Snippet #218

Jojy George Koduvath.

Abstract of this blog

A ‘formed road’ can give rise to a right of quasi-easement.
Implied grant can be inferred if ‘formed road’ on date of severance.
Implied grant can be presumed from the circumstances of a case.
Easement of necessity can be claimed for effective user of a property, in the ordinary course for its designed purpose, if it is ‘essentially necessary’(with required width – for taking vehicles also – in case of a way).

Easement of Necessity and Quasi Easements – When Arise

Section 13 of the Indian Easements Act_{(see end notes)} lays down Easements of Necessity and Quasi Easements.

Sec. 13 asserts easement right to three categories of persons

(i) Transferees of immovable property
(ii) Transferors of immovable property
(iii) Sharers of partition of immovable property.

Sec. 13 lays down two types of easement rights.

(i) Easement of Necessity – easement necessary for enjoying the subject of the transfer.
(ii) Quasi Easement – easement that is apparent and continuous and necessary for enjoying the subject matter.

Illustrations in Sec.13 refer to the following instances of easement of necessity:

passing over (way)
light which passes over windows
polluting the air, with smoke and vapours of factory
gutters and drains common to the two houses
lateral support for building
vertical support of an upper room on partition
right of way to house and grounds let for a particular business.

Quasi Easements, pertain to Apparent and Continuous rights

Sec. 5 of the Easements Act_{(see end notes)} defines apparent and continuous easements. An apparent easement is defined as one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and a continuous easement is one whose enjoyment is, or may be, continual without the act of man.

A ‘Formed Road’ at the time of Severance Attracts Quasi-Easements

The illustration (b) in Sec. 5 clearly lays down that a right of way is a discontinuous easement. Therefore, going by this illustration, quasi easement cannot be claimed over a way.

But, squarely disregarding the illustration in Sec. 5, and upholding apparent realities on ground, several High Courts in India followed the English principle that the ‘formed roads’ (that is, a well defined way like tarred or metalled road) are capable of forming quasi easements.

Sec. 13 speaks as to Easements of Necessity and Quasi Easements. For claiming Quasi Easements, signs or evidences of easements must be apparent on land. Therefore, if only a way that is (i) apparent, (ii) exists on the date of transfer or severance and (iii) necessary for enjoying the subject matter, then only a question of Quasi Easements arises.

Analysing these matters on ‘accommodation which existed during common ownership’. Kerala High Court held in Kochan Ramanathan v. Kochan Natarajan, ILR 1991-1 Ker 479; 1990-2 KLJ 617, as under:

“… It (quasi-easements) is an accommodation which existed during common ownership. Over and above necessity, the apparent and continuous nature of its use at the time of severance is necessary. But the necessity is not so absolute as in the case of easements of necessity, but only qualified. Quasi easement is available even when the property is otherwise enjoyable. Its limit is not restricted to absolute necessity, but controlled by the extent of the apparent and continuous user which existed at the time of severance. That limit cannot be increased or reduced except by consent Leela v. Ambujakshy 1989-2 K.L.T. 142. A right of way will not generally come under quasi-easements except when there is a formed road which was apparently and continuously used. In such cases, even without a grant, law implies a grant. The way which was in apparent and continuous use cannot be unilaterally interfered by the servient owner. The pathway was formed by the owner and he was regularly using it for a particular purpose. The user was apparent and continuous and necessary for enjoying Ext. A-2 portion of the property at the time when Exts. A-1 and 2 were executed. The Respondent, who is the owner of the servient tenement, cannot, according to his own whims and fancies, say that so much width is not necessary or that vehicles need not be taken. He cannot compel the dominant owner to reduce or restrict the user which was available at time when Exts. A-1 and 2 were executed. … .A right of way is not classed generally amongst quasi-easements of an apparent and continuous character. It is only when there is a formed road that the quasi-easement can be classed as one of an apparent and continuous nature. When there is a definite marked road, the Plaintiff is entitled to use the same by way of an easement.”

Referring Dakshina Ranjan Chowdhury v. Surendra Lal Dasgupta, 39 CWN 1202, and quoting Gale on Easements, it is observed in Alo Rani Banerjee v. Malati Roy, AIR 1992 Cal 302, that when there is a formed road, it is apparent and continuous in nature and that it can partake the class of quasi easements. The same view is taken in Nunia Mal v. Maha Dev, AIR 1962 P&H 299, also.

Contrary View

All ways are ‘discontinuous’ according to Sec. 5, Illustration (b) of the Easements Act. (It reads – A right of way annexed to A’s house over B’s land. This is a discontinuous easement.) Quasi easement is available only if the right claimed is ‘discontinuous’.

Pointing out that an easement with respect to a way is not continuous, easement under the provisions of Section 13, Clause (f) of the Easements Act, was denied in (Sri Rajah Vyricherla) Narayana v. Sree Rani Janaki Rathayyammaji, AIR 1930 Mad 609. It is held as under:

“But we are of opinion that having regard to the provisions of the Easements Act it is not open to us to follow the English decisions subsequent to the Easements Act and to hold that a formed and metalled pathway would be an apparent and continuous easement for the purpose of determining the rights of parties under Section 13, Clause (1) of the Easements Act.” (This decision is followed in Bai Champa v. Dwarkadas Mohanlal, 1969 GLR 965).

The Bombay High Court held in Malkajappa Chanvirappa Hullur v. Rachappa Panchappa Guledgud, (1942) 44 BomLR 673, as under:

“If a paved or metalled road, over which a right of way has been exercised before the severance took place, is deemed to pass to the transferee as a case of qualified necessity, it would be for the Legislature to make a proper amendment by bringing the Indian law in conformity with the trend of the recent English decisions. But so long as Section 5 and ill. (b) stand as they are at present, it is, in my opinion, difficult to hold that such an easement would fall under Section 13(b) and pass to the transferee. I think the decree of the lower Court is, therefore, correct, and the plaintiff has not acquired the alleged right of way as well as the right of passage for water.”

Origin of all easements is, theoretically, grant

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user. It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

In Lachhi v. Ghansara Singh, AIR 1972 HP 89, it is held as under:

The basis of every right of easement is theoretically a ‘grant’ from the servient-owner.
- It may be expressed, as in Sections 8 to 12 of the Act; or
- it may be implied from the circumstances as in Section 13 of the Act; or
- it may be presumed from long and continued user for a certain period as in Section 15 of the Act; or
- it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

Alternative Way Will Not Defeat Claim of Implied Grant (Grant that arise by Implication)

In Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545, AIR 2006 SC 2234, it is held that an easement by grant would not got extinguished under Section 41 of the Act which relates to an easement of necessity.

The existence of alternative way will defeat easement of necessity and quasi easement. But, it will not defeat the claim of implied grant. (See: John, S/o. Ulahannan v. P. Janaki, D/o. Late Vava, 2012, Kerala High Court.)

Implied Grant can be Inferred from the Circumstances

Assume, a clear car-way with tyre-mark is available to a plot on severance, and existence of this way is not stated in the concerned deed, the way cannot be claimed as a quasi easement there being no ‘formed way’. But, the person claiming the way can plead ‘implied grant’ in this situation; because, implied grant can be inferred or presumed if there is “some permanence in the adaptation of the tenement“, as shown below.

Katiyar on Law of Easements and Licences, reads as follows:

“There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement… …It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. 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“. (Quoted in Sree Swayam Prakash Ashramam v. G.Anandavally Amma, AIR 2010 SC 622)

“Implied Grant” in Law of Easements – Two Different Legal Attributions

First, Theoretical basis of easement of necessity (and quasi easement). Both easement of necessity and quasi easement are dealt with in Sec. 13 Easement Act. Theoretically both arise from implied permission; and therefore it is said to be “implied grant”. Though both easement of necessity and quasi easement have some common features, both are distinguishable and cannot go together.
Second, ‘Easement by grant’ that arises by implication. When a right of easement by grant (implied or express) is raised, it takes the character of ‘grant’ under Sec. 8 of the Eaement Act which deals with express grant. In such situation it is not akin to claim of quasi easement (in Sec. 13 Easement Act) also. Such grant arise by implication is controlled by the (implied) terms and conditions of the grant and it will not be defeated by the emergence of the alternative way.

Quasi Easement and Implied Grant

Quasi Easements, pertain to Apparent and Continuous rights. Sec. 5 of the Easements Act defines apparent and continuous easements. An apparent easement is defined as one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and a continuous easement is one whose enjoyment is, or may be, continual without the act of man.
Quasi Easement (apparent and continuous easement) permits enjoyment of an easement as it was enjoyed when the transfer or bequest took effect.
But in case of Easement of Necessity the extent of easement will be restricted to absolute necessity, or that is ‘essentially necessary’ for the effective user of a property, in the ordinary course for its designed purpose.

Read Blog: “Implied Grant” in Law of Easements

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, it is held as under:

“25. ……… Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have ‘B’ schedule property of the plaint as a pathway could not have been taken away. In Annapurna Dutta v. Santosh Kumar Sett [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, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”

26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

Implied Grant and Quasi Easement in a ‘Formed’ Way

There could be no implied grant where the easements are not continuous and non-apparent. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, our Apex Court found quasi easement under Section 13(b) of the Indian Easements Act over a way in the following circumstances –

Though there could be no implied grant where the easements are not continuous and non-apparent, if 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, an exception can be inferred (Annapurna Dutta vs. Santosh Kumar Sett, AIR 1937 Cal.661, B.K. Mukherjee, referred to).
There was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to dominant property and there was no objection also to the use of disputed way by the plaintiff.
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.
A trace of the pathway could be presumed to be in existence from the time when the plaintiff acquired the properties by separation of tenements.
Only access to the property was through disputed pathway.
It was required for the reasonable and convenient use of the plaintiff’s property and that on severance of the tenements, plaintiff can be presumed to have got a right over disputed pathway by an implied grant and also an easement of necessity.
The user was not obstructed for very long time.
There was no reason to disbelieve the plaintiff’s version that disputed way was given as grant for his use as he was a close relative of the former.
There was an apparent and continuous use which was necessary for the enjoyment of the `A’ schedule property within the meaning of Section 13(b) of the Indian Easements Act.
The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
Therefore, the plaintiff was entitled to easement right in respect of the pathway.

Existence of alternate way will End Easement of Necessity

Existence of alternate way, how ever inconvenient, will end Easement of Necessity.

See: Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622
Gouri Amma Krishnamma v. Seethalakshmi Amma, AIR 2004 Ker 75,
Thilakraj v. Sebastian, 2014-4 Ker LT 714, 2014 KHC 5042,
Rameshchandra Bhikhabhai Patel v. Sakriben, AIR 1978 Guj 62.

Easement of Necessity is limited to Barest Necessity, however inconvenient it is

In Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545, AIR 2006 SC 2234, our Apex Court held as under:

“An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.”

Pleaded ‘Grant’; Not, Implied Grant – Apex Court, allowed Implied Grant

Though the plaintiff pleaded only ‘Grant’, and not, Implied Grant, our Apex Court, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, allowed Implied Grant observing as under:

“It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.”

Doctrine of ‘Designed Purpose‘ and Easement of Necessity

The conventional view as to easement of necessity is that bare minimum width of way alone could be allowed by courts in cases of easement of necessity. It appears the the progressive and pragmatic view is adopted by some High Courts. It is held that easement of necessity can be claimed for effective user of a property, in the ordinary course for its designed purpose, if it is ‘essentially necessary’. On this basis, a cartable way can be claimed for taking cars to house-plots inasmuch as, now-a-days, such a way is necessary for designed purpose of the house-plots.

It is held in Pravabati Roy v. Dwijendra Lal Sengupta, AIR 1987 Cal 97, as under:

“It does not appear to be a correct principle in law that even if by effecting thorough re-modelling of an existing structure, the structure so re-modelled can be used without the right of easement on the disputed property, a claim for easement of necessity will then stand defeated. The Court, in my view, should take a pragmatic view of the facts and circumstances and find out whether the property in question cannot ordinarily be effectively used without taking recourse to right of easement on same other’s property. In this connection reference may be made to the observation of Gale on Easement (14th Edition at page 118) since relied on by Mr. Mukherjee ‘if, however a particular part of the property cannot, without the right claimed, be used for its designed purpose, then it is probably true to say that a right of access for that purpose will arise as of necessity.‘ Whether or not a particular property can be effectively used without using the right of passage over a disputed property is basically a question of fact and both the courts below have concurrently found that the claim of easement of necessity in favour of the plaintiffs. In the aforesaid circumstances, I do not think that in a second appeal, in the absence of any strong and cogent material on the basis of which it can be demonstrated that such finding was perverse, should take any contrary view. Hence, the findings of the courts below that the easement over the passage in dispute is an easement of necessity is accepted by this Court.”

In Babli Krishna Vaigankar v. Laxman Sagun Vaigankar, 2006-4 AIR(Bom)(R) 78; 2006-4 All MR 199; 2006-5 BomCR 277 it is observed as follows:

“(A) pragmatic view is required to be taken and for the purpose of deciding a case of easement of necessity all that is sufficient is that a party claiming e easement of necessity proves that for effective user of the house in the ordinary way and for its designed purpose the right of easement over a particular passage is essentially necessary.”

Extent of Easement – If used for several purposes, inferred for all purposes

Under the provisions of the Easements Act, the dominant owner cannot –

enlarge purpose of, or accustomed, user (S. 28) and
substantially increase an easement (S. 29).

In Cowling v Higginson (1838) 4 M & W 245, it was held as under:

“If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes.”

Easement – Unreasonable Enlargement & Imposing Additional Burthen.

Generally speaking, law on easement is strict and stand against unreasonably enlarging easements and imposing additional burthen on servient tenement. But, at times the courts in India took a pragmatic stand that easement for one purpose can be changed to another, provided there is no additional burden (agricultural purposes might be used for the purpose of a factory provided no additional burden). See:

Jesang v. Whittle, (1899) ILR 23 Bom 595,
Manchersha Sorabji v. Virjivallabhdas, (1926) ILR 50 Bom 635,
Mahammad Beari v. Badava Beari, (1931) 61 Mad LJ 58.

Leading English cases Extensively Referred by Katiyar

1. Williams v. James: [1867] LR 2 CP 577, held that ‘a right of way obtained by prescription for the purpose of carting hay to field ‘cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen’.

This decision is followed in Jotindra Mohan Mitter v. Probodh Kumar Dutt, AIR 1932 Cal 249, and it was held –
“In ascertaining the extent of the right of user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle laid down by Wills, J., in Williams v. James [1867] 2 C.P. 577 as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is in the case of this mansion, in the state in which it was when the grant was made. The matter must however be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase.

2. Wimbledon and Putney Commons Conservators v. Dixon: (1875) 1 Ch D 362, held that ‘if a right of way to a field be proved by evidence of user, however general, for whatever purpose qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purpose of the manufactory or town so built.’

This decision is followed in Manchersha Sorabji Shet v. Virijvalavdas Jekisandas, (1926) 28 BomLR 1158, and it was held –
“In Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch D 362 it was held that the immemorial user of a right of way for all purposes for which a road was wanted in the then condition of the property, does not establish a right of way for all purposes in an altered condition of the property where that would impose a greater burden on the servient tenement. Where a road had been immemorially used to a farm not only for usual agricultural purposes, but in certain instances for carrying building materials to enlarge the farm-house and rebuild a cottage on the farm, and for carting away sand and gravel dug out of the farm, it was decided that those circumstances did not establish a right of way for carting the materials required for building a number of new houses on the land.”

3. Corporation of London v. Riggs (1880) 13 Ch. D. 798 held that a right of way of necessity is not a general right “for all purposes”; it is limited to the uses to which it had been put at the time when the action first arose or when the way of necessity was created.

This decision is followed in Manchersha Sorabji Shet v. Virijvalavdas Jekisandas, (1926) 28 BomLR 1158, and it was held –
“Again, in Corporation of London v. Riggs (1880) 13 Ch.D. 798 the head-note runs as follows :- Where the owner of a close surrounded by his own land grants the land and reserves the close, the implied right to a way of necessity to and from the close over the land operates by way of re-grant from the grantee of the land, and is limited by the necessity which created it.”

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

Can one claim ‘easement of necessity’ and ‘easement by prescription’ with respect to a (same) way?
Does a way that started with minimum width (say a foot-path) under the claim ‘easement of necessity’, and continued with a higher width (so that cars can be taken), in the course of time, for more than 20 years, will yield or bring-in ‘easement by prescription’?

We find answer in negative form in Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109. It is held as under:

“10. However, a way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Read Blog: Will Easement of Necessity Ripen or Convert into a Prescriptive Easement?

Profit-a-prendre – Indian Law Varies from English Law

Explanation in Sec. 4 reads:

“…’to do something’ includes removal and appropriation .. of any part of the soil .. or anything growing or subsisting thereon ..”

From Explanation in Sec. 4 it is clear that easement included appropriation of certain tangible material things or natural resources (Profit-a-prendre). They are made clear by the Illustrations to various sections. Eg.

Illustn.-(d) of S.4 speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.
Illustn.- (b) of S. 22 states cutting thatching- grass.
Illustn.- (a) of S. 24 refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’ (as in English Law); but, it includes:

limited (legally-recognised) enjoyment /user/interest in serviant heritage, and
a right for (expressly-recognised) profit.

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right on land. And it does not allow maintaining a substantial interest over the servient land. No profit-a-prendre in gross, ie. for the benefit of individuals (primarily because, it comes out from the ‘Explanation’ of the Definition of Easement). On a close look, it can be seen that it is definitely related to ‘user’ of servient land, by people living in a locality.

No right to build-and-enjoy

Easement is a Right for ‘enjoyment’ of things ‘subsisting’. It is a Right for limited enjoyment, and advantages arising from its situation; and it does not allow to build-and-enjoy. It is further clear from Sec. 7 which indicates that easement is only a right for limited enjoyment of (a) land and (b) advantages arising from its situation.

Conclusion

The Legislatures in India are, taking note of the ground realities of Indian situations, duty bound to make the very axiomatic matters of Easement Law up-to-date. If they do not get time to ponder on these ‘ground realities’, it is not only shocking and shameful but sinful too.

End Notes

Sec. 13 of the Easement Act reads as under:

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;
(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.

Illustrations

(a) A sells B a field then used for agricultural purposes only. It is inaccessible 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 war 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 lard 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 over-looking 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 from 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 from C’s
(k) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of and subjacent support from A’s land as is necessary for the safety of the house.
(l) Under the Land Aquisition Act, 18701 (10 of 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 from 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 no 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.

Sec. 5 of the Easements Act defines apparent and continuous rights as under:

5. Continuous and discontinuous, apparent and non-apparent, easements—

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.

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