1. The plaintiffs and the detendant are neighbours. Their houses are contiguous with a small lane dividing the two premises in the town of Bolepur. In the lane there is a drain 1' 2' wide at the head. The plaintiffs' case is that the land over which this drain runs belongs to them and that they left it for their own convenience between their and the defendant's houses. This was about 30 years ago. The defendant has now wrongfully obstructed it by building a wall over a portion of it lengthwise thereby obstructing the flow of water and the passage of sweepers. The defendant's case is that the drain was made by mutual consent of parties over their joint land in order to carry rain-water and the washings of the houses. In 1329 the plaintiffs erected a privy on the first floor the foul water of which is now flowing into the drain. The defendant, therefore, has walled up his portion of the drain which he says he is entitled to do. The trial Court held that the land on which this drain exists belonged to the plaintiffs and therefore the defendant had no right to put up a wall upon it. Coming to this conclusion the learned Munsiff did not think it necessary to consider the right of the plaintiffs based on easement; but he observed that there was no evidence of express grant and that since the time when the drain was built was known, the plaintiffs could not claim user from time immemorial. He further remarked:
Even if it be supposed that the plaintiffs have easement right by prescription so far as the flow of rain-water from the roofs of the houses of the parties is concerned, as the time since the construction of the privy does not cover the prescription period and because no additional burden can be imposed upon the servient tenement the issue is decided against the plaintiffs.
2. The defendant appealed. The learned District Judge did not agree with the finding of the Munsif that the land on which the drain was erected belonged to the plaintiffs. He found upon evidence that the defendant's story that both the houses were constructed in 1302 and that the parties agreed give up equal extent of land for the drain was correct. But the learned Judge held that the flow of foul of water from the privy did not place any additional burden upon the servient tenement and it did not so radicaly change the nature of the fluid passing along the drain as to warrant the defendant closing it up. The reasoning of the learned Judge is expressed in not very clear language but what he means can be gathered from his judgment, He says that the drain used to carry rain water and also other water which could not be said to be pure: 'the water that passed along the drain has never been pure. The impurities so far have been chemical and mechanical. Organic impurities are now added.'
3. If the learned Judge by these words means that where a person acquires a right of flowing water not quite pure through a drain he has thereby the right to the flow of foul water from privy carrying human organic matter, he is wrong. That the discharge of foul effluent into a drain through which there may be a presumed grant of running water is not permissible by law as imposes an overburden on the servient tenement is established by numerous authorities in England. Philimore v. Watford Rural District Council  2 Ch. 434 which was a counter case to the case before us, it was held that a grant of flow of water did not authorise the discharge of a sewage effluent. Eve, J. indicated the claim and said that:
this consideration and the fact that every one must have appreciated that sooner or later an effluent would have to be dealt with and that the obvious, if not the only, channel into which such effluent would be discharged was the one into which they have in fact discharged it, all combine to preclude the plaintiff from now complaining of the discharge of the effluent. I do not accept this view.
4. In Clarke v. Sommersetshire Drainage Commissioners  59 L.T. 670. the easement was the right to pollute a stream by pouring in the refuse of a fellmongery and the washings of dyes used in a coloured jug manufactory. The fellmongery was abandoned and the manufacture of leather boards substituted. The pollution was less than that caused by the old business yet it was held that the user was so different that the prescriptive right did not extend to the new trade and the easement was lost. In Cawhwell v. Russel  26 L.J. Ex. 34. the plaintiff alleged to have a right of user for general drainage and the right of user was only to use the drain not for foul drainage but for ordinary refuse water. Pollock, C. B. held that as the plaintiffs failed to prove a prescriptive right to conduct foul water from the privy into the drain in question the defendant was entitled to a verdict in his favour. The same view was taken in Hill v. Cook  26 L.T. 185. and Cawkwell v. Russel  26 L.J. Ex. 34 was approved. The learned Judge accepted the defendant's case that the drain was originally intended to carry rain-water as also the discharge of the washings of the houses which the learned Judge characterized as containing chemical and mechanical impurities. The plaintiff's case in para 6 of the plaint was that they prepared this drain for the purpose of discharging rain-water, plastering and whitewashing their premises and for other necessary purposes. So that it may be fairly held on the evidence as has been held by the learned Judge that the drain was intended to carry rain-water and such other water as would come out of the houses in ordinary course. It is admitted that there is no evidence of a grant and so in the circumstances of the case no right of easement can be claimed. It was a matter of arrangement between the parties rather than the conferment of mutual rights of easement. Whatever that may be, if there was an agreement it was clearly an agreement for the purposes mentioned; if it is an easement it is limited to those purposes. The discharge of foul water from privies was not one of the purposes in the contemplation of the parties when they made the agreement. I am quite clear in my mind that in the circumstances of this case the discharge of foul water from the privy is a case of excessive user and adds to the burden on the servient tenement or it is a case in which the plaintiffs have gone beyond the arrangement between the parties at the time of the construction of their houses.
5. Now, the question is what relief, if any, can the plaintiffs get and whether the conduct of the defendant is justifiable? At one time the law was laid down that where the owner of a dominant tenement uses the easement in an excessive manner the servient tenement is entitled to obstruct the legitimate user of the easement which is lost to the dominant tenement holder: Renshaw v. Bean  18 Q.B. 112. The view of law, however, was subsequently modified by the House of Lords in Tapling v. Jones  11 H.L.C 290 and Colls v. Home and Colonial Stores  A.C. 179. The law as it now stands is that in the case of excessive user the aggrieved party may render such user impracticable; but he has not the right to obstruct the exercise of the user in its entirety.
If the owner of an easement exceeds his rightful user or does anything which would after long user produce an increased right, the servient owner may in all cases obstruct or prevent the excessive user or new mode of enjoyment, if he can do so without obstructing the rightful user: Goddard on Easement p.349.
6. Now in the present case the defendant has built a wall covering a portion of the drain. It has not been proved that he has exceeded the limit of his portion. As a matter of fact it has been found by the Commissioner who held a local enquiry that the portion of the drain still left open is eight inches in width which is more than one-half of the width of the drain. The defendant cannot therefore be said to have obstructed the plaintiffs in the proper exercise of the right of user they had in the drain.
7. Looking at the plaint made by the plaintiffs in the suit it seems difficult to give them any relief in it. They have come to Court on the allegation that they are the owners of the drain. They have failed to prove that case and it is found that defendant is the owner of one-half of the drain. Plaintiff's portion has not been encroached upon by the defendant and it is not found that there is any obstruction to the flow of water through the portion that has been left open.
8. The next question raised is with regard to the right of sweepers to pass along the drain in order to clean the plaintiff's privy on the first floor The Munsiff remarks that no easement by prescription even can be acquired for cleaning the privy. The learned Judge says that sweepers come to clean the drain and therefore their right of passage could not be obstructed. In the first place, it is difficult to say that the right to allow sweepers to pass is a right of easement which attaches itself to a tenement and in the second place according to the evidence and the finding of the Munsif it appears that sweepers passed since when the privy was erected by the plaintiff in 1329.
9. As the result of the above considerations, this appeal must be allowed, the decree of the lower appellate Court set aside and the plaintiff's suit dismissed with costs in all the Courts.
10. If the plaintiff removes the privy or ceases to discharge foul water into the drain plaintiffs may claim removal of the obstruction put up by the defendant if he establishes his easement as was suggested in Cawkwell v. Russel  26 L.J. Ex. 34.
11. In view of our judgment in the appeal the cross-objection is dismissed.