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vustudents
05-04-2012, 07:42 PM
Extinction by permanent change in dominant heritage

Where by any permanent change in the dominant heritage the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement, the easement is extinguished unless- -
(a) it was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the easement should be used; or
(b) the injury caused to the servient owner by the change is so slight that no reasonable person would complain of it; or
(c) the easement is an easement of necessity.
Nothing in this section shall be deemed to apply to an easement entiting the dominant owner to support of the dominant heritage.
Comments
General: This section is more or less complementary to section 31. Sec 31 provides that, if the excessive user of an easement is separable form the original legitimate user the servient owner may obstruct the unjustified excessive user. This section, on the other hand, provides that the easement is who is destroyed, where the excessive user is no separable from the origin legitimate user, and where such excessive user brought about by a permanent change in the dominant tenement. So roughly speaking the servient user has under section 31 the remedy of obstructing the excess of has under section 43 the remedy of regarding the easement as extinguished. However, section 43 contains the word “by any permanent change in the dominant heritage”. So that if there is a case of non-separable excessive user not brought about by a permanent change, it seems that the aggrieved party would have no remedy either under section 31 or under section 43 but could bring a suit for damages and injunction. In order that an easement may be extinguished under section 43 the following elements must be present:
(i) there must be a permanent change in the dominant tenement;
(ii) the change must materially increase the burden on the servient tenement; and
(iii) the increase in the burden must be such that it cannot be reduced by the servient owner without interference with the lawful enjoyment of the easement.
Exceptions: To the general rule in section 43 there are four exceptions. An easement will not be extinguished, even when the three elements mentioned above are present, where- -
(i) the easement was acquired without any limitation as to its extent;
(ii) the injury caused to the servient owner by the increase in under insignificant ;
(iii) the easement is one of necessity, and
(iv) the easement is a right to support.