vustudents
04-30-2012, 12:35 AM
apparent and non-apparent easements:
[/FONT][/B][/SIZE] 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 competent person, would be visible to him. A non-apparent easement is one that has no such sign.
llustrations
(a) A right annexed to B’s house to receive light by the windows without obstruction by his neighbour A. this is a continuous easement.
(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 acqueduct 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 B from building on his own land. This is a non-apparent easement.
Comments
Purpose of classification in section: The distinction between “continuous” and “discontinuous” easements assumes importance in the discussion of the questions relating to the acquisition and extinction of easements respectively under section 15 and 47, and the saving of quasi-easements on a transfer by sale, bequest or partition or partition under section 13. under section 15 it is provided that apart from other requisites, uninterrupted enjoyment for twenty years ending within two years next before the institution of the suit wherein the claim to which the period relates is contested is essential for the purpose of acquiring a prescriptive right of easement. In case of non-user or a discontinuous easement the court dose not presume that the enjoyment has ceased, unless the non-user is of such a nature as would be inconsistent with any theory of continuance of enjoyment. A non-user is of a nature as would be inconsistent with any theory of continuance of enjoyment. A non-user of a discontinuous easement since before two years of the suit unless coupled with such circumstances as would indicate an intention to cease enjoyment will not bar a suit under section 15. AIR 1929 All. 497. To put it more briefly cessation of user in the case of a discontinuous easement is not always inconsistent with the continuance of the enjoyment of the right. ILR 26 Cal. 593. The same is not the case in respect of continuous easement as generally by their very nature, continuous easements are not limited to occasional exercise. Under section 47, a distinction has been drawn between ‘continuous’ and ‘discontinuous’ easements for determining the date from which the period of non-enjoyment which would extinguish a right of easement begins to run. Under section 13, a quasi-easement, unless it be one of necessity, is saved only if besides fulfilling other conditions it is both apparent and continuous.
[/FONT][/B][/SIZE] 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 competent person, would be visible to him. A non-apparent easement is one that has no such sign.
llustrations
(a) A right annexed to B’s house to receive light by the windows without obstruction by his neighbour A. this is a continuous easement.
(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 acqueduct 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 B from building on his own land. This is a non-apparent easement.
Comments
Purpose of classification in section: The distinction between “continuous” and “discontinuous” easements assumes importance in the discussion of the questions relating to the acquisition and extinction of easements respectively under section 15 and 47, and the saving of quasi-easements on a transfer by sale, bequest or partition or partition under section 13. under section 15 it is provided that apart from other requisites, uninterrupted enjoyment for twenty years ending within two years next before the institution of the suit wherein the claim to which the period relates is contested is essential for the purpose of acquiring a prescriptive right of easement. In case of non-user or a discontinuous easement the court dose not presume that the enjoyment has ceased, unless the non-user is of such a nature as would be inconsistent with any theory of continuance of enjoyment. A non-user is of a nature as would be inconsistent with any theory of continuance of enjoyment. A non-user of a discontinuous easement since before two years of the suit unless coupled with such circumstances as would indicate an intention to cease enjoyment will not bar a suit under section 15. AIR 1929 All. 497. To put it more briefly cessation of user in the case of a discontinuous easement is not always inconsistent with the continuance of the enjoyment of the right. ILR 26 Cal. 593. The same is not the case in respect of continuous easement as generally by their very nature, continuous easements are not limited to occasional exercise. Under section 47, a distinction has been drawn between ‘continuous’ and ‘discontinuous’ easements for determining the date from which the period of non-enjoyment which would extinguish a right of easement begins to run. Under section 13, a quasi-easement, unless it be one of necessity, is saved only if besides fulfilling other conditions it is both apparent and continuous.