THE INDIAN EASEMENTS ACT, 18821
(5
of 1882)
[17th
February, 1882]
An Act to define and
amend the law relating to Easements and licenses.
Preamble.-WHEREAS
it is expedient to define and amend the law relating to easements and licenses.
It is hereby enacted as follows:-
PRELIMINARY
1. Short title.-
This Act may be called THE INDIAN EASEMENTS ACT,
1882.
Local extent.-
It extends2 to
the territories respectively administered by the Governor of Madras in Council
and the Chief Commissioners of the Central Provinces and Coorg;
Commencement.-
And it shall come into
force on the first day of July, 1882.
Savings.-
Nothing herein contained
shall be deemed to affect any law not hereby expressly repealed; or to derogate
from-
(a) any right of the 3[Government]
to regulate the collection, retention and distribution of the water of rivers
and streams flowing in natural channels, and of natural lakes and ponds, or of
the water flowing, collected, retained or distributed in or by any channel or
other work constructed at the public expense for irrigation;
(b) any customary or
other right (not being a license) in or over immovable property which the 3[Government],
the public or any person may possess irrespective of other immovable property;
or
(c) any right acquired,
or arising out of a relation created, before this Act comes into force.
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1. For Statement of
Objects and Reasons, see Gazette of India, 1880, Pt. V. p. 494; for
Report of Select Committee, see Gazette of India, Pt. V. p 1021; and for
Proceedings in Council, see Gazette of India, 1881, Supplement. pp. 687
and 766; and Gazette of India, 1882, Supplement, p. 172.
2. The Act was extended
to-
(1) Ajmer-Merwara by
notification under section 5 of the Scheduled Districts Act, 1874 (14 of 1874),
see Gazette of India, 1897, Pt. II. p 1413;
(2) Bombay and the
U.P. by Act 8 of 1891 and continues in
force, with modifications in the territory transferred to Delhi State, see the
Delhi Laws Act, 1915 (7 of 1915), sec. and Sch III;
(3) Whole of Madhya
Pradesh by M.P. Act 23 of 1958;
(4) Pondicherry by Act 26
of 1968, sec. 3 and Sch.
The Ac has been repealed
in its application to Bellary District by Mysore Act Act 14 of 1955.
3. Subs. by the A.O.
1950, for "Crown".
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1[3.
Construction of certain references to Act XV of 1877 and Act IX of 1871.-
All references in any Act
or Regulation to sections 26 of the Indian Limitation Act, 18772, or
to sections 27 and 28 of Act No. IX of 18713, shall, in the
territories to which this Act extends, be read as made to sections 15 and 16 of
this Act.]
CHAPTER
I
OF
EASEMENTS GENERALLY
4.
"Easement" defined.-
An easement is a right
which the owner or occupier of certain land possess, 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.
Explanation.-
In the first and second
clauses of this section, the expression "land" includes also things
permanently attached to the earth; the expression "beneficial
enjoyment" includes also possible convience, remote advantage, and even a
mere amenity; and the expression "to do something" includes removal
and appropriation by the dominant owner, for the beneficial enjoyment of the
dominant heritage, of any part of the soil of the servient heritage, or
anything growing or subsisting thereon.
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1. Subs. by Act 10 of
1914, sec. 2 and Sch. I, for section 3.
2. rep. by Act 9 of 1908.
3. rep. by Act 15 of
1877.
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Illustrations
i
(a) A, as the owner of a
certain house, has a right of way thither over his neighbour B's land for
purposes connected with the beneficial enjoyment of the house. This is an
easement.
(b) A, as the owner of a
certain house, has the right to go on his neighbour B's land, and to take water
for the purposes of his household, out of a spring therein. This is an
easement.
(c) A, as the owner of a
certain house, has the right to conduct water from B's stream to supply the fountains
in the garden attached to the house. This is an easement.
(d) A, as the owner of a certain house and farm,
has the right to graze a certain number of his own cattle on B's field, or to
take, for the purpose of being used in the house, by himself, his family,
guests, lodgers and servants, water or fish out of C's tank, or timber out of
D's wood, or to use, for the purpose of manuring his land, the leaves which
have fallen from the trees in E's land. These are easements.
(e0 A dedicates to the public
the right to occupy the surface of certain land for the purpose of passing and
re-passing. This right is not an easement.
(f) A is bound to cleanse
a water course running through his land and keep it free from obstruction for
the benefit of B, a lower riparian owner. This is not an easement.
5. Continuous and
discontinuous, apparent an 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.
6. Easements for
limited time or on condition.-
An easement may be
permanent, or for a term of years or other limited period, or subject to
periodical interruption, or exercisable only at a certain place, or at certain times, or between certain
hours, or for a particular purpose, or on condition that it shall commence or
become voi or voidable on the happening of a specified event or the performance
or non-performance of a specified Act.
7. Easements restrictive of certain time or on
condition.-
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 the
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) The exclusive right
of every owner of land in a town to
build on such land, subject to any municipal law for the time being in force.
(b) The right of every
owner of land that the air passing
thereto shall not be unreasonably polluted by other persons.
(c) The rights of owner
of a house that physical comfort shall not be interfered with materially and
unreasonable by noise or vibration
caused by any other person.
(d) The right of every owner
of land to so much light and air as pass vertically thereto.
(e) The right of every
owner of land that such land, in its natural condition, shall have the support
naturally 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 illustrations
means such soil only as in its natural condition would support the dominant
heritage in its natural condition.
(f) The right of every
owner of land that, within his own limits, the water which naturally passes
or percolates by, over or through his
land shall not, before so passing or percolating, be unreasonably polluted by other
persons.
(g) The right of every
owner of land to collect and dispose within his own limits of all water under
the land which does not pass in a defined channel and all water on its surface
which does pass in a defined channel.
(h) The right of every
owner of land that the water of every natural stream which passes by, through
or over his land in a defined natural channel shall be allowed by other persons
to flow within such owner's limits without interruption and without material
alteration in quantity, direction, force or temperature; the right of every
owner of land abutting on a natural lake
or pond into or out of which a natural stream flows, that the water of such
lake or pond shall be allowed by other persons to remain within such owner's
limits without material alteration in quantity or temperature.
(i) The right of every
owner of upper land that water naturally
rising in, or falling on such land, and not passing in defined channels, shall
be allowed by the owner of adjacent lower land to run naturally thereto.
(j) The right of every
owner of land abutting on a natural stream, lake or pond to use and consume its
water for drinking, household purposes and watering his cattle and sheep; and
the right of every such owner to use and consume the water for irrigating such
land, and for the purposes of any manufactory situate thereon, provided that he
does not thereby cause material injury to other like owner.
Explanation.-
A natural stream is a
stream, whether permanent or intermittent, tide or tideless, on the surface of
land or underground, which flows by the operation of nature only and in a
natural and known course.
CHAPTER
II
THE
IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS
8. Who may impose
easements.-
An easements may be
imposed by any one in the circumstances, and to the extent, in and to which he
may transfer his interest in the heritage on which the liability is to be
imposed.
Illustrations
(a) A is tenant of b's
land under a lease for an unexpired term of twenty years, and has power to
transfer his interest under the lease. A may impose an easement on the land to
continue during the time that the lease exists or for any shorter period.
(b) A is tenant for his
life of certain land with remainder to B absolutely. A cannot, unless with B's
consent, impose an easement thereon which will continue after the determination
of his life interest.
(c) A, B and C are
co-owners of certain land. A cannot, without the consent of b and C, impose an
easement on the land or on any part
thereof.
(d) A and b are lessees
of the same lessor, A of a field X for a term of five years, and B of a field Y
for a term of ten years. A's interest under his lease is transferable; B's is
not. A may impose on X, in favour of B, a right of way terminate with A's
lease.
9. Servient owners.-
Subject to the provisions
of section 8, a servient owner may impose on the servient heritage any easement
that does not lessen the utility of the existing easement. But he cannot,
without the consent of the dominant owner, impose an easement on the servient
heritage which would lessen such
utility.
Illustrations
(a) A has in respect of
his mill, a right to the uninterrupted flow thereto, from sunrise to noon, of
the water of b's stream. B may grant to C the right to divert the water of the
stream from noon to sunset, provided that A's supply is not thereby diminished.
(b) A has, in respect of
his house, a right of way over B's land. B may grant to C, as the owner of
neighbouring farm, the right to feed his cattle on the grass growing on the
way; provided that A's right of way is not thereby obstructed.
10. Lessor and
mortgagor.-
Subject to the provisions
of section 8, a lessor may impose, on the property leased, any easement that
does not derogate from the rights of the lessee as such, and a mortgagor may
impose, on the property mortgaged, any easement that does not render the
security insufficient. But a lessor or mortgagor cannot, without the consent of
the lessee or mortgagee, impose any other easement on such property, unless it
be to take effect on the termination of the lease of the redemption of the
mortgage.
Explanation.-
A security is
unsufficient within the meaning of this section unless the value of the
mortgaged property exceeds by one-third, or, if consisting of building, exceeds
by one-half, the amount for the time being due on the
mortgage.
11. Lessee.-
No lessee or other person
having a derivative interest may impose on the property held by him as such an
easement to take effect after the expiration of his own interest, or in
derogation of the right of the lessor or the superior proprietor.
12. Who may acquire
easements.-
An easements may be
acquires by the owner of the immovable property for the beneficial enjoyment of
which the right is created, or on his
behalf, by any person in possession of the same.
One of two or more
co-owners of immovable property may, as such, with or without the consent of
the other or others, acquire an easement for the beneficial enjoyment of such
property.
No lessee of immovable
property of his own, an easement in or over the property comprised in his
lease.
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 transfere 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 ofb 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 tranferee.
(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 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 was 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 land 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 house and adjoining land. The house was 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 built so
as to obstruct such right.
(f) A is the owner of a
house and adjoining land. The house has windows overlooking the land. A,
retaining the house sells the land to B, without expressly reserving any
easement. The light passing over the land to 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 gutters 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 support6 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 's
building.
(k) A grants lands to b
for the purpose of building a house thereon. b is entitled to such amount of
lateral and subjacent support from A's land as is necessary for the safety of
the house.
(l) Under the Land
Acquisition Act, 1870 (10 of 1870)1, a Railway Company is entitled to such amount of lateral support
from B's adjoining land as is essential for the safety of the siding.
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1. See now the land
Acquisition Act, 1894 (1 of 1894).
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(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 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.
14. Direction of way
of necessity.-
When 1[a
right] to a way of necessity is created under section 13, the transferor, the
legal representative of the testator, or the owner of the share over which the
right is exercised, as the case may be, is entitled to set out the way; but it must
be reasonably convenient for the dominant owner.
When the person so
entitled to set out the way refuses or neglects to do so, the dominant owner
may set it out.
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1. Subs. by Act 12 of
1891, sec. 2 and Sch. II, for "right".
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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 is 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.
Each of the said periods
of twenty years shall be taken to be a period ending within two years next
before the institution of the suit wherein the claim to which such period
relates is contested.
Explanation I.- Nothing
is an enjoyment within the meaning of this section when it has been had in pursuance
of an agreement with the owner or occupier of the property over which the right
is claimed, and it is apparent from the
agreement that such right has not been
granted as an easement, or, if granted as an easement, that it has been granted
for a limited period, or subject to a condition on the fulfilment of which it
is to cease.
Explanation II.- Nothing
is an interruption within the meaning of this section unless where there is an
actual cessation of the enjoyment by reason of an obstruction by the act of
some person other than the claimant, and unless such obstruction is submitted
to or acquiesced in for one year after the claimant has notice thereof, and of
the person making or authorizing the same to be made.
Explanation III.- Suspension
of enjoyment in pursuance of a contract between the dominant and servient
owners is not an interruption within the meaning of this section.
Explanation IV.- In
the case of an easement to pollute water, the said period of twenty years
begins when the pollution first prejudices perceptibly the servient heritage.
When the property over
which a right is claimed under this section belongs to the 1[Government],
this section shall be read as if, for the words "twenty years" the
words 2["thirty years"] were substituted.
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1. Subs. by the A.O.
1950, for crown".
2. Subs. by Act 36 of
1963, sec. 28, for "sixty years" (w.e.f. 1-1-1964).
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Illustrations
(a) A suit is brought in
1883 for obstructing a right of way. The defendant admits that obstruction but
denies the right of way. The plaintiff proves that the right was peaceably and
openly enjoyed by him, claiming title thereto, as an easement, and as of right,
without interruption from 1st January, 1882. The plaintiff is
entitled to judgment.
(b) In a like suit the
plaintiff shows that the right was peaceably and openly enjoyed by him for
twenty years. The defendant proves that for a year of that time the
plaintiff was entitled to possession of
the servient heritage as lessee thereof and enjoyed the right as such lessee.
The suit shall be dismissed, for the right of way has not been enjoyed "as
an easement" for twenty years.
(c) In a like suit the
plaintiff shows that the right was peaceably and openly enjoyed by him for
twenty years. The defendant proves that the plaintiff on one occasion during
the twenty years had admitted that the user was not of right and asked his
leave to enjoy the right. The suit shall be dismissed, for the right of way has
not been enjoyed "as of right" for twenty years.
16. Exclusion in
favour of reversioner of servient heritage.-
Provided that, when any
land upon, over or from which any easement has been enjoyed or derived has been
held under or by virtue of any interest for life or any term of years exceeding three years
from the granting thereof, the time of the enjoyment of such easement during
the continuance of such interest or term shall be excluded in the computation
of the said last-mentioned period of twenty years, in case the claim is, within
three years next after the determination of such, interest or term, resisted by
the person entitled, on such determination, to the said land.
Illustration
A sues for a declaration
that he is entitled to a right of way over B's land, A proves that he has
enjoyed the right for twenty-five years. But B shows that during ten of these
years c had a life-interest in the land; that on C's death B became entitled to
the land; and that within two years after C's death he contested A's claim to
the right. The suit must be dismissed, as A, with reference to the provisions
of this section, has only proved enjoyment for fifteen years.
17. Rights which
cannot be acquired by prescription.-
Easements acquired under
section 15 are said to be acquired by prescription, and are called prescriptive
rights.
None of the following
rights can be so acquired:-
(a) a right which would
tend to the total destruction of the subject of the right, or the property on
which, if the acquisition were made, liability would be imposed;
(b) a right to the free
passage of light or air to an open space of ground;
(c) a right to
surface-water not flowing in a stream and not permanently collected in a pool,
tank or otherwise;
(d) a right to
underground water not passing in a defined channel.
18. Customary
easements.-
An easement may be
acquired in virtue of a local custom. such easements are called customary
easements.
Illustrations
(a) By the custom of a
certain village every cultivator of village land is entitled, as such, to graze
his cattle on the common pasture. A having become the tenant of a plot of
uncultivated land in the village breaks up and cultivates that plot. He thereby
acquires an easement to graze his cattle in accordance with the custom.
(b) By the custom of a
certain town no owner or occupier of a house can open a new window therein so
as substantially to invade his neighbour's privacy. A builds a house in the
town near B's house. A thereupon acquires an easements that B shall not open new
windows in his house so as to command a view of the portions of A's house which
are ordinarily excluded from observation, and b acquires a like easement with
respect to A's house.
19. Transfer of
dominant heritage passes easements.-
Where the dominant heritage
is transferred or devolves, by act of parties or by operation of law, the
transfer or devolution shall, unless a contrary intention appears, be deemed to
pass the easement to the person in whose favour the transfer or devolution
takes place.
Illustration
A has certain land to
which a right of way is annexed. A lets the land to B for twenty years. The
right of way vests in b and his legal representatives so long as the lease
continuous.
CHAPTER
III
THE
INCIDENTS OF EASEMENTS
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 is inconsistent with such rules, nothing in this Chapter
shall affect such incident.
21. bar to use
unconnected with enjoyment.-
An easement must not be
used of any purpose not connected with the enjoyment of the dominant heritage.
Illustrations
(a) A, as owner of a farm
Y, has a 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 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.-
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 determent 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 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.-
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, 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
entile A to advance his eaves if, by so doing, he impose a greater burden on B's land.
(c) A as the owner of a
paper-mill, acquires a right to pollute a stream by procuring in the
refuse-liquor produced by making in the mill paper from rage. 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 entile A to pollute the
stream by discharging into it poisonous liquor.
24. Right to do acts
to secure enjoyment.-
The dominant owner is
entitled1, 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 inconvience as possible; and the dominant
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 to B, provided that
the deviation is reasonable.
(e) A, as owner of a
certain house, has a right or 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 easements.-
The expenses incurred in
constructing works, on 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.-
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 work2.
----------------------------------------------------------------------------------------------------------------------------
1. But see section
36, infra, as to abatement of obstruction of easement.
2. But see section
36, infra, as to extinguishment or suspension of easement.
----------------------------------------------------------------------------------------------------------------------------
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 water course 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 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 water course through B's land. B must not drive stakes
so as to obstruct the water course.
(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. Extend 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 extend 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.
(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 on 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.-
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 dilluvion, the easement is proportionately
diminished.
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 manuring 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 fields.
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 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 district
heritages. each of these continues to have the right to have its windows
unobstructed.
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 interefere with the lawful
enjoyment of the easement.
A, having a right to the
free passage over B's land of light to four windows, 6' X 4', 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.
CHAPTER
IV
THE
DISTURBANCE OF EASEMENTS
32. Right to enjoyment
without disturbance.-
The owner or occupier of
the dominant heritage is entitled to enjoy the easement without disturbance by
any other person.
Illustration
33. Suit for
disturbance of easement.-
The owner of any interest in the dominant
heritage, or the occupier of such heritage, may institute a suit for
compensation for the disturbance of the easement or of any right accessory
thereto:
Provided that the
disturbance has actually caused substantial damage to the plaintiff.
Explanation I.- the
doing of any act likely to injure the plaintiff by affecting the evidence of
the easement, or by materially diminishing the value of the dominant heritage,
is substantial damage within the meaning of this section and section 34.
Explanation II.- Where
the easement disturbed is a right to the free passage of light passing to the
openings in a house, no damage is substantial within the meaning of this
section unless it falls within the first Explanation, or interferes
materially with the 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 instituting the suit.
Explanation III.- Where
the easement disturbed is a right to the free passage of air to the openings in
a house, damage is substantial within the meaning of this section if it
interferes materially with the physical comfort of the plaintiff, though it is
not injurious to his health.
Illustrations
(a) A places a permanent obstruction in a path
over which B, as tenant of c's house, has a right of way. This is substantial
damage to C, for it may affect the evidence of his reversionary right to the
easement.
(b) A, as owner of a
house, has a right to walk along one side of B's house. B builds, a verandah
overhanging the way about ten feet from
the ground, and so as not to occasion
any inconvenience to foot-passengers using the way. This is not substantial
damage to A.
34. When cause of
action arises for removal of support.-
The removal of the means
of support to which a dominant owner is entitled does not give rise to a right
to recover compensation unless and until substantial damage is actually
sustained.
35. Injunction to
restrain disturbance.-
Subject to the provisions
of the Specific Relief Act, 1877 (1 of 1877)1, sections 52 to 57
(both inclusive), an injunction may be granted to restrain the disturbance of
an easement-
(a) if the easement is
actually disturbed - when compensation for such disturbance might be recovered
under this Chapter;
(b) if the disturbance is
only threatened or intended - when the act threatened or intended must
necessarily, if performed, disturb the easement.
----------------------------------------------------------------------------------------------------------------------------
1. See now the
Specific relief Act, 1963 (47 of 1963).
----------------------------------------------------------------------------------------------------------------------------
36. Abatement of
obstruction of easement.-
Notwithstanding the
provisions of section 24, the dominant owner cannot himself abate a wrongful
obstruction of an easement.
CHAPTER
V
THE
EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS
37. Extinction by
dissolution of right of servient owner.-
When from a cause which
preceded the imposition of an easement, the person by whom it was imposed
ceases to have any right in the servient heritage, the easement is extinguished.
Exception.- Nothing in this section applies to an
easement lawfully imposed by a mortgagor in accordance with section 10.
Illustration
(a) A transfers Sultanpur
to B on condition that he does not marry C, B imposes an easement on Sultanpur.
Then B marries C, B's interest in Sultanpur ends, and with it the B's interest
in Sultanpur ends, and with it the easement is extinguished.
(b) A, in 1860, let
Sultanpur to b for thirty years from the date of the lease. B, in 1861, imposes
an easement on the land in favour of C, who enjoys the easement peaceably and
openly as an easement without interruption for twenty-nine years, B's interest
in Sultanpur then ends, and with it C's easement.
(c) A and b, tenants of
C, have permanent transferable interests in their respective holdings. A
imposes on his holding an easement to draw water from a tank for the purpose of
irrigating B's land. B enjoys the easement for twenty years. Then A's rent
falls into arrear and his interest is sold. B's easement is extinguished.
(d) A mortgages Sultanpur
to B, and lawfully imposes an easement on the land in favour of C in
accordance with the provisions of
section 10. The land is sold to D in satisfaction of the mortgage-debt. The easement is not
thereby extinguished.
38. Extinction by
release.-
An easement is
extinguished when the dominant owner releases it, expressly or impliedly, to
the servient owner.
Such release can be made
only in the circumstances and to the extent in and to which the dominant owner
can alienate the dominant heritage.
An easement may be
released as to part only of the servient heritage.
Explanation I.- An
easement is impliedly released-
(a) where the dominant
owner expressly authorises an act of a permanent nature to be done on the
servient heritage, the necessary consequence of which is to prevent his future
enjoyment of the easement, and such act is done in pursuance of such authority;
(b) where any permanent
alteration is made in the dominant heritage of such a nature as to show that
the dominant owner intended to cease to enjoy the easement in future.
Explanation II.- Mere
non-user of an easement is not an implied release within the meaning of this
section.
Illustration
A, B and C are co-owners
of a house to which an easement is annexed. A, without the consent of b and C,
releases the easement. This release is effectual only as against A and his
legal representative.
(b) A grants B an
easement over A's land for the beneficial enjoyment of his house. B assigns the
house to C, B then purports to release the easement. The release is
ineffectual.
(c) A, having the right
to discharge his eavesdroppings into B's yard, expressly authorises B to build
over his yard to a height which will
interfere with the discharge. B builds accordingly. A's easement is
extinguished to the extent of the
interference.
(d) A, having an easement
of light to a window, builds up that window with bricks and mortar so as to
manifest an intention to abandon the easement permanently. The easement is
impliedly released.
(e) A, having a
projecting roof by means of which he enjoys an easement to discharge
eavesdropping on B's land, permanently alters and roof, so as to direct the
rain-water into a different channel and discharge it on C's land. The easement
is impliedly released.
39. Extinction by
revocation.-
An easement is extinguished
when the servient owner, in exercise of
a power reversed in this behalf, revokes the easement.
40. Extinction on
expiration of limited period or happening of dissolving condition.-
An easement is
extinguished where it has been imposed for a limited period, on acquired on
condition that it shall become void on the performance or non-performance of a
specified act, and the period expires or the condition is fulfilled.
41. Extinction on
termination of necessity.-
An easement of necessity
is extinguished when the necessity comes to an end.
Illustration
A grants B a field
inaccessible except by passing over A's adjoining land. B afterwards purchases
a part of that land over which he can pass to his field. The right of way over
A's land which B had acquired is extinguished.
42. Extinction of
useless easement.-
An easement is extinguished when it becomes incapable of
being at any time under any circumstances beneficial to the dominant owner.
43. Extinction by
permanent change in dominant heritage.-
Where, by any permanent
change in the dominant heritage, the burden on the servient heritage is
materially increased and cannot be reduced by the servient owner without
interfering with the lawful enjoyment of the easement, the easement is
extinguished unless-
(a) it was intended for
the beneficial enjoyment of the dominant heritage, to whatever extent the
easement should be used; or
(b) the injury caused to
the servient owner by the change is so slight that no reasonable person would
complain of it; or
(c) the easement is an
easement of necessity.
Nothing in this section
shall be deemed to apply to an easement entitling the dominant owner to support of the dominant
heritage.
44. Extinction on
permanent alteration of servient heritage by superior force.-
An easement is
extinguished where the servient heritage is by superior force so permanently
altered that the dominant owner can no longer enjoy such easement:
Provided that, where a
way of necessity is destroyed by superior force, the dominant owner has a right
to another way over the servient heritage; and the provisions of section 14
apply to such way.
Illustrations
A grants to B, as the
owner of a certain house, a right to fish in a river running through A's land.
The river changes its course permanently and runs through C's land. B's
easement is extinguished.
(b) Access to a path over
which A has a right of way is permanently ct off by an earthquake. A's right is
extinguished.
45. Extinction by
destruction of either heritage.-
An easement is
extinguished when either the dominant or the servient heritage is completely
destroyed.
Illustration
A has a right of way over running along the foot of a sea-cliff.
The road is washed away by a permanent encroachment of the sea. A's easement is
extinguished.
46. Extinction by
unity of ownership.-
An easement is
extinguished when the same person
becomes entitled to the absolute ownership of the whole of the dominant and
servient heritages.
Illustrations
(a) A, as the owner of a
house, has a right of way over B's field. A mortgages his house, and B
mortgages his field to C. Then C forecloses both mortgages and becomes thereby
absolute owner of both house and field. The right of way is extinguished.
(b) The dominant owner
acquires only part of the servient heritage; the easement is not extinguished,
except in the case illustrated in section 41.
(c) The servient owner
acquires the dominant heritage in connection with a person; the easement is not
extinguished.
(d) The separate owners
of two separate dominant heritages jointly acquire the heritage which is
servient to the two separate heritages;
the easements are not extinguished.
(e) The joint owners of
the dominant heritage jointly acquire the servient heritage; the easement is
extinguished.
(f) A single right of way
exists over two servient heritages for the beneficial enjoyment of a single
dominant heritage. The dominant owner acquires only one of the servient
heritages. The easement is not extinguished.
(g) A has a right of way over B's road to the
public. A's right of ways is not extinguished.
47. Extinction by
non-enjoyment.-
A continuous easement is
extinguished when it totally ceases to be enjoyed as such for an unbroken
period of twenty years.
A discontinuous easement
is extinguished when, for a like period, it has not been enjoyed as such.
Such period shall be
reckoned, in the case of a continuous easement, from the day on which its
enjoyment was obstructed by the servient owner or rendered impossible by the
dominant owner; and, in the case of a discontinuous easement, from the day on
which it was last enjoyed by any person as dominant owner;
Provided that if, in the
case of a discontinuous easement the
dominant owner, within such period, registers, under the Indian Registration
Act, 1877 (3 of 1877)1, a
declaration of his intention to retain such easement, it shall not be
extinguished until a period of twenty years has elapsed from the date of the
registration.
Where an easement can be
legally enjoyed only at a certain place, or at certain times, or between
certain hours, or for a particular purpose, its enjoyment during the said
period at another place, or at other times, or between other hours, or for
another purpose, does not prevent its extinction under this section.
The circumstances that,
during the said period, no one was in possession of the servient heritage, or
that the easement could not be enjoyed or that a right accessory thereto was
enjoyed, or that dominant owner was not aware of its existence, or that he
enjoyed it in ignorance of his right to do so, does prevent its extinction
under this section.
----------------------------------------------------------------------------------------------------------------------------
1. See now the
Registration Act, 1908 (16 of 1908).
----------------------------------------------------------------------------------------------------------------------------
An easement is not
extinguished under this section-
(a) where the cessation
is in pursuance of a contract between the dominant and servient owners;
(b) where the dominant
heritage is held in co-ownership, and one of the co-owners enjoys the easement
within the said period; or
(c) where the easement is
a necessary easement.
Where several heritages
are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such
rights shall, for the purposes of this section, be deemed to be a single easement.
Illustration
A has, as annexed to his
house, rights of way from the high road thither over the heritages X and Z and
the intervening heritage Y. before the twenty years expire, A exercises his
right of way over . His rights of way over Y and Z are not extinguished.
48. Extinction of accessory
right.-
When an easement is
extinguished, the rights (if any) accessory thereto are also extinguished.
Illustration
A has an easement to draw
water from B's well. As accessory thereto, he has a right of way over b's land
to and from the well. The easement to draw water is extinguished under section
47. The right of way is also extinguished.
49. Suspension of
easement.-
An easement is suspended
when the dominant owner becomes entitled
to possession of the servient heritage for a limited interest therein, or when
the servient owner becomes entitled to possession of the dominant heritage for
a limited interest therein.
50. Servient owner not
entitled to require continuance.-
The servient owner has no
right to require that an easement be continued; and, notwithstanding the
provisions of section 26, he is not entitled to compensation for damage caused
to the servient heritage in consequence of the extinguished or suspension of
the easement, if the dominant owner has given to the servient owner such notice
as will enable him, without unreasonable expense, to protect the servient
heritage from such damage.
Compensation for
damage caused by extinguishment or suspension.-
Where such notice has not
been given, the servient owner is entitled to compensation for damage caused to the servient heritage
in consequence of such extinguishment or suspension.
Illustration
A, in exercise of an
easement, diverts to his canal the water of B's stream. The diversion
continuous for many years, and during that time the bed of the stream partly
fills up. A then abandons his easement, and restores the stream to its ancient
course. B's land is consequently flooded. B sues A for compensation for the
damage caused by the flooding. It is proved that A gave B a month's notice of
his intention to abandon the easement, and that such notice was sufficient to
enable B, without unreasonable expense, to have prevented the damage. The suit
must be dismissed.
51. Revival of
easement.-
An easement extinguished
under section 45 revives (a) when the destroyed heritage is, before twenty
years have expired, restored by the deposit of alluvion; (b) when the destroyed heritage is a servient
building and before twenty years have expired such building is rebuilt upon the same site, and (c) when
the destroyed heritage is a dominant building and before twenty years have
expired such building is rebuilt upon the same site and in such a manner as not
to impose a greater burden on the servient heritage.
An easement extinguished
under section 46 revives when the rant or bequest by which the unity of
ownership was produced is set aside by the decree of a competent Court. A
necessary easement extinguished under the same section revives when the unity of
ownership ceases from the other cause.
A suspended easement
revives if the cause of suspension is removed before the right is extinguished
under section 47.
Illustration
A, as the absolute owner
of field Y, has right of way thither over B's field Z. A obtains from a lease of Z for twenty years. The easement
is suspended so long as A remains lessee of Z. But when A assigns the lease to
C, or surrenders it to B, the right of way revives.
CHAPTER
VI
LICENSES
52.
"License" defined.-
Where one person grants
to another, or to a definite number of other persons, 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, and such right does not
amount to an easement or an interest in the property, the right is called a
license.
53. Who may grant
license.-
A license may be granted
by any one in the circumstances and to the extent in and to which he may
transfer his interests in the property affected by the lecense.
54. Grant may be
expressed or implied.-
The grant of a license
may be expressed or implied from the conduct of the grantor, and an agreement
which purports to create an easement, but is ineffectual for that purpose, may
operate to create a license.
55. Accessory licenses
annexed by law.-
All licenses necessary
for the enjoyment of any interest, or the exercise of any right, are implied in
the constitution of such interest or right. Such licenses are called accessory
licenses.
Illustration
A sells the trees growing
on his land to B. B is entitled to go on the land and take away the trees.
56. License when
transferable.-
Unless a different
intention is expressed or necessarily implied, a license to attend a place of
public entertainment may be transferred by the licensee; but, save as
aforesaid, a license cannot be transferred by the licensee or exercised by his
servants or agents.
Illustrations
(a) A grants B a right to
walk over A's field whenever he pleases. The right is not annexed to any
immovable property of B. The right cannot be transferred.
(b) The Government grant
B a license to erect and use temporary grain-sheds on Government land. In the
absence of express provision to the contrary, B's servants my enter on the land
for the purpose of erecting sheds, erect
the same, deposit grain therein and remove
grain therefrom.
57. Grantor's duty to
disclose defects.-
The grantor of a license
is bound to disclose to the licensee ant defect in the property affected by the
license, likely to be dangerous to the person or property of the licensee, of
which the grantor is, and the licensee is not, aware.
58. Grantor's duty not
to render property unsafe.-
The grantor of a license
is bound not to do anything likely to render the property affected by the
license dangerous to the person or property of the licensee.
59. Grantor's
transferee not bound by license.-
When the grantor of the
license transfers the property affected thereby, the transferee is not as
such such bound by the license.
60. License when
revocable.-
A license may be revoked
by the grantor, unless-
(a) it is coupled with a
transfer of property and such transfer is in force;
(b) the licensee, acting
upon the license, has executed a work of a permanent character and incurred
expenses in the execution.
61. Revocation express
or implied.-
The revocation of a
license may be express or implied.
Illustration
(a) A, the owner of a
field, grants a license to b, to use a path across it. A with intent to revoke
the license, locks a gate across the path. The license is revoked.
(b) A, the owner of a
field, grants a license to B to stack hay on the field. A lets or sells the
field to C. The license is revoked.
62. License when
deemed revoked.-
A license is deemed to be
revoked-
(a) when, from a cause
preceding the grant of it, the grantor ceases to have any interest in the property affected by the
license;
(b) when the licensee
releases it, expressly or impliedly, to the grantor or his representative;
(c) where it has been
granted for a limited period, or acquired on condition that it shall become
void on the performance or non-performance of a specified act, and the period
expires, or the
condition is fulfilled;
(d) where the property
affected by the license is destroyed or by superior force so permanently
altered that the licensee can no longer exercise his right;
(e) where the licensee
becomes entitled to the absolute ownership of the property affected by the
license;
(f) where the license is
granted for a specified purpose and the
purpose is attained or abandoned, or becomes impracticable;
(g) where the license is
granted to the licensee as holding a particular office, employment or
character, and such office, employment or character ceases to exist;
(h) where the license
totally ceases to be used as such for an unbroken period of twenty years, and
such cessation is not in pursuance of a contract between the grantor and the
licensee;
(i) in the case of an accessory license, when the
interest or right to which it is accessory ceases to exist.
63. Licensee's rights
on revocation.-
Where a license is
revoked, the licensee is entitled to a reasonable time to leave the property
affected thereby and to remove any goods which he has been allowed to place on
such property.
64. Licensee's rights
on eviction.-
Where a license has been
granted for a consideration, and the licensee, without any fault of his own, is
evicted by the grantor before he has fully enjoyed, under the license, the
right for which he contracted, he is entitled to recover compensation from the
grantor.
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