View Full Version : What do you understand “Right-Of-Way” in easements?

04-29-2012, 11:32 PM
Nature of the right: A right-of-way is one of the most frequently occurring kinds of easements. When arising by grant or prescription it is a right in favour of the owner or occupier of the dominant tenement to use for the purpose of a way some part of the soil of the servient tenement. Such a right of way never amounts to a right to wander at random over the servient tenement, but is, according to common as as well as consequence of section 22 of this act a mere right to have demarcated from the servient tenement, sufficient space to be used, but not to the exclusion of the servient owner, for the purpose of passing and repassing and carrying or moving certain things according to the extent and purpose of the right-of-way as determined by the instrument of grant or habitual user. A right-of-way very often arises as an easement of necessity upon severance of tenement under sec. 13. It also arises of a quasi-easement under section 13 if it is formed and metalled on states where the act is not in force. A road to be a well-formed one, and not necessarily be a metalled one. What is necessary is that there should not be a rambling right-of-way over the entire tenement. It is a definite tract marked out and used for the purpose of making a road to be a well-formed one. AIR 1956 Pat. 463. A right-of-way also accrues as a customary right in favor of a large body of persons like the inhabitants of a village. It appurtenant, that is, for the beneficial enjoyment of a dominant tenement as for instance it would happen where the tenants of a landlord enjoy a right-of-way as appurtenant to their respective holdings over the fellow land or forest of the landlord such a right would be a customary easement under sec 18 if not appurtenant, that is, in gross, such a right would not be an easement but a mere customary right. A right-of-way can also be a public right arising by dedication actual or inferred of a certain space or road in favour of the members of the public at large. A public right-of-way is not an easement but is a mere right. Similarly no guestion of easement arises when the right claimed in a suit is a right-of-way of carts over a village road, AIR 1964 Cal. 548, or right to use a public highway for purposes of trade is not in the nature of an easement. AIR 1954 SC 728. Easement right (right-of-way) having not been acquired by prescription only other right-of-way could be claimed by way of necessity on account of absence of any other access to tenements. 1983 CLC 1348. A right-of-way over high roads is a public right-of-way. The incidents of public and customary right-of-way are discussed under sec 18.A well-considered discussion will be found in a Gale on easements, 14th edition at pages 264 and 266. Applying the general principal that every easement is a restriction of the rights of property of the party over whole lands it is exercised, the real question appears to be under the peculiar facts of each case, whether proof of a right has been given co-extensive with that amount of inconvenience sought to be imposed by the right claimed. It is obvious that in some cases, a right to drive cattle might be productive of greater inconvenience than a right to drive carts, and vice versa. It will, therefore, be for the jury, or the court acting as a jury, to infer the extent of the supposed grant from the actual amount of injury proved under all circumstances attending it. If it appeared that the way had been used for all the purpose required by the claimant, there would be strong evidence of a general right; while on the other hand proof that the party, having occasion for a particular use, had not made that use of the way in question would be almost conclusive he had not a right-of-way for that particular purpose.
(2) Right-of-way for scavengers: It has been sometimes doubted whether there could be a right-of-way for scavengers. In the case of Ramchandra v. Bholanath Hati, AIR 1929 Cal. 350, the learned judge pointed out that it was difficult to say that a right to allow sweepers to pass was a right of easement. The point was not necessary to be decided because the right claimed was negatived on the ground that even assuming that such a right could be claimed the full prescriptive period had not run. But the remarks made in the above case do not appear to be correct in view of the fact that all earlier cases decided by the various High Courts including the High Court before which the above case came up for decision, have been decided on the assumption that such a right can be claimed and acquired as an easement. ILR 45 Mad. 633. A right-of-way for the passage for scavengers exclusively can be acquired by prescription. 24 Bom. LR 298. So also a general right-of-way acquired by prescription may include a right to allow the scavengers to pass. But this depends upon the nature of user during the prescriptive period. If during the prescriptive period a scavenger also used to pass and repass for the purpose of cleaning the privy along the path in respect of which the easement of way is claimed, the said easement of way includes the right of the owner to allow the scavengers along the path. In the case of Daw Gyan v. Maung Maung, AIR 1936 Rang 58, the right of way for the sweeper to take the night-soil was allowed as a quasi-easement which sort of right has been dealt with in the easements act under clauses (b), (d) and (f) of Section 13.
(3) Right of privacy: The plaintiffs, alleged in plaint and in their affidavit to have been in possession of neighbouring houses for nearly 30 years. Defendants did not file counter affidavit specifying period during which each plaintiff had been in occupation. Case of plaintiff that they had been residing in their respective houses for over 20 years was not demolished. 1982 CLC 49.