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Published : December 28, 2010 | Author : sujay_ilnu
Category : Civil Laws | Total Views : 6291 | Unrated

  
sujay_ilnu
Sujay Dixit, BA.LL.B(Hons in Corporate Law) Institute of Law,Nirma University
 

Easement of Restrictive Rights

An easement is a right which the owner or the 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 not his own. An easement is the right to use the real property of another without possessing it. Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond.

Characteristics of easement –
1) There must be dominant and a servient tenement;
2) The easement must accommodate the dominant tenement.
3) The right of easement must be possessed for the beneficial enjoyment of the dominant tenement ;
4) Dominant and servient owners must be different persons;
5) The right should entitle the dominant owner to do and continue to do something , or to prevent and continue to prevent something being done, in or upon, or in respect of servient tenement; and
6) That something must be of certain or well defined character and be capable of forming the subject matter of grant.

Easement Restrictive Of Certain Rights
Definition
Sec 7 of the Indian Easements Act, 1882 contains Easements restrictive of certain rights. Easements are restrictions of one or other of the following rights:

a) Exclusive right of enjoyment- The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.

b) Rights to advantages arising from situation-The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

Meaning

Restrictive easements are also called "negative easements," as their "use" is normally prohibitive, such as a common "non-vehicular access" easement as shown along a main thoroughfare where the governmental entity needs to restrict access. Therefore a restrictive easement is a condition placed on land by its owner or by government that in some way limits its use, usually regarding the types of structures which may be built there or what may be done with the ground itself. For instance, if a leased piece of land is not precluded by zoning laws (probably because it is not in a township) from having people inhabit it, and the government feels that for some reason living there would be especially unsafe, it may place a restrictive easement on the property stating that no one may live there. Restrictive easements are also frequently placed on wetlands (i.e., a conservation easement) to prevent them from being destroyed by development.[1]

Historic Preservation Easement
Another type of restrictive easement is Historic Preservation easement in which the owner of a historic structure agrees not to change specified historic elements of the facade. The primary difference between location preservation ordinances and historic preservation easements is that local ordinances are discretionary and can be removed and a historic preservation easement runs with the property forever. The value of easements imposed on historic properties already protected by local ordinances has recently been the subject of discussion by some people who have claimed that “where the subject property is located in a local historic district in which there are existing restrictions, regulations and controls, the terms of the easement are substantially redundant.” Easement-encumbered properties within local historic districts should sell at a penalty relative to unencumbered properties in such districts because the easement typically imposes stricter controls than those contained in the usual preservation ordinance. Easements often prohibit changes in property use or changes to significant architectural features while ordinances may permit such changes, subject to review and approval by a board of architectural review. Further, unlike preservation ordinances, the easement typically contains no relief for "economic hardship" commonly found in governmental regulation of land use. Easements are granted in perpetuity while historic district ordinances and local zoning practices change over time to reflect the dynamics of a changing political and/or economic interests of a community. An easement on a historic urban property is generally intended to preserve and conserve the historic, architectural, scenic and cultural values of a certified historic structure. In the case of properties located in registered historic districts, the easement will also protect the historic district through limitations on uses that might jeopardize the architectural scale, style and sense of cultural identity of the district. The easement does this by restricting alteration and modification of the property in ways that would change its historic appearance or remove or replace historic building fabric.[2]

Natural rights and easements:
Natural rights though resembling easements in some respect, are clearly distinguishable from them. The essential condition between easement and natural rights appears to lie in that is that easements are acquired restrictions of the complete rights of property or to put in another way, acquired rights abstracted from the ownership of one man and added to the ownership of another ,whereas natural rights are themselves part of the complete rights of ownership, belonging to the ordinary incidents of property and are ipso facto enforceable in law. Natural rights are themselves subject to restriction at the instance of easements. Section 7 of the Indian Easement Act classifies the rights which are so capable of restriction.[3]

Below are the illustrations to the rights-
Owner of the land adjoining the public street has got a right to access at every point where his land adjoins Public Street:
Neither the Government nor the Municipality or any local body has got any right to put up any obstruction over the public street so as to prevent it from having any access to the adjoining land. It has been repeatedly held that the owner of the land adjoining the public street has got a right of access at every point where his land adjoins public street. In view of the above ratio the fencing of an iron fence put up between the land of the petitioner and that of the suit cart track is illegal and on that ground alone the petitioners are entitled to an order of injunction as prayed for[4].

Owners right to enjoy limited by Municipal Act:
Under the Bombay Municipal Corporation Act (iii of 1888), the Bombay Municipal Corporation has power to enter upon lands belonging to private owners , to make connection between their main pipes and to lay the pipes forming connection through or under such lands , even without the owners permission , provided reasonable notice is given to them.[5]

Owners right to build any structure on his land:
Parties may build whatever structure they please on their land, i.e., a Hindu temple, by the side of a mosque, provided that they do not interfere with the free enjoyment of the neighbor’s property.[6]The general rule of law is that the owner of one piece of land has a right to it in the natural course of user; unless, in doing so, he interferes with some right created either by law or by contract.[7] This has been uniformly followed by the courts in India as evident from the decisions in Gopalkrishna Panicker v. Thirunakkara Devasworn[8].

Right of owner to build a ridge on his land:
A person has a natural right, as owner of land, to raise a ridge on his own land, adjoining a highway, so as to prevent water flowing from such highway “into his garden ;and the Municipality will be guilty of trespass and liable for damages, if it removes the ridge so put up. An injunction may be granted restraining such illegal act.[9]

Easement of discharging water:
A right of easement to allow the water from the plaintiff’s mori and roof to fall on the defendant’s land will not entitle the plaintiff to claim that the land shall be kept open and unbuilt. The defendant can build making necessary arrangements to receive the water from the mori and roof and to carry it away.[10]

Easement of discharging smoke: Building on the servient tenement:
An injunction to restrain the servient owner from building on his land so as to interfere with the right of easement to discharge smoke over such land may be granted.[11]

Magistrate may make an order to prevent riot-
Any person is entitled to establish a market on his own land, and the owner of a neighbouring market has no right of the suit for the loss which may ensue from the establishment of the new market. This right is subject to the order of the Magistrate to prevent riot,etc. [12]

Fundamental position as the right to build-
So far as the right to build is concerned, the fundamental position is that every person is entitled to build right up to the limits of his own property. In doing so , must not infringed the right of the owner of adjoining property. But these rights have first to be acquired. If they are not acquired then the fundamental position remains. If the fundamental position is that a man is entitled to right upon the limit of his own property, then the mere fact that he exercises that right cannot be regarded as an actionable nuisance. The decision cited in Cawashah Bomanji Parakh v. Profulla Nath Rudra.[13]

Natural right of passage arising out of the location of plots:
Natural rights are rights in rem ,that is enforceable against all who may violate them,and they are either affirmative, as rights to do something ,or a negative,as rights which every owner of immoveable property has, that his neighbor shall not disturb the natural conditions under which he enjoys his property.[14]Sections 7(b) of the Indian Easement Act deals with rights to advantages arising out of situations have been dealt with. A set of statutory illustrations have been provided under the section. None, however deals with a right of passage, Bramwell, L.J., in the case of Bryant v. Lefever[15] , observed:

“it is to have all natural incidents and advantages , as nature would produce them; there is a right to the light and heat that would come ,to all the rain that would fall to all the wind that would flow ; aright that the rain , which would pass over the land , should not be stopped and made to fall on it ; a right that the wind should not be checked , but should be able to escape freely; and it were possible that these rights interfered with one having no right , no doubt an action would lie. But these natural rights are subject to the right of the adjoining owners , who , for the benefit of the community , have and must have rights in relation to the use and the enjoyment of their property that qualify and interfere with those of their neighbours’ rights to use their property in various ways in which property is lawfully and commonly used.”

Whether it is necessary to prove damage in an action by a lower owner to restrain higher owner from diverting water:
In Ah Li v. U. San Baw[16], Baguley, j.,observed:“The Lower Appellate Court has quoted a dictum in Kaw La v. Maung Ke[17], in which it is said: “In order to support an action by one riparian owner to restrain another from diverting the water beyond his riparian tenement it is not necessary that the plaintiff should proved that he has suffered any damage.”

Right of riparian owners-Removal of a bund.-To entitle a person for the removal of an embankment, constructed in a channel on defendant’s own land , there must be an actual infringement of the plaintiff’s right, and not merely some act by which the right is denied or ,questioned.[18] Artificial water course-To riparian proprietors have the right to use water of a natural water course under certain restrictions. But these rights have no application to a water course artificially constituted, and the mere fact of riparian proprietorship gives no right whatever over such a stream.[19]

Right of action in case of pollution of water of natural stream-
In Wood v. Waud[20] ,it was held that:
“A riparian proprietor has a right to the natural stream of water flowing through the land in its natural state; and if the water be polluted by a proprietor higher up the stream,so as the occasion damage in law, though not in fact, to the first mentioned proprietor, it gives him a good cause of action against the upper proprietor unless the latter have gained a right by long enjoyment or grant.”
While in the case of riparian owners relief may be obtainable by the mere fact of pollution, even though there may not, in fact, be any sensible reduction of the comforts of the riparian owners in the case of persons, who merely have a right over the property not belonging to them damage , in fact, would have to be proved.[21]

Conclusion
An easement is a right which the owner or the 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 not his own. An easement is the right to use the real property of another without possessing it. Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond. Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights concerning flowing waters. The easement was normally for the benefit of adjoining lands, no matter who the owner was, rather than for the benefit of a specific individual.

Easements frequently arise among owners of adjoining parcels of land. Common examples of easements include the right of a property owner who has no street front to use a particular segment of a neighbor's land to gain access to the road, as well as the right of a Municipal Corporation to run a sewer line across a strip of an owner's land, which is frequently called a right of way.Easements can be conveyed from one individual to another by will, deed, or contract, which must comply with the Statute of Frauds and can be inherited pursuant to the laws of Descent and Distribution.

Restrictive easement is a condition placed on land by its owner or by government that in some way limits its use, usually regarding the types of structures which may be built there or what may be done with the ground itself.

Bibliography
1) Row, Sanjiva. The Indian Easement Act, 1882 and Licenses (Delhi LawHouse)6th Edition 2009.
2) Narayana ,P.S. Law of Easements and Licenses (Asia Law House)2007.
3) Katiyar,B.B.Law of Easement and Licenses (Universal Law Publishing Company Pvt. Ltd.)2010.
--------------------------------------------------------------------------------
[1] www.bookrags.com/Wetlands
[2] Available at www.wikipedia.org visited on 6-10-2010.
[3] Sampson v. Hoddinott ,(1857) 1 C.B.N.S. 590;Peacock on Law Relating to Easements in British India,3rd Ed., p. 25.
[4] K.V.K. Janardhanan v. State of Tamil Nadu AIR 1995 Mad. 179
[5] Kasim Ali Khan v. Brij Kishore,2 N.W.P. 182.
[7] Haji Ismail Sait v. Trustees of Harbour Madras, ILR 23 Mad. 389.
[8] A.I.R. 1959 Ker.202.
[9] Mahamahopadhyay Rangachariar v. Municipal Council of Kumbakonam ,1 M.L.T. 283.
[10] Bala Binkeshav Bapu v.Mahru Valad Nagu Patil ILR 20 Bom.831.
[11] Kashinath Dada Shimpai v. Narayan I.L.R. 22 Bom.831.
[12] Kedar Nath v. Rughonath ,6 N.W.P. 104.
[13] ILR (1941)Nag.266.
[14] The law relating to easement in British India,,by Fredrick Peacock,3rd Ed.,p.25.
[15] (1879) 4 C.P.D. 172.
[16] AIR 1939 Rang.446 at p.447.
[17] AIR 1916 L.B.30.
[18] Sharma Charu Chatterjee v .Boidonath Banerjee, 11 W.R. 2.
[19] Bhoop Narain Singh v. Kazee Sayud Keramut Ali,6 W.R. 99.
[20] (1849) 3 Exch. 748.
[21] Pakkle v. p Aiyasami Ganapathi 31 L.W. 555.

Authors contact info - articles The  author can be reached at: sujay_ilnu@legalserviceindia.com




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