Walsh, Acting C.J. and Ryves, J.
1. In this case which raised a question of some importance, we regret that we find ourselves unable to agree with the view taken by the learned Judge. He says in his judgment that he can find no case in the official reports in which the principle contended for by the appellant has been affirmed, or applied, by the courts in India. In this, we think, he was misled. It appears that] the relevant authorities were not quoted to him. The suit of the plaintiff has been dismissed on the ground that no one except the Municipal Board, in any particular place in which a public way is obstructed, has any right to complain of the obstruction in a civil court. We think that this is incorrect, and lays down the true principle too narrowly. The case is important, for this reason, because Municipal Boards, at any rate in these Provinces, are young, untrained and apparently not too well-equipped for the discharge of the difficult duties which they have to perform. For example, in the district from which this case comes, nobody could say that the condition of the roads, at any rate, in Allahabad, was such as would meet with the approval of an ordinary competent surveyor who was jealous of his reputation as a road authority, and the case is, therefore, important inasmuch as whereas considerable inconvenience might be inflicted upon individuals in these Provinces by obstruction to ways and streets which are vested in the Municipal authorities, inconvenience which cannot be compensated by cash, we are afraid that if individuals so inconvenienced had to wait until the Municipal Board was stirred into sufficient activity to bring a suit in order to redress the grievance of obstruction, they would probably have to wait a very considerable time. The point may be stated in a nutshell. The plaintiff and the defendant occupy adjoining houses in this locality. Between their two houses runs a road or lane which is obviously of great value and convenience to both of them. It is not suggested that it is a private way, jointly enjoyed by both of them. As to its origin, the plaintiff's case is, and there appears to be no dispute about it, that it was originally his father's, that the road or way now vested in the public authority for the use of the public was dedicated to the public by his fattier; that the soil still remains in his proprietorship, and that the defendant, by blocking up either end of this lane by means of pakka walls which absolutely prevent the plaintiff from using it in any shape or form, has caused not only an obstruction which must necessarily concern any member of the public who desires to use the road but which inflicts serious inconvenience and obstruction amounting to special damage upon the plaintiff. Except so far as concerns the special damage suffered by the plaintiff, which is a question of fact and which has not been clearly determined by any judicial decision in the lower courts, these facts appear to be agreed on, on both sides. Now the vesting in local authorities in these Provinces, and the control exercised by local authorities in these Provinces over streets, roads, lanes and ways which are public, and over which the public have a free, unrestricted right of passage, is statutory. As regards Allahabad from where this case comes, it turns upon Section 113 of the Municipalities Act of 1916, or the corresponding Section of the previous Act. With regard to the law of highways generally, in India there is no code. But dedication, which is the usual and almost invariable method by which land which was once in private ownership becomes, as regards its surface, reserved for the use of the public as a highway, precedes vesting and control. In other words, highways, streets and public roads are older-than Municipalities, and older than the section which vests them in Municipalities; and therefore, the statement that a public way is vested in and belongs to a local authority under the Municipalities Act, 1916, is only a partial statement of the legal position, a point which we think the learned Judge overlooked. Every public road or way must have a history, and every piece of land in the Province must have had an ownership at some time or another, and land which was once in private ownership can only be converted into public use in respect of its surface, by an act of dedication. A dedication means something more than a gift. It is derived from the word 'to give,' but it involves a setting apart by the donor for a specific purpose. Certainly in England, and probably in an ancient country like India, it is impossible, in the vast majority of cases, to say when this dedication took place. So that, as a matter of accurate statement or historical truth, the existence of a prior dedication with regard to an ancient public way takes very much the nature of what is called a lost grant. It is entirely different in its legal attributes, and in its origin, from a private way or easement which may be acquired by prescription following upon continuous user. The public cannot acquire a public way by prescription, and where a public way is found, and no traces are forthcoming of its origin, the law presumes a dedication, or a lost grant by the owner to whom the land belonged, and who alone could dedicate it. These principles, which are really elementary, but not always clearly understood, are the law as understood and accepted by generations of lawyers in England. It is, of course, sometimes dangerous to attempt to ascertain the law in India by the discussion of English cases. But in a matter of this kind where, legislation like the Municipalities Act, following closely upon English Local Government legislation the Legislature has left the matter at large, without following it up by codifying the general law on a topic such as highways, the courts in India are really enjoined to apply the English principles. That statement of the law is borne out by Act XII of 1887, more generally known as 'The Bengal and Assam Civil Courts Act,' which codifies and carries forward the old Bengal Regulations Section 37(2) enjoins upon the court, in cases not provided for by the foregoing section which deals with traditional Muhammadan and Hindu law, or by any other law for the time being in force, which of course includes a Municipal statute, the duty of acting according to justice, equity and good conscience. In the case of Waghela Rajsanji v. Shehh Masludin (1887) L.R. 14 I.A. 89 the Privy Council has declared that that direction is generally interpreted as meaning the application of English principles, unless there is something in the state of Indian society which makes those principles either inapplicable altogether, or necessarily modified. We think that the case of public ways and highways is one of those cases which must be governed by the rule of equity, justice and good conscience as interpreted by the Privy Council, and that therefore the English principles are applicable, as was argued by the appellant before the learned Judge of this Court. Without going into the case, we merely draw attention to the fact that, in saying this, we are not laying down any novel proposition, although it does appear to be a proposition which was overlooked in the argument of this case, and by a distinguished lawyer of this Court. But it is a proposition which has been clearly enunciated and accepted by at least three of the High Courts including Allahabad, if not by all of them; Fazal Haq v. Maha Chand (1878) I.L.R. 1 All. 557, Satku valad Kadtir Sausare v. Ibrahim Aga valad Mirza Aga (1877) I.L.R. 2 Bom. 457, and Adamson v. Arumugam (1886) I.L.R. 9 Mad. 463. The Madras case is particularly interesting because the application of the rule of equity, justice and good conscience was used there to enforce the rule of the English law against the plaintiff, that is to say, in holding that no action can be maintained, for what is a mere general obstruction of a1 highway affecting the whole public at large, by one person, without proof of special damage, a fact which was recognized by the learned Judge in his judgment. But the right to sue, while carefully guarded as laid down in I.L.R. 9 Madras, is not destroyed, as the Judge seemed to think, by the fact that the road has become vested in and belonged to the Municipality. We might here observe, lest it be thought that we are ignoring the expression 'belonging to' which is contained in Section 113 of the Municipalities Act, that the words 'vesting' and 'belonging to' as applied to public ways which are vested in the Municipalities clearly relate only to the streets, ways and passages, or whatever else they may be, which belong to the public. In the case of a public way it is the surface and not the soil which constitutes the street; it is the surface along which the public have the right to pass, and it is the surface for the purpose of lawful passage which defines the public right. And therefore, when the words 'belonging to' are used in the section, it is obvious that the Legislature did not intend to vest in the Municipalities anything more than what was necessary to constitute the street or passage, and did not thereby deprive the owner of the land who made the original dedication of the soil which he necessarily reserved to himself when he was content to dedicate the surface to the use of the public. So that the courts in India and the courts in England are unanimous in confining the right of suit and the right to compensation, in the case of a particular individual, to a person who can establish special damage. Special damage is not always easy to define or foresee, but it is well stated in the judgment in Satku valad Kadir Sausare v. Ibrahim Aga valad Mirza Aga (1877) I.L.R. 2 Bom. 457 (459):
If the person has sustained more particular damage by the nuisance than the public in general, as if any accident occur to him, or he be obliged to go a greater distance and be thereby put to extra expense in the conveyance of his goods or otherwise.
2. And without in the least desiring, to dictate to the lower court, it is material to point out, inasmuch as this part of the case has not really been considered in detail, and it is really a question of fact, that in this particular instance it would appear from the map that the plaintiff would, every day and every hour of the day when he desired to leave his house by the entrance on what is apparently the eastern side, and turning at right angles to the left to walk in a northern direction, be compelled to go the other way and travel at least 3 or 4 times as far and 3 or 4 times as fast, if he were pressed for time. In our view that would amount to special damage, or a more particular form of nuisance suffered by him than by the general public. And we think the lower appellate, court ought to consider, even although the particular form of nuisance is not capable of being, translated into rupees and annas, whether it is a substantial grievance which constitutes a wrong peculiar to the plaintiff which in the ordinary way a court of justice would remove by granting an injunction; for example, a mandatory injunction to remove the obstructing walls.
3. Some reference was made by counsel who argued the case very fairly on behalf of the respondent to Section 91 of the Code of Civil Procedure. We do not propose to attempt to explain to what extent Section 91 overlaps, or is parallel with, the right of a local authority like a Municipality to sue in respect of an obstruction to a public right of way, or how far it affects persons like the plaintiff, who wished to sue with the sanction of the Legal Remembrancer. We would merely utter a word of warning that Section 91 is a provision for procedure. It does not purport to create a right which did not exist before. It certainly does not purport to deprive anybody of a right derived from the general law of the land. Sometimes it is said to be what one may call a prohibitive section, which prevents a person from asserting a, right except in a particular way. A court which applies the section must avoid treating the section as though it went further than it does and deprived a person, or individual, of a right, and we think we may say this much, at any rate, without going outside the questions which arise in this case, that it cannot possibly be held to apply to-this particular case. For example, a gentleman who was more inconvenienced by the obstruction to a public way in his immediate neighbourhood than any one else, might be the most unpopular person in the neighbourhood. Indeed it is the fate of persons who are unpopular to find themselves frequently more inconvenienced by the acts of their neighbours than other people, and it would create injustice if a man, who happened to be so unpopular that he could not get anybody to join with him in a suit, could be deprived entirely of the use of a necessary public way merely because he could not show under Section 91 of the Code of Civil Procedure that he was one of two persons who were desirous of asserting their right. We think that we are merely declaring again the law as it has been recognized to exist for a long time past. We must allow the appeal and remand the case to the lower appellate court to decide the following issues:
(1) In what respect and to what extent, if any, has the plaintiff suffered a more particular kind of obstruction or inconvenience beyond that of the general public by reason of the walls built by the defendant?
(2) Would the plaintiff be adequetely compensated by a sum of money as damages, and a refusal of the injunction so as to leave the walls permanently standing?
(3) Has anything happened other than the dedication of this public way and the vesting section of the Municipalities Act to take the original ownership of the land out of either the plaintiff or his father?
4. Either party will be at liberty to tender fresh evidence. Costs will abide the result.
5. Our attention is now drawn to a further authority, Tota v. Sardul Singh (1888) I.L.R. 10 All. 553, in which it is said that a zamindar does not sue as a guardian of the public in relation to a way in his village but in respect of an interference with his own rights of property. We will consider this when the case comes back with the findings on the further issues remitted.