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Discuss and Right in respect of water in Easements?
Easements in water: The nature of the right conferred by the acquisition of an easement of those natural rights in water which form part of the ordinary incidents of property.
Easements relating to flow of water in natural watercourses: A watercourse may be defined as a body of a water flowing in a channel between banks more or less defined. Riparian rights, or rights of proprietors of land on the banks of streams, arise, strictly speaking not from the ownership of the bed over which the water flows, but from the right of access which such proprietors have to the water. (1876) 1 App. Cas. 662. Where there is a defined channel and the water can get though the channel it must be allowed to sprawl on the adjoining land. But if there is no defined channel from which the water can flow then the land which is naturally situate at a lower level has to take the burden of the flow of water. AIR 1961 Punj. 414. The riparian owners have no right to enjoy waters of a natural stream for purposes of jrrigation basing the same on immemorial user under a lost grant. AIR 1960 Bom. 490.
Easements relating to the flow of water in artificial watercourses: The right to discharge water over the land of others, or to receive the discharge of water from the lands of others by means of watercourses artificially created, is not a natural right of property, but may be the subject matter of contract between the parties, (1909) 1 Ch. 427, or by established, like any other easement, either by express grant, or by prescription which presumes a grant. Such right may be created for the sole benefit of the person discharging the water, or for the sole benefit of the person receiving the discharge, or for the mutual benefit of both. (1909) 1 Ch. 427.
Easements relating to taking or conducting water from, or over the servient tenement: Easements relating to taking water from the servient tenement confer a right on the dominant owner to go on the servient tenement, and take away water from a spring, a well, or a tank for use in his house on his land. And easements relating to conducting water from or over, the servient tenement confer a right on the dominant owner to conduct water from, or over the servient tenement though some means of transit for use in own house or on his land.
Easements relating to the discharge of rainwater upon adjoining land: Under this class fall easements, which can be acquired by user, or in any other manner, of –
(i) discharging rain-water from a wall or roof of a house, or
(ii) discharging water through a drain on to another’s land.
The right to discharge rain-water upon adjoining land may be either—
(i) the right to the dripping of rain-water from the projection of wall or eves, or
(ii) the right to discharge rain-water in a flow.
The servient owner rests under no objection to keep his land open for the reception of the water by not building on it. He can build on his land as he pleases, but he must make necessary arrangement to receive the water discharge and carry it away. ILR 20 Bom. 788.
According to the case of Husn Bano v. Zaka Ali Khan, 1983 CLC 1348, The applicant not showing from approved building plan that it was permitted to extend drainage lines beyond plot to place where easement was claimed. The applicant enjoying benefit of interim orders prevented the respondent from raising construction over disputed plot for last ten years during which no steps were taken for disposal of the suit. Balance of convenience lay in favour of respondent. The revision petition was without merit and was dismissed.
Easements affecting the natural condition of water by pollution or otherwise: The owner of every land has a natural right to the purity of water passing by or over, or percolating through his land. This right can be restricted by the acquisition of easement entitling adjoining landowners to pollute such water, not only in the case of streams flowing in defined channels, but also in the case of water percolating though the soil. As regards the existence of natural rights, and consequently the acquisition of easements, the flow of percolating water is governed by different principles from the purity water. Percolating water below the surface of the earth in a common reservoir or source in which nobody has any property but of which every one, as far as he can, has the right of appropriating the whole. But the right to appropriate gives no right to pollute. (1885). 39 Ch. D 115.