Section 23 of The Indian Easements Act, 1882
Right to alter mode of enjoyment.
Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. Exception.—The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage. Illustrations
- (a)A, the owner of a saw-mill, has a right to a flow of water sufficient to work the mill. He may convert the saw mill into a corn-mill, provided that it can be worked by the same amount of water.
- (b)A has a right to discharge on B’s land the rain-water from the eaves of A’s house. This does not entitle A to advance his eaves if, by so doing, he imposes a greater burden on B’s land.
- (c)A, as the owner of a paper-mill, acquires a right to pollute a stream by pouring in the refuse-liquor produced by making in the mill paper from rags. He may pollute the stream by pouring in similar liquor produced by making in the mill paper by a new process from bamboos, provided that he does not substantially increase the amount, or injuriously change the nature, of the pollution.
- (d)A, a riparian owner, acquires, as against the lower riparian owners, a prescriptive right to pollute a stream by throwing sawdust into it. This does not entitle A to pollute the stream by discharging into it poisonous liquor.
Summary
- Subject to the requirement in Section 22 to act in the least onerous way, a dominant owner can change the mode and place of using the easement.
- Any such change is only allowed if it does not place any additional burden on the servient heritage.
- As an exception, a dominant owner who has a right of way is strictly prohibited from changing their line of passage at their own pleasure, even if the change would not add any extra burden.
- Changes in the dominant heritage, such as converting a saw-mill to a corn-mill, or changing paper-making raw materials from rags to bamboos, are permitted as long as the resource consumption or pollution is not substantially increased or injuriously changed.
Practical examples
FAQ
1. If I have a right to discharge rainwater from my roof onto my neighbour's land, can I extend my roof closer to their property?
Only if it does not impose a greater burden on your neighbour's land. If advancing your eaves causes more water to fall in a damaging way, you are not allowed to do it.
2. Can a factory owner change their manufacturing process if they have an easement to discharge waste into a stream?
Yes, they can change the process as long as the new process does not substantially increase the amount of pollution or injuriously change its nature.
Test yourself
1.Under Section 23 of The Indian Easements Act, 1882, what is the primary condition that must be met for a dominant owner to alter the mode and place of enjoying their easement?
2.How does Section 22 of The Indian Easements Act, 1882, limit the dominant owner's right to alter the mode of enjoyment under Section 23 of the same Act?
3.Under the express exception in Section 23 of The Indian Easements Act, 1882, what is a dominant owner of a right of way forbidden from doing?
4.Under Section 23 of The Indian Easements Act, 1882, if A has a prescriptive right to pollute a stream by throwing sawdust from a saw-mill, what change in pollution is A prohibited from making?