TORT 168 Interference with Easements — Law of Torts Notes for Judiciary

Interference With Easements: Support, Light, Air and Way, and the Requirement of Substantial Damage

An easement is a right which the owner or occupier of land possesses as such for the beneficial enjoyment of that land, to do something, or to prevent something being done, in or upon land not his own. Disturbance of an easement is a tort, closely related to nuisance and often pleaded with it, and it is governed in India by the Indian Easements Act, 1882. The feature that distinguishes it from the ordinary tort of nuisance is the requirement in section 33 that the disturbance must have caused substantial damage, and the Act goes on to say, in explanations of real practical importance, exactly what counts as substantial in the cases of light, air and support.

1. What an Easement Is

Section 4, Indian Easements Act, 1882

An easement is a right which the owner or occupier of certain land possesses, 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.

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.

Four elements follow from the definition: there must be a dominant and a servient heritage; the right must be for the beneficial enjoyment of the dominant heritage; the two must be owned or occupied by different persons; and the right must be capable of forming the subject matter of a grant.
Section 5 divides easements into continuous and discontinuous, and into apparent and non apparent, a classification which matters to how they are acquired.
Section 7 states the easements which restrict the ordinary rights of the servient owner, and its illustrations include the right of every owner of land that his land, in its natural condition, shall have support naturally rendered by the subjacent and adjacent soil of another person.
Section 13 deals with easements of necessity and quasi easements, arising on a transfer or partition where a right is necessary for enjoying the subject of the transfer.

2. Acquisition by Prescription

Section 15 governs prescription. Where an easement has been enjoyed peaceably and openly, as of right, and without interruption, for twenty years, the right becomes absolute.
The period is thirty years where the servient heritage belongs to the Government.
The rights covered are the access and use of light or air to and for a building, a way or watercourse, the use of water, and any other easement.
For light and air the enjoyment must have been as an easement and without interruption, and the twenty years must be the period ending within two years next before the institution of the suit.
Section 17 lists rights which cannot be acquired by prescription, including a right which would tend to the total destruction of the servient heritage, and a right to the free passage of light or air to an open piece of ground.
Section 18 preserves customary easements, which arise from local custom rather than from grant or prescription.

3. The Principal Easements and What Disturbs Them

The easement	The disturbance
Right of support for land	Excavation on adjoining or subjacent land causing the dominant land to subside. This right exists naturally and need not be acquired
Right of support for buildings	The same, but this is not a natural right and must be acquired by grant or by twenty years' prescription. Dalton v. Angus and Co., (1881) 6 App Cas 740
Right to light	Obstruction of the access of light to an ancient window, by building, by planting or by erecting a hoarding
Right to air	Obstruction of a defined channel of air, such as air to a ventilator or a shaft. There is no easement to a general flow of air over open ground
Right of way	Obstruction, narrowing, diversion or the imposition of gates on a defined way
Right to a watercourse	Diversion, obstruction, or pollution of the flow
Right to discharge water or eaves drip	Interference with the discharge, or an obstruction causing it to back up

4. The Requirement of Substantial Damage

Section 33, Indian Easements Act, 1882

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.

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 to 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.

This is the feature that separates the action from ordinary nuisance. A nuisance is actionable on proof of unreasonable interference and damage; a disturbance of an easement is actionable only on proof of substantial damage as the section defines it.
The light rule is the most restrictive. Some diminution of light is not enough. The plaintiff must show either an effect on the evidence of the easement or on the value of the property, or a material interference with physical comfort, or that he can no longer carry on his accustomed business as beneficially as before.
The air rule is less demanding, a material interference with physical comfort sufficing even where health is not injured.
Colls v. Home and Colonial Stores Ltd., [1904] AC 179 states the English principle to the same effect: the question is not how much light has been taken but whether enough is left for the ordinary purposes of the property according to the ordinary notions of mankind.
Section 34 provides that the limitation period runs from the date of the substantial damage, which is consistent: until there is substantial damage there is no cause of action to be barred.

5. The Remedies

Compensation under section 33, on proof of substantial damage.
An injunction under section 35, where the disturbance is continuing or threatened, subject to the provisions of the Specific Relief Act, 1963 governing injunctions: TORT 160.
A mandatory injunction to remove an obstruction, which is the relief a plaintiff obstructed in his right of way or his light actually wants, and which the court will grant where damages are inadequate and compliance can be supervised.
Abatement, the self help remedy, which is available but should be used with great caution: it must be exercised peaceably, without unnecessary damage, and ordinarily after notice.
A declaration of the easement, which is often the real object where the existence of the right is denied.
A suit under section 33 may be brought by the owner of any interest in the dominant heritage, or by the occupier, so a tenant may sue.

6. Extinction and Suspension

How an easement ends	The provision and the principle
Dissolution of the servient owner's right	Where the right of the servient owner from which the easement was derived comes to an end
Release by the dominant owner	Express or implied. Mere non use is not release, but non use with an intention to abandon may be
Expiry of a limited term or the happening of a dissolving condition	Where the easement was granted for a term or subject to a condition
Termination of the necessity	An easement of necessity ends when the necessity ends
Permanent change in the dominant heritage	Where the change makes the burden on the servient heritage materially greater than it was
Destruction of either heritage	Where the dominant or servient heritage is destroyed
Unity of ownership	Where the same person becomes entitled to the absolute ownership of both heritages
Non enjoyment for twenty years	Continuous non enjoyment for the prescribed period extinguishes a prescriptive easement

7. The Relationship With Nuisance and Trespass

Disturbance of an easement and private nuisance overlap heavily, and the same facts frequently constitute both: an obstruction that darkens an ancient window is a disturbance of the easement of light and may also be a nuisance.
The difference is what the plaintiff must establish. Nuisance requires an unreasonable interference with the use and enjoyment of land; disturbance of an easement requires an established easement and substantial damage as section 33 defines it.
The distinction decides some cases outright. There is no easement to a view, so an obstruction that ruins a prospect founds nothing; there is an easement of light, so an obstruction that darkens an ancient window may found an action. The loss to the plaintiff may be identical, and the difference lies wholly in whether a right exists: TORT 112.
Trespass is different again, being a direct physical intrusion on possession and actionable without any damage at all: TORT 139.
Both should be pleaded wherever the facts admit of it, together with negligence where an excavation or a construction was carelessly carried out.

⚠ Why an ancient window is protected and a view is not

The two most common complaints a neighbour makes about a new building are that it has taken away the light and that it has taken away the view, and the law treats them completely differently although the sense of loss is the same and the second is often the greater. The reason is that an easement must be a right capable of forming the subject matter of a grant, and that means it must be definite: a fixed aperture, a defined channel of air, a particular way, an identifiable flow of water. Light to an ancient window satisfies that, because the window is there, its position is known, and the burden it imposes on the neighbouring land can be stated. A prospect satisfies nothing of the kind. It has no defined path, it extends over land belonging to people who have never heard of the claimant, and a right to it would sterilise an indefinite area for the benefit of whoever happened to build first. The same reasoning explains why there is an easement of air to a ventilator and none to the general flow of air over open ground, and why section 17 expressly excludes a right to the free passage of light or air to an open piece of ground. For a client, the practical form of the advice is therefore uncomfortable but simple: what protects him is not how much he has lost but whether what he lost was coming through a defined opening that has been there for twenty years.

8. The Position Stated Shortly

1. An easement is a right possessed by the owner or occupier of land, as such, for the beneficial enjoyment of that land, over land not his own.

2. There must be a dominant and a servient heritage in different ownership, and the right must be capable of forming the subject of a grant.

3. Section 7 of the Indian Easements Act, 1882 recognises the natural right of support for land in its natural condition.

4. Support for buildings is not a natural right and must be acquired by grant or by twenty years' prescription, as Dalton v. Angus holds.

5. Section 15 gives acquisition by prescription on twenty years' peaceable, open, uninterrupted enjoyment as of right, and thirty years against the Government.

6. Section 17 excludes a right to the free passage of light or air to an open piece of ground, which is why there is no easement to a view.

7. Section 33 requires substantial damage, and its Explanations define what is substantial for light, for air and for the evidence or value of the heritage.

8. For light, some diminution is not enough: there must be an effect on value or evidence, a material interference with physical comfort, or an inability to carry on the accustomed business as beneficially.

9. Section 34 runs limitation from the date of the substantial damage, and section 35 gives the injunction.

10. Disturbance of an easement and nuisance overlap and should both be pleaded, the difference being that the easement claim requires an established right and substantial damage.