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Indian Encasements Act, 1882


38. Extinction by release

An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servant owner.

Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage.

An easement may be released as to part only of the servant heritage.

Explanation I: An easement is impliedly released-

(a) where the dominant owner expressly authorizes an act of a permanent nature to be done on the servant heritage, the necessary consequence of which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority;

(b) where any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future.

Explanation II: Mere non-user of an easement is not an implied release within the meaning of this section.

Illustrations

(a) A, B and C are co-owners of a house to which an easement is annexed. A, without the consent of B and C, releases the easement. The release is effectual only as against A and his legal representative.

(b) A grants B an easement over As land for the beneficial enjoyment of his house. B assigns the house to C. B then purports to release the easement. The release is ineffectual.

(c) A, having the right to discharge his eavesdroppings into Bs years, expressly authorizes B to build over this year to a height which will interfere with the discharge. B builds accordingly. As easements is extinguished to the extent of the interference.

(d) A, having an easement of light to a window, build up that window with bricks and mortar so as to manifest an intention to abandon the easement permanently. The easement is impliedly released.

(e) A, having a projecting roof by means of which he enjoys an easement to discharge eavesdroppings on Bs land permanently alters the roof, so as to direct the rain-water into a different channel and discharge it on Cs land. The easement is impliedly released.



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