vustudents
05-02-2012, 12:45 AM
What do u understand about “Direction of way of necessity”
When a right to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.
Comments
Applicability: The section applies only to easements of necessity in respect of way. It does not apply to quasi-easement as a right of way not being apparent and continuous cannot be acquired as a quasi-easement under section 13. In terms the section does not apply when a right-of-way of necessity is acquired by the transferor or the legal representative of the testator under section. I3 (a) in the land transferred or bequeathed. But it will apply to an easement of way acquired in any share by a person on partition.
Scope: The meaning of the above section it self-evident. It may be noted, however, that the section gives the first option to the servient owner to demarcate the path to be used by the dominant owner as a way of necessity. In making demarcation the servient owner has to see that the path so demarcated is reasonable convention for the dominant owner how has use to it. But if the servient owner neglects his duty of demarcating the path, the dominant owner is not without a remedy. The dominant owner himself has then the right of demarcating the path. It is hardly necessary to add that this section has no bearing on the question of the extent of an easement of necessity, or the question of an extinction of an easement of necessity, or the question of an extinction of an easement of necessity the former of which is governed by Sec. 28, and the latter of which is governed by section 41.This section only deals with the contingency when an easement of necessity happens to be a way. It would seem that even if there is a way in use during unity of ownership, this way would not necessarily be a way of necessity on severance but that another path may be selected by the servient owner in accordance with the provision of this section or that if he neglects or refuses to do so, the dominant owner may select or demarcate another path.
Way of necessity destroyed by superior force: If a way of necessity once fixed is by superior force destroyed, the provisions of section 45 would enable another way to be demarcated under section 14.
When a right to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.
Comments
Applicability: The section applies only to easements of necessity in respect of way. It does not apply to quasi-easement as a right of way not being apparent and continuous cannot be acquired as a quasi-easement under section 13. In terms the section does not apply when a right-of-way of necessity is acquired by the transferor or the legal representative of the testator under section. I3 (a) in the land transferred or bequeathed. But it will apply to an easement of way acquired in any share by a person on partition.
Scope: The meaning of the above section it self-evident. It may be noted, however, that the section gives the first option to the servient owner to demarcate the path to be used by the dominant owner as a way of necessity. In making demarcation the servient owner has to see that the path so demarcated is reasonable convention for the dominant owner how has use to it. But if the servient owner neglects his duty of demarcating the path, the dominant owner is not without a remedy. The dominant owner himself has then the right of demarcating the path. It is hardly necessary to add that this section has no bearing on the question of the extent of an easement of necessity, or the question of an extinction of an easement of necessity, or the question of an extinction of an easement of necessity the former of which is governed by Sec. 28, and the latter of which is governed by section 41.This section only deals with the contingency when an easement of necessity happens to be a way. It would seem that even if there is a way in use during unity of ownership, this way would not necessarily be a way of necessity on severance but that another path may be selected by the servient owner in accordance with the provision of this section or that if he neglects or refuses to do so, the dominant owner may select or demarcate another path.
Way of necessity destroyed by superior force: If a way of necessity once fixed is by superior force destroyed, the provisions of section 45 would enable another way to be demarcated under section 14.