Obligor's duties, liabilities, and disabilities.

Saving of

95. The person holding property in accordance with any of the preceding sections of this chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it:

Provided that (a) where he rightfully cultivates the property or employs it in trade or business, he is entitled to reasonable remuneration for his trouble, skill and loss of time in such cultivation or employment1; and (6) where he holds the property by virtue of a contract with the person for whose benefit he holds it, or with any one through whom such person claims, he may, without the permission of the Court, buy or become lessee or mortgagee of the property or any part thereof 2.

96. Nothing contained in this chapter shall impair the rights of transferees in good faith for consideration, or create an purchasers. obligation in evasion of any law for the time being in force3.

bona fide

INTRODUCTION TO THE EASEMENTS ACT.

THIS Act, though as yet in force only in the Presidency of Madras, Coorg, and the Central Provinces, is intended to form part of the Indian Civil Code, and attempts to state, clearly and compactly, the rules relating to Easements or Servitudes, that is to say, the rights which a man may have over one house or piece of land by reason of his ownership of another. As to these rights the Indian statutory law was silent, except so far as regarded the acquisition of easements by long and continued possession, the limitation of suits for disturbing them, and the granting of injunctions to prevent such disturbance; and three of the most experienced Indian judges-Sir Michael Westropp, Mr. Justice (now Sir Louis) Jackson, and Mr. Justice Innes - had expressed their opinion that it was desirable to codify the law on the subject, which was then (to quote the Chief Justice of Bombay) 'for the most part to be found only in treatises and reports practically inaccessible to a large proportion of the legal profession in the Mufassal and to the subordinate Judges.' There was much litigation in the case of urban easements, and Mr. Elmslie, one of the Judges in the Panjab Chief Court, asserted that this was largely due to the facts that neither the people themselves, nor the majority of the Courts, understood the principles upon which such disputes should be determined. As to rural servitudes, it was stated by Mr. Crosthwaite, the present Chief Commissioner of the Central Provinces, that those who had served as Settlement officers in the North-West, and especially in Rohilkhand, would, he thought, support him in saying that the peasantry generally had been deprived of their ancient rights of pasturage, and the like, by the inability of the Courts to understand how one man could possess a right of any sort over land which belonged to another'.' And Sayyad Ahmad Khán said that the right to take fish or water from lakes or tanks often becomes the subject of litigation, and the final decision materially affects the value of the property in regard to which the easements are claimed 2.

The Act is mainly based on the law of England, which, being just, equitable, and almost free from local peculiarities, had, in

1 Abstract of the Proceedings of Council, etc., 9th Feb. 1882, p. 111.

Definition of Ease

ment.

Profits à

prendre.

many cases, been held to regulate the subject in India; but a few deviations (hereinafter specified) have been made from that law, and rules as to some matters which have not hitherto been settled by the English or Indian Courts have been adapted from the writings of modern jurists.

EASEMENTS GENERALLY.

The Act is divided into five chapters. The first chapter treats of easements generally: and opens with a definition of the term, so framed as to exclude all rights in gross, i. e. those which are not annexed to the ownership of immoveable property. The definition also indicates that the easement must be in a corporeal heritage, and that the servient owner can only be required not to do something or to suffer something to be done. The definition also requires that the easement must be of some advantage to the dominant heritage. Such advantage, it is explained, may be contingent or remote, and even a mere amenity. But there cannot, for instance, be an easement that A shall not go over a particular part of his own field, or that he shall not search for water on his own land. The heritages need not adjoin, or even be near, each other, the Act here intentionally varying from Roman and English law 2.

An explanation declares in effect that there may be an easement entitling the dominant owner to remove and appropriate for his own use, as such, any part of the soil of the servient heritage or anything growing or subsisting thereon. This, though in conformity with continental systems of jurisprudence, is in contravention of the English law, which reckons, for instance, as an easement, the right to take water from a spring on your neighbour's land, but denies that name to a right to take gravel or grass. 'It has been said,' to quote Mr. Markby, that the distinction is that the first is for convenience only, while the latter is for

See, for example, in Bombay, Calliandoss v. Cleveland, 2 Ind. Jur. O. S. 16: Ratanji H. Bottlewala v. Edalji H. Bottlewala, 8 Bom. 181. In Calcutta, Modhoosoodhun Dey v. Bissonath Dey, 15 Ben. 361: Bhuban Mohan Banerjee v. Elliot, 6 Ben. 85: Bagram v. Kettranath Karformah, 3 Ben. O. C. J. 18. In the Mufassal, Krishna Ayyan v. Vencatachella Mudali, 7 Mad. 60: Ponnusami Tevar v. Collector of Madura, 5 Mad. 6, 23,34. Mr. Justice Field in a minute

on the Bill mentioned about seventy other cases relating to easements which are to be found in the Indian law-reports from 1862 to 1882. That both the Hindú and the Mahammadan law recognised rights resembling easements, see 3 Ben. O. C. J. 37, 38, per Norman J.

2 The late Sir E. C. Bayley informed the writer that he knew of an easement to graze cattle in which the dominant was situate more than a hundred miles from the servient heritage.

profit. But this, besides being a very slender distinction, is not always observed. The right to take water is just as much an easement if the water be made into beer, and sold by the person who takes it, as if it be used by himself for domestic purposes.'

Sections 5 and 6 define, in accordance with English law, ease- Kinds of ments continuous and discontinuous, apparent and non-apparent. easements. There is no definition of easements 'affirmative' (as in the case of a right of way, ius faciendi aliquid in alieno) or 'negative' (as in the case of a right to light, ius prohibendi aliquid in alieno); for these terms do not occur in the Act.

Section 7 declares that all easements are restrictions of one or other of certain rights incidental to the ownership of immoveable property. These rights are, shortly, (1) the exclusive right of the Exclusive owner to enjoy and dispose of the property and its products, and right to enjoy. (2) his right to enjoy, without disturbance, the natural advantages Natural arising from its situation. Both these rights are, of course, subject rights. to any law for the time being in force. Illustrations show that they include the right to build on one's land in a town; the right to the enjoyment of air unpolluted; the right of house-owners that their physical comfort shall not be interfered with by noise or vibration: the right to the vertical passage of light and air; to the natural support of land by the soil of another; to the enjoyment of water unpolluted; to drain; to the uninterrupted flow of water naturally flowing in defined channels; to discharge surface-water on lower adjoining land; and, lastly, to use the water of a stream for drinking, household purposes, watering cattle, and, sub modo, for irrigation and manufactures. The section is so drawn in order not to negative any other 'natural right' (as, for example, a right to lateral access of light or air, or to the non-diminution of a supply of fish), should such be shown to exist in any part of India, and not to exclude an easement in derogation of such right. Illustration (d) to section 5 shows that an easement to restrain Privacy. interference with privacy is recognised by the Act, and is a negative easement. Such an easement, founded as it is on the oriental custom of secluding females, is of much importance in India. It is recognised generally by the countries whose system is founded on the Civil Law 1, and the Law Commissioners of 1879 thought that the decisions of the Indian High Courts adverse to such a right should not be followed by the legislature.

IMPOSITION, ACQUISITION, AND TRANSFER OF EASEMENTS. Chapter II treats of the imposition, acquisition, and transfer 1 As, for example, Scotland, Bell, Principles, § 1006.

of easements. Sections 8, 9, 10, and 11 treat of the persons capable of constituting easements, whether permanent or temporary. Provision is made for the cases of lessees, co-owners, trustees, servient owners, lessors, and mortgagors. The Act (here following a decision of the Madras High Court, but deviating from English law) does not require the express imposition of an easement to be evidenced by writing. The Act then shows who may acquire easements, allowing one of several co-owners to acquire, without the consent of the others, an easement for the benefit of the property held in co-ownership, but forbidding the lessee of any immoveable property to acquire, for the benefit of other immoveable property of his own, an easement in or over the property comprised in his lease. Nothing is said of the acquisition of an easement by estoppel of the servient owner, as, for instance, when a person having no right to certain land purports to impose an easement upon it, and afterwards acquires the land. This matter seems sufficiently provided for by the Evidence Act. Easements Sections 13 and 14 deal with easements of necessity, meaning of neces- thereby not only the rights which are absolutely necessary for enjoying property, but also apparent and continuous easements necessary for enjoying property as it was enjoyed when it was Ways of separated by grant or bequest. When the person entitled to set necessity. out a way of necessity refuses or neglects to do so, the Act empowers the dominant owner to set it out. There is no provision that such a way cannot be varied save with the consent of both dominant and servient owners, or unless the servient owner renders it impassable. Such a provision was thought opposed to Indian rural economy and convenience. The periodical fallows of parts of the same land, the sowing and growing of crops at different times, and the great temporary changes arising from the extremes of wet and dry weather make a strict adherence to the same road in all seasons often impossible.

sity.

Acquisi

tion by

In England, where a person having a house on his land, the windows of which have existed for more than twenty years, sells a portion of the land, the purchaser may erect thereon any buildings he pleases, however much they may interfere with the light coming to the vendor's windows. The Act deviates from this doctrine, which seems to rest on a doubtful dictum of Lord Holt's, and of which a late Vice-Chancellor says (2 Drew. & Sm. 360) that if carried to an extreme, it would, in some cases, produce great and startling injustice.'

The Act then deals with the important subject of the acquisition