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by any channel or other work constructed at the public expense for irrigation ;

() any customary or other right (not being a license 2) in or over immoveable property which the Government, the public or any person may possess irrespective of other immoveable property; or

(c) any right acquired, or arising out of a relation created, before this Act comes into force.

3. Sections 26 and 27 of the Indian Limitation Act, 1877, Repeal of

Act XV and the definition of easement' contained in that Act, are repealed in the territories to which this Act extends. All sections references in any Act or Regulation to the said sections, or to sections 27 and 28 of Act No. IX of 1871, shall, in such territories, be read as made to sections 15 and 16 of this Act.

of 1877,

26 and 27.

* As to the rights saved by this be asserted against the Government clause see 7 Mad. H. C.60 : 7 Bom. 211. as against a private owner of land, see That an easement in the flow of water 5 Mad. H. C. 6. through an artificial water-course may · See infra, chap. vi.

CHAPTER I.

OF EASEMENTS GENERALLY.

* Ease- 4. An easement is a right which the owner or occupier of ment' defined.

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 2 Dominant The land for the beneficial enjoyment of which the right and ser

exists is called the dominant heritage, and the owner or occuvient herit

pier thereof the dominant owner; the land on which the owners.

liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.

Explanation.--In the first and second clauses of this section, the expression ‘land' includes also things permanently attached to the earth 3: the expression beneficial enjoyment' ineludes also possible convenience, remote advantage, and even a mere amenity; and the expression '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. (a) A, as the owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoyment of the house. This is an easement

(6) A, as the owner of a certain house, has the right to go on his neighbour B's land, and to take water for the purposes of his household out of a spring therein. This is an easement ".

· Gale, 12.

? The two lands must belong to different persons. Where they become the property of the same persons, see sec. 46 infra.

3 Such as houses. But it does not include an incorporeal hereditament. Under this Act, therefore, if the owner of a right to take certain minerals

under close Y obtains a grant from the owner of an adjacent close 2 of a way over 2 as appurtenant to the right of mining, this would not create an easement. See Gale, 9, 10.

* So there may be a right of passing over (ius navigandi) a natural lake belonging to another person to one's own land or house.

(c) A, as the owner of a certain house, has the right to conduct water from B's stream to supply the fountains in the garden attached to the house. This is an easement ?.

(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C's tanks, or timber out of D's wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E's land. These are easements *.

(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement”.

(f) A is bound to cleanse a watercourse running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement 6. 5. Easements are either continuous or discontinuous, ap- Continuous

and disconparent or non-apparent.

tinuous, A continuous easement is one whose enjoyment is, or may apparent

and nonbe, continual without the act of man.

apparent, A discontinuous easement is one that needs the act of man casernents. for its enjoyment.

An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him.

A non-apparent easement is one that has no such sign ?.

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i aquae haustur: see Race v. Ward, 4 E. & B. 702

Though here the beneficial enjoyment is a mere amenity. The right is called aquae ductus.

Hamilton's Hedaya, iv. 146: the ease-
ment of one set of villagers to em-
bark and disembark passengers on the
landing-place in the village of another
set, 6 Cal. 613.

3 An exclusive right to take fish out of certain tidal waters may be acquired by such enjoyment as would suffice for the acquisition of an easement against the Crown, 8 Mad. 467: and see Suth. 1864, Civ. R. 243.

• Similar servitudes recognised by Roman law are the right of burning lime, or of digging sand, on a neighbour's land. Other easements which have been recognised by the Indian Courts are the easement to compel one to receive upon his roof the rain-water dropping or flowing from the dominant owner's roof (stillicidii vel Aluminis recipiendt), 3 Bom. 174, and see

3 Because it is not annexed to a dominant heritage. See Rangeley v. Midland Ry. Co., L. R., 3 Ch.App: 310, per Lord Cairns L.J. It is what Eng. Iish lawyers call 'a right in gross,' like a private right of way not annexed to a dominant heritage. That a leaseholder cannot dedicate a right of way to the public for a term of years was held in Wood v. Veal, 5 B. & Ald. 454 : but see 11 Ch. Div. 327.

6 If the duty is annexed to A's land it is a reallast; see infra, sec. 27.

? Code Civil, arts 688, 689, from which these definitions are taken; Gale on Easements, 5th ed. p. 25.

Illustrations. (a) A right annexed to B's house to receive light by the windows without obstruction by his neighbour A. This is a continuous easemen

(6) A right of way annexed to A's house over B's land. This is a discontinuous easement.

(c) Rights annexed to A's land to lead water thither across B's land by an aqueduct and to draw off water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matters. These are apparent easements.

(d) A right annexed to A's house to prevent B from building on

his own land. This is a non-apparent easement. Easement 6. An easement may be permanent, or for a term of years for limited time or on

or other limited period, or subject to periodical interruption, or condition. exercisable only at a certain place, or at certain times?, or

between certain hours, or for a particular purpose, or on condition 3 that it shall commence or become void or voidable on the happening of a specified event or the performance or non

performance of a specified act. Easements 7. Easements are restrictions of one or other of the followof certain ing rights (namely):rights. (a) The exclusive right of every owner of immoveable Exclusive property (subject to any law for the time being in force) to right to enjoy.

enjoy and dispose of the same and all products thereof and

accessions thereto. Rights to (6) The right of every owner of immoveable property (subadvantages

ject to any law for the time being in force) to enjoy without arising from situation. disturbance by another the natural advantages arising from

its situation.

Illustrations of the Rights above referred to. (a) The exclusive right of every owner of land in a town to build on such land“, subject to any municipal law for the time being in force.

· For example, an easement for A right of passage may be confined to a to pass and repass during the annual part of the day or to a certain place, rains, in boats, over B's land, i Suth. Rent, Comm., 13th ed., iii. 436. Civ.R. 218,col. 1, or when the crops are e.g. for agricultural purposes off the land. So the right of drawing only. water from a neighbour's well may be Roberts v. Davey, I Nev. & confined to certain hours, or a right Mann. 443 (the case of a license). of leading water may be confined to + 2 N. W. P. 1870, pp. 169, 181. the hot season (aqua aestiva), or a

2

air.

(6) The right of every owner of land that the air passing thereto Purity of shall not be unreasonably polluted by other persons ?.

(c) The right of every owner of a house that his physical Freedom comfort shall not be interfered with materially and unreasonably from noise. by noise or vibration caused by any other person ?.

(d) The right of every owner of land to so much light and air Quantity as pass vertically thereto

of air. (e) The right of every owner of land that such land, in its Support. natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.

Explanation.-Land is in its natural condition when it is not excavated and not subjected to artificial pressure ; and the 'subjacent and adjacent soil' mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.

(f) The right of every owner of land that, within his own Purity of limits, the water which naturally o passes or percolates by, over or water. through his land shall not, before so passing or percolating, be unreasonably polluted by other persons

(9) The right of every owner of land to collect and dispose Underwithin his own limits of all water under the land which does not ground pass in a defined channel and all water on its surface which does not pass in a defined channel 8.

(6) The right of every owner of land that the water of every Flow of natural stream which passes by, through or over his land in defined natural channel shall be allowed by other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature 10;

water.

natural a

streams.

8

1 Goddard, 44.

* This right was recognised by the High Court N. W. P. in an unreported case, Mahadeo Misser v.Phaikoo Singh, No. 1143 of 1878, 28th Nov. 1878.

* The owner of a house cannot by prescription claim to be entitled to the free lateral passage of a current of wind, 2 Hyde, 125.

Gale, 319. The corresponding easemnent, to construct balconies or eaves over another's land, is called ius proiiciendi.

* Mayor of Birmingham v. Allen, 46 L, J., Ch. 673. See Dalton v. Angus, L.R., 6 App. Ca. 740: Lemaitre v. Davis, 19 Ch. Div. 281. It would not, apparently, be lawful for the ser. vient owner to substitute artificial props for the natural means of support. Secus in England according to Goddard, 52, 53.

• There is no such natural right in connexion with artificial streams, Goddard, 303

VOL. I.

? Womersley v. Church, 17 L. T., N.S. 190, explained in 26 Chan. Div. 204: Wood v. Waud, 3 Exch. 748: Hodgkinson v. Ennor, 4 B. & S. 229. Ballard v. Tomlinson, 26 Ch. Div. 194. As to subterraneous channels, see Acton v. Blundell, 12 M.&W.324.

1 Mad. 335 : Marshall, 506 : Popplewell v. Hodkinson, L. R., 4 Ex, 248 : Kent, Comm. iii. 440, note. This right may be qualified or limited by the right mentioned in (h), Goddard,

9 L. R., 6 I. A. 33: 4 Cal. 637 (P.C.). The right to water flowing to a man's land through an artificial watercourse constructed on his neighbour's land must rest on some grant or arrangement, either proved or presumed, from or with the owners of the land from which the water is artificially brought, or on some other legal origin, ibid., and see 6 Suth. Civ. R. 99.

10 The right to the enjoyment of the water of a river belongs to the

89.

3 M

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