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of easements by long and continued possession. Sections 15 and 16 prescrip

tion, correspond to sections 26 and 27 of the Indian Limitation Act, 1877, but with the omission of the words 'as of right' in the paragraph relating to negative easements and the addition of a provi- Right to sion that a prescriptive right to support may, by user for twenty support. years, be acquired for land with things affixed thereto, and of an explanation that suspension of the enjoyment of an easement in pursuance of a contract between the dominant and servient owners is not such an interruption as will defeat a claim by prescription. The result of omitting the words “as of right' is that actual enjoyment of light, air or support for twenty years without interruption, thus gives an absolute right?, unless, of course, the right is limited by agreement. When the heritage over which a right is claimed belongs to Government the prescriptive period is sixty, instead of twenty, years. This is the period fixed in the Limitation Act for suits brought by the Secretary of State in Council. Section 17 sets forth the limits to the acquisition of prescriptive rights. It agrees with the present law and its English prototype (when the user has continued for forty years) in making no provision for cases in which the servient owner is ignorant of the user or has been incapable of resisting it.

The Act also provides, in accordance with a decision of the House of Lords, that a right tending to the destruction of the servient heritage cannot be acquired by prescription. Section 18 abolishes prescription

. at common law, which has been held to exist in the Presidency

towns.

As an easement exists only for the beneficial enjoyment of a certain thing, it cannot be separated from that thing. Section 19, taken from the Transfer of Property Act, accordingly declares that the transfer of a dominant heritage passes the easement, unless a contrary intention appears.

INCIDENTS OF EASEMENTS.

Chapter III deals with the user, the extent, and other incidents of easements. The rules which it contains are expressly made subject to contract and the provisions of any instrument or of a decree by which an easement is imposed. As an easement exists User of only for the benefit of a certain heritage, it can be exercised only easements. in the interest of that heritage and to supply its wants. Section

1

So in England as to light under 2 & 3 Wm. IV. c. 71, s. 3.

3 Ben. 0. C.J.18, per Markby J.

2

21 accordingly declares that an easement cannot be used for any purpose unconnected with the enjoyment of the dominant heritage. As the law does not favour restrictions on rights of property, section 22 declares that an easement must be exercised in the mode least onerous to the servient owner, and allows him to confine such exercise to a determinate part of the servient heritage, when this can be done without detriment to the dominant owner! Section 23 allows, on the other hand, a corresponding privilege to the dominant owner by permitting him to alter the mode and place of enjoying his easement so long as such alteration imposes no additional burden on the servient heritage. By sections 24, 25, and 26, the dominant owner may in proper time and manner do what is necessary to secure the full enjoyment of his easement; bearing the expense of constructing or repairing necessary works, and being liable for damage arising from their disrepair. As an easement is imposed on a thing, and not on its owner, section 27 declares that the servient owner is not, as such, bound to do anything for the benefit of the dominant heritage. This rule, box. ever, like the others in the chapter, is subject to local usage saved by law, such, for example, as the Panjáb usage, that the servient owner of upper land shall in Chait break his dam so as to ensure a certain modicum of water to the dominant owner of the lower land. There is no exception, as there is in Roman law (D. 8, 2, 33), in

the case of the servitude of support to a building. Extent of Section 28 defines, in accordance with English decisions, the mode easements. in which the extent of easements is to be determined ; section 29

declares the law as to the increase of easements, including the case, noticed by Pothier?, of increase of the dominant heritage by alluvion. As easements are indivisible; as they cannot be acquired, exercised, or lost in, or for the benefit of, an ideal part of an heritage, section 30 declares that when the dominant heritage is divided, the easement becomes annexed to each of the shares, but not so as to increase substantially the burden on the servient heritage.

The chapter concludes with a declaration that the servient owner may ordinarily obstruct an excessive user of an easement (but only on the servient heritage), and may also sue for compensation or an injunction. If the excessive user cannot be obstructed without also obstructing the rightful enjoyment, the Act only allows a suit.

· So in Scotland (Bell, Principles, $ 987), and under the Prussian Land. recht.

· Euvres, ed. Bugnet, i. 313, where

the editor notes that 'le fonds, quoi. que augmenté par alluvion, est, en droit, le même fonds.'

DISTURBANCE OF EASEMENTS, Chapter IV, on the disturbance of easements, after describing the general right to undisturbed enjoyment, proceeds (sec. 33) to provide that the owner of any interest in the dominant heritage, or the occupier of the heritage, may sue for a disturbance if it has caused him substantial damage. Such damage includes the doing of any act likely to injure the plaintiff by affecting the evidence of the easement or by materially diminishing the value of the dominant heritage. As the law stands both in England and in India, a suit will lie for the disturbance of a right to light where the obstruction interferes materially with the comfort of the plaintiff. But in the case of a right to air, where there is no express con- Right to

air. tract on the subject, the obstruction, to be actionable, must amount to a nuisance (3 Ben. O. C. J. 45). It would seem that in a country like India, the right to air is entitled to at least as much favour as the right to light, and that we should not in this respect follow a law fashioned upon the wants of the inhabitants of a northern country (15 Ben. 367, 368). The Act accordingly allows a suit for the obstruction of the free passage of air where it interferes materially with the plaintiff's physical comfort, although it is not injurious to his health.

The period at which the cause of action arises when a right of support is disturbed is declared, by section 34, in accordance with the decision in Bonomi v. Backhouse, and the Indian Limitation Act, 1877, sec. 24, to be when the damage is sustained.

Cases of polluting air, and rules as to injunctions to restrain disturbances, are added by section 35 to those contained in the Specific Relief Act.

In section 36, the right to abate a wrongful obstruction of light, air, or water is disallowed. This, though a deviation from English law, will avoid the risk of riot and trespass, and is a step taken in the direction in which all modern systems of law have tended, of forbidding private persons to redress their grievances by their own act. There is, it seems, a contrary usage in the Sialkot District, but this will be saved by sec. 2, cl. (c).

EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS. Chapter V deals with the extinction, suspension, and revival of easements. It first states eleven cases in which an easement may be extinguished, as follows:

(a) by dissolution, ex causa antiqua et necessaria, of the right of the person who imposed the easement (sec. 37);

(6) by release or surrender, remissio (sec. 38);

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(c) by revocation (sec. 39);

(d) by expiration of the time for which the easement was imposed or the happening of the dissolving condition annexed thereto (section 40);

(e) in the case of an easement of necessity, when the necessity ends (section 41);

(f) when the easement becomes incapable of being under any circumstances beneficial (section 42);

(9) by alteration of the dominant heritage (section 43), except in the case of an easement of support;

(h) by alteration of the servient heritage (section 44);
(i) by destruction of either heritage (section 45);
(1) by unity of ownership, merger, confusio (section 46);
(k) by non-user, non-utendo (section 47).

In most of these cases the reason for extinction is obvious. Three, however, may need explanation. Useless restrictions of the rights of property are to be avoided, and section 42 consequently declares that an easement which, under no circumstances, can be advantageous to the dominant heritage shall cease to exist. Every easement is a right which the dominant owner would not require if he were also owner of the servient heritage. Section 46 therefore declares that an easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages. If the owner of a servitude acquires only a part of the land burdened with the servitude, or the owner of the land burdened acquires only a portion of the dominant land, the servitude is not extinguished, although it could

not have been so created ". Extinctive

The section (47) treating of extinctive prescription, i.e. the prescription. extinction by non-user of prescriptive rights and other easements,

requires fuller notice. As in the case of acquisition by prescription, the Act does not assume that a fictitious grant has been made by the servient owner, so here the Act rejects the doctrine that non-user is to be regarded merely as evidence from which a release may be implied. Rules on this difficult subject are contained in section 47. Some of them were suggested by the Digest, 8, 2, 6; others by Sintenis, Das practische gemeine Civilrecht.

The Act here draws a distinction between a continuous and a discontinuous easement, and in the case of the latter enables the dominant owner to keep it alive by registering a declaration of his intention to retain it.

· Hunter's Roman Law, 2nd edit. 414, citing Dig. 8, 1, 8, 1: Dig. 50, 17, 85, 1.

It will be seen that the same period is fixed for the loss of an easement by non-user as for its original acquisition by enjoyment ?; that this method of extinction is not confined (as seems to be the case in America) to prescriptive rights; and that no exception is made when the exercise of the easement has been prevented by force or by the theft of its subject. There is in such cases a de facto interruption of the dominant owner's quasi-possession, even though he is unaware of the obstruction or ignorant of his right. Where the dominant owner exercises, during the prescriptive period, a right less extensive than that to which he is entitled, some systems lay down that his easement shall be reduced to the right actually exercised. The Act omits all provisions on this head, partly because they are inconsistent with the indivisible nature of an easement, partly because they would obviously encourage litigation.

Nothing is said of the extinction of an easement by decree of Court?, or of extinction by estoppel of the dominant owner, as this matter seems sufficiently provided for by the Evidence Act.

The extinction of rights accessory to easements is provided for Extinction by section 48.

of accessory

rights. The suspension of easements by unity of possession is then

Suspension. dealt with by section 49. Suspension by encroachment is not recognised by the Act.

Section 50 negatives any right of the servient owner to require that an easement should continue. But the dominant owner ought not to be allowed to damage the servient tenement by suddenly or maliciously abandoning or suspending the eagement. The Act therefore declares that the servient owner is not entitled to compensation for damage caused by its extinguishment or suspension if the dominant owner has given him such notice as will enable him, without unreasonable expense, to protect the servient

itag This excellent provision was suggested by Sir C. Turner, late Chief Justice of Madras.

Lastly, section 51 deals with the revival of extinguished and Revival of suspended easements, and provides, not only for the common case easements. of a house pulled down for the purpose of re-building, but also for that of a diluviated heritage restored by alluvion. Similar provisions exist in Roman law; see Dig. 8, 2, 20, 2, and 8, 16, 14, pr.

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It was held by the High Court at Fort William, that a right of way was lost by non-user for six years, 5 Ben. Appendix 66. In Ward v. Ward

(7 Exch. 838), on the other hand, such
a right was held to survive a non-
user for more than twenty years.

· Pothier, Euvres, ed. Bugnet, i. 318.

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