

(e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.

Explanation.--Land is in its natural condition when it is not excavated and not subjected to artificial pressure: and the "subjacent and adjacent soil" mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.

(f) The right of every owner of land that, within his own limits, the water which naturally passes or percolates by over or through his land shall not before so passing or percolating, be unreasonably polluted by other persons.

(g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.

(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner's limits without material alteration in quantity or temperature.

(i) The right of every owner of upper land that water naturally rising in or falling on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.

(j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owner.

Explanation.--A natural stream is a stream, whether permanent or intermittent, tide or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.

Chapter 2

Section 8. Who may impose easements

An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.

Illustrations

(a) A is tenant of B's land under a lease for an unexpired term of twenty years, and has power to transfer his interest under the lease. A may impose an easement on the land to continue during the lime that the lease exists or for any shorter period.

(b) A is tenant for his life of certain land with remainder to Babsolutely. A cannot, unless with B's consent, impose an easement thereon which will continue after the determination of his life interest.

(c) A Band C are co-owners of certain land. A cannot, without the consent of Band C, impose an easement on the land or on any part thereof.

(d) A and Bare lessees of the same lessor. A of a field X for a term of five years, and Bof a field Y for a term of ten years. A's interest under his lease is transferable; B's is not. A may impose on X in favour of B, a right of way terminable with A's lease.

Section 9. Servient owners

Subject to the provisions of section 8, a servient owner may impose on the servient heritage any easement that does not lessen the utility of the existing easement. But he cannot, without the consent of the dominant owner, impose an easement on the servient heritage which would lessen such utility,

Illustrations

(a) A has in respect of his mill, a right to the uninterrupted flow thereto, from sunrise to noon, of the water of B's stream. Bmay grant to C the right to divert the water of the stream from noon to sunset, provided that A 's supply is not thereby diminished.

(b) A has in respect of his house, a right of way over B's land. Bmay grant to C, as the owner of neighbouring farm, the right to feed his cattle on the grass growing on the way: provided that A's right of way is not thereby obstructed.

Section 10. Lessor and mortgagor

Subject to the provisions of section 8, a lessor may impose, on the property leased, any easement that does not derogate from the rights of the lessee as such, and a mortgagor may impose, on the property mortgaged, any easement that does not render the security insufficient. But a lessor or mortgagor cannot, without the consent of the lessee or mortgagee, impose any other easement on such property, unless it be to take effect on the termination of the lease of the redemption of the mortgage,

Explanation.--A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of building, exceeds by one-half, the amount for the time being due on the mortgage.

Section 11. Lessee

No lessee or other person having a derivative interest may impose on the property held by him as such an easement to take effect after the expiration of his own interest, or in derogation of the right of the lessor or the superior proprietor.

Section 12. Who may acquire easements

An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.

One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.

No lessee of immovable properly can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.