( ACT NO. V Of 1882 )
[ 17th February, 1882 ]
An Act to define and amend the Law relating to Easements and Licenses.
Preamble
WHEREAS it is expedient to define and amend the law relating to easements and licenses;
It is hereby enacted as follows:-
PRELIMINARY
Short title1. This Act may be called the Easements Act, 1882.
Extent1[1A. This Act shall extend to the whole of Bangladesh.]
CommencementIt shall come into force on the first day of July, 1882.
Savings2. Nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from-
(a) any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation;
(b) any customary or other right (not being a license) 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.
Construction of certain references to Act IX of 19083. All references in any Act or Regulation to sections 26 and 27 of the 2[Limitation Act, 1908, shall] be read as made to sections 15 and 16 of this Act.
CHAPTER I
OF EASEMENTS GENERALLY
“Easement” defined4. An easement is a right which the owner or 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.
Dominant and servient heritages and ownersThe land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier 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: 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.
(b) 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.
(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.
(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 water course running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement.
Continuous and discontinuous, apparent and non-apparent, easements5. Easements are either continuous or discontinuous, apparent or non-apparent.
A continuous easement is one whose enjoyment is, or may be, continual without the act of man.
A discontinuous easement is one that needs the act of man 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.
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 for limited time or on condition6. An easement may be permanent, or for a term of years or other limited period, or subject to periodical interruption, or exercisable only at a certain place, or at certain times, or between certain hours, or for a particular purpose, or on condition 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 restrictive of certain rights7. Easements are restrictions of one or other of the following rights (namely):-
(a)Exclusive right to enjoy(a) The exclusive right of every owner of immoveable 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(b) The right of every owner of immoveable property (subject to any law for the time being in force) to enjoy without 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.
(b) The right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.
(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibrations caused by any other person.
(d) The right of every owner of land to so much light and air as pass vertically thereto.
(e) The right of every owner of land that such land, in its 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 limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons.
(g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.
(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a 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; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner’s limit without material alteration in quantity or temperature.
(i) The right of every owner of upper land that water naturally rising in, or falling, of such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.
(j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land and for the purposes of any manufactory situate thereon: Provided that he does not thereby cause material injury to other like owners.
Explanation.-A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.
CHAPTER II
THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS
Who may impose easements8. An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.
Illustrations
(a) A is tenant of B’s land under a lease for an unexpired term of twenty years, and has power to transfer his interest under the lease. A may impose an easement on the land to continue during the time that the lease exists or for any shorter period.
(b) A is tenant for his life of certain land with remainder to B absolutely. A cannot, unless with B’s consent, impose an easement thereon which will continue after the determination of his life-interest.
(c) A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an easement on the land or any part thereof.
(d) A and B are lessees of the same lessor, A of a field X for a term of five years, and B of a field Y for a term of ten years. A’s interest under his lease is transferable; B’s is not. A may impose on X, in favour of B, a right of way terminable with A’s lease.
Servient owners9. Subject to the provisions of section 8, a servient owner may impose on the servient heritage any easement that does not lessen the utility of the existing easement. But he cannot, without the consent of the dominant owner, impose an easement on the servient heritage which would lessen such utility.
Illustrations
(a) A has, in respect of his mill, a right to the uninterrupted flow thereto from sunrise to noon of the water of B’s stream. B may grant to C the right to divert the water of the stream from noon to sunset: Provided that A’s supply is not thereby diminished.
(b) A has, in respect of his house, a right of way over B’s land. B may grant to C, as the owner of a neighbouring farm, the right to feed his cattle on the grass growing on the way: Provided that A’s right of way is not thereby obstructed.
Lessor and mortgagor10. Subject to the provisions of section 8, a lessor may impose on the property leased, any easement that does not derogate from the rights of the lessee as such, and a mortgagor may impose, on the property mortgaged, any easement that does not render the security insufficient. But a lessor or mortgagor cannot, without the consent of the lessee or mortgagee, impose any other easement on such property, unless it be to take effect on the termination of the lease or the redemption of the mortgage.
Explanation.-A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.
Lessee11. No lessee or other person having a derivative interest may impose on the property held by him as such an easement to take effect after the expiration of his own interest, or in derogation of the right of the lessor or the superior proprietor.
Who may acquire easements12. An easement may be acquired by the owner of the immoveable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.
One of two or more co-owners of immoveable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
No lessee of immoveable property can acquire, for the beneficial enjoyment of other immoveable property of his own, an easement in or over the property comprised in his lease.
Easements of necessity and quasi easements13. Where one person transfers or bequeaths immoveable property to another,-
(a) if an easement in other immoveable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immoveable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,-
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.
Where immoveable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
Illustrations
(a) A sells B a field then used for agricultural purposes only. It is in accessible except by passing over A’s adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A’s adjoining land to the field sold.
(b) A, the owner of two fields sells one to B, and retains the other. The field retained was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to B. A is entitled to a right of way, for agricultural purposes only, over B’s field to the field retained.
(c) A sells B a house with windows overlooking A’s land, which A retains. The light which passes over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.
(d) A sells B a house with windows overlooking A’s land. The light passing over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A’s hands.
(e) A is the owner of a house and adjoining land. The house has windows overlooking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.
(f) A is the owner of a house and adjoining land. The house has windows overlooking the land. A, retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.
(g) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.
(h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z, B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect.
(i) A, the owner of two adjoining buildings, sells one to B, retaining the other. B is entitled to a right to lateral support form A’s building, and A is entitled to a right to lateral support from B’s building.
(j) A, the owner of two adjoining buildings, sells one to B and the other to C. C is entitled to lateral support from B’s building, and B is entitled to lateral support form C’s building.
(k) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of lateral and subjacent support form A’s land as is necessary for the safety of the house.
(l) Under the Land Acquisition Act, 1870, a Railway Company compulsorily acquires a portion of B’s land for the purpose of making a siding. The Company is entitled to such amount of lateral support from B’s adjoining land as is essential for the safety of the siding.
(m) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amount of vertical support form B’s portion as is essential for the safety of the upper room.
(n) A lets a house and grounds to B for a particular business. B has not access to them other than by crossing A’s land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds.
Direction of way of necessity14. When a right to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner.
When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.
Acquisition by prescription15. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and where support from one person’s land or things affixed thereto has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation I.-Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II.-Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
Explanation III.-Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within meaning of this section.
Explanation IV.-In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words “twenty years” the words “sixty years” were substituted.
Illustrations
(a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862, to 1st January, 1882. The plaintiff is entitled to judgment.
(b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed “as an easement” for twenty years.
(c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.
Exclusion in favour of reversioner of servient heritage16. Provided that, when any land upon, over or from which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation or the said last-mentioned period of twenty years, in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land.
A sues for a declaration that he is entitled to a right of way over B’s land. A proves that he has enjoyed the right for twenty five years; but B shows that during ten of these years C had a life-interest in the land; that on C’s death B became entitled to the land; and that within two years after C’s death he contested A’s claim to the right. The suit must be dismissed, as A, with reference to the provisions of this section, has only proved enjoyment for fifteen years.
Rights which cannot be acquired by prescription17. Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights.
None of the following rights can be so acquired:-
(a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed;
(b) a right to the free passage of light or air to an open space of ground;
(c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise;
(d) a right to underground water not passing in a defined channel.
Customary easements18. An easement may be acquired in virtue of a local custom. Such easements are called customary easements.
Illustrations
(a) By the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. A, having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom.
(b) By the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbour’s privacy. A builds a house in the town near B’s house. A thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of A’s house which are ordinarily excluded from observation, and B acquires a like easement with respect to A’s house.
Transfer of dominant heritage passes easement19. Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place.
Illustration
A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues.