Jojy George Koduvath.

Introduction

The right of every owner of immovable property to enjoy such property with lateral support from the neighbouring land, as a natural advantage arising from its situation, is a recognised civil right.  It is statutorily protected under Section 7 of the Easements Act, 1882.

Section 7 Easements Act, 1882

• “Sec. 7.  Easements restrictive of certain rights:    Easements are restrictions of one or other of the following rights (namely):—    
  • (a) Exclusive right to enjoy. —The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.
  • (b) Rights to advantages arising from situation. —The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
•  Illustrations of the Rights above referred to
•        (a) ….  (d) … ..
•        (e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.
• Explanation. —Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
•        (f) ….  (j) … .. “

Sec. 7 (e) says as to  the ‘extent of lateral support’ entitled to by the dominant tenement

The scope of the words, “not excavated and not subjected to artificial pressure”, triggered two conflicting ascertions. 

• One view is that the right of lateral support is available only if the dominant tenement is in its natural condition, that is, without being excavated and subjected to artificial pressure.
• The opposite view is that Illustration (e) says as to  the ‘extent of lateral support‘ entitled to by the dominant tenement, from the servient tenement. That is, the extent of lateral support is the quantum required “in its (dominant tenement’s) natural condition”.

From Illustration (e) of Sec. 7, with its Explanation, it is clear that the right recognised is:

• (i) The “right of every owner of land” is the right available “in its natural condition” (that is, without being excavated and not being subjected to artificial pressure).
• (ii) The right available will be the “support naturally rendered by the subjacent and adjacent soil of” the servient property.

Therefore, on analysis, it is clear that the Illustration (e) says as to the ‘extent of lateral support’ entitled to by the dominant tenement, from the servient tenement. That is, the extent of lateral support is the quantum required “in its (dominant tenement’s) natural condition”.

In other words, the extent or measure of lateral support to be rendered is the “support naturally rendered by the subjacent and adjacent soil” of the servient tenement, to the dominant tenement “in its natural condition”.

What is denied is the additional support from the servient property for making any additional construction or excavation in the dominant land.

It is also noteworthy that Sec. 7 does not say that entire right of lateral support will be lost if “such land” is not “in its natural condition”.

Lateral support ‘in its natural condition’ is Permanent

Right of lateral support to dominant tenement from servient tenement is an unalterable right.

The liability and measure of lateral support, is the quantum of lateral support required for the dominant tenement ‘in its natural condition’. It will not be lost for making any additional burden on dominant tenement (by any construction).

Kathiyar on the law of Easements and Licences (9th Edition), at page 189, reads:

• “Even if the pressure upon the adjoining soil has been increased by the modern buildings on the surface, still an action will lie if the soil would have sunk if there had been no buildings thereon.” Quoted in: Nayarukandiyil Vinodan Vs. Rajimon, Mukundan: LAWS(KER) 2012 9 492.

Rulings on this matter:

• AIR 1980 Cal 325
• 1988 (2) KLT 365
• 1971 KLJ 599.
• Lonappan Vs. Jacob:  2019-1 KLT 696   (though incorrect for inappropriately applying Sec. 15).

When Sec. 15 of the Easement Act is attracted

According to Sec. 7 of the Easement Act , if an ‘additional burden’ is made in dominant tenement, no additional lateral support will be available from servient tenement to sustain such additional burden. But, when the statutory-prescriptive-period (20 years) is over, such right can be claimed under S. 15 of the Easement Act.

When Sec. 13 of the Easement Act (Easement of Necessity and Quasi Easement) is attracted

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.

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.

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.

From Sec. 5, it is clear that claim for light, gutters and drains, lateral support, vertical support, etc. can be raised as quasi easements.