05-04-2012, 07:56 PM
Extinction by destruction of either heritage
An easement is extinguished when either to dominant or the servient heritage is completely destroyed.
Illustration
A has a right-of-way over a road 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.
Comments
General: There can be no easement properly so called unless there be both a servient and a dominant tenement. If either the dominant tenement or the servient tenement disappears the easement must automatically come to an end as it cannot exist unless both the tenements exist.
Section 43 and 44 distinguished from section 45: Though all these sections are concerned with the extinction of easement consequent upon something happening to the dominant or servient heritage they apply to distinct and separate sets of circumstances. Section 43 and 44 applies when the alteration is by a superior force but sections 43 and 45 apply when the change or destruction results from whatever source.
Completely destroyed: In the case of Farmji v, Farmji, 7 Bom. LR 325, an out- house was destroyed by fire, but, four walls, its cross-wall, and some timber work were still standing. It was held that section 45 could not apply to this case of the heritage was not completely destroyed. In any case rebuilding had revived the easement by virtue of section 51. Where the plaintiff had a right of vertical support from the walls of the defendant’s room, and it was claimed that this right of his been lost on account of the falling of the western and the southern wall of the defendant’s room, it was held the right subsists and is not lost. Before one can apply section 45 of the act there must be a finding to the effect that there is a complete destruction of either the dominant or servient heritage and where there is no complete destruction of either the dominant heritage or the servient heritage sections 24 and 25 come into play and illustration (f) of section 24 of the act clearly applies. AIR 1967 All. 302. Section 45 and 51 do not apply to a case where a right has been exercised as an easement for more then 20 years but has not become absolute under section 15 for failure to a suit.
An easement is extinguished when either to dominant or the servient heritage is completely destroyed.
Illustration
A has a right-of-way over a road 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.
Comments
General: There can be no easement properly so called unless there be both a servient and a dominant tenement. If either the dominant tenement or the servient tenement disappears the easement must automatically come to an end as it cannot exist unless both the tenements exist.
Section 43 and 44 distinguished from section 45: Though all these sections are concerned with the extinction of easement consequent upon something happening to the dominant or servient heritage they apply to distinct and separate sets of circumstances. Section 43 and 44 applies when the alteration is by a superior force but sections 43 and 45 apply when the change or destruction results from whatever source.
Completely destroyed: In the case of Farmji v, Farmji, 7 Bom. LR 325, an out- house was destroyed by fire, but, four walls, its cross-wall, and some timber work were still standing. It was held that section 45 could not apply to this case of the heritage was not completely destroyed. In any case rebuilding had revived the easement by virtue of section 51. Where the plaintiff had a right of vertical support from the walls of the defendant’s room, and it was claimed that this right of his been lost on account of the falling of the western and the southern wall of the defendant’s room, it was held the right subsists and is not lost. Before one can apply section 45 of the act there must be a finding to the effect that there is a complete destruction of either the dominant or servient heritage and where there is no complete destruction of either the dominant heritage or the servient heritage sections 24 and 25 come into play and illustration (f) of section 24 of the act clearly applies. AIR 1967 All. 302. Section 45 and 51 do not apply to a case where a right has been exercised as an easement for more then 20 years but has not become absolute under section 15 for failure to a suit.