Easements by Prescription: Sections 25 and 26, Limitation Act

Most of the Limitation Act takes rights away by the passage of time. Section 25 does the reverse: it creates a right. A person who has enjoyed light, air, a way, a watercourse or another easement over a neighbour's land, openly and as of right, for twenty years without interruption, acquires an absolute and indefeasible easement. Section 26 protects a reversioner where the servient land was held under a long lease or life interest. This note covers the conditions, the two-year rule, interruption, the reversioner exclusion, the Indian Easements Act, and examples.

1. Section 25: The Conditions

Figure 1: Acquisition of an easement by prescription

• Text, s.25(1). Where the access and use of light or air to a building have been peaceably enjoyed as an easement, as of right, without interruption, for twenty years, and where a way, watercourse, use of water or any other easement (affirmative or negative) has been peaceably and openly enjoyed by a person claiming title to it as an easement, as of right, without interruption, for twenty years, the right becomes absolute and indefeasible.
• As of right. The enjoyment must not be by force, by stealth or by the owner's permission. Use by licence, however long, never ripens into an easement.
• Government property. Under s.25(3), the period is thirty years where the servient property belongs to the Government.
• Substantive right. Section 25 is one of the Act's two acquisitive provisions, with s.27, which extinguishes title. Both are exceptions to the rule that limitation bars only the remedy (Topic 1)

Figure 2: Light and air compared with other easements

2. The Two-Year Rule and Interruption

• s.25(2). 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. Until then, the right is inchoate.
• Effect. A claimant who stops enjoying the easement must sue within two years of completing the twenty years. Twenty years of enjoyment long ago, followed by a gap, does not suffice.
• Explanation, interruption. Nothing is an interruption unless there is an actual cessation of enjoyment because of an obstruction by someone other than the claimant, submitted to or acquiesced in for one year after the claimant has notice of it and of the person responsible.
• Consequence. An obstruction acquiesced in for less than a year does not break the period. A claimant obstructed shortly before completing twenty years can still complete the period and sue before a year of acquiescence runs.

Figure 3: Worked examples

3. Section 26: Reversioner of the Servient Tenement

Figure 4: Exclusion in favour of the reversioner

• Text. Where the servient land or water was held under an interest for life or a term of years exceeding three years, the time of enjoyment during that interest is excluded in computing the twenty years, if the claim is resisted by the person entitled on its determination within three years after it ends.
• Reason. A reversioner who had no possession could not have resisted the enjoyment, so it would be unjust to let it count against him.

4. The Easements Act and Practice

• Indian Easements Act, 1882. Sections 15 and 16 of that Act contain parallel rules on prescription and the reversioner exclusion. Under s.29(4) of the Limitation Act, ss.25 and 26 and the definition of easement in s.2 do not apply in territories to which the Easements Act extends; there, ss.15 and 16 of the Easements Act govern.
• Justiniano Antao v Bernadette B. Pereira (2005). The Supreme Court held that a prescriptive easement must be specifically pleaded and proved, showing the period of twenty years of enjoyment; vague assertions of long use are not enough.
• Obstruction suits. A suit for compensation for obstructing a way or watercourse must be filed within three years of the obstruction (Article 85)

5. Frequently Asked Questions

Can an easement be acquired against Government land?

Yes, but the period is thirty years instead of twenty. Section 25(3) substitutes thirty years where the property over which the right is claimed belongs to the Government.

What counts as an interruption under section 25?

Only an actual cessation of enjoyment caused by an obstruction by someone other than the claimant, which the claimant submits to or acquiesces in for one year after he has notice of it and of the person responsible. A shorter acquiescence does not interrupt the period.

Does twenty years of enjoyment that ended long ago create an easement?

No. Under s.25(2), the twenty years must end within two years next before the suit in which the claim is contested. If enjoyment stopped and more than two years passed before the suit, the inchoate right is lost.

Can use with the owner's permission ripen into an easement?

No. Enjoyment must be as of right. Use by the owner's permission or licence, however long it lasts, is not enjoyment as of right and cannot found a prescriptive easement.

6. Related Topics

• Topic 22: Extinction of Right and Adverse Possession, Section 27. The other substantive rule.
• Topic 1: Nature, Object and Scheme of the Act. Remedy and right.