Acquisition of Easements, and Easement by Prescription

The Act's illustrations:

(a) A sells B a field then used for agricultural purposes only, inaccessible except over A's adjoining land or by trespassing on a stranger's. B is entitled to a right of way, for agricultural purposes only, over A's land.

(b) A, owner of two fields, sells one and keeps the other. The field retained was used for agricultural purposes only and is inaccessible except over the field sold. A is entitled to a right of way over the field sold.

Illustration (a) contains a limit worth noticing: the way is for agricultural purposes only, because that is what the land was used for at the date of the sale. An easement of necessity is measured by the necessity, and it does not grow when the dominant owner changes his use.

Section 14: who chooses the line of a way of necessity

Section 13 says a way of necessity exists. Section 14 answers the next question, which is where it runs.

When 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 refuses or neglects to do so, the dominant owner may set it out.

The allocation is sensible. The servient owner knows his own land and should be able to choose the line that least damages it, so the first choice is his. But the choice is controlled by a standard, reasonable convenience for the dominant owner, so he cannot route the way through a bog. And if he will not choose at all, he loses the privilege and the dominant owner chooses instead.

Section 15: prescription

Prescription means acquiring a right by long enjoyment. Section 15 is the most examined provision of this Act and it has three limbs, then a set of qualifications.

The three limbs and their conditions:

Light or air. 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.

Support. Where support from one person's land or things affixed thereto has been peaceably received by another person's land subjected to artificial pressure, or by things affixed to it, as an easement, without interruption, and for twenty years.

Any other easement. Where a right of way or any other easement has been peaceably and openly enjoyed by a person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years.

Then the right shall be absolute.

Notice the differences between the limbs, because they are easy marks. Light and air need only be enjoyed peaceably, as an easement, without interruption; there is no requirement of openness or of claiming as of right, since light cannot be enjoyed secretly. The third limb, covering ways and everything else, adds openly and as of right. And the support limb requires the dominant land to be under artificial pressure, which is what distinguishes it from the natural right of support discussed in [What an Easement Is].

The two-year rule. Each period of twenty years must be a period ending within two years next before the institution of the suit in which the claim is contested. So a claimant cannot rely on twenty years of enjoyment that stopped a decade ago; the enjoyment must be recent as well as long.

Against the Government, the section is read as if for "twenty years" there were substituted thirty years.

The four Explanations to section 15

Explanation I: enjoyment under an agreement is not enjoyment. Nothing is enjoyment within the section where it was had in pursuance of an agreement with the owner of the servient property, and it appears from the agreement that the right was not granted as an easement, or, if granted as an easement, that it was granted for a limited period or subject to a condition on the fulfilment of which it is to cease.

The reason is that prescription rests on the servient owner's acquiescence in a right being asserted against him. A person enjoying by permission asserts nothing.

Explanation II: what counts as an interruption. Nothing is an interruption unless there is an actual cessation of enjoyment by reason of an obstruction by the act of some person other than the claimant, and the obstruction is submitted to or acquiesced in for one year after the claimant has notice of it and of the person making it.

Three things follow, and each is a common exam point. The claimant's own failure to use the right is not an interruption. A brief obstruction is not an interruption. And the obstruction only counts once it has been acquiesced in for a full year after notice.

Explanation III: agreed suspension is not interruption. Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption.

Explanation IV: polluting water. For an easement to pollute water, the twenty years begins when the pollution first prejudices perceptibly the servient heritage, not when it began.

The three illustrations to section 15

(a) A suit is brought in 1883 for obstructing a right of way. The plaintiff proves peaceable and open enjoyment, claiming title as an easement and as of right, without interruption, from 1 January 1862 to 1 January 1882. The plaintiff is entitled to judgment.

(b) The plaintiff shows twenty years of enjoyment. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee and enjoyed the right as such lessee. The suit is dismissed, because the way was not enjoyed "as an easement" for twenty years.

(c) The plaintiff shows twenty years of enjoyment. The defendant proves that on one occasion the plaintiff admitted the user was not of right and asked leave. The suit is dismissed, because the way was not enjoyed "as of right" for twenty years.

Illustrations (b) and (c) are the ones that decide problems. A single request for permission destroys twenty years of user, because it concedes that the enjoyment was not as of right.

Sections 16 to 21: the qualifications

Section 16: reversioners. Where the servient heritage was, during the period of enjoyment, held under a life interest or a term of years, the time during which it was so held is excluded in computing the twenty years against the reversioner, provided he resists within three years of the interest ending. A reversioner out of possession cannot be expected to police the land.

Section 17: rights which cannot be acquired by prescription. These include a right which would tend to the total destruction of the servient heritage; a right to the free passage of light or air to an open space; a right to surface water not flowing in a defined channel; a right to underground water not passing in a defined channel; and a right which is not capable of a grant, or which would be contrary to public policy.

The distinction to hold on to is that light to a building can be acquired by prescription under section 15, while light to an open space cannot, under section 17.

Section 18: customary easements. An easement may be acquired by virtue of a local custom, and such an easement is called a customary easement.

Section 19: transfer of the dominant heritage. When the dominant heritage is transferred or devolves, the easement passes with it, unless a contrary intention appears.

Section 20: rights and liabilities of the parties are, unless otherwise provided, governed by the terms of the grant or the nature of the right.

Section 21: an easement cannot be acquired for an illegal purpose, that is, one which would be an offence, or which would injure the public.

A worked example

Wasim owns two adjoining plots at Akola. Plot A has a house whose windows have looked over plot B for twenty-five years. A made track runs across plot B to the road, and it is the only access to plot A.

He sells plot A to Yamini and keeps plot B.

The right of way. Plot A is inaccessible except over plot B, so under clause (a) Yamini gets an easement of necessity. Its extent is measured by the necessity and by the use at the date of sale, on illustration (a).

The light. The windows are continuous and, being visible, the arrangement is apparent, and the light is necessary for enjoying the house as it was then enjoyed. So under clause (b) Yamini gets it as a quasi-easement, unless a different intention is expressed or necessarily implied in the sale.

Reverse the sale. If Wasim had sold plot B and kept plot A, clauses (c) and (d) would give him the same rights over the plot sold.

On a partition between brothers, clauses (e) and (f) would do the same work between the shares.

Now take prescription instead. Suppose the two plots always had different owners, and Yamini's predecessors had used the track across Wasim's plot openly, peaceably, as of right and without interruption from 2004 to 2024, and she sues in 2025. The twenty years is complete and ends within two years before the suit, so the right is absolute under the third limb.

Wasim blocked the track for a month in 2015. Not an interruption under Explanation II unless there was an actual cessation and Yamini submitted to or acquiesced in it for a year after notice.

Yamini's father once asked Wasim's permission to use the track. Fatal, on illustration (c): the enjoyment was not as of right.

Yamini's family held the servient plot as tenants for three of those years and used the track as tenants. Fatal for those years, on illustration (b): the enjoyment was not as an easement.

The servient plot belonged to the Government. The period would be thirty years, not twenty.

Yamini claims a prescriptive right to light over Wasim's plot for her open garden. Barred by section 17: there is no prescriptive right to the free passage of light or air to an open space.

What it does NOT mean

An easement of necessity is not one of convenience. The property must be unusable without it.

A quasi-easement is not automatic either. It must be apparent and continuous and yields to a contrary intention expressed or necessarily implied.

An easement of necessity does not grow with a change of use. Illustration (a) confines the way to agricultural purposes.

Twenty years alone is not enough. For the third limb it must be open, as of right and as an easement, and the period must end within two years before the suit.

Permission destroys prescription. Explanation I and illustration (c).

A short obstruction is not an interruption. Explanation II requires acquiescence for one year after notice.

Light to an open space cannot be prescribed for, though light to a building can.

Against the Government the period is thirty years.

Distinctions

Quick revision

• s.13 operates on severance by transfer, bequest or partition, and also where property passes by operation of law.
• Clauses (a), (c), (e) are easements of necessity: strict necessity, no prior use needed, not defeated by implied contrary intention.
• Clauses (b), (d), (f) are quasi-easements: apparent and continuous, necessary for enjoyment as it then was, and yield to a contrary intention.
• s.15: twenty years of enjoyment makes the right absolute; the period must end within two years before the suit; thirty years against the Government.
• Light and air need peaceable, as an easement, uninterrupted enjoyment; a way needs open enjoyment as of right as well; support requires artificial pressure.
• Explanation I: enjoyment by agreement or permission is not enjoyment. Explanation II: an interruption needs actual cessation by another's act, acquiesced in for one year after notice. Explanation III: agreed suspension is not interruption. Explanation IV: pollution runs from perceptible prejudice.
• Illustrations: (b) enjoyment as lessee is not "as an easement"; (c) asking leave once destroys "as of right".
• s.16 excludes time when the servient heritage was under a life interest or term of years, as against the reversioner; s.17 lists rights that cannot be prescribed for, including light to an open space; s.18 customary easements; s.19 the easement passes with the dominant heritage; s.21 no easement for an illegal purpose.

Test yourself

1. What is the difference between an easement of necessity and a quasi-easement? An easement of necessity under clauses (a), (c) and (e) arises where the right is necessary for enjoying the property, needs no prior use, and is not defeated by an implied contrary intention. A quasi-easement under clauses (b), (d) and (f) requires the right to be apparent and continuous and necessary for enjoying the property as it was enjoyed at severance, and yields to a different intention expressed or necessarily implied.

2. A field sold is accessible only over the seller's land. What does the buyer get, and how far does it extend? A right of way as an easement of necessity, but measured by the necessity: on illustration (a), where the field was then used for agricultural purposes only, the way is for agricultural purposes only.

3. State the three limbs of section 15 and the period. Light or air to a building; support from another's land to land under artificial pressure; and a right of way or any other easement. Each requires twenty years, and the right then becomes absolute. Against Government property the period is thirty years.

4. What extra conditions apply to the third limb that do not apply to light? The enjoyment must be open and as of right, as well as peaceable, as an easement, and without interruption.

5. A claimant used a way for twenty years but once asked the servient owner's permission. Result? The claim fails. On illustration (c) to section 15, the way was not enjoyed "as of right" for twenty years.

6. What amounts to an interruption? An actual cessation of enjoyment caused by an obstruction by the act of some person other than the claimant, submitted to or acquiesced in for one year after the claimant has notice of it and of the person making it.

7. Can a prescriptive right to light be acquired for an open garden? No. Section 17 excludes a right to the free passage of light or air to an open space from acquisition by prescription, though light to a building may be acquired under section 15.

8. Why is time excluded under section 16? Because a reversioner out of possession, the servient heritage being held under a life interest or a term of years, cannot be expected to resist the enjoyment, so that period is excluded in computing the twenty years against him if he resists in time.