- (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/s. Watford Rural District Council [1913] 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.