vustudents
05-01-2012, 02:25 AM
Discuss and differentiate Easements of necessity and quasi-easements?
Where one person transfers or bequeaths immovable property to another,--
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement it the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor of the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall unless a different intention is expresses or necessarily implied, be entitled to such easement.]
where a partition is made of the joint property of several persons, - -
(e) if an easement over the share of one them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are called easement of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
Illustrations
(a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A’s adjoining land or by trespassing on the land of a stranger. B is entitled to a right-of-way, for agricultural purposes only, over A’s adjoining land to the field sold.
(b) A, the owner of two fields, sell one to B, and retains the other. The field retained, was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to B. A is entitled to a right-of-way, for agricultural purposes only, over B’s field to the field retained.
(c) A sells B a house with windows overlooking A’s land, which A retains. The light which passes over A’s land to the windows is necessary for enjoying the houses as it was enjoyed when the sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.
(d) A sells B a house with windows overlooking A’s land. The light passing over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A’s hands.
(e) A is the owner of a house and adjoining land. The house has windows overlooking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.
(f) A is the owner of a house and adjoining land. The house has windows overlooking the land. A retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.
(g) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.
(h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary of enjoying Z as it was enjoyed when the sale took effect.
(i) A, the owner of two adjoining buildings sells one to B, retaining the other. B is entitled to a right to lateral support from A’s building, and A is entitled to a right to lateral support from B’s building.
(j) A, the owner of two adjoining buildings sells one to B and other to C. C is entitled to lateral support from B’s building and B is entitled to lateral support from C’s building.
(k) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of lateral and subjacent support from A’s land as is necessary for the safety of the house.
(l) Under the land acquisition act, 1894 a railway company compulsorily acquires a portion of B’s land for the purpose of making a siding. The company is entitled to such amount of lateral support from B’s adjoining land as essential for the safety of the siding.
(m) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amount of vertical support from B’s portion as is essential for the safety of the upper room.
(n) A lets a house and grounds to B, for a particular business. B has no access to them other than by crossing A’s land. B is entitled to a right-of-way over that land suitable to the business to be carried on by B in the house and grounds.
Comments
General: Section 13 deal with the acquisition of easements of necessity and quasi-easement. These easements arise on the severance of tenements. They are said to be created by implied grant. When the vendor sells a part only of his heritage so that the effect of the sale is to divide the original heritage into two parts, one part remaining with the vendor and the other part passing to the vendee, the deed of conveyance generally recites the rights and liabilities of the respective parts according to the common resolution of the vendor and vendee. However this list of rights and liabilities though sometimes very long does not always include certain rights and liabilities law would deem expedient to fix upon the parties in the absence of any specific expedient of their common intention. Such rights and liabilities historically arose in England mainly as a consequence of the doctrine that a grantor cannot derogate from his grant. The easement of necessity was justified on the legal theory that no grant could intend to alienate with is absolutely necessary. The rights and liabilities here referred to are easement rights and corresponding easement obligations. The easements in question did not exist as easement prior to the act of severance of the heritage and are brought into existence purely by the fact that the heritage is divided and constituted into two separate heritages is divided and constituted into two separate heritages and when such easement are brought into existence, they exist in favour of one newly constituted heritage and against the other newly constituted heritage. To take a concrete example, if he owner of a certain field, who irrigates his entire field by taking water from a well situated within field, sells a part of the field not containing the well, but retains the part containing the well, the question would naturally arise whether the purchaser has right to take water from the vendor’s well to irrigate his part. If the parties have settled his question by specific mention in the deed of conveyance, their common intention as so expressed must be given effect to. But if the deed of conveyance contains no reference to this point, law would grant to the purchaser of the part-heritage an easement in favour of the said part heritage to take water from the well situated in the other part-heritage retained by the vendor. According to the case of Muhammad Ramzan v. Naseer Beg, 1980 CLC 1555, the plaintiff must not only prove existence of right of easement at the time of transfer of property to him but also such right being necessary for enjoying transferred property.
Riparian rights: The abutment in bed of ravine for delivering water to bund upstream was not extending beyond middle of bed of ravine. The lower riparian could not be deprived of his natural right. The rule relating to the user and flow of water in a natural defined stream to which every riparian owner had a natural right stared. PLD 1878 Pesh. 157.
Where one person transfers or bequeaths immovable property to another,--
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement it the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor of the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall unless a different intention is expresses or necessarily implied, be entitled to such easement.]
where a partition is made of the joint property of several persons, - -
(e) if an easement over the share of one them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are called easement of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
Illustrations
(a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A’s adjoining land or by trespassing on the land of a stranger. B is entitled to a right-of-way, for agricultural purposes only, over A’s adjoining land to the field sold.
(b) A, the owner of two fields, sell one to B, and retains the other. The field retained, was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to B. A is entitled to a right-of-way, for agricultural purposes only, over B’s field to the field retained.
(c) A sells B a house with windows overlooking A’s land, which A retains. The light which passes over A’s land to the windows is necessary for enjoying the houses as it was enjoyed when the sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.
(d) A sells B a house with windows overlooking A’s land. The light passing over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A’s hands.
(e) A is the owner of a house and adjoining land. The house has windows overlooking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.
(f) A is the owner of a house and adjoining land. The house has windows overlooking the land. A retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.
(g) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.
(h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary of enjoying Z as it was enjoyed when the sale took effect.
(i) A, the owner of two adjoining buildings sells one to B, retaining the other. B is entitled to a right to lateral support from A’s building, and A is entitled to a right to lateral support from B’s building.
(j) A, the owner of two adjoining buildings sells one to B and other to C. C is entitled to lateral support from B’s building and B is entitled to lateral support from C’s building.
(k) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of lateral and subjacent support from A’s land as is necessary for the safety of the house.
(l) Under the land acquisition act, 1894 a railway company compulsorily acquires a portion of B’s land for the purpose of making a siding. The company is entitled to such amount of lateral support from B’s adjoining land as essential for the safety of the siding.
(m) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amount of vertical support from B’s portion as is essential for the safety of the upper room.
(n) A lets a house and grounds to B, for a particular business. B has no access to them other than by crossing A’s land. B is entitled to a right-of-way over that land suitable to the business to be carried on by B in the house and grounds.
Comments
General: Section 13 deal with the acquisition of easements of necessity and quasi-easement. These easements arise on the severance of tenements. They are said to be created by implied grant. When the vendor sells a part only of his heritage so that the effect of the sale is to divide the original heritage into two parts, one part remaining with the vendor and the other part passing to the vendee, the deed of conveyance generally recites the rights and liabilities of the respective parts according to the common resolution of the vendor and vendee. However this list of rights and liabilities though sometimes very long does not always include certain rights and liabilities law would deem expedient to fix upon the parties in the absence of any specific expedient of their common intention. Such rights and liabilities historically arose in England mainly as a consequence of the doctrine that a grantor cannot derogate from his grant. The easement of necessity was justified on the legal theory that no grant could intend to alienate with is absolutely necessary. The rights and liabilities here referred to are easement rights and corresponding easement obligations. The easements in question did not exist as easement prior to the act of severance of the heritage and are brought into existence purely by the fact that the heritage is divided and constituted into two separate heritages is divided and constituted into two separate heritages and when such easement are brought into existence, they exist in favour of one newly constituted heritage and against the other newly constituted heritage. To take a concrete example, if he owner of a certain field, who irrigates his entire field by taking water from a well situated within field, sells a part of the field not containing the well, but retains the part containing the well, the question would naturally arise whether the purchaser has right to take water from the vendor’s well to irrigate his part. If the parties have settled his question by specific mention in the deed of conveyance, their common intention as so expressed must be given effect to. But if the deed of conveyance contains no reference to this point, law would grant to the purchaser of the part-heritage an easement in favour of the said part heritage to take water from the well situated in the other part-heritage retained by the vendor. According to the case of Muhammad Ramzan v. Naseer Beg, 1980 CLC 1555, the plaintiff must not only prove existence of right of easement at the time of transfer of property to him but also such right being necessary for enjoying transferred property.
Riparian rights: The abutment in bed of ravine for delivering water to bund upstream was not extending beyond middle of bed of ravine. The lower riparian could not be deprived of his natural right. The rule relating to the user and flow of water in a natural defined stream to which every riparian owner had a natural right stared. PLD 1878 Pesh. 157.