Judges : BHASKARAN NAMBIAR
SIMON - Appellant
Versus
N.JAYANTH - Respondent
Case No : S.A. No. 549 of 1980-A
Decided On : 02/06/1986
Advocates Appeared :
M.C. Sen; For Appellant T.L. Viswanatha Iyer; P.S. Narayanan; K.I. Mayankutty; For Respondents
Easement - Right of Way - S.28 of the Easements Act - Corpus Juris Secundum - Halsbury's Laws of England - Gale on Easements - Cannon v. Villars - Extent of Easements - Reasonable Use of Right of Way
Fact of the Case:
The plaintiff sought injunction for a pathway granted by the defendants, which was contended to be restricted from vehicular traffic. The courts found a pathway wider than 12 feet, but the lower court restricted the plaintiff's right to only 6 feet for passage.
Finding of the Court:
The court found that the plaintiff had a right of way for vehicular traffic as the pathway was wide enough, and the lower court misdirected itself on the terms of the grant and failed to note the general law on the implied terms of the grant.
Issues: The substantial question of law was whether the grant of easement by the defendants restricted vehicular traffic on the pathway wider than 12 feet.
Ratio Decidendi: The grant of easement controls the extent of the user, and in the absence of explicit restrictions, a reasonable use in the circumstances is to be inferred. The right of way cannot be unduly restricted within the area granted.
Final Decision: The Second Appeal was allowed, the judgment and decree of the lower court were set aside, and the judgment and decree of the trial court were restored.
1. The plaintiff in a suit for injunction in respect of an admitted pathway is the appellant. Defendants assigned the A schedule property to the plaintiff specifically mentioning that the plaintiff has a right of way on its western side. They do not retract from the grant; but contend that it is only a restricted right, which does not allow vehicular traffic.
2. A Commission was rightly deputed by the trial court and a plan prepared by the Advocate-Commissioner gives a clear picture of the lie of the lands and the length and width of the fairly long route.
3. The plaint A schedule property is only part of an extensive area bearing the 'same name. The defendants and their predecessors in interest were owners of the whole area. They sold the property part by part and the plaintiff is now the owner of plot A. Wynad road forms the western boundary of the entire land. It runs north-south. It branches off to the lands of the defendants to the east, extending to a length of about 80 ft. and maintaining a width of about 14 and half ft. It then takes a turn to the south; as it reaches the plaintiff's northern boundary, the width is reduced to 12 ft. and odd and this is maintained to form the western boundary of the plaint A schedule. Thus between the defendants' land and the plaintiff's property there is in fact, in existence a pathway measuring more than twelve feet in width.
4. Having admitted that an easement of way has been granted over this land, can the grant, by implication, be restrictive in its user, prohibiting vehicular traffic? This is the substantial question of law arising for determination in this Second Appeal.
5. Corpus Juris Secundum in Vol. 28 states thus:
"Where an easement exists by express grant, its use must be confined to the terms and purposes of the grant, but may of course be used in accordance therewith; but the owner of the dominant tenement cannot increase the servitude imposed on the servient tenement, and he can use it only in a reasonable manner and so as not unnecessarily to injure the rights of the other party, especially where the grant expressly so provides. If the grant is in general terms, it is limited to a use which is as reasonable and as little burdensome to the servient estate as the nature of the easement and its object will permit".
"Also the use must be reasonable so as not unnecessarily to injure the rights of the owner of the servient estate or of others likewise entitled to use the way."
"On the other hand, where a way is granted or reserved without any limitation as to its use, it will not necessarily be confined to the purposes for which the land was used at the time the way was created, but may be used for any purpose to which the land accommodated by the way may naturally and reasonably be devoted. It may be used for all the ordinary purposes of a way, subject to the general rule that the use must be reasonable, for it is well settled that, where a right of way is granted in general terms no right, in or power over, the land but what is necessary to its reasonable enjoyment is conferred."
6. Halsbury's Laws of England, (Fourth Edition), Vol. 14, paras 149 to 151, relevant for our purpose, states thus:
"If a right of way is claimed under an express grant which is actually existing, the nature and extent of the right depends upon the proper construction of the language of the instrument creating it. It is for the court to put the true construction upon the words used in the grant, guided, in the absence of any clear indication of the intention of the parties, by the maxim that a grant must be construed most strongly against the grantor.
The construction of the grant depends on the circumstances surrounding the execution of the instrument. Thus, a grant of a right of way per se and nothing else may be a right of footway or a general right of way or a right to any other kind of way, according to the circumstances of the case. Among these circumstances the nature and description of t
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