1. The appellant is the owner of a certain land through which the water of a tank belonging to another person flows in a defined channel on to the respondents' land. The case of the appellant is that since the water that is turned into this artificial channel is what overflows the surplus weir of the tank in question, therefore no right of easement can be acquired with respect to that water. It must be noted that the owner of the tank has not raised the question, but objection was raised only by the owner of the intermediate land through which water flows before reaching the respondents' land. We think there can be no doubt that a person can acquire a right of easement with respect to water which is discharged over the surplus weir of a tank if he has been using and enjoying the water for a sufficient length of time and as a matter of right, as laid down in the Indian Easements Act.
2. The learned Vakil for the appellant relied very strongly on Arkwright v. Gell (1839) 5 M. & W. 203 and Wood v. Wand (1849) 8 Ehxe. 748. These cases enunciate the principle that if a person in using his own land pumps out the drainage water and throws it over another's land, the person on whose land the water is so thrown, cannot acquire an easement by prescription so as to enable him to say to the person from whose land the water is allowed to come by way of drainage that he must be prevented from so altering the user of his land as will stop such drainage water flowing to the lower land. But as pointed out by Lord Abinger in Arkwright v. Gell (1839) 5 M.& W. 203 the water in that case was pumped and discharged by the owner of the dominant land for his own convenience and for temporary purposes, and he also observes that the question would be different where the owners of intermediate land tried to intercept the flow, of water so discharged. Reliance has also been placed on a ruling of the Privy, Council in Ramessur Pershad Narain Singh v. Koonj Behari Pattuk I.L.R. (1878) C.633 where their Lordships cited Wood v. Waud (1849) 3 Ehxe. 748 with approval. The proposition laid down in Bamessur Pershad Narain Singh v. Koonj Behari Pattuk I.L.R. (1878) C. 633 is to the effect that the right to enjoyment of water of an artificial channel or tank can be acquired either by grant or by some arrangement of that nature, but that a grant may be presumed in a proper case. In fact in that case their Lordships found that there was a grant of the right to enjoyment of water discharged from a large artificial lake. Supposing this case applied, there should be no difficulty in presuming a grant in the present case.
3.Section 17 of the Easements Act, however, which is in force in this Presidency implies that a right of easement in connection with the use of water, of artificial channels or of water derived from an artificial tank or pool can be acquired by prescription, and this question has been settled so far as this Presidency is concerned by the decision in Rayappan v. Virabhadra I.L.R. (1884) M. 530 which we have, no hesitation in following. The law laid down in that case has not, so far as we are aware, been doubted hitherto. The whole gist of the learned vakil's argument, is based upon the fact that the water that flows on to the respondents' land is what he called the surplus water of the tank. But there is a substantial difference between a case of this nature and the one that is dealt with in Arkwright v. Gell (1839) 5 M & W 208. Here there is a tank which is fed by rain water as well as surface water from neighbouring lands, and the mere fact that the owner of the tank does not want more than a certain quantity of water and allows the rest to pass through the surplus weir, does not suggest that nobody else can acquire a right in connection with the water which is allowed to flow therefrom in a defined channel. We may further observe that the system of irrigation by means of connected tanks which so largely prevails in this country has been in existence from time immemorial and this is indisputable proof that the law in this presidency is not as suggested by the learned Vakil for appellant.
4. We therefore dismiss the appeal with costs.