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by any channel or other work constructed at the public expense for irrigation 1 ;

() 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.

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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

of 1877, repealed in the territories to which this Act extends. All sections

26 and 27. 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, * As to the rights saved by this be asserted against the Government clause see 7 Mad. &. 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.

owners.

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

certain land possesses, as such, for the beneficial enjoyment of defined.

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 heritages and pier thereof the dominant owner; the land on which the

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’includes 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

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Gale, 12.
? The two lands must belong to dif-
ferent persons.

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

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

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

a

his neighbour B's land, and to take water for the purposes of his household out of a spring therein. This is an easement ?.

(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 tank, 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 4.

(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 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 easeinents. 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 ?. aquae haustur: see Race v. Ward, Hamilton's Hedaya, iv. 146: the ease

ment of one set of villagers to emThough here the beneficial enjoy. bark and disembark passengers on the ment is a mere amenity. The right landing-place in the village of another is called aquae ductus.

set, 6 Cal. 613. : An exclusive right to take fish s Because it is not annexed to a out of certain tidal waters may be dominant heritage. See Rangeley v. acquired by such enjoyment as would Midland Ry. Co., L. R., 3 Ch.App: 310, suffice for the acquisition of an ease- per Lord Cairns L.J. It is what Eng. ment against the Crown, 8 Mad. 467: lish lawyers call 'a right in gross,' and see Suth. 1864, Civ. R. 243. like a private right of way not an

• Similar servitudes recognised by nexed to a dominant heritage. That Roman law are the right of burning a leaseholder cannot dedicate a right lime, or of digging sand, on a neigh- of way to the public for a term of bour's land. Other easements which years was held in Wood v. Veal, 5 B. have been recognised by the Indian & Ald. 454: but see 11 Ch. Div. 327. Courts are the easement to compel one • If the duty is annexed to A's land to receive upon his roof the rain-water it is a reallast ; see infra, sec. 27. dropping or flowing from the dominant ? Code Civil, arts 688, 689, from owner's roof (stillicidii vel fuminis

which these definitions are taken ; recipiendi), 3. Bom. 174, and see

Gale on Easements, 5th ed. p. 25.

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4 E. & B. 702.

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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 easement.

(b) 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

or other limited period, or subject to periodical interruption, or time or on 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 followrestrictive of 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 () 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.

a

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 s 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. Kent, 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. Darey, 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

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from noise.

of air.

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

air. (c) The right of every owner of a house that his physical Freedom comfort shall not be interfered with materially and unreasonably 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.

(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 5.

(f) The right of every owner of land that, within his own Purity of limits, the water which naturally 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.

(1) 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 a

natural 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;

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water.

a

streams.

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1 Goddard, 44.

? Womersley v. Church, 17 L. T., ? This right was recognised by the N. S. 190, explained in 26 Chan. Div. High Court N. W. P. in an unreported 204: Wood v. Waud, 3 Exch. 748: case, Mahadeo Misser v.Phaikoo Singh, Hoogkinson v. Ennor, 4 B. & S. 229. No. 1143 of 1878, 28th Nov. 1878. Ballard v. Tomlinson, 26 Ch. Div.

* The owner of a house cannot by 194. As to subterraneous channels, prescription claim to be entitled to see Acton v. Blundell, 12 M.&W.324. ihe free lateral passage of a current 8 i Mad. 335 : Marshall, 506 : of wind, 2 Hyde, 125.

Popplewell v. Hodkinson, L. R., 4 Ex. Gale, 319. The corresponding 248 : Kent, Comm. iii. 440, note. This easement, to construct balconies or right may be qualified or limited by eaves over another's land, is called ius the right mentioned in (h), Goddard, proiiciendi.

89. 5 Mayor of Birmingham v. Allen, L. R., 6 I. A. 33: 4 Cal. 637 (P.C.). 46 L. J., Ch. 673. See Dalton v. The right to water flowing to a man's Angus, L. R., 6 App. Ca. 740: Lemaitre land through an artificial watercourse v. Davis, 19 Ch. Div. 281. It would constructed on his neighbour's land not, apparently, be lawful for the ser: must rest on some grant or arrangevient owner to substitute artificial ment, either proved or presumed, from props for the natural means of sup- or with the owners of the land from port. Secus in England according to which the water is artificially aght, Goddard, 52, 53.

or on some other legal origin, ibid., • There is no such natural right in and see 6 Suth. Civ. R. 99. connexion with artificial streams, 10 The right to the enjoyment of Goddard, 303.

the water of a river belongs to the VOL. I.

3 M

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