Chapter V
THE EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS
37. Extinction by dissolution of right of servient owner.
37. Extinction by dissolution of right of servient owner.—When, from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished.
Exception.—Nothing in this section applies to an easement lawfully imposed by a mortgagor in accordance with Section 10.
Illustrations
(a) A transfers Sultanpur to B on condition that he does not marry C. B imposes an easement on Sultanpur. Then B marries C. B‘s interest in Sultanpur ends, and with it the easement is extinguished.
(b) A, in 1860, let Sultanpur to B for thirty years from the date of the lease. B, in 1861, imposes an easement on the land in favour of C, who enjoys the easement peaceably and openly as an easement without interruption for twenty-nine years, B‘s interest in Sultanpur then ends, and with it C‘s easement.
(c) A and B, tenants of C, have permanent transferable interests in their respective holdings. A imposes on his holding an easement to draw water from a tank for the purpose of irrigating B‘s land. B enjoys the easement for twenty years. Then A‘s rent falls into arrear and his interest is sold. B‘s easement is extinguished.
(d) A mortgages Sultanpur to B, and lawfully imposes an easement on the land in favour of C in accordance with the provisions of Section 10. The land is sold to D in satisfaction of the mortgage-debt. The easement is not thereby extinguished.
38. Extinction by release.
38. Extinction by release.—An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner.
Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage.
An easement may be released as to part only of the servient heritage.
Explanation I.—An easement is impliedly released—
(a) where the dominant owner expressly authorises an act of a permanent nature to be done on the servient heritage, the necessary consequence of which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority;
(b) where any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future.
Explanation II.—Mere non-user of an easement is not an implied release within the meaning of this section.
Illustrations
(a) A, B and C are co-owners of a house to which an easement is annexed. A, without the consent of B and C, releases the easement. This release is effectual only as against A and his legal representative.
(b) A grants B an easement over A‘s land for the beneficial enjoyment of his house. B assigns the house to C. B then purports to release the easement. The release is ineffectual.
(c) A, having the right to discharge his eavesdroppings into B‘s yard, expressly authorises B to build over this yard to a height which will interfere with the discharge. B builds accordingly. A‘s easement is extinguished to the extent of the interference.
(d) A, having an easement of light to a window, builds up that window with bricks and mortar so as to manifest an intention to abandon the easement permanently. The easement is impliedly released.
(e) A, having a projecting roof by means of which he enjoys an easement to discharge eavesdroppings on B‘s land, permanently alters the roof so as to direct the rain-water into a different channel and discharge it on C‘s land. The easement is impliedly released.
39. Extinction by revocation.
39. Extinction by revocation.—An easement is extinguished when the servient owner, in exercise of power reserved in this behalf, revokes the easement.
40. Extinction on expiration of limited period or happening of dissolving condition.
40. Extinction on expiration of limited period or happening of dissolving condition.—An easement is extinguished where it has been imposed for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfilled.
41. Extinction on termination of necessity.
41. Extinction on termination of necessity.—An easement of necessity is extinguished when the necessity comes to an end.
Illustration
A grants B a field inaccessible except by passing over A‘s adjoining land. B afterwards purchases a part of that land over which he can pass to his field. The right of way over A‘s land which B had acquired is extinguished.
42. Extinction of useless easement.
42. Extinction of useless easement.—An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner.
43. Extinction by permanent change in dominant heritage.
43. Extinction by permanent change in dominant heritage.—Where, by any permanent change in the dominant heritage, the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement, the easement is extinguished unless—
(a) it was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the easement should be used; or
(b) the injury caused to the servient owner by the change is so slight that no reasonable person would complain of it; or
(c) the easement is an easement of necessity.
Nothing in this section shall be deemed to apply to an easement entitling the dominant owner to support of the dominant heritage.
44. Extinction on permanent alteration of servient heritage by superior force.
44. Extinction on permanent alteration of servient heritage by superior force.—An easement is extinguished where the servient heritage is by superior force so permanently altered that the dominant owner can no longer enjoy such easement:
Provided that, where a way of necessity is destroyed by superior force, the dominant owner has a right to another way over the servient heritage; and the provisions of Section 14 apply to such way.
Illustrations
(a) A grants to B, as the owner of a certain house, a right to fish in a river running through A‘s land. The river changes its course permanently and runs through C‘s land. B‘s easement is extinguished.
(b) Access to a path over which A has a right of way is permanently cut off by an earthquake. A‘s right is extinguished.
45. Extinction by destruction of either heritage.
45. Extinction by destruction of either heritage.—An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
Illustration
A has a right of way over a road running along the foot of a sea-cliff. The road is washed away by a permanent encroachment of the sea. A‘s easement is extinguished.
46. Extinction by unity of ownership.
46. Extinction by unity of ownership.—An easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages.
Illustrations
(a) A, as the owner of a house, has a right of way over B‘s field. A mortgages his house, and B mortgages his field to C. Then C forecloses both mortgages and becomes thereby absolute owner of both house and field. The right of way is extinguished.
(b) The dominant owner acquires only part of the servient heritage: the easement is not extinguished, except in the case illustrated in Section 41.
(c) The servient owner acquires the dominant heritage in connection with a third person; the easement is not extinguished.
(d) The separate owners of two separate dominant heritages jointly acquire the heritage which is servient to the two separate heritages; the easements are not extinguished.
(e) The joint owners of the dominant heritage jointly acquire the servient heritage; the easement is extinguished.
(f) A single right of way exists over two servient heritages for the beneficial enjoyment of a single dominant heritage. The dominant owner acquires one only of the servient heritages. The easement is not extinguished.
(g) A has a right of way over B‘s road. B dedicates the road to the public. A‘s right of way is not extinguished.
47. Extinction by non-enjoyment.
47. Extinction by non-enjoyment.—A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.
A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.
Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner; and, in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner:
Provided that if, in the case of a discontinuous easement, the dominant owner, within such period, registers, under the Indian Registration Act, 1877 (3 of 1877)[i], a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of the registration.
Where an easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at other times, or between other hours, or for another purpose, does not prevent its extinction under this section.
The circumstance that, during the said period, no one was in possession of the servient heritage, or that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that the dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section.
An easement is not extinguished under this section—
(a) where the cessation is in pursuance of a contract between the dominant and servient owners;
(b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period; or
(c) where the easement is a necessary easement.
Where several heritages are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement.
Illustration
A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening heritage Y. Before the twenty years expire, A exercises his right of way over X. His rights of way over Y and Z are not extinguished.
48. Extinction of accessory rights.
48. Extinction of accessory rights.—When an easement is extinguished, the rights (if any) accessory thereto are also extinguished.
Illustration
A has an easement to draw water from B‘s well. As accessory thereto, he has a right of way over B‘s land to and from the well. The easement to draw water is extinguished under Section 47. The right of way is also extinguished.
49. Suspension of easement.
49. Suspension of easement.—An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage for a limited interest therein, or when the servient owner becomes entitled to possession of the dominant heritage for a limited interest therein.
50. Servient owner not entitled to require continuance.
50. Servient owner not entitled to require continuance.—The servient owner has no right to require that an easement be continued; and notwithstanding the provisions of Section 26, he is not entitled to compensation for damage caused to the servient heritage in consequence of the extinguishment or suspension of the easement, if the dominant owner has given to the servient owner such notice as will enable him, without unreasonable expense, to protect the servient heritage from such damage.
Compensation for damage caused by extinguishment or suspension.—Where such notice has not been given, the servient owner is entitled to compensation for damage caused to the servient heritage in consequence of such extinguishment or suspension.
Illustration
A, in exercise of an easement, diverts to his canal the water of B‘s stream. The diversion continues for many years, and during that time the bed of the stream partly fills up. A then abandons his easement, and restores the stream to its ancient course. B‘s land is consequently flooded. B sues A for compensation for the damage caused by the flooding. It is proved that A gave B a month’s notice of his intention to abandon the easement, and that such notice was sufficient to enable B, without unreasonable expense, to have prevented the damage. The suit must be dismissed.
51. Revival of easements.
51. Revival of easements.—An easement extinguished under Section 45 revives (a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion; (b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and (c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt upon the same site and in such a manner as not to impose a greater burden on the servient heritage.
An easement extinguished under Section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by the decree of a competent court. A necessary easement extinguished under the same section revives when the unity of ownership ceases from any other cause.
A suspended easement revives if the cause of suspension is removed before the right is extinguished under Section 47.
Illustration
A, as the absolute owner of field Y, has a right of way thither over B‘s field Z. A obtains from B a lease of Z for twenty years. The easement is suspended so long as A remains lessee of Z. But when A assigns the lease to C, or surrenders it to B, the right of way revives.
References
[i] See now the Indian Registration Act, 1908 (16 of 1908).
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