Valuation of easements

This article discusses of 1.0 What is easements, Ancient Lights, 2.0 Continuous & non continuous, Apparent & non-apparent easements 3.0 who may acquire easements, easements of necessity and quasi easements with case laws, acquisition of prescriptive and customary easements, 4.0 Licenses, 5.0 How to prove infringement of easement rights to light and air? Ratio of authority - British India and India Law of Easements, 6. 0 Nuisance -partial diminution of light - remedy is damage while it is substantial - injunction, celebrated 'Shelfer' case law 7.0 Valuation aspects: Assessing infringement of easement rights to light by 50/50 rules, 8.0 Compensation payable to the Dominant Tenement in compulsory Land Acquisition and Damage claimable by the Dominant Tenement, 9.0 Conclusion Note).

1.0 An easement is defined to be a liberty, privilege or advantage, which one man may have in the lands of another, without profit; it may arise by deed or prescription. The land against which the easement or privilege exists is called the 'servient' tenement, and the estate to which it is annexed is 'dominant' tenement; and their owners are called respectively the 'servient' and 'dominant' owner. Easement appurtenant means a pure or proper easement that passes to new owner either by inheritance or by purchase. An easement may be acquired in virtue of a local custom. Such easements are called customary easements. The right given to use a pathway or a road to a property that belongs to another person is called 'Easement of Access'.

1.1 Ancient Light or window: A doctrine of English common law that gives a landowner an Easement or right by prescription to the unobstructed passage of light and air from adjoining land if the landowner has had uninterrupted use of the lights for twenty years. Once a person gains the right to ancient lights, the owner of the adjoining land can not obstruct them, such as by erecting a building. If the neighbor does so, she or he can be sued under a theory of Nuisance, and damages could be awarded. Source: https://legal-dictionary.thefreedictionary.com/ancient+lights

1.2 Section 4 of Indian Easement Act 1882: 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 owners.—The 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.

2.0 S. 5: Easements are continuous or discontinuous, apparent or non-apparent.


Continuous Easements

Non continuous Easements

Apparent Easements

Non Apparent Easements

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.

e.g. A right annexed to B's house to receive light by the windows without obstruction by his neighbour 'A'.

e.g. A right of way annexed to A's house over B's land.

e.g. 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.

e.g. A right annexed to A's house to prevent B from building on his own land.


3.0 S. 12 provides as to who may acquire easements. The owner or on his behalf a person in possession of the immovable property can acquire easements for beneficial enjoyment of which right is created. Similarly one of two or more co-owners without consent of other can also acquire the same. But a lessee with a view to enjoy his owned other immovable property cannot acquire. Citation: 2011(6) BomCR66, 2011(5) MhLj345- In the High Court of Bombay (Nagpur Bench).

S.13: The easements of necessity have been stated in Section 13 (a), (c) and (e) while quasi-easements are mentioned in Section 13 (b), (d) and (f). In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway.

S.13 (b) - Easement rights - Easement by grant - Suit for declaration of easement rights over 'B' schedule property of the plaint as a pathway to 'A' schedule property of the plaint - 'A' Schedule property had been allotted to plaintiff in terms of a settlement deed - 'B' Schedule pathway was situated within property under control and use of defendants.

Held: Grant can be by implication as well - There was implied grant of 'B' schedule property as pathway, which can be inferred for the reason that no other pathway was provided to plaintiff for access to 'A' schedule property and there was also no objection from defendants to use of 'B' schedule property by plaintiff as pathway for number of years, at least up to the time, when alone cause of action for the suit arose - Plaintiff acquired right of easement in respect of 'B' schedule pathway by way of implied grant.

An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar's Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882.

With respect to 'implication of grant of an easement.' It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.

A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances'. In re 'Sree Swayam Prakash AShramam v.G. Anandavally Ammal &Ors (2010)1S.C.R 271'.

In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K.Mukherjee, as His Lordship then was observed:

'There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a 'formed road' existing over one part of the tenement for the apparent use of another portion or there is 'some permanence in the adaptation of the tenement' from which continuity may be inferred, but barring these exceptions'.

3.1 S. 15: Acquisition by prescription: 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.

Section 13 of the Act provides for easements of necessity and quasi-easements, while Section 15 of the Act provides for easements by prescription. These are thus clearly independent provisions and there is no overlapping of exercise of easementary rights falling under Sections 13 and 15 of the Act. If the parties are legally entitled to exercise easementary right under both these provisions, it is open for them to do so. In other words, if a party has easementary right under Section 13 of the Act and also under Section 15 of the Act, it can claim such parallel rights.

3.2 S. 18 An easement may be acquired in virtue of a local custom. Such easements are called customary easements. In Halsbury's Laws of England, Third Edition, Vol. II under Article 294 the word custom has been defined thus: A custom is a particular rule which exists either actually or presumptively from time immemorial and has obtained the force of law in a particular locality. In the case of Lakshmidhar Misra v. Rangalal, reported in MANU/PR/0054/1949 : AIR 1950 PC 56, the Privy Council observed in page No. 59 of the report thus: A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large. Fitch v. Rawling (1795) 2 H BI 393 : 3 RR 425. The custom, if established makes the local law of the district and it creates a right in each of the inhabitants irrespective of his estate or interest in any particular property. . (*Citation: 2011(6)BomCR66, 2011(5)MhLj345

4.0 Indian Easement Act, 1882: Licenses:-

License, as defined in s. 52 of the Easements Act means grant of permission, by a person to the other, a right to do or continue to do, in or upon, the immovable property of the grantor, something which would, in the absence of such right, be unlawful. Such a right does not amount to an easement or any interest in the property. The rights so conferred are license. The grant of license may be expressed or implied which can be inferred from the conduct of the grantor. [817C-D]

Section 60 of the Act enumerates the conditions under which a license is irrevocable; firstly the license is

Irrevocable if it is coupled with the transfer of property and such right is enforced, and secondly, if the licensee acting upon the license executes work of permanent character and incurs expenses in execution. But Sec. 60 is not exhaustive. According to Section 62, a license is revocable at the will of the grantor and the revocation may be expressed or implied. Where license is granted for a specific purpose and the purpose is attained, or abandoned, or if it becomes impracticable, the license shall be deemed to be revoked. [817G-H; E-F]

A license coupled with an interest is irrevocable. i.e. When the Licensee has substantial expenditure and the grantor has benefitted from such expenditure. (â-² Hon'ble Supreme Court in re Ram Swarup Gupta (Dead) By LRS v.Bishun Narain Inter College& Ors on 8th April 1987 - Equivalent Citations: 1987 AIR 1242, 1987 SCR (2) 805 - 'It was held that '1). Where license is granted for the purpose of running the school without reserving any right to revoke license and if the licensee erected works of permanent nature, the grantor of license is not entitled to recover land, as the execution of work was for the purpose of school and it fails within the expression "acting upon the license". [821E-F]

2). If a person allows another to build on his land in furtherance of the purpose for which he is granted license, subject to any agreement to the contrary, he cannot turn round, later on, to revoke the license. This principle is codified in Section 60(b) of the Indian Easements Act, 1882. [823E-F].

In the instant case, all the three conditions, viz. 1). The licensee executed work of a permanent character, 2). He did so acting upon the License, and 3).he incurred expenses in doing so, as required by Section 60 (b) of the Indian Easement Act, have been made out. [621AB]. (2) Indian Kanoon- http://indiankanoon.org/doc/1357066/

5.0 How to prove infringement of easement rights to light and air?


British India Law of Easement

British India Courts

The Supreme Court of India remarked in Chapsibhai Dhanjibhai Danad Vs. Purushottam reported in 1971 (2) SCC 205.

Bagram v. Kethranath Karformah, 3 B.L.R. O.C. 45: 'To give a right of action (in the case where there is no express contract on the subject) for the interference with the access of air to dwelling houses by building on adjoining land, the construction must be such as to cause what is technically called a nuisance to the house; in other words to render the house unfit for the ordinary purposes of habitation or business

Colls v. The Home and Colonial stores (1904) A.C.179. It was held, 'the owner of dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind'.

"There must be a substantial privation of light, enough to render the occupation of the house uncomfortable, according to the ordinary notions of mankind". Very importantly, the Supreme Court also held, that it also had to be shown in detail, how raising of a construction would cause this substantial privation of light so as to make occupation of the house uncomfortable


6.0 Nuisance is defined: (law) a broad legal concept including anything that disturbs the reasonable use of your property or endangers life and health or is offensive (word web Dictionary). The leading case on the subject is Shelfer Vs. City of London Electric Lighting Company (1895) (1) Ch 287 decided by the Court of Appeal. The complaint was about nuisance caused by vibration of engines. The type of nuisance was mainly sound and circulation of dust. The Court opined that nuisance had first to be established. Then it prescribed certain tests to be applied by the courts to decide the type of relief to be granted by it. Was the relief to be in the form of damages or injunction or both? Once the prima facie case was established the court had to see whether the alleged act of nuisance was trivial and occasional? Whether damages were an adequate remedy and could be fairly estimated in terms of money? Whether the plaintiff had instituted the action to extract money? Whether the action was vexatious and oppressive for the defendant? If the nuisance was significant the damages to be awarded would be significant. In that situation, the court would lean in favour of granting an injunction. Awarding damages would amount to "buying" the property rights of the plaintiff, against his wish.

7.0 A Division Bench of Kolkata High Court pronounced the same principle In Re: Reba Samanta (1993) ILR 1 Cal 317. Mr. Justice S.K. Mukherjee opined as follows:

The suit is concerned with easement rights relates to the exercise of an alleged right to obtain uninterrupted ancient light to 'Fountain Court'. An interim application in aid of the above suit, taken out by the plaintiff for an order of injunction restraining the defendant from interfering with the plaintiff access to and use of light.


Schedule Property 'A' Fountain Court (Dominant tenement): a five storeyed, 20.57 metre high residential building-Plaintiff - Kolkatta

Schedule Property 'B'

Fountain Court used for residential purposes. Land extent is 2 Bighas, 1 Cottah, 3 chittacks and 13 square feet (29,668 sq.ft or 2,756.16 sq.m or 0.68 acre). Year of purchase: 13th November 1956. Western part of the building is allegedly affected. It has 43 windows. As on the date of this suit, construction of the proposed tower by the defendant had not begun. According to the plaintiff, if this tower was allowed to come up, it would substantially obstruct the passage of this ancient light to 'Fountain Court'. This would cause substantial depreciation of light to its western side and also to the building as a whole. They claim to be using this ancient light, as an easementary right uninterruptedly from 1956, their purchase of Premises. Since this enjoyment, according to the plaintiff, was well over 20 years, their easement right had become absolute and indefeasible. The disputed property on which the construction in progress is sought to be thwarted admittedly belongs to the defendant, the 'servient tenement'

During 1956 there also existed another five storeyed building on the western side of 'Fountain Court'. The plaintiff says that the alignment and height of 'Schedule 'B' Property such that its existence did not cause any interference with the plaintiff's access to the ancient light. This building height is also 67 feet 6 inches or 20.57 meter. It was substantially demolished. The land on the western side of the 'Fountain Court' was mostly open space. There was only a damaged building on Schedule Property 'C' which did not cause any interference with 'Fountain Court' access to light


Schedule Property 'C'. (Servient tenement) - Defendant: The western side of 'Fountain Court' was acquired by the defendant. A sixty storeyed 240 meter (787 feet) high residential tower were to be built. Building sanction had been accorded by the Kolkatta Municipal Corporation. Lateral distance between the 'Fountain Court' and Tower was stated to be 16.35 m (54 feet) meter to 16.75 meter where the separation between would be 20.73 m (68 feet). The defendant had obtained express sanction of the building plan from Kolkatta Municipal Corporation under the Kolkatta Municipal Act 1980 and the Building Rules framed there under. The plan was according to the said building rules. The said building rules had in turn framed on the basis of a 'Building Code' approved by the Government of India to have an Indian application.

The explanation in the plaint is that upon learning about the proposed construction by the defendant, the plaintiff started studying its impact on Fountain Court. A firm of English experts on light M/s Gordon Ingram and Associates was engaged by the plaintiff to make a study of this situation and to report in 2013 (Construction has not begun). According to the report of Gordon Ingram and Associates of 19th July 2013 the light which would be received by Fountain Court, after the proposed construction would be substantially diminished so as to make it insufficient for ordinary habitancy.

What exactly is the implication of this report has to be analysed- One of the standards for assessment is whether there is substantial diminution of light, so as to amount to nuisance? Whether the "retained light" is "comfortable" and sufficient for the ordinary purposes of inhabitancy"? Now, to come to such a finding the 50/50 rule is applied. What is this 50/50 rule?

In making this assessment a 0.2 per cent sky factor or less is plotted in respect of a room both before and after the proposed construction is erected. It is understood, from examining the report that less than 0.2 per cent sky factor represents insufficient light. The area of a room is sufficiently lit, if it has 0.2 per cent or more than 0.2 per cent sky factor. It more than half of a room has a sky factor of less than 0.2 per cent sky factor then the room as a whole is inadequately lit. This is known as the 50/50 rule. However, the author of the report opined that even if more than half the room had 0.2 per cent sky factor or more light, it could sometimes still be termed as inadequately lit.

According to the report, only the western side of Fountain Court would be affected. Not even the whole of it. At the end, Mr. Gordon Ingram, comes to the conclusion that the proposed tower on the western side of the Fountain Court would "create a substantial loss of light to the residential amenity within Fountain Court". 50 per cent of an area should have 0.2 percent or more than 0.2 per cent sky factor of ancient light. The report, however, goes on to add that even if the sufficiently lighted area is more than 50 per cent, still a case of deprivation of light can be made out. It is a day light distribution analysis.

Judgment: Even going by the opinion in the report, there would not be substantial deprivation of light. Perusal of the expert's report with the annexures, suggest that a single drawing room or living room is affected. Look at appendix 5 of the report. It is a day light distribution analysis. It measures the diminution of light in square feet. Out of ten bedrooms facing the western side, only two are allegedly affected, one by 34.9 per cent and the other by 40.2 per cent. In the Judge's prima facie opinion there would only be a partial diminution of light on the western side. Assuming the above data to be correct, habitancy cannot become so uncomfortable, as to amount to a nuisance. Following the ratio of the authorities discussed above, where the diminution of light is not substantial, damages are an adequate remedy. Injunction should not be issued.

Under those circumstances, the order of injunction as prayed for by the plaintiff is refused. Their right to claim damages against the defendant at the trial of the suit is preserved. Their right to apply for injunction in case there is deviation from the existing building plan by the defendant is also preserved.

8.0 (1) British India Case: Land acquisition: The principles of assessing compensation payable on acquisition of Servient Tenement were laid down by His Lordship Mr. Justice Roopendra Kumar Mitter in the case of 'Bishnu Prasad v. Benoy Krishna 49 C.W.N. 203:' If the Servient tenement is acquired under the Land Acquisition Act, on acquisition it would vest in the Government freed from the easement of the owner of the dominant tenement (Section 16). The owner of the dominant tenement would accordingly be entitled to compensation for the loss of his right…….The owner of the acquired premises would not be entitled to the full market value of his property. The easement depreciates its value to him. He can only have the value of beneficial enjoyment thus restricted by the easement affecting it. These accords with principles…….A sum of money should therefore be deducted from the 'full market value' and the balance should be awarded to the owner. But the sum so deducted would not necessarily be the value of the easements, the right of the owner of the dominant tenement, which had not been acquired, but which easement would be destroyed on the acquisition of the servient tenement. The amount representing the value of the right may be more or may be less than the sum that is to be deducted from the 'full market value' of the acquired premises in making payment to the owner thereof'.

If therefore, the value of the easement right is more than the sum so deducted, the excess must be paid by the Government to the owner of the dominant tenement. If the value is less the gainer will be the acquiring authority.

In the case No. 139 of 1918, the Calcutta Improvement Trust (CIT) Tribunal citing Rule 32(2) of Calcutta Municipal Act, opined the minimum amount of space which must be left between buildings is 6 feet, therefore for a single storey building having easement rights their apportioned value out of the servient tenement may be estimated at one quarter the value of a six feet strip of land running horizontally and having a length which covers the whole of windows on the ground floor. (â—„The location of the CIT Tribunal Case No. 139 of 1918 supra is in a crowded area mostly with two storeyed buildings separated by narrow lanes, the average width of which may be taken as about 10' to 12'. As per Building Rules 32 (2) (a) of Schedule XVII of Calcutta Municipal Act 1923. open space at side shall be six feet, if there is a building next to such boundary line. The CIT Tribunal has paid 1/4th of the value of twelve feet strip strip of land to cover the window openings, even for a single storey building. (Twice the side setback permissible. Page-214).

According to John A. Parks,(Page 216 to 219) to summarise generally the apportioned value of easements out of the award for the Servient Tenement is:


Single Storey building

Two Storey Building

Three Storey Building

Four Storey Building

Ground floor (GF) ¼ value of six feet strip

GF 1/4th of 2/3rd value of 9 feet strip.

FF: 1/4th of 1/3rd value of 9 feet strip.

GF 1/4th of 1/2 value of 12 feet strip.

FF: 1/4th of 1/4th value of 12 feet strip.

2nd F: 1/4th of 1/4th value of 12 feet strip.

GF 1/4th of 2/5th value of 12 feet strip.

FF: 1/4th of 1/5th value of 12 feet strip.

2nd F: 1/4th of 1/5th value of 12 feet strip.

3rd F: 1/4th of 1/5th value of 12 feet strip.


Example: The servient Tenement has been compulsorily acquired. The premises consisted of a 3 storey building situated 8 feet away from the Dominant Tenement. The Dominant Tenement had window openings extending 30 feet on the ground and 3 upper floors. The closing of these window openings will reduce the letting value of the premises Rs. 25/- per month. What amount should be awarded to the Dominant tenement out of the award for the Servient Tenement and what amount should be claimed for damages? Land Value Rs. 10,000/- per Kottah (720 square feet).

Area of strip of land to cover the window openings @ ground, 1st and 2nd floor = 8' x 30' = 240 sq.ft = 1/3 Kottah.

Apportioned Value:-

1/3 Kottah @ ¼ of 4/5 of Rs. 10,000 = Rs. 667 (say 'A')

Area of strip of land to cover the window openings 3rd floor = 12' x 30' = 360 sq.ft or ½ Kottah

Apportioned value:- ½ Kottah @ ¼ of 1/5 of Rs. 10,000/- = Rs. 250 Say 'B')

Apportioned value out of the award for the Servient Tenement ('A' + 'B' ) =917 Say 'C'

Loss in Rent (Rs. 25 x 12) = Rs. 300/-; Allow 30% outgoings = 90; Net Rent = Rs. 300 - 90 = Rs. 210/- Say 'D'

Security 61/2%; Years purchase = 100/61/2 = Rs. 15.385 Say 'E'

'D' x 'E' = Capitalised value: 3,231 Say 'F'

Deduct amount awarded i.e. 'C' 917 Say 'G'

Damages payable ('F' - 'G') Rs. 2,314/- (1) John A. Parks.

9.0 Conclusion: Easements are certain rights in the property of another (Jura in re aliena). A right of easement can be declared only when the servient owner is a party to the suit. 9.1: The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a license and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. It is to be noted that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. https://www.lawweb.in/2015/07/how-to-prove-easement-by-prescription.html

10.3: In re Compulsory Land Acquisition: In the opinion of the author, the set back permissible as per local Building Byelaw for different category such as Ordinary Buildings, Special Buildings, Institutional Buildings, Group Development and Multi-Storey Buildings (e.g DR: SMP II -2026 (Development Rules: Second Master Plan 2026 - Chennai Metropolitan Area) can be the set back permissible at sides, rear and front.


Ordinary Building (G+1 or Stilt+2, subject to a maximum height of 9m or 30 feet). Table-1: G (ii) plot width > 9m

:

Award by the Land Acquisition Collect to the Servient Tenement =Rs . 5,00,000/- per kottah (720 sq. ft).

What amount should be awarded to the Dominant tenement out of the award for the Servient Tenement?

Dominant Tenement with ancient windows on the East side

Set back at side permissible as per local building bylaw is 5 feet

Window frontage @ Ground floor is 50 feet and first floor is 50 feet respectively.

Compensation out of the Servient Tenement for the said Dominant Tenement = 1/4x50'x10'x1/720x Rs . 5,00,000 = Rs . 86,806/-

Apportionment to the Ground floor: 2/3 x Rs . 86,806/- = Rs . 57,871/- or 1/4x50'x10'x1/720x Rs . 5,00,000x2/3 = Rs . 57,871/-

Apportionment to the First floor: 1/3 x Rs . 86,806/- = Rs 28,935/- or

1/4x50'x10'x 1/720 x Rs . 5,00,000x1/3 = Rs . 28,935/-


Reference: Law web.in, Indian Kanoon and (1) Principles & Practice of Valuations (Land and Houses) by John A. Parks, Published by Eastern Law House 1977.

 

mohammed ibrahim 
on 05 September 2019
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