Richard Garth, C.J.
1. This is a suit brought by the plaintiff for the purpose of establishing a right of way for himself and his servants from a public road called Hiddaram Banerjee's Lane over a piece of ground, which is called a blind lane, to a kirkee door and privy in the plaintiff's house.
2. The defendant, whose residence is situated at the end of the blind lane, has built up a wall, against the plaintiff's kirkee and privy doors, and also across the entrance from the blind lane to Hiddaram Banerjee's Lane, so as to prevent all access from Hiddaram Banerjee's Lane to the plaintiff's house.
3. It does not very clearly appear from the evidence to whom the land called the blind lane belongs. The plaintiff has made an attempt to claim one half of it as his own, upon the ground, that as it was a road lying between his house and his neighbours, the presumption of law was that he was entitled to the half of it, usque ad medium filum of the space between the two houses.
4. We think, however, that there is nothing in this point. The supposition that the plaintiff is the owner of the soil is quite inconsistent with the right of way, which he claims in his plaint. It is also inconsistent with the plaintiff's own title-deeds, which state the blind lane to be the boundary of his property; and lastly the presumption upon which the plaintiff founds his claim is only applicable to a highway and not to a private occupation road, such as the blind lane is alleged to be.
5. The only question in the case therefore is whether the plaintiff is entitled to the right of way which he claims in the plaint.
6. After stating the facts, His Lordship continued:
Upon this state of facts, the learned Judge in the Court below has decided, and we consider rightly, that the plaintiff has failed to establish a twenty years' user of the way which he claims within the meaning of the 27th section of the limitation Act, and that the discontinuance of the user, which was caused by the bricking up of the wall, has had the effect of preventing the acquisition of the statutory right.
7. In the view which we have taken of the cases, we should have thought it unnecessary to do more than express our acquiescence in the judgment of the Court below and in the reasons for that judgment, were it not that in the argument before us, which has occupied a considerable time, some confusion appears to have arisen as to the construction of the 27th section, and the meaning of the terms 'interruption,' 'abandonment,' and 'discontinuance' as applied to the present case.
8. There was here neither an 'interruption' nor an 'abandonment' (properly so called) of the easement claimed. The term 'interruption' in Section 27 means an obstruction or prevention of the user of the easement by some person acting adversely to the person who claims it. The expression is altogether inapplicable to any voluntary discontinuance of the user by the claimant himself. This is abundantly clear from the explanation given in the Act itself. The term 'abandonment,' on the other hand, as applied to easements, means generally the voluntary and permanent relinquishment by the dominant owner of a right which he has actually acquired. This will be found satisfactorily explained in Gale on Easements (2nd edition), p. 353, and in the judgment of the Court in Moore v. Rawson 3 B. and C. 332. In this sense there was no abandonment here, because the plaintiff's right was never actually acquired. It was only in course of acquisition by user at the time when the doors were bricked up.
9. 'Discontinuance' more properly describes what occurred at that time: not a 'discontinuance' by adverse obstruction, as the term is somewhat inappropriately used in the explanation to the 7th section, but such a voluntary discontinuance of the user of the easement as prevents the statutory right being acquired.
10. The reason why such a discontinuance of user defeats the right is, that no one can be said to be in the open enjoyment of an easement, who has purposely, and with the manifest intention of preventing the user of it, created some obstruction of a permanent character which renders the enjoyment of the easement, so long as the obstruction lasts, impossible. This is very different from the mere non-user for a time of an easement, which the owner might, if he pleased, enjoy during every hour of that time, but which for some good reason, he does not care to enjoy, as for instance, where the owner of a house ceases to use a way to it, because the house is for a time unoccupied, or where a farmer desists for a time from exercising a right of pasture, because he happens to have no pasturable cattle, or because by reason of drought or some other cause the herbage is scanty or unwholesome.
11. What the owner of the house has done in this case, is, to incapacitate himself by his own act from any possible use or enjoyment of the way in question: and it seems quite impossible to say, that during the time this incapacity continued, he was openly enjoying the easement, and claiming right thereto within the meaning of the 27th section.
12. It was then suggested by the plaintiff's Counsel that, although the statutory right might not have been acquired, there was evidence in the case showing that the easement had been enjoyed for upwards of twenty years previously to the bricking up of the wall, and that the plaintiff was entitled to claim a right by prescription at common law, by asking the Court to presume an ancient grant in his favour. Upon looking into the case, however, it appears that the evidence in favour of any such prescriptive right is so slight as hardly to justify the Court under any circumstances in finding for the plaintiff upon that ground, but in this case there are very cogent reasons for not admitting any claim upon this basis.
13. In the first place the plaintiff, in his plaint, distinctly founds his claim upon a twenty years' user, and in conducting his case in the Court below, it is admitted that he relied on no other ground than the statutory title.
14. The defendant therefore would very naturally abstain from cross-examining the plaintiff's witnesses, or adducing any evidence himself, except for the purpose of defeating the claim in the way, and the only way, the plaintiff sought to advance it, and he would now be placed in a very unfair position if we were to allow the plaintiff upon this ingenious suggestion now made for the first time to change his position altogether, and rest his case upon a point which was never contemplated by either of the parties in the Court below.
15. The Court are by no means disposed to encourage a contention of this kind, and the result is that we entirely agree with the judgment of the Court below, and dismiss the appeal with costs on scale No. 2.