1. This appeal arises out of a suit filed by the plaintiff for a declaration that she has a right of way over a road called the 'Circular Road' leading to the premises known as the 'Uplands House' in Waltair. The Rajah of Kuruppam, who was the owner of this property, died leaving the plaintiff, his daughter, the defendant and the Zamindar of Kuruppam, his sons. After his deatn the property was partitioned between the plaintiff, the defendant and his brother. The plaintiff got the block marked A in the plan annexed to the plaint. The property is a very extensive one. '' According to the plan, there is what is called a Circular Road leading from the Beach Road to the main building which, according to the evidence, was being used as a means of access to the building during the lifetime of the Rajah of Kurupipam. On the north, there is a Municipal Road and the suit property abuts that road. According to the evidence, there was a way leading from that road to this building which was used for the purpose of carrying materials, when the temple in the compound was built' about the year 1902. This road, was not subsequently used except as servants' entrance. It is, however, clear from the plan that so far as the plaintiff's portion is concerned, there is a mode of access to it from the northern side and it cannot be said that the right to use the road, known as the Circular Road, from the beach side is an easement of necessity in the sense that there could be no reasonable mode of access to the portion which fell to the share of the plaintiff except through the road now in dispute. The plaintiff's claim is that the road of which she claims easement' is a continuous, well-formed, gravelled and metalled road leading from the Beach Road into the bungalow compound, partly through the defendant's and partly through her share, and that this road has always been the only road by which access was had from the Beach Road into the bungalow and was used and enjoyed for this purpose from the time of construction of the house by the owners of the 'Uplands House', the predecessors-in-title and interest of the plaintiff and the defendant and the Zamindar of Kuruppam, and by them also until the date of partition in the year 1920.
2. In paragraph III (d) the plaintiff says:
By virtue of the partition and even otherwise by implication of law and common sense, the plaintiff is entitled to the free and uninterrupted user of the said road by her and her representatives, servants, etc., in the same manner in which it was being enjoyed prior to the partition and the same is reasonable, necessary and essential for the proper enjoyment of the portion of the house and grounds which fell to the plaintiff's share as it was being enjoyed prior to the partition.
3. She says that the defendant obstructed her use of the road.
4. In paragraph (f) the plaintiff says:
The Beach Road is the most important road in the whole town and the usual, customary and constant approach, ingress to and egress from the 'Uplands House' has always been from the said road and the value of the plaintiff's share of the house expends substantially upon the existence of such right of user of the road leading from the Beach Road into the 'Uplands House'. The denial of such right, or interference therewith will not only highly inconvenience the plaintiff and prejudice the reasonable and proper enjoyment of the house and grounds by her but will as well affect seriously their value.
5. In paragraph (g) she states:
The plaintiff is also entitled to the said right as an easement of necessity.
6. The defendant denied the plaintiff's right to use the road either by virtue of the partition or on any of the other grounds alleged in the plaint. According to him, a portion of the property marked in the plan and measuring about 44 cents which did not originally fall to the plaintiff's share was under the direction of the arbitrators given to the plaintiff on partition in order to allow her means of access to her portion from the North Road because the defendant refused to allow her access over the road now in question. He denied that the use of this road was necessary or passed to the plaintiff by implication of law. He says that any user of this road after partition was by his consent, He says that the plaintiff has access to her bungalow from the Municipal Road on the north.
7. The Subordinate Judge found that the right to use the Circular Road which the plaintiff claims in the suit was neither recognised nor specifically prohibited at the partition. He also found that the plaintiff's claim to use the Circular Road as an easement of necessity could not exist because there is another means by which she can have access to the property, namely, the Northern Road, which abuts the share which fell to the plaintiff. Referring to the plaintiff's claim as an easement of necessity, the Subordinate Judge observes :
This aspect of the case was not pressed before me very much by the plaintiff's vakil, as there is evidence on record to show that the portion of the plaintiff's share in 'Uplands House' can be reached from the Municipal Road on the northern side of the plaintiff's share of the building through her ground. Plaintiff's vakil only relied upon Clause (f) to Section 13 of the Indian Easements Act and claimed the right to use the Circular Road as an easement, 'apparent and continuous and necessary' for enjoying the share of the plaintiff's portion of the 'Uplands House' as it was enjoyed before the partition took effect, inasmuch as there was no different intention ex-pressed or necessarily implied when the partition took place.
8. So far as the claim as an easement of necessity is concerned, it is difficult to find, on the evidence and the plan, that the easement is one of necessity.
9. As regards easements of necessity the law is clear.
10. In Krishnamarazu v. Marraju : (1905)15MLJ255 the learned Judges in dealing with Clause (e) to Section 13 of the Easements Act observed:
We think the word 'necessary' must be construed in its ordinary sense. If A has a means of access to his property without going over B's land, A cannot claim a right of way over B's land on the ground that it is the most convenient means of access.
11. In Sukhdei v. Kedar Nath I.L.R.(1911) A. 467 it was held that the easement of necessity was an easement without which a property cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property. A similar view was taken in Chunilal Mancharam v. Manishankar Atmaram I.L.R.(1893) B. 616 as to the meaning of 'easement of necessity'. In that case the Easements Act was held not applicable as it was not extended to the Bombay Presidency till Act VIII of 1891 was passed.
12. As regards the claim of the defendant that at the partition it was expressly agreed that there should be no right of way, we agree with the Subordinate judge in thinking that it is not made out.
13. The main ground on which the argument for the defendant is based is that the plot of land measuring 44 cents was not originally included in the division as falling to the plaintiff's share, that without it she could not enter the portion of the main building which was allotted to her, although she could enter the other portions by the Northern Road and that this piece of land was given for that purpose to avoid any right she may claim to enter the main building from the Circular Road.
14. In this case unfortunately the partition is not by any deed. It was effected by two arbitrators, Mr. Forbes who was then the District Judge of Vizagapatam and defendant's second witness, Mr. Appa Rao who was chairman of the Vizagapatam Municipality. As the 44 cents would have allowed the plaintiff direct access from the outhouses to the portion that fell to her share without her making any structural alteration, it is probable that these 44 cents were granted to her for that purpose. We are not satisfied on the evidence that this was due to the defendant's refusal to allow her access by the main road at the time of the partition and this refusal being accepted by the arbitrators and an altered arrangement: being made to give the plaintiff another means of access.
15. The position, therefore, is as put by the Subordinate Judge that it was neither allowed nor (prohibited. The questions has, therefore, to be dealt with as a question of law as to the rights of parties under the Easements Act.
16. Section 13 of the Easements Act (V of 1882) refers to easements of necessity and quasi-easements in cases where a person transfers or bequeaths property to another and in cases where a partition is made of the joint property of several persons. The portion of the section which is relevant to the present case, which is one of partition, runs as follows:
Where a partition is made of the joint property of several persons-
(e) if an easement over the share of one of them . is necessary for enjoying the share of another of them, the latter shall he entitled to such easement, or
(f) if such an casement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in Clauses (a)(c) and (e) of this section are called easements of necessity.
17. Section 5 defines continuous easements and apparent easements and it runs as follows:
Easements are either continuous or discontinuous, apparent or non-apparent. A continuous easement is one whose enjoyment is or may be continual without the act of man.
A discontinuous casement is one that needs the act of man for its enjoyment.
An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him. A non-apparent easement is one that has no such sign.'
18. Illustration (b) to this Section is this--
A right of way annexed to A's house over B's land. This is a discontinuous easement.
19. It is, therefore, clear from the Easements Act that a right like the present is a discontinuous easement although it is apparent. The effect of Section 13 is this:-that in cases of partition, if an easement is one of necessity, a person, to whose share certain property falls, is entitled to the easement apart from any question of its being apparent or continuous;, but that if the easement is not one of necessity but is merely one necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, then such an easement should be apparent and continuous. A distinction is clearly drawn between what was actually necessary and what, though not actually necessary in the sense of there being no other mode of enjoying the property, is required for the purpose of enjoying it as it was enjoyed when the partition took place.
20. The Easements Act was passed in 1882, and when it was passed it. only extended to the territories administered by the Governor of Madras in Council and the Chief Commissioners of the Central Provinces and Coorg. It was subsequently extended to Bombay and the United Provinces in 1891 but has not been extended to Bengal. It is important to bear this in mind in dealing with the decisions of the Calcutta High Court, where the learned Judges are not trammelled with the provisions of the Easements Act and the definitions contained therein and the decisions of the: Bombay and Allahabad High Courts before the Act was in force there (1891).
21. So far as the Madras High Court is concerned, the authorities are to the effect that a right of way over a road is not an apparent and continuous easement and that unless it is an easement of necessity it will not pass merely on the ground of its being necessary for the use of the house as conveniently as it was before the partition.
22. In Krishnamaram v. Marraju : (1905)15MLJ255 it was held that where a person has a means of access to his property without going over another's land, he could not claim a right of way over the other's land on the ground that it was the most convenient means of access and that the law under Section 13, Clause (e) of the Easements Act is the same as the law in England. In dealing with Clause (f) of Section 1.3 of the Easements Act, Sir Arnold White, C.J., and Davies, J., observed :
It is admitted that the respondent has a means of access to his property without going over the appellant's land and we must accordingly hold that he has no easement of necessity. He is not entitled to an easement under Clause (f) of the section since the easement which he claims is not apparent and continuous. The respondent failed to establish any right by agreement.
23. This was a case where the plaintiff and the defendant who were brothers effected a partition by which amongst other things they divided certain houses and open sites.
24. In Esa Abbas Sait v. Jacob Haroon Sait I.L.R.(1909) M. 327 : 20 M.L.J. 291 it was held by Sir Ralph Benson, Offg. C.J., and Krishnaswami Aiyar, J., that a right of way is not an apparent and continuous easement within the meaning of Section 13 of the Easements Act. This was a case where there was a lane running to the east of the plaintiff's house and west of the defendant's house from north to south which was enjoyed in common by the plaintiff and the defendants and their predecessors-in-titles and the plaintiff claimed it as an easement. As regards the right of way claimed, the learned Judges observed:
A right of way is not a continuous easement (see illustration (b) to Section 5 of the Indian Easements Act, V of 1882). And, therefore, even assuming that it was used as a passage for scavengers at the time when Lazaro owned both the premises there would be no apparent and continuous easement within the meaning of Section 13 of the Indian Easements Act.
25. In Wutzler v. Sharpe I.L.R. (1893) A. 270 the property owned by the plaintiffs and the defendant were at one time united and there was a road which led from one portion of the property which belonged to the plaintiffs to another portion which belonged to the defendant. The plaintiffs claimed the road to the defendant's property for the purpose of getting water and the defendant refused permission. The plaintiffs sued the defendant far a declaration of their right of way over the road. As the plaintiffs did not produce the deed under which they became the owners of the property, the learned Judges held that no title by grant could be proved to have passed, and that their only claim could be, to claim the easement as an easement of necessity or an easement the intention to grant which should be inferred from' the circumstances. It appears from the judgment that the Easements Act was made applicable to the United Provinces on the 6th of March, 1891 and this suit was filed before the Easements Act was made applicable. After dealing with the English cases on the subject and expressing their dissent from the decision of the Calcutta High Court in Cliaru Surnokar v. Dokouri Chunder Thakoor I.L.R.(1882) C. 956 the learned Judges held that the right of way did not pass.
26. In Sukhdei v. Kedar Nath I.L.R.(1911) A. 467 which was a decision after the Easements Act was made applicable to the United Provinces, it was held that an easement of necessity was an easement without which a property cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property. This case arose out of a partition of immoveable property and the question was as regards a passage in the property which fell to the share of the defendant. The learned Judges referred to the English cases as to what would be an easement of necessity. There was no suggestion in that case that, where the Easements Act applied, a right of way which was not an apparent and continuous easement would pass under Clause (f) of the Easements Act in case of partition of properties, but it is open to the remark that in this decision the applicability of Clause (f) has not been considered.
27. In Datogai Lal v. Devi Lal (1918) 48 I.C. 670 it was held that an easement of necessity could only arise when the property could not be used at all without the easement, and not where the easement was merely necessary to the reasonable enjoyment of the property.
28. Reference has been made by the learned Advocate-General for the respondent to the decision in Charu Surnokar v. Dokouri Chunder Thakoor I.L.R.(1882) C. 956 Kadambini Debt v. Kali Kumar Haldar I.L.R.(1899) C. 516 and Purnendu Narain Roy v. Dwijendra Narain Roy (1907) Cri.L.J. 289 As the Easements Act is not applicable to Calcutta, the learned Judges of the Calcutta High Court were not bound by any statutory definition or any statutory provisions and they were at liberty to follow the trend of the English decisions which, as we shall point out later, practically gave a right of way, though not of absolute necessity, in respect of contiguous properties in the case of Veil-formed and metalled roads,
29. In Charu Shrnokar v. Dokouri Chunder Thakoor I.L.R.(1882) C. 956 the land held by the plaintiff and the defendant originally belonged to the same owner. A path had been made by the original owner. The District Judge was of opinion that the case fell under Section 26 of the Limitation Act and that the defendant had not proved 20 years' peaceable, open and uninterrupted exercise of the right of way. The High Court was of opinion that the easement might be acquired not only under Section 26 of the Limitation Act but by virtue of the presumed grant. In their view the right of way might pass as a quasi-easement. The learned Judges observed :
This implied grant might arise in one of two ways:-(i) The use of the path and ghat might be absolutely necessary to the enjoyment of the defendant's tenement, in which case, there would be an easement of necessity ; (it) the use of the path and ghat, though not absolutely necessary to the enjoyment of the defendant's tenement, might be necessary for its enjoyment in the state in which it was at the time of severance; and in this case, if the easement were apparent and continuous, there would be a presumption that it passed with the defendant's tenement. This latter case is discussed in the books under the principle of the disposition of the owner of two tenements (Destination du pere de famille). See Gale on Easements, Sth Edition, pp. 96, 97 and following pages; and as to right of way, p. 103 note, p. 124 note and Pycr v. Carter (1857) 1 H. & N. 916 : 156 E.R. 1472. This principle is just and fair and accords with common sense. It is in consonance with the rule of justice, equity, and good conscience, which must guide the Courts in the absence of positive direction by the Legislature.
30. So far as the passage in Gale cited is concerned, the passing of easements on the analogy of the principle of destination du pere de famille was disapproved of by Lord Westbury in the case of Suffield v. Brown (1864) 4 De G.J. & S. 185 : 46 E.R. 888 which was decided in 1864. After referring to Gale on Easements, the learned Lord observes:
But this comparison of the disposition of the owner of two tenements to the destination du pere de famille is a mere fanciful analogy from which rules of law ought not to he derived.
31. Moreover in Charu Swnokar v. Dokouri Chunder Thakoor I.L.R.(1882) C. 956 the learned Judges themselves point out that the principle of justice, equity and good conscience on which they purported to act' can only be applied in the absence of positive direction by the Legislature. And under Section 5 of the Easements Act it is clear that a right of way is not an apparent and continuous easement.
32. In Ram Naradn Shaha v. Kamalm Kanta Shaha I.L.R.(1899) C. 311 the suit related to a right of way. There were two properties which originally belonged to the same owner but subsequently there was a severance, the plaintiff being entitled to one portion and the defendant to another portion. It was held that implication of a grant of easement' upon the severance of a tenement might extend to a way but that it would do so only where there had been some permanence in the adaptation of the tenement from which continuity could be inferred. The learned Judges in dealing with the contention based on the decision in Charu Sumokar v. Dokouri Chundct Thakoor I.L.R.(1882) .C. 9.56 observed:
We are, however, of opinion that the contention is not sound, and that the case cited is distinguishable from the present. The presumption in favour of the grant of an easement upon the severance of a heritage by its owner into two or more parts arises primarily with reference only to continuous and apparent easements; and a 'way' is evidently neither a 'continuous' nor always an 'apparent' easement.
It is true that in certain cases referred to in text books on the subject--See Gale on Easements, 6th Edition, pp. 108 to 123 and Goddard on Easements, 5th Edition, pp. 174 to 186, implication of a grant of an easement, upon the scvcrance of a tenement, has been held to extend, under certain circumstances, to a 'way,' but that is so only where there has been some permanence in the adaptation of the tenement, from which continuity could 15c inferred. In other words the extension of the rule can hold good, if at all, only in the case of 'a formed road,' to use the language of Lord Justice Fry in Thomas v. Owen (1887) L.R. 20 Q.B.D. 225 'made over an alleged servient tenement, to and for the apparent use of the dominant tenement'.'
33. Then the learned Judges say that in that case not only was there no finding of fact that there had been any such permanence of adaptation, any such formed road, but there was no case of an implied grant suggested in the plaint or issues. We may point out that the learned Judges refer to Gale on Easements and are guarded in stating that the rule can hold good, if alt all, only in the case of 'a, formed road'. They do not decide that in the case of 'a formed road' the easement can be said to be an apparent and continuous easement.
34. There is another case at p. 516 in the same volume, Kadam-bini Debi v. Kali Kumar Haldar I.L.R.(1899) C. 516. But that relates to a right of passage of light and air on partition of a family dwelling house. The learned Judges there point out that (there being no enactment of the Legislature applicable to the case in question, the question will have to Be decided and answered with reference to the principles of justice, equity, and good conscience arid they think that the rule of English Law of an implied grant of easement on severance of tenements is in accord-ance with the principles of justice, equity and good conscience and should be followed. Here again we may point out that if the Easement's Act were applicable there could be no question of contravening its provisions by the application of the principles of justice, equity and good conscience.
35. In Purnendu Narain Roy v. Dwijendra Narain Roy (1907) Cri.J. 289 a dispute arose as to a right of way on a partition of property between brothers. The District Munsif decided against the right of way inasmuch as it was not an easement of necessity. This judgment was confirmed by the District Judge. In dealing with the right of way, Mookerjee, J., after stating that the respondent's vakil was not prepared to contend that there was an implied reservation at the time of the exchange, observed:
In the first place, it is doubtful, according to the finding of the learned District Judge, whether there was at the time of the partition and exchange, an existing right of way, at any rate, there was none which had been used for any length of time; and clearly, as the Munsif finds (which finding does not appear to have been challenged before the District Judge), whatever way there might have been, was not a formed' or metalled road but an undefined track.
36. It is argued from these observations that if there was a formed and metalled way that would pass as an easement. We do not think that this case takes us any farther than Kadcm-bini Debi v. Kali Kumar Haldar I.L.R.(1899) C. 516.
37. Reference has been made to Ranchordass Amthabhai v. Maneklal Gordhandass I.L.R.(1890) B. 648. We may point out that this case was before the Easements Act was made applicable to the Bombay Presidency.
38. It is argued by the learned Advocate-General for the respondent that the distinction between apparent and continuous and non-apparent and discontinuous easements is one which is known, to the English as well as 'the Indian Law, that in determining whether an easement would pass under the Easements Act as regards a right of way, the English law before the passing of the Act was that in the case of a formed road it was treated as a continuous easement, that the subsequent development of the English Law made it clear that an easement was held to exist when there was a formed road though it was not strictly a continuous easement, and that in interpreting* the Easements Act it would be relevant to refer to the English decisions on the subject and to apply those decisions to cases, where such a' right is claimed in India. It is pointed out that in the case of an easement of necessity it has been held that the law in India and England is the same and English decisions have been referred to.
39. It seems to us that where the law has been codified we are bound by the Code and it is not permissible for us to refer to the English Law on the subject where the provisions of the Code are clear for the purpose of not giving the words of the Code their plain meaning. We may in this connection refer to the decision of their Lordships of the Privy Council in Norendra Nath Sarcar v. Kamalbasini Dasi where their Lordships condemned the course taken by the Subordinate Judge who first of all on a consideration of the English case-law and the opinion of the text-writers determined what the law in England was at the date of the Succession Act and then construed the Succession Act on those lines that it was not intended by the Legislature to alter the law in India by departing from the law of England. Their Lordships refer to the observations of Lord Herschell in the Bank of England v. Vagtiano (1891) A.C. 107. with approval.
40. We may also in this connection refer to Ramanandi Kuer v. Knlawati Kuer and Mahommad Syedol Ariffin v. Yeoh Goi Gark (1916) L.R. 43 IndAp 256.
41. In Ramanandi Kuer v. Kalawati Kuer their Lordships of the Privy Council, after referring to the divergence of opinion in the Courts in India as regards the law and procedure governing cases for revocation of probate, owing in part to the introduction into Indian practice of the difference in English Law between the grant of probate in common form and probate in solemn form, observed :
It is worse than unprofitable to consider how far, if at all, that distinction has been incorporated into Indian Law. It has often been pointed out by this Board that where there is a, positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to ascertain its proper meaning, uninfluenced by any consideration derived from the previous state of the law--or of the English Law upon which it may be founded.
42. In Mahommad Syedol Ariffin v. Yeoh Goi Gark (1916) L.R. 43 IndAp 256 the question turned on the construction of Section 32, Sub-section (5) of the Straits Settlements Ordinance III of 1893, which corresponds to the Indian Evidence Act I of 1872. The Courts below excluded evidence of an entry made as regards the date of defendant's birth by his deceased father in a book in which he made similar entries with regard to the family. Their Lordships of the Privy Council after referring to the decisions under the Indian Evidence Act and the fact that such evidence was admissible observed:
The Courts below have however declined to accept this principle. They proceed upon two grounds. In the first place they think that the rule with regard to hearsay evidence adopted in the English case of Haines v. Guthrie (1884) 13 Q.B.D. 818 should be followed in the Straits Settlements, and that that rule is not varied by the clause just cited from the. Evidence Ordinance. And in the second place they hold that the illustration given in the statute does not in fact illustrate the section. On the first point, the view of their Lordships is that the rule and principle of the colony must be accepted as it is found on its own Evidence Ordinance, and that the acceptance of a rule or principle adopted in or derived from English law is not permissible if thereby the true and actual meaning of the Statute under construction be varied, or denied effect.
43. Their Lordships hold that illustrations appended to sections of a statute should be accepted as being of relevance and value in construing the text: and should he rejected as repugnant to the section only as the last resort of construction.
44. Where the provisions of an Indian enactment follow the provisions of an English enactment or a well-settled rule of English Law or where the meaning of certain expressions and their legal import are not clear, no doubt reference to English authorities becomes useful and often necessary.
45. Rash Behary Shaha v. Nrittya Gopal Nundy I.L.R.(1906) C. 477 applies to this class of cases. In that case the question was as to the meaning of the word 'refusal' in Section 39 of the Contract Act' and it was held that though the English Law did not govern the case, the views of emment English Judges on the meaning of the word 'refusal' may well be considered.
46. Reference has been made to the English decisions on the subject of right of way. In this connection we may refer to the case-law in England as it stood in 1882 when the Indian Easements Act was passed.
47. In Glave v. Harding (1858) 27 L.J. Ex. 286 which was decided in 1857, the facts so far as they are material for the purpose of this appeal were these:-A land which originally belonged to the Crown was leased to one Merrick for building purposes on certain terms as to the nature of the building. One of the terms was that when he built the. houses according to the plan, a separate lease of each house was to be granted to him or to his assigns for 80 years at such rent as the Commissioners of Woods and Forests would agree upon. Merrick built houses in Bainbridge Street and New Oxford Street and there was a way connecting the two blocks of houses. Merrick mortgaged his interest in the whole of the premises to certain parties and assigned them to the defendant He then blocked up both the entrances. The question was whether the plaintiff was entitled to the right of way. Bramwell, B., in dealing with the right of way claimed, observed :
The plaintiff's title was derived from the lease, and unless the lease granted the right of way it did not exist. It did not grant the right in terms, and the only way in which it could grant it was, that the condition of the premises at the time when the lease was granted, showed, that it was intended that the right of way should be exercised upon the principle of law I have adverted to, that by the devolution of the tenements originally held in one ownership, a right of way to a particular door or gate would, as an apparent and continuous easement, pass to the owners and occupiers of both of them. But I think that the way in question was not a continuous and apparent easement within that principle of law; and therefore I arrive at the conclusion that there was no evidence of the right of way alleged in this case.
48. In Worthington v. Gimson (1860) 2 El. & El. 618 : 121 E.R. 232 which was decided in 1860, the plaintiff claimed a right of way over the land of the de-fendant. The facts as set out in the report are that a certain land lying partly in one parish and partly in another parish belonged in 1820 to two (persons each being entitled to an undivided half. A right of way existed from a farm, part of this property, across certain lands to another farm on the said property. The right of way had for many years been used by the occupiers of both the farms. In 1820 one of the co-owners conveyed his undivided half in one parish with all tile rights, members, easements and appurtenances. The other co-owner also conveyed his undivided moiety. The deed contained no express reservation of the right of way to either party. Then the plaintiff in this action and the previous occupiers of the farm used the right of way from 1820 to 1859 but were obstructed by the defendant who was then the occupier of the other farm. It was held that the plaintiff could not recover, the. right of way not passing under the deed of partition, and not being an apparent and continuous easement necessarily passing upon the severance of the property, as incident to the separate enjoyment of the portion severed. At the trial Williams, J., non-suited the plaintiff even though the jury found that the occupiers of the farm claimed by the plaintiff had enjoyed the way as of fact up to and before the deed of partition and that the way had been enjoyed for 20 years since the partition deed up to the time of the obstruction.
49. A rule was obtained. It was argued that the way had been constantly and regularly used up to the time of the partition, that it was known and apparent to both the parties to the partition and that complete enjoyment of the portion of the property in the occupation of the plaintiff could not then, and cannot now, be had without it. Wightman, J., was of opinion that it was not an easement of necessity. Crompton, J., agreed with Wightman, J., and observed:
the present case the parties have not used apt words in the deed to express an intention to pass the way in dispute and the general words which follow the description of the property intended to be conveyed do not add to or alter the previous words of conveyance. It is said that this way passed, as being an apparent and continuous easement There may be a class of easements of that kind, such as the use of drains or sewers, the right to which must pass, when the property is severed, as part of the necessary enjoyment of the severed property. But this way is no: such an easement. It would be a dangerous innovation if the jury were allowed to be asked to say, from the nature of a road, whether the parties intended the right of using it to pass. It may, besides, be naturally supposed to have been the intention of the parties that, on the partition of the property, all ways not incident to the separate enjoyment of each of the severed portions should cease.
50. In Lanyley v. Hammond (1868) 3 Ex. Cas. 161 which was decided in 1868, a question arose as to a right of way. In that case, a lessee surrendered to his lessor a part of the demised premises 'together with all ways, etc., therewith now used, occupied and enjoyed' with a proviso that the defendant should fence off the premises surrendered from those still occupied by the lessee. There had been always unity of seisin and occupation of the whole farmyard and the road way had been made and used by former occupiers of the yard and by the present lessee for the convenience of carting heavy loads to and from the yard and the farm buildings. There was, however, no existing approach to the premises surrendered from the defendant's land. The question arose as to the right of the road way as a means of access to the surrendered premises. It was held that no right to use the road way as a means of access to the surrendered premises passed to the defendant. Kelly, C.B., was of opinion that by a grant of hereditaments with all 'ways therewith now used and occupied and enjoyed' those ways only passed which had at some former period been used as of right therewith. In connection with this road way Bramwell, B., observed:
Suppose a house to stand 100 yards from a highway, and to be approached by a road running along the side of a field, used for no other purpose, but only fenced off from the field, which I assume to be the property of the owner of the house. I should wish for time to consider before deciding that on the conveyance of the house the right to use that road not being a way of necessity, would not pass under such words as these. The ground on which I think this rule ought to be discharged is that there is here really no definite road.
51. In Watts v. Kelson (1871) 6 Ch. App. 166 which was decided in 1871, the easement claimed was an easement to the use of a drain. It appears from the facts that the plaintiff and the defendant were the owners and occupiers of two adjoining properties which up to 1863 belonged to a single owner. In that year the owner conveyed to the plaintiff the premises in respect of which the easements were claimed. The premises were conveyed, together with 'all roads, ways, waters, watercourses, rights, privileges, advantages and appurtenances whatsoever to the same hereditaments and premises belonging or appertaining, or with the same or any part thereof, held, used, enjoyed or reputed as part thereof or appurtenant' thereto.' Some months after the first conveyance the owner conveyed to the predecessor of the defendant the property over which the easements were claimed. There was an artificial watercourse which was originally made for the express purpose of supplying the cattle-sheds with water and was made by the owner of both properties. There was also a carriage way between two points a few yards from each other and this was used as a way for bringing carts from point A to point B. The defendant obstructed the way alleging that thie right of way was only a right of footway. The Master of the Rolls held that the plaintiff proved the night to the carriage way but dismissed the bill so far as it related to the right of water.
52. In the course of. the argument Mellish, L.J., and James, L.J., were of opinion that Pyer v. Carter (1857) 1 H. & N. 916 : 156 E.R. 1472 was good law in spite of Lord Westbury's disapproval of it.
53. During the course of the argument Mellish, L.J., remarked:
When a man walks over his own land in a particular direction he is not using anything, he is merely going where he pleases on his own property; but when there is a structure, erected for a purpose connecfed with a certain part of his property, the case is quite different. I am not satisfied that if a man construct a paved road over one of his fields to his house solely with a view to the convenient occupation of the house, a right to use that road would not pass if he sold the house separately from the field.
54. This was an observation made by Mellish, L.J., in the course of the argument and reliance is placed upon it by the learned Advocate-General for the respondent as being a decision that a paved road although it is not continuous would still pass even though it is not an easement of necessity.
55. In his judgment Mellish, L.J., referred with approval to Polden v. Bastard 25 and observed:
In Polden v. Bastard (1865) 1 Q.B. 156 Chief Justice Earle delivering the unanimous judgment of the Exchequer Chamber says: 'There is a distinction between casements, such as a right of way or easements used from time to time, and eastements of necessity or continuous easements. The cases recognise this distinction, and it is clear law that, upon a severance of tenements, easements used as of necessity, or in their nature continuous, will pass by implication of law without any words of grant; but with regard to easements which are used from time to time only, they do not pass, unless the owner, by appropriate language, shows an intention that they should pass.
56. Then the learned Lord Justice observes that in that case, the easement was in its nature continuous so far as the watercourse was concerned, that the watercourse was necessary for the use of the tenement conveyed, and that no other supply of water equally convenient or equally pure could have been obtained.
57. We do not think that this case can be said to be a decision on the question that a paved road was a continuous easement.
58. It thus appears that when the Easements Act was passed, the English decisions had not established clearly that a formed and metalled road was or may be treated as a continuous easement and it cannot be said that the Easements Act simply codified what was the law in England. It is no doubt true as contended by the Advocate-General for the respondent that the framers of the Easements Act preferred to follow the ruling' in Pyer v. Carter (1857) 1 H. & N. 916 : 156 E.R. 1472 which was referred to with approval by Mellish, L.T., in Watts v. Kelson (1871) 6 Ch. App. 166 to the ruling in Wheeldon v. Burrows (1879) 12 Ch. D. 31.
59. In Pyer v. Carter (1857) 1 H. & N. 916 : 156 E.R. 1472 it was held that where the owner of two or more adjoining houses sells one of them to a purchaser, such a house was entitled to the benefit and was subject to the burden of all existing drains communicating with the other house without any express reservation by the grantor for that purpose.
60. In Wheeldon v. Burroius (1879) 12 Ch. D. 31 it was held that in the case of a grantor, express reservation was necessary with certain exceptions, as in the case ways of necessity, while in the case of a grantee of part of a tenement, all those continuous and apparent easements over the other part of the tenement which are necessary for the enjoyment of the part granted and have been hitherto used therewith would pass as a general rule.
61. Aldridge v. Wright (1929) 2 K.B. 117 affirmed Wheeldon v. Burrows (1879) 12 Ch. D. 31 and the exceptions in the case of a grantor are given by Greer, L.J., in his judgment.
62. This departure from the English Law, however, does not in our opinion lead to the conclusion that a departure should be made as regards apparent and continuous easements in dealing with Section 13 of the Easements Act.
63. So far as the case-law in England subsequent to the passing of the Easements Act is concerned, the trend of the authorities is to treat a formed and metalled road as a kind of apparent and continuous easement. We may refer to Brown v. Alabaster (1887) 37 Ch D. 490 Head v. Meara (1912) 1 Ir. Rep. 262 and Aldridge v. Wright (1929) 2 K.B. 117. But we are of opinion that having regard to the provisions of the Easements Act it is not open to us to follow the English decisions subsequent to the Easements Act and to hold that a formed and metalled pathway would be an apparent and continuous easement for the purpose of determining the rights of parties under Section 13, Clause (f) of the Easements Act.
64. We are of opinion that the plaintiff is not entitled to the right of way claimed as an easement of necessity and not being an apparent and continuous easement it would not pass under the provisions of Section 13, Clause (f) of the Easements Act.
65. We reverse the decree of the Lower Court and dismiss the plaintiff's suit with costs throughout.