Venkatasubba Rao, J.
1. The judgment of the lower appellate Court is in my opinion utterly wrong and cannot be supported. The plaintiff and the defendant own adjacent houses with backyards abutting on each other. A drain has been constructed on the defendant's land, through which the sewage is poured through an opening into the plaintiff's backyard. Somewhere near the drain on the defendant's property stands a latrine. The plaintiff complains that the defendant has no right to pour the filthy matter on his land and prays for an injunction both to restrain him from doing so and to direct the removal of the drain. The finding of both the Courts is, that the drain on the date of the suit was in existence for about thirteen years, and the simple point that arises for decision is, whether the plaintiff is entitled to the remedy of injunction. The right of throwing filthy water on a neighbour's land is an easement which can be acquired either by grant or under Section 15 of the Easements Act by prescription: the words ' any other easement ' in that section are comprehensive enough to include such a right. Where such a right has not been acquired, the act of polluting amounts to a nuisance which is actionable. In an action for nuisance (and in my opinion this is essentially a suit of that sort) the defendant may justify his act by relying upon prescription ; but in this case, his enjoyment, as already stated, being for less than the statutory period, that defence is not available to him. Transmitting filthy water may be likened to the polluting of the air and in both cases there is a right of action. The following passage in Goddard on Easements dealing with the subject of polluting the air, shows what the true legal principle is underlying such an action:
A right to pollute the air has been shown to be an easement which can be acquired only by grant or by prescription--that is, when an uninterrupted practice of polluting has been continued for twenty years in a manner capable of being resisted on account of it being a nuisance and it has not been resisted.
2. Then he goes on to say that a person, until an adverse easement is gained against him, may rely upon his natural right and sue for the pollution. (Goddard on Easements, 8th Edition, p. 438.)
3. That is to say, in respect of the throwing of filthy water, as in the case of polluting the air, an action lies for nuisance, which the defendant can resist by proving an acquisition by him of the easement, or, in the words of Pollock, ' the defendant may in some cases justify by prescription'. (Pollock on Torts, 13th Edition, p. 426.) Thus, if the defendant could establish an adverse right acquired by prescription, what would ( otherwise amount to a nuisance would cease to be so; or, what amounts to the same thing, the act complained of would cease to be an actionable nuisance. In this case, upon the facts that the plaintiff is entitled to some remedy, there can be no doubt. The remedies for nuisance are three-fold abatement, damage and injunction. The plaintiff here could have abated the nuisance by merely filling up the hole opening on his land; but where the remedy by injunction is available, that is, the preferable course as abatement may prove a hazardous proceeding. (Pollock on Torts, 13th Edition, p. 436.) However, had the plaintiff chosen by his own act to abate the nuisance, would the Court have granted at the defendant's instance an injunction? In Bonner v. Great Western Railway, Co (1883) 24 Ch. D. (C.A.) 1 the plaintiff was the owner of a house, some of the windows of which overlooked a piece of land belonging to the Railway company. After the house had been in existence for sixteen years, the company put up a screen opposite the plaintiff's windows to prevent his acquiring an easement of light and air. The plaintiff brought an action for injunction and the Court of Appeal held that he had no equity to restrain the company from taking measures to prevent prescriptive rights from being acquired for windows looking upon their land. Baggallay, L.J., observes that it is contrary to every principle that a person who has no right should obtain an injunction to restrain anybody from doing that which will interfere with his acquiring a right, by reason of his being unmolested for a certain length of time (p. 8). This case is not exactly parallel, there being no question there of anything amounting to a nuisance; but it furnishes an illustration of the right which a person has, to take measures to prevent prescriptive rights from being acquired.
4. But then it is said (and that is the view of the lower Court) that the plaintiff has been guilty of laches which disentitles him to an injunction. Turning again to Goddard, the following passage shows what the principle is, underlying this contention:
Although the circumstances of a case may be such that the Court would, in its discretion, think it a case fit for the grant of an injunction, to restrain pollution of air, it is always essential for the obtaining of that remedy that the party injured shall not have acquiesced in the pollution, nor have slept upon his rights, for if he has done so the Court would refuse an injunction, though it would probably award him damages for the injury. (P. 447.)
5. I cannot understand what possible equity can be urged on 1 he defendant's side in the present case. Granting that there has been laches (I assume this for the sake of argument) how has the defendant's position been prejudiced thereby? The case is not one of demolition or destruction of costly structures and the loss, if any, which the defendant will suffer by his removing or diverting the course of drain, is in my opinion negligible. Whether an injunction shall be granted or not in any case, is in the judicial discretion of the Court, now guided by principles which have become pretty well settled. (Pollock on Torts, 13th Ed., p. 442.) As Sir Barnes Peacock observes:
If an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable.
6. Then again:
Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.
7. In that case his Lordship after adverting to the facts, coneluded by observing, that there was no reason to attach any importance to the defence founded upon time, as the situation of the parties had in no substantial way been altered either by delay or by anything done during the interval. (Lindsay Petroleum Co. v. Hurd (1874) 5 P.C. 221.) In a case of this sort the defence based upon delay is not, in my opinion, entitled to much weight. Farwell, J., points out (and that accords with one's experience of human nature), the changes are far greater that the injured party will assert his rights in the second rather than in the first half of the prescriptive period. (Greenhaigh v. Brindley (1901) 2 Ch 324.) A person may be willing to submit to an injury for some time: that does not mean that from his attitude it should be inferred that he wishes to put up with it for ever. Again, when he is conscious that he may terminate it at his pleasure, he may not complain; that is different from saying that he acquiesces in the opposite party acquiring a legal right to inflict the injury.
8. In the result, an injunction will issue prohibiting the defendant from pouring the sewage upon the plaintiff's backyard and secondly, directing him to remove or divert the drain to such an extent or in such a manner as to prevent the transmission on the sewage to the aforesaid backyard. This order applies to the upper as well as the lower drain. The relief granted by the lower appellate Court in respect of the eaves will stand.
9. In regard to costs this is the order I make. The trial Court's order pertaining to them will be maintained. In the lower appellate Court the appellant before me will get his costs in Appeal No. 84 of 1931 and here the second appeal is allowed with costs. Leave to appeal is refused.