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vustudents
05-02-2012, 01:15 AM
What are “Other easements “ in law of easements
Under the third paragraph of section 15 right of easements other than those specifically mentioned in the first, second and third paragraphs ca also be acquired by prescription. Some of such rights are:
(1) Grazing: A right to graze cattle over the land of another can be established as an easement if it appertains to the ownership of a certain land under section 4 read with section 15 but the right under section 15 must be enjoyed for the statutory period of twenty years as of right and without interruption. AIR 1853 Sau. 39.
(2) Stacking manure: The right to stacking manure on waste land can be acquired in the same way any other similar right by prescription. AIR 1927 All. 115.
(3) Private nuisance: A right to create public nuisance cannot be acquired by prescription, but if a private nuisance has continuously been in existence for 20 years a prescriptive right to continue is acquired. AIR 1958 Ori. 391.
(4) Profit-a-prendre: A mere right to fish not excluding the rightful owner is a profit-a-prendre and may be acquired by 20 years uninterrupted enjoyment. AIR 1934 Pat. 420.
(5) By village community in orchard: The village community could by enjoyment more than 20 years acquire rights of easement in an orchard.
(6) repairing wall: Where the plaintiff was using the defendant’s courtyard for the purpose of repairing the southern wall of his house for over 20 years the fact was facie evidence of enjoyment as of right within the meaning of section 15.
(7) Ferry and fishery: The right to establish and maintain a ferry over the property of another is a right of easement and in order that the right should be absolute an indefeasible it is necessary that the right should be exercised as an easement and as of right for 20 years. AIR 1920 Pat. 38.
(8) Right of privacy: The plaintiffs alleged in the plaint and in their affidavit that they had been in possession of neighbouring houses for nearly 30 years. The defendant made a bare denial of this allegation in his counter affidavit with assertion that he had been in occupation of his point since 1949. The prime facie objection raised by defendant could not be sustained on ground that a bare denial of occupation of plaintiffs would not demolish their case that they had been residing in their respective houses for over 20 years. 1982 CLC 49. Easement neither pleaded nor proved. If one party opens windows it is equally open to another party to block them by raising walls. 1989 MLD 1483. In case the right of privacy of house, the burden laid on the claimant to prove its existence. The right also had to be specifically pleaded. Customary right to privacy of house was necessary to investigate, before recognizing such custom, whether essential attributes of custom existed, viz., if it was immemorial, reasonable, continued without interruption, certain in respect of its nature generally as well as in respect of locality and person alleged to be affected. The custom acquired force of law only in such cases and judicial notice of custom also could be taken in like situation. PLD 1980 SC 193. According to the case of Khatumal v. Sitaldas, 1984 CLC 3244, the customary right of easement of purdah or privacy has to be pleaded and proved by the evidence. Such custom should be specific, certain and continuous from the time immemorial. Such customary right is different from the time immemorial. Such customary right is different from easement acquired by the prescription.
Right of easement by presumption- - interruption of: Once period of prescription of right of easement commenced in terms of S. 15 of easements act, same, held, would not be interrupted unless there was some physical obstruction for prescribed period by servient owner of property. Mere verbal protest would not be an interruption in terms of Explanation II, S. 15. When a part filed a suit for claming easement right and his suit was dismissed and filed another suit for claiming same easement right, he could not add period prior to dismissal first suit as a period for computing period of prescription. Period would have to recommence from following day from date of dismissal of suit. User by dominant owner of property should be as of right and not under permission of servient owner of property. 1988 CLC 1619.
Right of easement of passage: Right of easement of passage as contemplated by S. 15, easement act, 18882, would accrue only when absolute, peaceful and open enjoyment for continuously more than 20 (twenty) years had been convincingly established. Averments in plaint showed that plaintiffs had been using the passage in question for the last 15/16 years. Plaintiffs, in evidence, however, improve version in plaint, by alleging user of passage for more then twenty years. Any party asserting right of passage must establish its continuous, open uninterrupted, peaceful enjoyment for period of more than twenty years. Mere temporary advantage, favour, facility, privilege, licence or convenience could not be equated with right by prescription. Plaintiff’s right of easement being short of prescribed period, was not established in circumstances. PLD 1993 Quetta 57 (a).