1. In dealing with this case the lower Appellate Court has not sufficiently considered the provisions of the Indian Easements Act under which an easement may be extinguished by an express or implied release (Section 38) and also by non-enjoyment for twenty years (Section 47). The latter section distinguishes between the case of continuous and discontinuous easements--a continuous easement being defined in Section 5 as 'one whose enjoyment is, or may be continual without the act of man.' It is well settled that a drain is a continuous easement, see among other cases Pearson v. Spencer 1 B. & S. 571 which expressly contrasts continuous easements such as drains with discontinuous easements such as rights of way, also Pyer v. Carter (1857) 1 H. & N. 916 which has never been questioned on this point. In the case of continuous easements, the period of twenty years under the section begins from the day on which enjoyment was obstructed by the servient owner or rendered impossible by the dominant owner, Under the sale-deed, exhibit A, dated the 1st April 1874, the plaintiff acquired the right to pass sewage as well as rain water through a sluice to be constructed in his compound at the point now in question, and he still has that right unless it has been released by him (Section 38) or extinguished by prescription (Section 47). The lower Appellate Court has found that the plaintiff cannot rely on exhibit A in the absence of satisfactory proof that she was exercising and enjoying the right of passing sewage water on to the defendant's land at the point in question. This is not a finding either that it has been released or lost by prescription, and cannot be accepted as disposing of the suit. The defendant's plea in the written statement was that it has not been the mamool to pass sewage water in this way, that such a right had not been exercised for twenty years, and that the plaintiff had recently enlarged the opening through which rain water used to pass to make it carry sewage water. There is no plea or evidence that enjoyment was obstructed by the servient owner or rendered impossible by the dominant owner which could support a finding that the easement was lost by prescription under Section 47 of the Easements Act nor is there any plea that there was an implied release under Section 38 as to which the explanation II to the section must be borne in mind that mere non-user of an easement, that is to say, non user standing by itself without other evidence of abandonment, is not an implied release within the section, as to which see Seaman v. Vawdrey 16 Ves. Jan. 390 No defence is shown and the decree of the lower Appellate Court must be reversed and that of the District Munsif restored with costs here and in the lower Appellate Court,
Krishnaswamy Ayyar, J.
2. The suit is for an injunction to restrain the defendants from obstructing the flow of water from the drain in the plaintiff's land into the defendants' lane. Both the plaintiff's land and the defendants' lane originally belonged to a common owner. The plaintiff and the defendants have become owners of their respective grounds by purchase. In the sale-deed of 1874 by the common owner to a predecessor in title of the plaintiff it was provided that 'the used water and rain water of the site sold, should be made to flow to the street through the sluice to be constructed in the compound wall opposite to the passage.' The Subordinate Judge finds, and we are bound to accept his finding in second appeal' that there is no reliable evidence to show that the plaintiff was enjoying and exercising the alleged right, but there is reliable proof that she was not doing so.' He observes also that 'there is no reliable and satisfactory evidence to show that the provision (above quoted from exhibit A) was ever given effect to or the said right was ever exercised.' Accepting these findings we see that an easement was granted in 1874 but never possessed or enjoyed till recently. I had at first some doubt whether in this case there was not a mere agreement to grant an easement as in Smart v. Jones (1894) 33 L.J.N.S. Comp. 154 which has not been given effect to for over thirty years and has therefore terminated by the consent of both parties. But I am satisfied that no further grant was contemplated and the title to the easement was complete though no enjoyment commenced under it. In Bussell v. Watts (1865) 10. A.C. 590 an easement of light was held to be created in favour of buildings to be erected in accordance with a plan. See also Wash, burne on Easements, page 718, Holding then that the right came into existence in 1874, I ask myself whether it has been lost, It was argued that an easement to throw the water of a drain in one land on to the adjoining land was a continuous easemeni which could not be lost unless it had ceased to be enjoyed for an unbroken period of twenty years reckoned from the day on which its enjoyment was obstructed by the servient owner. See Section 47 of the Basements Act and Hunter's Roman Law, 2nd edition, page 413 for a similar rule under the Roman Law. There is no doubt that the easement in this case was a continuous easement. See illustration (h) to Section 13 where a drain is treated as an apparent and continuous easement. A continuous easement is defined in Section 5 as 'one whose enjoyment is, or may be, continual without the act of men.' It was argued that drainage consequent on domestic use of water was a result of human activity and could not therefore be held to arise without the act of man. The argument if valid would apply to rain water dropping from the eaves of a building and even to artificial water courses. It is pointed out in Gale on Easements, 7th edition, page 121, that the word 'continuous' may be understood to refer 'not So continuity of enjoyment, but to permanence in the adaptation of the tenement.' At page 123 he says 'even in the case of drains the easement is not strictly ' continuous': the drain is not always flowing but there is a necessary and permanent dependence of the house upon it for its enjoyment as a house, in the state in which it is at the time of the conveyance. Nor is distinction drawn between drains arising by the act of man, and those from natural causes, as rainwater' Pyer v. Carter (1857) 1 H.& N. 916 which was relied on during the argument, though it must be treated as overruled as regards the rule of implied reservation by Wheeldon v. Burrows (1879) 12 Ch. D. 31 and the Cases which have followed it, Allen v. Taylor (1880) 16 Ch. D. 355, Taws v. Knowles (1891) 2 Q.B. 574 and Russell v. Watts (1885) 10 A.C. 590 is still authority for the position that an aqueduct or drain from one land to another for the benefit of either is' a continuous easement, Washburne after defining continuous easements as those of which the enjoyment is or may be continued without the necessity of any actual interference by man (page 21) adds at page 107 that among the continuous and apparent easements are the rights of drainage and of aqueducts. The grant of a right to drain water amounting then to the creation of an apparent and continuous easement and it being admitted that there has boon a continued non-user for more than twenty years but no actual obstruction by the servient owner, the question still remains whether Section 47 of the Easements Act applies to the facts of this ease, There, is a continuous easement. There has been no obstruction except within the last three years before suit. It is said that the easement is therefore not extinguished under Section 47. It seems to me however that Section 47 has no application for another reason, A continuous easement is extinguished when it totally ceases to be enjoyed for twenty years. This language presupposes that the easement was for some time enjoyed. There can be no cessation of enjoyment when there was no enjoyment at any time though the title to the easement was created. The Subordinate Judge has found that the right was never exercised. I therefore agree with the appellant's contention that the easement has not been extinguished under Section 47 of the Easements Act.
3. It was then suggested for the respondents that there was an implied release of the easement under Section 38 of the Easements Act. But nothing is alleged to bring the case within Clause (b) of explanation I. The stata of the dominant herbage which was in no way altered showed no intention to abandon the easement. The question of non-user as affecting the continuance of an easement has been dealt with in the Roman and in the English Law. Gaius (Tomlin's translation, page 239) says servitudes are extinguished by non-usus, In Cachard's French Civil Code, Section 706, it is stated that a servitude expires for want of use during thirty years In Ward v. Ward (1870) 21 L.J.N.S. Ex. 334 it was said whether mere non-user of a right amounts to an abandonment of the right will depend on the circumstances which caused the non-user. Where such non-user was caused by reason of a more convenient access by another road having been available it was held not sufficient evidence of abandonment. In Crossle and Sons, Ltd. v. Lightowter (1867) L.R. 2 Ch. Ap. 478 it was held by Lord Chelmsford that a mere suspension of the exercise of a prescriptive right was not sufficient to destroy the right. Whether under the English Law the mere non-user of a continuous easement which was the subject of a grant but never enjoyed for a comparatively long period would not be held sufficient proof of abandonment does not appear to be clear. Chancellor Kent in his Commentaries on American Law, Vol. Ill, page 703 says 'The mere non-user of an easement for twenty years will afford a presumption of a release or extinguishment but not a vary strong one in a ease unaided by circumstances. See however foot-note at page 704 and Washburne on Easement?, page 718. But explanation II of Section 38 which says that mere non-user of an easement is not an implied release within the meaning of that section seems to conclude the matter. There is no other provision in the Act, which is a complete code, dealing with abandonment. I must therefore hold that the easement in question has not been extinguished or abandoned. The plaintiff is entitled to the decree prayed for. I would reverse the decision of the Subordinate Judge and restore that of the Munsif,