View Full Version : What is “Right to support “ in easements?

04-30-2012, 08:59 PM
The right to support is an natural advantage arising out of the situation of the land as contemplated in clause (b) of section 7. Apart from variations arising from easements, every owner of land has ex jure naturae, as an incident of hiss ownership, the right to prevent such use of the neighbouring land as will without the support which the neighbouring land naturally affords to his land. In the natural state of land one part of it receives support from another, upper from lower, strata, and soil from adjacent soil, and therefore if one piece of land is conveyed so as to be divided in point of title from another contiguous to it, or (as in the case of mines) below it, the right to support passes with the land, not as an easement held by a distinct title, but as an essential incident to the land itself. The natural right to support does not entitle the owner of land to insists upon the adjoining land of his neighbour remaining in its natural state, but it is a right to have the benefit of support, which is infringed as soon as, and not until, damage is sustained in consequence of the withdrawal of that support. No action lies for erosion caused by supervening operation of the elements upon ordinary user of neighbouring land which does not of itself constitute a withdrawal of support resulting in damage. (1940) 1 KB 189. In the absence of a covenant support is not “withdrawn” by mere failure to keep a retaining wall in repair, but it is otherwise if any active step is taken to remove the support of the wall. (1946) 175 LT 279. The right to lateral support is a right recognized in law as between owners of adjacent lands. No owner of a land can treat his land in such a manner as to remove the lateral support from the adjoining land or to impair it substantially so as to cause subsidence of land of the adjoining owner. Such subsidence would be caused by an owner of land removing the soil from his land on the boundary of his property to an appreciable degree unless it be that his property is in a higher level and the soil is removed owner. Otherwise the removal of the soil would result in the caving in of the portions of the land of the adjoining owner and would infringe the right of lateral support of such owner. AIR 1983 Ker. 177. Illustration © recognizes in express terms the existence of a right of support, lateral and vertical in favour of one piece of land in its natural be safely enjoyable by the owner thereof.
(2) Support by subterranean waters: The owner of land has no natural right to the support afforded by water in or under his neighbour’s land. A man ca drain off water from his own land notwithstanding that his so doing deprives his neighbour’s land of the support which it derived from the presence of the water. If, however, the support is derived from some substance which, though partially composed of water, possesses physical attributes altogether different from water, the owner of land has a natural right to insist upon its continuance.
(3) Subadjacent support by minerals: Prima facie that owner of the surface is entitled to support from the subjacent strata, and if the owner of the minerals works them it is his duty to leave sufficient support for the surface in its natural state. The owner of the minerals may, however, substitute artificial support for the support afforded the minerals.
(4) Contracting out of: The natural right of support can be superseded if the person entitled to it covenants against it as when a person taking the surface land agrees that he is ready to accept the surface land subject to all the encumbrances resulting from the working of the mines. State may be express legislation supersede such natural rights of support is substituted for another provided the actual support continues.
(5) Subsidence and cause of action: An interference with an easement (or right) of support to (land or) buildings occurs when the support has been actually removed and a change in the state of the dominant tenement has been effected by it. There is no interference where one mode of support is substituted for another provided the actual support continues.