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Thread: Easements arise only on severance

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    Word Icon 35px Jpg.ashx Easements arise only on severance

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    Easements arise only on severance

    Unity of ownership and severance: Easements of necessity and quasi-easements can arise only on the severance of a tenement. Unity of ownership of the dominant and servient tenements at some time or other is essential for an easement of necessity. Creation of easement but implication f law can only be implied where both the dominant and servient tenements, have been in common ownership so that the creation of such an easement may be said to be the outcome of the former relationship between the two tenements. The doctrine of the creation of easements by implication of law is founded upon an implied grant which arises in connection with some express grant or disposition of the servient or dominant tenement. According to the case of Abdual Karim v. Ali Zaman, 1993 Mld 1481 (b), nature and character of subservient tenement, viz., courtyard in front of Kothas of defendant (in which if a Charpai was placed, space left was not enough for user for pathway) should not have been overlooked nor the relations between the parties and the manner in which the use had been taking place, i,e., the permissive nature of the user had been considered by the court. Plaintiff, thus failed to prove that passing over the courtyard of the defendant was hostile and adverse to the right of the defendant and that the act of passing over had been done consciously. The severance may be affected in one of the followings ways:
    (A) By transfer inter vivos i. e., (i) sale: Sale is not always necessary, mere transfer of possession is sufficient. AIR 1941 Mad. 91. Sale may be one part or of more parts to different persons.
    (ii) Lease: Illustration (n) to section 13 shown that a lessee can acquire an easement of necessity. One tenant can acquire such an easement against another tenant. AIR 1978 Cal. 429. But a sub-lease is not a transfer which would attract the provisions of section 13. AIR 1980 Guj. 146.
    (iii) Mortgage: Section 13 applies to mortgagees in possession. AIR 1959 Ker. 408.
    (iv) Gifts: Gifts are accepted forms of transfer. A gift of a part of land may attract the operation of section 13 if the necessary conditions are present.
    (B) By will: The same consequences under section 13 follow if severance of a tenement takes effect by virtue of bequest under a will.
    (C) By partition: The effect of severance by partition of joint property is dealt with in caluses (e) and (f) of section 13.
    (D) By operation of law: The last part of section 13 provides that were immovable property passes by operation of law, the persons from and to whom it so passes, are the purposes of this section, to be deemed, respectively, the transferor and transferee.
    (1) By decree: Where severance of tenements takes place in pursuance of a decree, the question whether a certain quasi-easement would pass, depend upon the working of the decree, and it would seem that the wording of a decree would be interpreted more strictly than the wording of an instrument of conveyance. Though a quasi-easement presumed from an instrument of conveyance cannot be defeated except by specific words excluding such a quasi-easement, no quasi-easement might be allowed, where there is, in decree some express provision in behalf of the subject-matter of the quasi-easement. Where a decree following an arbitral award contained a reservation of two big has of land for road, privy, tanks, etc., it was held that the question of the rights-of-way was definitely settled in the partition suit, and, that a party cannot claim any path as a way of necessity. 59 IC 89.
    (2) By direction of court: Where Government sold a house in auction sale in execution proceedings, the right to construct a drain to discharge kitchen water was held to arise as an easement of necessity, though a quasi-easement of light and air was negatived because it was held as a finding of act that the doors were not necessary to be kept open in order that the tenements be enjoyed as at the time of severance, since before the auction sale these doors were practically always kept closed.
    (3) By adverse possession or by estoppel: The words of the easements act seem wide enough to include within the meaning of section 13 the investment of ownership either by the operation of the rule of estoppel or by adverse possession, though transfers of these sorts may be said to have occurred on account of failure or remedies caused by party’s own mistake rather than by operation of law.
    (4) By compulsory acquisition: Where Government compulsorily acquires land under the provisions of the land acquisition act, by virtue of section 16 of that act, Government takes such land freed of all easement rights. ILR 14 Cal 423. This rule, depending upon a statutory provision, is further interpreted to mean that, when such acquisition by Government causes a severance of tenements, no easement of necessity or quasi-easement can, notwithstanding the rules and principles of section 13, be presumed to arise against the part acquired by Government. AIR 1925 Lah 523.

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