Chapter III
THE INCIDENTS OF EASEMENTS
20. Rules controlled by contract or title.
20. Rules controlled by contract or title.—The rules contained in this Chapter are controlled by any contract between the dominant and servient owners relating to the servient heritage, and by the provisions of the instrument or decree, if any, by which the easement referred to was imposed.
Incidents of customary easements.—And when any incident of any customary easement in inconsistent with such rules, nothing in this Chapter shall affect such incident.
21. Bar to use unconnected with enjoyment.
21. Bar to use unconnected with enjoyment.—An easement must not be used for any purpose not connected with the enjoyment of the dominant heritage.
Illustrations
(a) A, as owner of a farm Y, has right of way over B‘s land to Y. Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y. He must not use the easement for the purpose of passing to and from Z.
(b) A, as owner of a certain house, has a right of way to and from it. For the purpose of passing to and from the house, the right may be used, not only by A, but by the members of his family, his guests, lodgers, servants, workmen, visitors and customers: for this is a purpose connected with the enjoyment of the dominant heritage. So, if A lets the house, he may use the right of way for the purpose of collecting the rent and seeing that the house is kept in repair.
22. Exercise of easement: Confinement of exercise of easement.
22. Exercise of easement: Confinement of exercise of easement.—The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
Illustrations
(a) A has a right of way over B‘s field. A must enter the way at either end and not at any intermediate point.
(b) A has a right annexed to his house to cut thatching grass in B‘s swamp. A, when exercising his easement, must cut the grass so that the plants may not be destroyed.
23. Right to alter mode of enjoyment.
23. Right to alter mode of enjoyment.—Subject to the provisions of Section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage.
Exception.—The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage.
Illustrations
(a) A, the owner of a saw-mill, has a right to a flow of water sufficient to work the mill. He may convert the saw-mill into a corn-mill; provided that it can be worked by the same amount of water.
(b) A has a right to discharge on B‘s land the rain-water from the eaves of A‘s house. This does not entitle A to advance his eaves if, by so doing, he imposes a greater burden on B‘s land.
(c) A, as the owner of a paper-mill, acquires a right to pollute a stream by pouring in the refuse-liquor produced by making in the mill paper from rags. He may pollute the stream by pouring in similar liquor produced by making in the mill paper by a new process from bamboos, provided that he does not substantially increase the amount, or injuriously change the nature, of the pollution.
(d) A, a riparian owner, acquires, as against the lower riparian owners, a prescriptive right to pollute a stream by throwing sawdust into it. This does not entitle A to pollute the stream by discharging into it poisonous liquor.
24. Right to do acts to secure enjoyment.
24. Right to do acts to secure enjoyment.—The dominant owner is entitled,[i] as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
Accessory rights.—Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.
Illustrations
(a) A has an easement to lay pipes in B‘s land to convey water to A‘s cistern. A may enter and dig the land in order to mend the pipes, but he must restore the surface to its original state.
(b) A has an easement of a drain through B‘s land. The sewer with which the drain communicates is altered. A may enter upon B‘s land and alter the drain, to adapt it to the new sewer, provided that he does not thereby impose any additional burden on B‘s land.
(c) A, as owner of a certain house, has a right of way over B‘s land. The way is out of repair, or a tree is blown down and falls across it. A may enter on B‘s land and repair the way or remove the tree from it.
(d) A, as owner of a certain field, has a right of way over B‘s land. B renders the way impassable. A may deviate from the way and pass over the adjoining land of B, provided that the deviation is reasonable.
(e) A, as owner of a certain house, has a right of way over B‘s field. A may remove rocks to make the way.
(f) A has an easement of support from B‘s wall. The wall gives way. A may enter upon B‘s land and repair the wall.
(g) A has an easement to have his land flooded by means of a dam in B‘s stream. The dam is half swept by an inundation. A may enter upon B‘s land and repair the dam.
25. Liability for expenses necessary for preservation of easement.
25. Liability for expenses necessary for preservation of easement.—The expenses incurred in constructing works, or making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant owner.
26. Liability for damage from want of repair.
26. Liability for damage from want of repair.—Where an easement is enjoyed by means of an artificial work, the dominant owner is liable to make compensation for any damage to the servient heritage arising from the want of repair of such work.[ii]
27. Servient owner not bound to do anything.
27. Servient owner not bound to do anything.—The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement: but he must not do any act tending to restrict the easement or to render its exercise less convenient.
Illustrations
(a) A, as owner of a house, has a right to lead water and send sewage through B‘s land. B is not bound, as servient owner, to clear the watercourse or scour the sewer.
(b) A grants a right of way through his land to B as owner of a field. A may feed his cattle on grass growing on the way, provided that B’s right of way is not thereby obstructed; but he must not build a wall at the end of his land so as to prevent B from going beyond it, nor must he narrow the way so as to render the exercise of the right less easy than it was at the date of the grant.
(c) A, in respect of his house, is entitled to an easement of support from B’s wall. B is not bound, as servient owner, to keep the wall standing and in repair. But he must not pull down or weaken the wall so as to make it incapable of rendering the necessary support.
(d) A, in respect of his mill, is entitled to a watercourse through B‘s land. B must not drive stakes so as to obstruct the watercourse.
(e) A, in respect of his house, is entitled to a certain quantity of light passing over B’s land. B must not plant trees so as to obstruct the passage to A’s windows of that quantity of light.
28. Extent of easements.
28. Extent of easements.—With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:
Easement of necessity.—An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed.
Other easements.—The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties and the purpose for which the right was imposed or acquired.
In the absence of evidence as to such intention and purpose:
(a) Right of way.—A right of way of any one kind does not include a right of way of any other kind;
(b) Right to light or air acquired by grant.—The extent of a right to the passage of light or air to a certain window, door or other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument was made;
(c) Prescriptive right to light or air.—The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used;
(d) Prescriptive right to pollute air or water.—The extent of a prescriptive right to pollute air or water is the extent of the pollution at the commencement of the period of user on completion of which the right arose; and
(e) Other prescriptive rights.—The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right.
29. Increase of easement.
29. Increase of easement.—The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement.
Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the easement is proportionately increased, and, if the dominant heritage is diminished by diluvion, the easement is proportionately disminished.
Save as aforesaid, no easement is affected by any change in the extent of the dominant or the servient heritage.
Illustrations
(a) A, the owner of a mill, has acquired a prescriptive right to divert to his mill part of the water of a stream. A alters the machinery of his mill. He cannot thereby increase his right to divert water.
(b) A has acquired an easement to pollute a stream by carrying on a manufacture on its banks by which a certain quantity of foul matter is discharged into it. A extends his works and thereby increases the quantity discharged. He is responsible to the lower riparian owners for injury done by such increase.
(c) A, as the owner of a farm, has a right to take, for the purpose of manufacturing his farm, leaves which have fallen from the trees on B‘s land. A buys a field and unites it to his farm. A is not thereby entitled to take leaves to manure this field.
30. Partition of dominant heritage.
30. Partition of dominant heritage.—Where a dominant heritage is divided between two or more persons, the easement becomes annexed to each of the shares, but not so as to increase substantially the burden on the servient heritage: Provided that such annexation is consistent with the terms of the instrument, decree or revenue proceeding (if any) under which the division was made, and, in the case of prescriptive rights, with the user during the prescriptive period.
Illustrations
(a) A house to which a right of way by a particular path is annexed is divided into two parts, one of which is granted to A, the other to B. Each is entitled, in respect of his part, to a right of way by the same path.
(b) A house to which is annexed the right of drawing water from a well to the extent of fifty buckets a day is divided into two distinct heritages, one of which is granted to A, the other to B. A and B are each entitled, in respect of his heritage, to draw from the well fifty buckets a day; but the amount drawn by both must not exceed fifty buckets a day.
(c) A, having in respect of his house an easement of light, divides the house into three distinct heritages. Each of these continues to have the right to have its windows unobstructed.
31. Obstruction in case of excessive user.
31. Obstruction in case of excessive user.—In the case of excessive user of an easement the servient owner may, without prejudice to any other remedies to which he may be entitled, obstruct the user, but only on the servient heritage: Provided that such user cannot be obstructed when the obstruction would interfere with the lawful enjoyment of the easement.
Illustration
A, having a right to the free passage over B‘s land of light to four windows, six feet by four, increases their size and number. It is impossible to obstruct the passage of light to the new windows without also obstructing the passage of light to the ancient windows. B cannot obstruct the excessive user.
References
[i] But see S. 36, infra, as to abatement of obstruction of easement.
[ii] But see S. 50, infra, as to extinguishment or suspension of easement.
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