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Thread: What is the Introductory of easement?

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    Word Icon 35px Jpg.ashx What is the Introductory of easement?

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    What is the Introductory of easement?

    History of Easements Law : Easements Act, 1882, which comprises of Easements Law of Pakistan is based in English Law of Survitudes. The British Rules enacted Easements Act on principles of English Law of Servitudes as applied to undivided country in 1882. after Partition, the Easements Act, 1882, like all other laws existing in undivided country were made part of Law of Pakistan through Pakistan (Provisional Constitution) Order, 1947. decision of English Courts relating to law of Survitudes, of Local Courts relating to Easements Act from 1882 to 1947 and of Pakistan Courts from 1947 onward would be relevant for understanding various provisions contained in the Easements Acts.
    An easement: It is a right which the owner of occupier of a certain land possesses as such for the beneficial enjoyment of that land to do and continue to do something or to prevent and continue to prevent something being down in, or upon, or in respect of, certain other land not his own. It includes “profits a prendre.” In Pakistan the term “easement” is not used in the restricted sense as in England.
    (1) land includes things permanently attached to the earth.
    (2) Beneficial enjoyment includes possible convenience, remote advantage and even a mere amenity.
    (3) “Do something” includes removal and appropriation by the dominant owner for the beneficial enjoyment of the dominant heritage of any part of the soil of the servient heritage or anything growing thereon.
    Easements are restrictions on one or other of the following two rights, viz.:
    (i) the exclusive right of every owner of immovable property to enjoy and dispose of the same, its products and accessions;
    (ii) the right of every owner of immovable property to enjoy without distyrbance by another the natural advantages arising from its situation, the right to light and, air, the right to support, riparian rights, the right against nuisance by noise or by bad smell, the right of the owner of higher land to let his ordinary surface water flow on the adjoining land on lower level. The rights above enumerated are called natural rights: and curtailments from certain natural rights can consititute easements.
    Easential features of easement right: Easement right is singular and peculiar when examined with other rights available in Pakistan. Main features of easement right are following:
    (1) It is annexed, appended and appurtenant to property.
    (2) It is incorporeal in nature.
    (3) It is transferable under Section 8, Transfer of Property Act, 1882 and heritable under succession Act, 1925.
    (4) It includes accessory rights u/s. 24 to secure full enjoyment of easement.
    (5) It is a benefit for dominant heritage and burden for servient heritage.
    (6) It is fractional right substracted from ownership right of servient owner.
    (7) It justifies commission of tort of private nuisance and can be used as a defence.
    (8) It is affirmative ( to do something), negative, (prevent doing something) and destructive (to remove and appropriate)
    (9) It can be acquired by grant, prescription, custom, necessity and acquiescence.
    (10) It can be claimed u/s. 33 by owner of any interest in dominant heritage.
    (11) It can be acquired u/s. 12 by owners, lessor or mortgagor.
    (12) Under section 17, Easement Act, it is restrictive of ownership rights of servient owner.
    (13) Acquiescence certain easement right and pro vides defence.
    (14) It can be revived after extinction.
    (15) It is valuable as its existence may add to value of dominant and devalue servient heritage.
    Dominant and servient heritage: The land for the beneficial enjoyment of which the right exists is the dominant heritage; and the land on which the liability is imposed is the servient heritage.
    Classification of easement: Following are the classifications of easements:
    (1) Continuous and discontinuous: It is said to be continuous if the enjoyment thereof is continued without the act of a man, e.g., a right to receive light from windows; it is said to be discontinuous when it needs the act of man for its enjoyment, e.g., a right of way over another’s land.
    (2) Apparent and non-apparent: An apparent easement is one, the existence of which is shown by some permanent sign which would be visible to a competent person on a careful inspection, e.g., a right pass water by drink; if it has no sign it is said to be non-apparent, e.g., a right annexed to one house to prevent the neighbour from building on his own land.

    (3) Permanent of easement: It may even be for a limited period or subject to periodical interruption or exercisable only at a certain place or at certain times or between certain hours.

    Imposition of easement: It can be imposed by anyone in the circumstance in which and the extent to which he may transfer his interest in the property—the servient heritage—e.g., a tenant can create one that will continue during the period of his lease: but a co-owner cannot without during the consent of others; a servient owner cannot, without the consent of dominant owner, impose an easement, even on his own heritage which would lessen the utility of the existing easement; but he can do it without his consent if it dose not lessen that utility. (Ss. 8-11).
    Lessee: He cannot impose on the property leased to him any easement:--
    (1) that would take effect after the expiration of his own interest;
    (2) in derogation of the right of the lessor.
    Lessor: He can impose an easement that would not derogate from the rights of the lessee.
    Mortgagor: He can impose an easement that would not render the security insufficient; no other easement can be imposed by the lessor or mortgagor except when it is to take effect after the expiration of the lease or redemption of the mortgage.
    Who can acquire it: Following persons can acquire it:--
    (1) Owner or a person in possession on his behalf.
    (2) A co-owner of immovable property: he can acquire it for the beneficial enjoyment of the joint property.
    (3) Lessee: he cannot acquire it in or over the leased property for the beneficial enjoyment of his own property. (S. 12)
    Different modes of acquisition: An easement may be acquired—
    (1) by grant, S. 8;
    (2) by necessity, S. 13;
    (3) by quasi-necessity, S. 13;
    (4) by prescription, S. 15;
    (5) by custom, S. 18;
    (6) by transfer of a dominant heritage, S. 19;
    (7) by immemorial user;
    (8) by statute.
    Prescription: Section 15 gives the elements of prescription. The right can become absolute if it is enjoyed—
    (a) peaceably,
    (b) openly, as of right,
    (c) as an easement,
    (d) without interruption,
    (e) for 20 years (if servient tenement belongs to the Crown, for 60 years).
    The element “as of right” includes the three elements ‘peaceably’, ‘openly’ and ‘non-permissively’. But the period of enjoyment of 20 years or more must not have expired before 2 years from the date of institution of the suit. There is no “enjoyment” if it is in pursuance of an agreement. To be an “interruption” there must be an actual cessation of the enjoyment by reason of an obstruction by a person and the obstruction must have been acquiesced in for one year after the clamiant knows of it; in computing the period of 20 years the period (at least 3 years) during which another person has interest in the property is to be excluded, provided the claim is resisted by the reversioner within 3 years of the determination of that interest.
    Rights which cannot be acquired by prescription:
    Certain rights cannot be acquired by prescription, viz.—
    (1) a right which would tend to the total destruction of the servient tenement;
    (2) a right to a free passage of light or air to an open space or ground.
    (3) A right to surface water mot flowing in a stream and not permanently collected in a pond or otherwise;
    (4) A right to underground water not passing in a defined channel.
    Distinctions between prescriptive and non-prescriptive easements: Prescriptive easement are those which are acquired after expiry of 20 years period against private land and 60 years period against Government land as Prescribed by S. 15 Easements Act and S. 26, Limitation Act. Non-prescribed easements are those which are acquired before expiry of prescriptive period of 20 years and can be acquired at any time, like easements through grant, easements through implication, easements through necessity. The prescriptive and non-prescriptive easements are distinguishable from each other on the following points:-
    Prescriptive Non-prescriptive
    1. Prescriptive period must 1. It can be acquired at any
    Lapse between exercise of times and expiry of
    Rights and its conversion into prescriptive period is not
    Easement. Necessary.
    2. Acquiescence of dominant 2. Acquiescence of servient
    Owner would distinguish owner would certain non-
    Prescriptive easement. Prescriptive easement.
    3. It is absolute and 3. It is revocable and
    Indefeasible and valid for all extinguishable after expiry
    Times. Of given time.
    4. Rights mentioned in S. 17, 4. Such rights can be
    Easements Act, cannot be acquired as non-
    Easement. Prescriptive easement.
    5. Proof of uninterrupted 5. It is not required in case
    Enjoyment of right during of non-prescriptive
    Essential to create easement.
    Easement by prescription.
    Prescriptive easement compared with ownership by adverse possession: Prescriptive easement ownership by adverse possession resemble each other as both are of adverse and hostile origin and relate only to immovable property. Both are distinguishable from each other on the following points:- -
    Prescriptive easement Adverse possession
    1. It creates right in property 1. It extinguishes right of
    Of one owner against property of owner on his
    Property of another owner. Failure to file possessor
    suit within limitation time.
    2. Right is created after 20 2. Remedy to seek
    Years. Restoration of possession
    After dispossession is
    Extinguished after 12
    Years.
    3. Both, parties should be 3. Adverse claimant is not
    Owners or occupiers. Owner.
    4. It creates large number of 4. It extinguishes only right
    Rights over property. Of ownership of owner.
    5. It is regulated by S. 15 5. It is regulated by Section
    Easements Act. 28 and Article 142,
    Limitation Act, 1908.
    6. Possession of property not 6. Possession of property by
    Essential. Adverse claimant essential.
    Easements of necessity and quasi-easements: If a grant is implied it arises out of the intention of the grantor and the words used by him considered with reference to the state of circumstances existing at the date of the grant; in the case of a presumed grant, the grant operates not by virtue of any words used by the grant operates not by virtue of any words used by the grantor but by virtue of a legal presumption arising on the ground of necessity whether absolute or of the qualified character to be found in what are called quasi-easements. Easements of absolute necessity, e.g., way of necessity: theses arise on a severance of the tenements: the principal by which their acquisition is governed is that the law will presume an additional grant in favour of the grantee or reservation in favour of the grantor of everything necessary for the enjoyment of the dominant tenement. Even a tenant can acquire an easement of necessity as against his landlord. S. 13 of the Act says much the same, viz., if a person transfers (or if any immovable property passes by operation of law) or bequeaths immovable property to another- -
    (i) If an easement in other property of the transferor is necessary for enjoying the subject-matter of the bequest, the transferee is entitled to such an easement;
    (ii) If an easement in the subject matter of the transfer is necessary for enjoying other immovable property of the transferor, the latter is entitled to such an easement;
    (iii) Where a partition is made of the joint property of several persons, if an easement over the share of the one is necessary for enjoying the share of the other, the latter is entitled to such an easement.
    Easements above referred to are called easements of necessity. They are justified only by absolute necessity. (S. 13) There is also an easement right if the same is apparent and continuous and necessary for enjoying the said property as it was enjoyed before the transfer or partition; theses are quasi-easements; they have no legal existence during the unity of possession or ownership; they are quasi-appendant rights expanding into easements proper on a division of the tenements; they differ from easements of absolute necessity both in their character of being apparent and continuous and in the matter of their acquisition by a grantor restraining the dominant tenement. When right to a way of necessity is created under S. 13, the owner of the servient heritage is to set out the way: it must, of course, be reasonably convenient for the dominant owner; the dominant owner can set it out if the other party refuses or neglects to do so.
    Customary easement: It is one acquired in virtue of a local custom, a right of a cultivator of lands to graze his cattle on a common pasture; a right to privacy, etc. (S. 18).
    Incidents of easements: following are the incidents of easement:
    (1) It cannot be used for any purpose not connected with the enjoyment of the dominant heritage.
    (2) It must be exercised in the mode the least onerous to the servient owner; its exercise must be confined only to a determinate part of the servient tenement if it can be so done without detriment to the dominant owner; e.g., if A has right of way over field, he should enter the way at either end and not any intermediate point.
    (3) The dominant owner can alter the mode and the place of enjoyment, if he dose not thereby impose additional burden but in no case can he change his line of passage at his pleasure.
    (4) The dominant owner can do all acts necessary to secure the full enjoyment of the easement. A right to do such acts is called an accessory right, e.g., an easement to lay pipes on another’s land imparts a right to enter on that other’s land and dig it: but then it must be so done as to cause the servient owner as little inconvenience as possible; the damage caused thereby to the servient heritage must be repaired by the dominant owner.
    (5) Expenses: The dominant owner has to defray the expenses necessary for the preservation of the easement. He is liable for damage for want of repairs in case where the easement is enjoyed by means of an artificial work.
    (6) Extent of enjoyment: An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed; in case of other easements, its extent and the mode of enjoyment has to be fixed with reference to the probable intention of the parties and the purpose for which it was imposed or acquired. If there is no evidence of any such purpose or intention the rules gives in S. 28 apply, e.g.,- -
    (1) a right of way of one kind does not include that of another kind;
    (2) a right to pollute air and water; the Court looks to the extent at the commencement of the period;
    (3) a right to light and air acquired by grant; regard is to be had to the quantity that entered the window when the document took effect: if it is acquired by prescription, regard is to be had to the quantity by prescription, regard is to be had to the quantity that has been accustomed to enter window during the whole of the prescriptive period, irrespective of the purposes for which it is used, but it real quantum is determined by the limitations of the principal of Colls’ case hereinafter referred to.
    (7) The dominant owner cannot increase an easement substantially by altering or adding to it; but it can be increased by alluvion or decreased by diluvion of the dominant heritage: in other respects an easements cannot be affected by any change in the extent of the dominant or servient heritage.
    (8) If there is a partition of the dominant heritage, the easement becomes annexed to each of the shares, but not so as to increase substantially the burden on the servient tenement.
    (a) Liability of the servient owner (see above).
    (b) Mode of exercise.
    (c) Accessory rights.
    (d) Increasing easement.
    The servient owner is not bound to do anything for the benefit of the dominant heritage. He cannot do any tending to restrict the easement or tending to render the exercise of the easement less convenient. He can use his tenement in any way consistent with the enjoyment of the easement.
    Remedy for excess of user: If there is an excessive user by the dominant owner, the servient owner can obstruct the user but only on the servient heritage: but he cannot obstruct the user if the obstruction would interfere with the lawful enjoyment of an easement; thus if A has a right to the free passage of light to his windows and increases their size and number, B, the servient owner, cannot obstruct the excessive user if he cannot do so without also obstructing the passage of light to the old windows.
    [Rules laid down above in Ss. 20-31 are subject to an agreement between parties or to decrees of Courts.]
    Disturbance of easements: It is the right of every owner or occupier of the dominant heritage to enjoy the easement without disturbance by any person. If the disturbances causes substance damage to him, he may sue for compensation. He can get an injunction restraining the disturbance subject to the provisions of Ss. 52-57’ specific Relief Act. If the easement is actually disturbed he can get an injunction when compensation for such disturbance might be recovered under S. 33, and if the disturbance is only threatened, he can have an injunction when the act threatened, if performed, would necessarily disturb the easement. The dominant owner himself cannot abate the obstruction. Substantial damage ordinarily means an act that would injure the plaintiff by materially diminishing the value of his heritage or by affecting the evidence of easement. But in the case of an easement of light no damage is substantial unless it materially diminishes the value of the heritage, or unless it affects the evidence of easement, or, unless interferes materially materially with the physical comfort of the plaintiff or unless it prevents him from carrying on his accustomed business in his heritage as beneficially as he could do before. Theses are the same as the criteria laid down in the Colls, case. In case of a right air, it is sufficient if it interferes materially with the physical comfort of the plaintiff though it is not injurious to his health. In case of a right to support, actual substantial damage must be proved to have sustained by the removal of the support. But even in case of support injunction suit lies for protection against any threatened injury.
    Extinction of easements: Following are the ways by which right of easement is extinguished:- -
    (1) By the dissolution of the right of servient owner in his heritage except when it is imposed by a mortgagor under S. 10.
    (2) By the release by the dominant owner, expressly or impliedly, in whole or in part. Mere non-user is not an implied release, but it is said to be impliedly an impliedly released when the dominant owner makes any permanent alteration in his heritage of such a nature as to show that he intended to cease to enjoy the easement in further or when he expressly authorizes an act of a permanent nature to be done on the servient heritage the necessary consequence of which is to prevent its future enjoyment as an easement.
    (3) By the expiration by the servient owner in exercise of a power reserved by him.
    (4) By the termination of necessity, if it is an easement of necessity.
    (5) By the termination of necessity, if it is an easement of necessity.
    (6) By its being useless, i.e., incapable of being at any time and under any circumstance beneficial to the dominant owner.
    (7) By permanent changes in the dominant heritage, if the burden on the servient tenement is thereby increased and cannot be reduced by the latter owner without interfering with the lawful enjoyment of the easement but it would not be extinguished in spite of the changes in the easement is one of necessities or where the injury caused by the change to the servient owner is so slight that no reasonable persons would complain of it; S. 43 does not apply to cases of an easement of support.
    (8) By the permanent alteration of the servient tenement by superior force- - such that the dominant owner cannot any longer enjoy the easement, except in the case of a way of necessity.
    (9) By the (complete) destruction of either dominant or servient tenement.
    (10) By unity of ownership, i.e., when the same person becomes entitled to the absolute ownership of both the heritages.
    (11) By non-enjoyment for a period of 20 years:
    In case of a continuous easement, there must be a total cessation of the enjoyment for the unbroken period of 20 years; in case of a discontinuous one, it is enough if it is not used as such: in the one case the period begins to run from the date of obstruction or when enjoyment was rendered impossible; in the other case from the day that it was last enjoyed; if a discontinuous easement right is registered, the period or if the easement could not be enjoyed or the dominant owner did not know of it. But it is not extinguished by non-enjoyment- -
    (i) if the easement is one of necessities; or
    (ii) if the cessation is in pursuance of a contract between the two owners; or
    (iii) where one of the co-owners of the dominant heritage enjoyed it. (Ss. 37-48).
    [Note. – Accessory rights are extinguished with the easement.]
    Condition necessary for creating easement of necessity: Following conditions must be fulfilled for success claim of easement of necessity:-
    (1) There must be unity of heritage.
    (2) It must be severed in two parts.
    (3) Enjoyment of right must be necessary.
    (4) Necessary must be absolute in according with law laid down by Supreme Court in 1991 SCMR 119.
    (5) Necessary must relate to severed portion.
    (6) Necessity must be subsisting when enforcement of easement of necessity is sought.
    (7) Case must fall under clauses (a), (c) and (e) of S. 13.
    Suspension of easement: It is suspended- -
    (1) When the dominant owner becomes entitled to possession on the servient heritage for a limited interest therein; or
    (2) When the servient owner acquires such an interest in the dominant tenement.
    [When the easement is extinguished or suspended, the dominant owner has to give notice to the servient owner so as to enable him without unreasonable expense to protect the servient heritage from any damage caused by the extinction, etc.; if he fails to give notice he will be liable.] (Ss. 49-50).
    Revival of easements: Following are the instances of revival of easements:- -
    (1) If it is a suspended easement it revives when the cause of suspension is removed before the right is extinguished by 20 years’ non-enjoyment.
    (2) If it is a suspended by unity of ownership of the two tenements it is revived if the grant by which unity was produced is set aside by a decree of a Court- - except in case of an easement of necessity which is revived when the unity ceases from any cause.
    (3) If it is extinguished because of destruction of either heritage it is revived when that heritage is restored or rebuit on the same site before 20 years have expired. (S. 51).
    What is a license: It is a permission given by one person to another to do in or upon the immovable property of the grantor something which would, but for such permission, be unlawful, and provided the right does not amount to an easement.
    It differs from a lease inasmuch as- -
    (1) a lease gives an exclusive interest in the property, whereas a license does not;
    (2) a lease can be assigned to a third person, while a license cannot be;
    (3) a lessee can bring an action for trespass, a licensee cannot;
    (4) a lease is not revocable a license is.
    Who can grant it: It can be granted by anyone who can transfer his interest in the property affected by the license. It may be express or implied 9from his conduct). An agreement which purports to create an easement but is ineffectual for that purpose may operate to create a license.
    [An accessory license is that which is necessary for the enjoyment of the interest given by the grantor, e.g., A sells the trees growing on his land B. B is entitled to go on the land and take away the trees.]
    Duties of a grantor: Following are the duties of a grantor;- -
    (1) He is bound to disclose defects in the property to the license: liability is confined to such defects as are likely to be dangerous to the person or property of the licensee, and of which he is, and the licensee is not, aware.
    (2) He is not to render the property unsafe. He cannot do any act that is likely to render the property dangerous to the licensee.
    [Grantor’s own transferee is not bound by the license.]
    License when transferable and revocable: In the following ways license becomes transferable and revocable;- -
    Transferable: A license is strictly personal; it cannot be transferred by the licensee, nor exercised by his agents or sevants: but a license to attends a place of public entertainment can be transferred except when a different intention is expressed or necessarily implied.
    Revocable: It may be revoked by the grantor unless when it is coupled with a transfer of property and such transfer is in force or the licensee acting upon the license has executed a work of permanent character and incurred expenses in the execution. Revocation may be express or implied.
    When license deemed revoked: It is deemed revoked under much the same circumstances under which an easement is extinguished, viz. :
    (1) dissolution of the interest of the grantor in the property;
    (2) release by the licensee;
    (3) expiry of the period fixed;
    (4) destruction of the property;
    (5) licensee becoming owner of the property affected by the license;
    (6) when the specified purpose for which it is granted becomes impracticable or is attained or is abandoned;
    (7) the licensee ceasing to hold an office in virtue of which it was granted; and
    (8) non-enjoyment for 20 years.
    Rights of licensee: (1) On revocation: a licensee is entitled to reasonable time to leave the property and remove his goods.
    (2)On eviction before the expiry of the period fixed he can claim compensation if - -
    (i) the license was for a consideration;
    (ii) eviction is without any fault of the licensee.
    But a licensee whose license is revocable cannot get injunction even though he can get compensation.

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