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 distinguished 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. & N.S. 571 : 7 Jur. (N.S.) 1195 : 4 L.T. 769 : 3 B. & S. 761 : N.R. 373 : 8 L.T. 166 : 11 W.R. 471, which expressly contrasts continuous easements, such as drains, with discontinuous easements, such as rights of way, also Pyer v. Garter 1 H. & N. 916 : 26 L.J. Ex. 258 : 5 W.R. 371, 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 1374, the plaintiff acquired the right to pass sewage as well as raise 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 paint in question. This is not a finding either that it has been released or lost by prescription and cannot be accepted as dispasing 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 on 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 Yes Jun. 390 : 10 R.R. 207. 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 the lower appellate Courts.
Krishnasawmy Aiyar, 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 defendant's 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 predeces3or-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 (alone quoted from Exhibit A) was ever given effect to or the said light 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 33 L.J.N.S. Com. R. 154: 15 C.B.N.S. 717 : 10 Jur. (N.S.) 678 : 10 L.T. 271 : 12 W.R. 430, 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 Russell v. Watts 10 A.C. 590 : 55 L.J. Ch. 158 : 53 L.T. 876 : 34 W.R. 277 : 50 J.P. 68, 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 or to the adjoining land was a continuous easement 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 Easements Act and Hunter's Roman Law, 2nd Edition, page 423, 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 man.' It was segued that drainage consequent on domestic are 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 to continuity of enjoyment but to permanence in the adaptation of the tenements'. 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 defence 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 rain water.' Pyre v. Carter 1 H. & N. 916 : 26 L.J. Ex. 258 : 5 W.R. 371, 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 12 Ch. D. 31 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196, and the cases which have followed it Allen v. Taylor L.R. 16 Ch. D. 355 : 50 L.J. Ch. 178, Tawes v. Knowless (1891) L.R. 2 Q.B. 564 : 60 L.J.Q.B. 641 : 55 L.T. 124 : 39 W.R. 675 J.P and Russell v. Watts 10 A.C. 590 : 55 L.J. Ch. 158 : 53 L.T. 876 : 34 W.R. 277 : 50 J. P. 68, is still authority for the position that an acqueduct 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 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 been a continued non-user for more than twenty years but no actual obstruction by the servant owner, the question still remains whether Section 47 of the Easements Act applies to the facts of this case. 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 pre-supposes that the easement was for sometime 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 (6) of explanation I. The state of the dominant heritage, 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. Gauis (Tomlins' Translation page 239) says servitudes are extinguished by non-user. In Rachard's French Civil Code, Section 706, it is stated that a servitude expires for want of use during thirty years. In Ward v. Ward 21 L.J.N.S. 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 Crosley and Sons Ld. v. Lightowler L.R. 2 Ch. App. 478 : 36 L.J. Ch. 584 : 16 L.T. 438 : 15 W.R. 801, 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 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, Volume III, 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 very strong one in a case unaided by circumstances.' See, however, foot-note at page 704 and Washbume on Easements, 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.