Easement Rights: Is Your Right of Way Valid?

Govardhan Varma (Querist) 11 April 2020 This query is : Resolved
Dear Sir,
I have an Agriculture situated beside the Government School. where the tractor and other things will enter through the Government school playground which is directly connected to the road.

Now the Government school was constructing a compound wall by restricting entry to our Agricultural land.
Our suggestion for the school is MOVE THE WALL 3 TO 6 METRES INTO THE GROUND that makes the access to the land.
We have a positive point which is the property of the school premises and the our land on the same survey number previously. After that government acquire some land from the local farmer and constructed the school building.
At the time of purchasing the land, there was no condition specifying the Easement right.

Conclusion:- As per the Easement Act section 14 Direction of way of necessity and
As per the section 13 of the Easement Act where the transferor gave the easement right without documented but it was implied to the transferee of the immovable property to have the easement rights.

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KISHAN DUTT KALASKAR (Expert) 11 April 2020
Dear Sir,
You are correct by implication you got such right when the government acquired land. You can file suit immediately in civil court and if you have enough money then you may approach the High court directly otherwise they may complete the construction of compound wall. Some relief will be given by the High Court where as the civil courts tke much time to give you relief. Think wisely otherwise your land become useless..
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An easementary right is almost like a privilege, depriving which the owner of one tenement has a right to enjoy regarding that tenement in or over the tenement of another person, by reason of which the latter is obliged to suffer or abstain from doing something on his own tenement for the advantage of the former. Easementary right must possess the following essentials:

Dominant and survient tenement
Easement should accommodate the dominant tenement
Easementary rights must be possessed for the beneficial enjoyment of the dominant tenement.
Dominant and survient owners must be different persons.
The easementary rights should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done, or in respect of , the survient tenement; and
The something must be of a certain or well defined character and be capable of forming the subject matter of a grant
DESCRIPTION AND ANALYSIS :
A. RIGHT OF WAY
There are two classes of right of way

Public rights of way which exist for the benefit of all people. These are Highway, navigating way. Its origin is in dedication, express or implied.
By way of -Private rights of way which is vested in particular individuals or to owners of particular tenements; and its origin is found ingrant or prescription or to certain classes of persons or certain portions of the public, such as the tenement of a manor, or the inhabitant of the parish or village.
An easementary right of way is created by - Express grant or by immemorial custom, necessity or by prescription, or by statute or through private dedication. The term "general right of way" is applied to private rights of way on which there are no restriction except the necessary qualification, which nature or the law requires regarding all private rights of way. Actual significance of the term general right of way lies in its use in contradistinction to the special limitations expressed or inferred upon the user of any particular right of way over and above the limitations thus imposed by general law.

Apart from statute, the determination of the question who may use a right of way depends upon the nature and extent of the right. If the right is created by grant, the persons or classes or persons entitled to use it may be expressly limited by the terms of the instrument, a grant of this kind being construed, not strictly, but in accordance with the apparent intention of the parties. As a general rule the persons or the classes of persons who may use the right must be ascertained by construing the instrument having regard to the general circumstances surrounding the exception of the grant. The most important of these circumstances are the nature of the place over which the right is granted, and the nature of the dominant tenement, and the purposes for which that tenement is, in the contemplation of the parties, intended to be used.

A person who is enjoining the right of way by more than 20 years without any obstruction by the person in whose land a person pass thru, but one exception for this is; if such person having another way then he cannot claim easementary right by way of prescription1.

REMEDIES
It does not matter whether the way was created by express grant or by way of reservation, or is claimed under the doctrine of prescription. The nature of the remedy is the same.

The person claiming for an easementary right of way has the remedy to sue for an injunction - to restrain obstruction of the way or for getting damages. Whether any particular interruption amounts to an unlawful interference or not depends upon the nature of the right of way and of the place, and also on the circumstances of the case. If he suffers no damage by obstruction, nominal damages will be awarded only, and an injunction will be refused. A person who purported exercise of a right of way makes on excessive user of the survient tenement commits a trespass and may be restrained from doing at the instance of the survient owner. The factor for deciding the excessive user depends on the scope of the right, based on the true construction of an express grant or based on the user, established by the prescription as the case may be.

B. RIGHT OF LIGHT& AIR:
The right to light is basicaly the right to prevent the owner or occupier of an adjoining tenement from building or placing on his own land anything which has the effect of illegally obstructing or obscuring the light of the dominant tenement.

The easementary right to light is a right to be protected against a particular form of nuisance, and an action for the obstruction of light which has in fact been used and enjoyed for twenty years without having any interruption , or written consent cannot be sustained unless the obstruction amounts to an actionable nuisance.

The right of light is an easement and may be acquired.

by way of - either grant or by covenant, which may be express or implied.
as per the provisions of the India Easement Act, and by Presciption under the Prescription Act in England. These acts necessitate an enjoyment without interruption for a period of twenty years to confer the right.
by way of reservation on the sale of the survient tenement. If the vendor of a land desires to reserve any right in the nature of easement and for taking the benefit of his adjacent land which he is not parting with, he must do it by express words in the deed of conveyance, except in the case of easement of necessity.
The interference complained of amounts to a nuisance or not cannot be determined by the fact - whether the diminution is enough materially to lessen the amount of light previously enjoyed, nor it can be determined by the fact that how much light is left, without regard to what there was before, but it can be properly decided by the fact - whether the diminution (i.e. difference between the light before and the light after the obstruction) really makes the building to a sensible degree less fit than it was before, for the purposes of business or occupation as per the ordinary requirements of mankind.

So far as the easementary right to access of air is concerned, it is co-existence with the right to light. In this regard it is pertinent to note that the owner of the house cannot by prescription claim an entitlement of the flow and uninterrupted passage of current of wind, neither the owner of the house is entitled to right of uninterrupted flow of breeze as such, rather he can claim only such amount of air which is sufficient for sanitary purposes. He cannot be allowed to sustain his unjustifiable claim in this regard.

REMEDIES
Regarding the cases of easementary right of light the Courts generally do not interfere by way of injunction where the courts find that the obstruction of light is very slight and where the injury sustained is trifling, except in such rare and exceptional cases. Here again it is necessary to understand that no damage is substantial unless it materially diminishes the value of the dominant heritage, or interferes materially with physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.

In India the Court has discretion: It may or may not issue an injunction depending on the fact- where the injury is such that pecuniary compensation would not afford adequate relief.

In some cases a mandatory injunction will also be granted. Court will grant such injunction where a man, who has a right to light and air which is obstructed by his neighbor's building, brings his suit and applies for an injunction as soon as he can after the commencement of the building, or after it has become apparent that the intended building will interfere with his light and air. But the court should be satisfied that a substantial loss of comfort has been caused and not a mere fanciful or visionary loss.

If plaintiff has not brought his suit or applied for an injunction at the earliest opportunity, and has waited till the building has been finished, and then asks the Court to have it removed, a mandatory injunction will not generally be granted.

Raj Kumar Makkad (Expert) 11 April 2020
As you are using the land open to the previous owner as well after acquisition of the part of the land by State since the time immorial hence have got easementary rights in your favour. Obtain stay order from the civil court. Section 13 as cited by you is more favourable for you.

Rajendra K Goyal (Expert) 12 April 2020
Case for easement need be filed, meanwhile move to get a stay for construction of wall.

P. Venu (Expert) 12 April 2020
What was the nature of easement right enjoyed prior to the acquisition - did it include movement of vehicle? Is there any alternate access?

Rajendra K Goyal (Expert) 13 April 2020
Expert P. Venu has asked important information, further advice possible on receipt of asked information.

Raj Kumar Makkad (Expert) 13 April 2020
The answer of the question raised by expert P. Venu and supported by expert Goyal is already in the facts put forth by the author. There is no alternative path and the easement is being used many years before the said acquisition of the land by State for the playground of the school.

T. Kalaiselvan, Advocate (Expert) 17 April 2020
The Indian Easements Act, provides for the whole concept of right of easements and its regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by the owner of the dominant heritage over the heritage of servient owner for the beneficial enjoyment of his own land.
An easement gives you the legal right to use another person's real property for a specific purpose and for a specific length of time. It essentially gives someone the right to trespass on your land so long as doing so is consistent with the easement restrictions.

T. Kalaiselvan, Advocate (Expert) 17 April 2020
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.
A person may acquire an easement by using the servient land a particular way for a long period of time. Such an easement is called a prescriptive easement. The user gets an easement by openly, adversely, continuously, and exclusively using the land for a number of years specified by state statute.

T. Kalaiselvan, Advocate (Expert) 17 April 2020
As suggested by many experts you can file suit for easement rights invoking section 13 of the Indian Easements act, 1882 which reads as :
Section 13 in The Indian Easements Act, 1882
13 Easements of necessity and quasi easements. -Where one person transfers or bequeaths immovable property to another,-
(a) if an easement in other immovable 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; or
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable 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 immovable 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.

Rajendra K Goyal (Expert) 18 April 2020
Gujarat High Court while deciding case of Gopalbhai Jikabhai Suvagiya vs Vinubhai Nathabhai Hirani on 26 September, 2018 ruled:
Bench: J.B.Pardiwala
F] Enjoyment must be for twenty years : The enjoyment must be continued down to within two years of the date of suit in which the right is contested i.e. where a person is in the continuous enjoyment of an easement for more than 20 years and an obstruction is thereafter made, he must bring his suit to establish his right within a period of limitation of two years from the date of such obstruction, otherwise his right will be defeated.

Rajendra K Goyal (Expert) 18 April 2020
Hon’able Supreme Court on July 4, 2011in the case of Smt. Ramkanya Bai & ANR. Vs. Jagdish & Ors.held:
Easements by prescription can be acquired only by peaceable and open enjoyment, without interruption for twenty years. Customary easement can be are acquired by virtue of a local custom.

P. Venu (Expert) 18 April 2020
The author is yet to provide the specific information as to -
"What was the nature of easement right enjoyed prior to the acquisition - did it include movement of vehicle? Is there any alternate access?"

The studied silence implies that the access, if any, had been a pathway and not a road for plying vehicles. And that there is an alternate access. As such, it is unlikely that a court of law will grant any relief or remedy.

Moreover, the (apparently) servient land has been acquired for the public purpose of being used as a playground for the Government school. The process of acquisition having been completed, all the rights and encumbrances in the land has been extinguished and the said land has been vested in the Government absolutely. Acquisition of land under the due process of law is much more than a mere conveyance of property between a buyer and seller; the process of acquisition extinguishes all the subsisting rights and interest of the servient and dominant owners. Thus. in my understanding, the author is not entitled for enforcing the alleged easement right for plying of tractors.

Laws apart, the claim of the author is preposterous. Admittedly, the public purpose for the land acquisition had been for being used as a playground for the school. How tractor could be plied through the school premises without posing threat to the life and limb of the children? There is a strict obligation cast upon the authorities concerned to prevent any such activity and safeguard the well-being of the children in their care.

The author ought to have foreseen these elementary aspects and taken appropriate action during the process of acquisition and secure and safeguard his rights, if any.

Raj Kumar Makkad (Expert) 18 April 2020
Unless complete information is provided, definite reply cannot be provided to you by the experts.

Rajendra K Goyal (Expert) 19 April 2020
In case required guidance not received and , please state clear material facts with exact problem. Have you taken up the matter with the school, if yes, what was the reply?

Raj Kumar Makkad (Expert) 19 April 2020
The author is not interested to even read the replies or subsequently raised questions to properly address his query so there is no use to stretch the same without any any substance.

Govardhan Varma (Querist) 03 May 2020
Ya , We taken the matter to the school . The school Head master is telling that he will show the alternative but it was not in the Action.
At the sudden one day they started the construction of wall . When the construction is in progress we asked the Head master of the school regarding the resolving the problem but he told "that i will follow the directions of the government " he can't do anything.

P. Venu (Expert) 03 May 2020
The problem, if any, should have been taken up with the Collector or the Land Acquisition Officer during the process of acquisition so that it could have been taken care in the Award, if you could substantiate your claim.

The School Headmaster, or any public functionary, is not authorised to accede even one square inch of property to a private person.

Govardhan Varma (Querist) 03 May 2020
I will keep compliant to the collector .
And secondly, i proceed with the suit

Rajendra K Goyal (Expert) 03 May 2020
Please note to share the outcome.

May revert in case of further development.

Raj Kumar Makkad (Expert) 03 May 2020
You can post further outcome of your suit and complaint as the case may be.

Easement rights - whether it was valid right or not?

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