1. The subject of dispute is an easement claimed as acquired by prescription. The servient tenement belonged to Government till 2 years before suit and was then assigned by Government to the defendant. At the time of assignment the easement had been exercised only for 30 or 40 years and had therefore not become absolute as against Government. Appellant contends that the transfer of ownership had the effect of rendering it absolute inasmuch as the servient tenement became the property of a private individual against whom the previous 30 or 40 years' enjoyment would be sufficient under Section 15 of the Easements Act.
2. The point is a novel one and is not covered by authority. But we think appellant's contention cannot be admitted. We think the words 'belongs to Government' in the last paragraph of Section 15 must refer, not to the time of suit, but to the time during which the easement is enjoyed. An easement can only be acquired by 20 years' enjoyment against a private person or by 60 years' enjoyment against Government. Here neither condition is satisfied. It may be that where the 60 years' period has nearly expired during Government ownership of the land, and the land is then transferred by Government to a private party, the acquisition of the easement might be held to be completed when the deficiency was made up by subsequent enjoyment against the transferee, but subject to this the person claiming the easement must make good his title by 20 years' enjoyment against the transferee after the transfer.
3. If we adopt the view contended for by the appellant, we should have to hold that the transfer of the servient tenement by a private owner to Government would have the effect of destroying any easement right, which had been legitimately acquired by 20 years' enjoyment; but which had not been enjoyed for the period of 60 years required as against Government.
4. This appeal is dismissed with costs.