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View Full Version : What are the Right which cannot be acquired as easements?



vustudents
04-30-2012, 12:18 AM
(1) Right to overhang branches of trees over neighbour’s land: Nobody has a right to let the branches of his tree hang over his neighbour’s land. AIR 1969 Mad. 12. It is said in case of Harishkrishna Joshi v. Shanker Vithal, ILR 19 Bom. 420, that the private nuisance caused by the overhanging branches does not create a right within the definition of easement in the country statute and that convenience to the owner of the tree always changing in extent and position in space does not at any time become so determinate that it can by any length of time be held to be enjoyed as “of right”, a matter essential under section 15 of the statute. The lordships followed the case of Lemmon v. Webb, (1894) 3 Ch. 10, and other English authorities in deciding that there cannot be a prescriptive easement to overhang anches of a tree. The case of Harishkrishn Joshi v. Shanker v Shanker Vithal, ILR 19 Bom 420, was following by the Calcutta high court in the case of Laksmi Narayana v. Taraprasanna, ILR 31 Cal. 334, wherein the roots of a tree were penetrating into and damaging the adjoining masonry building.
(2) Right to collect fruits falling on neighbour’s land form claimant’s trees: There is no right to go on a neighbour’s land in order to collect fruits falling from that part of the tree that belongs to the claimant of such a right. The Oudh Chief court while negativing such a claim, because prescription was defective, expressed a doubt whether the owner of fruits trees can acquire an easement for collecting the fruits falling on his neighbour’s land. AIR 1922 Mad. 398. But it is specifically in the Madras case of Navan Kaliayyan Gounden v. Mambattanvettu Kannan. AIR 1960 Mad. 598. and other subsequent cases that there cannot be any easement to go on another’s land to gather the produce of the branches of the trees overhanging on that other’s land who is under no obligation to allow the trees to overhang his land.
(3) Right of ornamentation and prospect: It is well-recognized in English law that there is no prescriptive right to anything which is a mere matter of delight and not a matter of necessity. This law would not doubt prevail in those parts of the country were the easements act does not apply.
(4) Using lane as public latrine: A long usage of a lane as an open latrine cannot create any recognizable right in favour of the persons as the act amounts to a public nuisance. There can be no prescription to make a public nuisance. Such persons, therefore, have no right to put any restriction on the right owners of adjoining houses to open or to keep open window on the side of the lane. AIR 1966 Raj. 123.
(5) Use of highway: The right to use a public highway for the purposes of trade is not in the nature of an easement and as such cannot be reckoned as property. AIR 1954 SC 728.
(6) Right to carry drain through common passage: As between to co-owners of a common passage under which both of them have right to lay drains to carry effluence from their respective premises, there is no question of the passage being a servient tenement in respect of any of the co-owner’s premises and as such no question of easements arises in the case. Each co-owner is entitled to make full use of the common passage owned by it jointly with the other co-owner’s premises and as such no question of easement arises in the case. Each co-owner is entitled to make full use of the common passage owned by it jointly with the other co-owner. AIR 1956 Cal. 309.
(7) Drawing water from neighbour’s well: The mere fact that one person draws water from a well situate on another person’s land does not create an easement. Under the country’s social conditions a person owning a well is deemed to be under a moral or pious obligation to allow the poor or less fortunate inhabitants of the locality to draw water from his well. In almost every street in the country the rich man’s well is used by his poor neighbours for drawing water. The law of easement was not intended to disturb this excellent social custom by giving the drawer of water from another person’s well right of easement. The presumption in view of social conditions should be that the right in all such cases is permissive and does not create an easement. The law of easement must be interpreted in the light of country’s social conditions. AIR 1963 All. 122.
(8) Projecting balcony over neighbour’s land: It has been held in the
(10) Projecting cornice: A cornice meant party for the purpose of decoration and partly for the purpose of protection was held in the case of Ratnanelu Mudaliar v. Kalandavelu Pillai, ILR 29 Mad. 511, to give rise to a proprietary right by twelve year’s adverse possession. It was also observed there that the question whether the adverse possessor acquires a right only to the space occupied by the projection or also to the space above and below depends upon the value of the possession and other circumstances of the case.
Right to commit nuisance: The right to use land or buildings in such manner as but for that right would constitute a private nuisance to other particular land or buildings of different ownership may constitute an easement. Accordingly, a person may have an easement entitling him to create upon the dominant tenement what would otherwise constitute a nuisance by, for example discharging gases, fluids, noxious odours, or coal dust, or sending smoke over his neighbour’s tenement, making noises which are so audible to the servient owner that they would, but for the easement, cause an actionable nuisance, creating vibrations and disturbances upon his tenement which, but for the easement, that person would not be allowed to create, passing smoke though the flues of the servient tenement from the fires on the dominant tenement, and discharging rain-water by a spout or from eaves upon the servient tenement.
Exercise of revisional jurisdiction: Person in immediate neighbourhood, entitled to use a local public thoroughfare, had a special cause principle being that a person of immediate vicinity or section of public who was deprive of amenity provided for that particular section may be deemed to have suffered loss without proof of special damage. Inhabitants of vicinity of thoroughfare or residents of village would be entitled to seek removal of obstruction without proving special damages. The appellate court below ignored above noted principal of law and laboured under conception of law reversed findings of trial court. Said appellate court in accepting appeal and in dismissing suit of petitioner, therefore, exercised jurisdiction illegally. The high court in exercise of revisional jurisdiction set aside judgment and the decree passed by the said appellate court in circumstances. 1988 CLC 1301.
According to the case of Husn Bano Begum v. Zaka Ali Khan, 1988 CLC 1301, the contention, challenging competence of authorities to convert public road into plot for disposal to private person not raised before the courts below was not allowed to be raised before the high court in revision.
According to the case of Abdullah v. Ahmed Khan, 1988 CLC 1301, person in immediate neighbourhood, entitled to use a local public thoroughfare, had a special cause action irrespective of fact that he had proved special damage or not. Principal being that a person of immediate vicinity or section of public who was deprived of amenity provided for that particular section may be deemed to have suffered loss without proof of special damage. Inhabitants of vicinity of thoroughfare or residents of village would be entitled to seek removal of obstruction without proving special damage. Appellate court below ignoring above-noted principal of law and labouring under misconception of law reversed findings of Trialcourt. Said appellate court in accepting appeal and in dismissing suit of petitioner, therefore, exercised jurisdiction illegally. High court in exercise of revisional jurisdiction set aside judgment and decree passed by said appellate court in circumstances.
Approbate and reprobate: According to the case of Husn Bano Begum v. Zaka Ali Khan, 1983 CLC 1348, the applicant once seeking allotment of plot and then turning round to oppose on ground of easement conversion of same plot from public use to private use by authorities. The applicant could not be permitted to approbate and reprobate in the same transaction.
Easement right, claim of: The petitioner an occupier or portion of evacuee property claimed easement right. The petitioner could not claim such right by way of suit in absence of Provincial Government, owner of building on account of mere occupation length or nature of which neither disclosed nor acceptance of which by Settlement Department even alleged. Suit, in circumstances was clearly misconceived. 1983 CLC 805.
Prescriptive easementary rights: Plaintiff claimed prescriptive easmentary rights respecting light, are and passage through and over open plot adjacent to his house. Both house and open plot were evacuee properties owned by common non-Muslim evacuee owner, but on his migration to India after independence both properties came to vest in Government of Pakistan. Both properties were allotted to plaintiff earlier but later on open plot was allotted to defendant. Strong evidence was available on file to prove that sufficient light and air was available and vacant plot of defendant was not necessary source for that. No evidence was available to the effect that plot was in use for a passage in exercise of right of easement by plaintiff. Even if it was a passage of convenience for approach to house by a sweeper only,, same would not give rise to a perfected easement for its further use. Period of sixty years was required to acquire an easmentary right against Government and twenty years against private person but plaintiff did not prescribe for either. Case neither being of acquisition of prescriptive easement nor of easement of necessity, suit for acquisition of prescriptive easmentary rights filed by plaintiff against defendant was rightly dismissed. 1993 MLD 2427.
Inchoate right: Inchoate-right, so long as such a right remains incomplete and does not ripen in easement was not protected by the law. No action lies for infringement of such right. Squatter on Government land not acquiring easement rights under law, filing suit for injunction claiming easement rights against another squatter on adjoining land. The Government (as owner of land) was a necessary party. Suit liable to dismissal for non-impleading of Government and also for not having acquired easement rights by being in possession for statutory period. PLD 1971 Kar. 701.
Catering contract: A catering agreement on Railway Trains merely confers a right to carry on business of catering in the Refreshment Rooms and on the Buffet cars. The contractions are not given any general right of occupation but only a right to use the Refreshment rooms allotted to them for the exclusive purpose of catering refreshments. This licence does not fall either within clause (a) or clause (b) of section 60 of the easements act, and therefore, it is revocable at the will of the grantor, and the revocation thereof cannot be prevented by injunction. PLD 1965 SC 83.
Pasturage: The rights of pasturage are not easements in the proper sense of the word. A right of pasturage of this nature can only be claimed on the basis of customary right attached to it, including the manner and method of its proof and even if after such proof of the custom is found to have been established, it must still be shown that it is not unreasonable before it can be treated as valid. PLD 1961 Dacca 849. Section 4 deals only with easement rights possessed by an occupier, and a trespasser on land which has not acquired any easement, cannot possess any easement right by the mere fact of his illegal occupation of land, because the prescriptive period for acquiring title to land by adverse possession. PLD 1971 Kar. 701.
Temporary injunction: Rights of plaintiffs regarding light and air in respect of their houses prima facie were already nullified by structure raised by the defendant prior to filing of suit by the plaintiff. Application for temporary injunction relating to alleged rights of light and air was infructuous. 1982 CLC 49.
Essentials for the existence of an agreement right: It is essential for the existence of an easement right that the burden of the enjoyment of the right must fall upon a tenement which is owned by a person different from the one who owns the dominant heritage. In the case in hand the wall A B belongs to the owners of the tenement of 2778 as much as to the owner of 2777, therefore neither of the two tenements inserivent or dominant to the other. AIR 1981 Delhi 118.
Existence of a right in the nature of easement: In the instant case no easement can come into existence because both the properties that is the so-called dominant tenement and the so-called servient tenement were owned or occupied by one and the same owner. Unless the properties have two different oqners, defined as a dominant owner by section 4 of the act, no right in the nature of an easement can flow. AIR 1980 Guj. 146.