An easement 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 reminder to B absolutely. A cannot, unless with B’s consent, impose an easement thereon which will continue after the determination of his life-interest.
© 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 terminable with A’s lease.
Comments
“Impose”- - Meaning of : The word ‘impose’ in sections 8 to 11 means ‘grantor’s land’. Sections 8 to 11 deal with express grant of easements by the owner or occupier of the servient heritage. ‘impose’ is used to indicate ‘impose upon his own land’. AIR 1919 Mad. 339. .The grant may be express, that is either oral, or by writing or by specific mention in a conveyance of property the grantor may create an easement in favour of the grantee. The grant may be implied, that is to say, though there is no specific or express grant of such an easement in a deed of conveyance, which would be legally held to be evidence of intention to create such an easement and given effect to it as such. The grant may be constructive, that is, an easement may accrue to the grantee by operation of the rule of estoppel against the grantor. The grant may be presumed, that is to say, easements are presumed by operation of law to be created in favour of one part and against the other when a piece of a property is divided into two parts either by transfer inter vivos, or bequest or devolution on intestacy. This last class of easements which arise on severance of property is more properly speaking presumed to come into existence by operation of law, but is also sometimes referred to as easements by implied grant, and form the subject-matter of section 13 of this act where they are extensively dealt with.
Express grant: An express grant of easement may be inter vivos or testamentary. If it is inter vivos it may be by a deed or agreement or it may be oral. As convey waste water from the plaintiff’s premises into the river subject to a clause for compensation and in pursuance of this reservation constructed a sewer, it was held that the sewer was for the exclusive use of the plaintiff and the defendant had no right to put a hole into it to drain his own water. Where A conveyed in fee (full ownership) his land to B, reserving to himself, subject to a joint ownership and the right to the use by A of certain drains, and the right to enter upon land to repair them but no rights further and otherwise. A was entitled, whether the drain was the subject of an easement or co-ownership, to lengthen the drain so as to reach the main sewer newly constructed at a lower depth by the local board.
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 reminder to B absolutely. A cannot, unless with B’s consent, impose an easement thereon which will continue after the determination of his life-interest.
© 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 terminable with A’s lease.
Comments
“Impose”- - Meaning of : The word ‘impose’ in sections 8 to 11 means ‘grantor’s land’. Sections 8 to 11 deal with express grant of easements by the owner or occupier of the servient heritage. ‘impose’ is used to indicate ‘impose upon his own land’. AIR 1919 Mad. 339. .The grant may be express, that is either oral, or by writing or by specific mention in a conveyance of property the grantor may create an easement in favour of the grantee. The grant may be implied, that is to say, though there is no specific or express grant of such an easement in a deed of conveyance, which would be legally held to be evidence of intention to create such an easement and given effect to it as such. The grant may be constructive, that is, an easement may accrue to the grantee by operation of the rule of estoppel against the grantor. The grant may be presumed, that is to say, easements are presumed by operation of law to be created in favour of one part and against the other when a piece of a property is divided into two parts either by transfer inter vivos, or bequest or devolution on intestacy. This last class of easements which arise on severance of property is more properly speaking presumed to come into existence by operation of law, but is also sometimes referred to as easements by implied grant, and form the subject-matter of section 13 of this act where they are extensively dealt with.
Express grant: An express grant of easement may be inter vivos or testamentary. If it is inter vivos it may be by a deed or agreement or it may be oral. As convey waste water from the plaintiff’s premises into the river subject to a clause for compensation and in pursuance of this reservation constructed a sewer, it was held that the sewer was for the exclusive use of the plaintiff and the defendant had no right to put a hole into it to drain his own water. Where A conveyed in fee (full ownership) his land to B, reserving to himself, subject to a joint ownership and the right to the use by A of certain drains, and the right to enter upon land to repair them but no rights further and otherwise. A was entitled, whether the drain was the subject of an easement or co-ownership, to lengthen the drain so as to reach the main sewer newly constructed at a lower depth by the local board.