WHAT IS CONTINUOUS EASEMENT RIGHT ?

MEANING

Generally speaking, easement refers to the property right by way of nonpossessory interest held by someone to use the facilities on a certain premise for a certain purpose without any legal entitlement.

According to Halsbury’ Laws of England, an easement is “a right annexed to land, to utilize other land of different ownership in a particular manner, or to prevent the owner of the other land from utilizing his land in a particular manner.”

Section 4 of The Indian Easements Act, 1882 defines “easement” as a right which the owner or occupier of 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 done, in or upon, or in respect of certain other land which is not his own.

The land for which the beneficial enjoyment right exists is known as the dominant heritage and the owner or occupier of such land is called the dominant owner . The land which exists for the imposition of liability is called the servient heritage and the owner or occupier of such land is called the servient owner.

The expression “land” refers to the things permanently attached to the earth. “Beneficial enjoyment” refers to the possible liberty, privilege and advantage, “to 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 or subsisting thereon.

ILLUSTRATIONS TO SECTION 4

  1. A, as the owner of a certain house has the right to collect water from B’ s pond to water the plants in the garden attached to his house. This is an easement.
  2. A allows certain part or surface of his land to be occupied for the purpose of passing and re-passing of the general public. This is not an easement.

TYPES OF EASEMENTS

According to section 5 of the Act , these are the following types of easements :-

1.Continuous Easement

2.Discontinuous Easement

3.Apparaent Easement

4.Non- apparent Easement

Now we will be discussing about continuous easement.

Section 5 of the Act states that the easement whose enjoyment is or may be continued without human intervention is called continuous easement.

Example – A has a right to receive air through window without the obstruction of his neighbour, B.

Detailed discussion on continuous easement

Continuous easement revolves around the right to do a continuous and persistent act without the necessary intervention of human act basing on artificial structure, natural construction of the servant tenement which may be obvious and permanent, as a source of enjoying it. The underlying ingredient of continuousness is the presence of situation in the disposition of the tenement requiring a persistent nature and evolving out intrinsic tenement qualities which as a consequence forms one part depending on the evolution of the other.

Thus, if the right involves prevention and continuance of prevention of an act being performed, it does not necessarily require a human intervention and is called a continuous easement.

“Act of man” : Defined

 The phraseology “act of man” used in the above mentioned definitions gives a more clear picture of the meaning of continuous easement.

To know the holistic significance of the term continuous easement, it is important to accept the core idea of “act of man” in the definition mentioned above. The act of man contemplated under the definition must be brought onto the grounds of the servient tenement during the course of the enjoyment of right. The intervening human actions brought before the ground of the servient heritage affected by the one entertaining the right is of no essential means since they do not hold an intrinsic position of the dominant owners right and are actually mere sources of enjoyment. An easement, thus may be continuous though adding to the opening of rents.

History of continuous easement coming in Indian picture

Although few English decision may provide for the age-old usage of the term ‘continuous easement,’ the meaning of it in contemporary India is quite different.

The Indian legislature borrowed the concept of continuous easement from Code Napoleon of 1804 and Gale of Easement,1839. The framers of the Code Napoleon while legislating a law for France initiated to divide servitudes into classes to shorten up their task. Thus, the classes of continuous, discontinuous, apparent and non apparent came into existence Although these concept have always existed in the society, it was troublesome to trace out the newly built up definitions and distinction between them.

Continuous servitudes are those of which the enjoyment is or may be persistent without the essentially claimed actual involvement of man; as the right to discharge water through a watercourse.

Continuous easements are enjoyed without human interventions. However English decisions amplifying continuous easements have no significance in the Indian states where the Indian Easements Act applies. But astonishingly, they have been proven good in the states where this act does not applies.

ESSENTIAL INGREDIENTS OF EASEMENT

  1. Dominant heritage– An owner or occupier must exist for a certain land where such land is called dominant heritage.
  2. Servient heritage – The owner or occupier must have a right to do and continue to do something or to prevent and continue to prevent something  done in or upon some other land. Such other land is called servient heritage.
  • Beneficial enjoyment of land -The very reason for the right of express and implied beneficial enjoyment is for the better utilization and convenience of the dominant tenement.
  • The right upon which the exercising right persists must be owned and occupied by some other person. 

CHARACTERISTIC FEATURES OF AN EASEMENT

  1. There must be two tenements, the dominant tenement which holds the right and the servient tenement on which the obligation is imposed.
  • The two distinct tenements must reside with different owners.
  • Easements are exercised for the beneficial ownership of one’s corporeal property.
  • The easement is the privilege entertained for the purpose of beneficial enjoyment of the dominant tenement which consists of corporeal property.
  • The easement must not be fanciful and should possess known and usual classification with well defined traits and subject matter.
  • The easementary imposition is drawn upon the property of the servient tenements and the owner is not personally liable for such imposition.
  • An easement does not imply an ownership of the land through exclusive use of the servient tenements.

Utility of continuous easement

The introduction of continuous assignment draws distinction between between continuous and discontinuous easement which implies the significant question of acquisition of easement under section 15 of the Act and also drives out the abandonment of easement arising under section 47 of the Act. Quasi-easement as described under section13 of the Act can be conserved only if it is determined as both apparent and continuous among other conditions.

The right of way over a defendant’s land may not be continuous. Illustration (b) to section 5 of the Act per se is a testimony to the fact as such a right of way or passage is a discontinuous one. Section 5 of the Act clearly states that easement is of four kinds, namely :- continuous or discontinuous; apparent or non-apparent. Notwithstanding to this, section 15 of the Act clearly portrays that it is not necessary that the rights can only be acquired in regard to continuous and apparent easements, while describing acquisition of easementary rights by prescription.

Relevant Case Laws

In Chintakindy Parvatamma v Lankasanyorsi , ILR 34 Mad 487 : 7 IC 575 ,the Madness High Court held that a drain coming from one land to another is an instance of continuous easement.

In Kartik Manjhi v Banamali Mukerji, AIR 1930 Pat 7:124 IC 385 ,the Patna High Court held that taking water from artificial watercourse is an example of apparent and continuous easements.

In M.Gangulu v Jagannatham , 76IC 331:AIR 1924 Mad 108  : 45 MLJ 724 , the Madras High Court observed that where the vents are closed for a temporary measure for repairing or cleaning slit as a means of convenience, it is a right of continuous easement where the land of the plaintiff is watered through vents.

Conclusion

Easement is given for specific relief on account of specific infringement in regard to the basic common rights. When an easement is created, it is the duty and right of the holder of easementary rights to hold it through he is entitled to make improvisation and alterations to the particular area concerned with his right provided the fact that he does not intervene the rights of the property owner through whom he is bestowed with the easementary right. Thus, it can be stated that this right persists for the beneficial enjoyment of the dominant heritage.

REFERENCES

I.BOOK

1.B B Katiyar , Law of Easements & License (92nd Ed, 2017)

II.INTERNET

    1. https://blog.ipleaders.in/an-overview-law-of-easements-in-india/  

     2. https://blog.ipleaders.in/an-overview-law-of-easements-in-india/  

     3. http://www.legalservicesindia.com/article/481/Easement-restrictive-of-certain-rights.html

     4. https://study.com/academy/lesson/what-is-an-easement-definition-rights.html    

III. STATUTE

INDIAN  LAW

1.The Indian Easement Act , 1882 , No.5, Acts of Parliament,1882 (India)

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