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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 132 of 155)
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tiffs' servants with ponies or mules wag not specifically claimed in the
plaint, hut apparently that was the right which the Courts below con-
sidered to he established and intended to decree.

As the case is one of cons'derahle importance to the parties, we shall
consider whether on the facts founl the plaintiffs have in law any right of
way at all over the path in question.

In order to do this it is necessary for us to state concisely what the
facts admitted and what the. facts found, disentangled from the inferences
of law drawn by the lower Courts, appear to be.

The Charleville Hotel property, in connection with which the right
of wny is claimed as an easement, the defendant's property, over which
the right of way is claimed, and sorrvi other properties Adjoining belong >d
at one time to a Mr. Hobson. In 1831 t,he M'issoorie B-ink goc possession
of those properties, but how or un-'e*" whit title-Hoes not appear l>y the
fiudinss IG also appears from the finding that the Orinrleville H.it.el was
for sonar- time managed for the Mnssoorie Bank by a Mr* Trehern-', i that
during Mr. Treherne's tim^as M maqer, and previously when Mr. Hohson
was owner of the properties, ponies ca>rving pakhals for the suonly of
water to the Charleville Hatel had gone to ami for between the H >tel and
Capta'n Lee's sprir g by the path over which the right of way is claimed.
The Charleville Hotel property was sold to the [28'] plaintiffs by
the Mussoorie Bank in 1886. In 1888 the Muss^orie B <nk sold to the
defendant the land over which the way is claimed. From 1386 the plaintiffs
have carried on the Charleville Hotel as a hotel. On two occasions in
1889 the defendant closed the path in question. We think the result of

896



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WUTZLER V. SHARPE



15 All. 282



the finding is that sufficient water for the use of the Charleville Hotel
could not be obtained, at any rate in the hot weather, from any source or
sources in the neighbourhood other than Captain Lee's spring. Leaving
out of account two admittedly private paths or roads, over which the plain-
tiffs have no right of way, there is in addition to the way in dispute a path
referred to in the judgment of the Subordinate Judge as the " zigzag," over
which water for the use of the Charleville Hotel could be carried from
Captain Lee's spring. The zigzag is a public path and is very steep.
As we understand the findings of fact, the plaintiffs could, by using the
zigzag, procure sufficient water for the use of the Hotel, but at much
greater expense than by using the way in dispute, as the zigzag is, accord-
ing to the findings, unsuitable for use by ponies or mules carrying
pakhals, although it could be used by bhishtis carrying water.

The Subordinate Judge declined to find that a mule with very small
pakhals could not pass up from Captain Lee's spring over the zigzag. The
Officiating District Judge did not on that point express any dissent, Even
if the plaintiffs are not entitled to use the way in dispute, the Charleville
Hotel is not cut off from access to Captain Lee's spring, as sufficienet
water for the use of the Hotel can be brought to the Hotel from Captain
Lee's spring by bhishtis passing over the zigzag, which is a public path ;
but it is much less expensive and more convenient to have fche water
carried in pzkhals on ponies or mules over the way in dispute. There
can therefore be no absolute necessity for the using of the way in dispute
by the plaintiffs. The question is merely one of expense, affecting the
profitable working of the Hotel.

We must now ascertain what are the conclusions of law to be
drawn from those facts. No question was apparently raised in either
of tha Courts below as to whether since 1886 the Charleville Hotel
[282] has been so much extended as to materially increase the quantity
of water required for the use of the Hotel and necessarily the number of
ponies or mules employed for carrying water from Captain Lee's spring
to the Hotel. The Counsel for the defendant, appellant in this appeal,
asserted that since 1886 the Hotel had been largely extended, and the
burden materially increased ; but as that question was not raised in
either of the Courts below, we do not think that we should now refer an
issue on that question for trial, particularly as each Court was apparently
allowed to deal with the case on the basis of there having been no material
increase in the requirements of the Hotel, so far as this question is concern-
ed, since the Charleville Hotel property was purchased by the plaintiffs
in 1886.

On the facts found, the case of right of way acquired by a twenty
years' user OD which the plaintiffs relied in their plaint entirely failed.
There was no severance of ownership until 1886.

Mr. Hobson, and after him the Mussoorie Bank, used the way in
right of their ownership of the two properties. The way could not be said
to have been enjoyed by Mr. Hobson and the Mussoorie Bank " claiming
title thereto as an easement and as of right " within the meaning of s. 26
of Act No. XV of 1877. There can be no claim as of right within the
meaning of that section unless there is a several owner of the servient
tenement.

When the plaintiffs refused to produce their title-deeds their vakil
stated to the Subordinate Judge that the plaintiffs did not allege that there
had been any express grant of the right of way claimed. No express grant
of any right of way was proved. Owing to the non-production of the



1893

JUNE 27.

APPEL-
LATE
CIVIL.

13 A. 270 =
13 A.W.S
(1893; 151.



A VII-113



897



15 All. 283



INDIAN DECISIONS, NEW SERIES



[Vol.



1893

JUNE 27.

APPEL-
LATE
CIVIL.

ISA. 270

13A.W.N.
(1893) 151.



plaintiffs' title-deeds, ifc cannot be assumed that there are any words in
those title-deeds from which a grant of the right of way claimed for any
purpose could be inferred.

As there was no severance until 1886, and as the plaintiffs admitted-
ly have in their possession the title-deeds relating to the Charlleville Hotel
property it would be impossible to presume that the right of way claimed
was created by a grant which is lost.

[283] The plaintiffs, if they are to succeed in establishing any right
of way over the defendant's land, can consequently only do so by
proving that the easement which they claim is an easement of necessity,
or an easement which, in some other way on the facts found, and not-
withstanding their refusal to produce their title-deeds, it must be presumed
that they acquired on the transfer of the property to them in 1886.

Act No. V of 1882 (the Indian Easements Act, 1882) dees not
apply in this case, as it was first made applicable to these provinces by
Act No. VIII of 1891 on the 6th of March 1891, on which day it first
came into force so far as these provinces are concerned. S. 2 of Act No.
V of 1882 enacts that nothing in the Act contained shall be deemed to
derogate from " (c) any right acquired, or arising out of a relation created,
before the Act came into force."

So far as we are aware the only legislative enactments under which
an easement might have been acquired in these provinces in 1886 were
Act No. XV of 1877 and Act No. IV of 1882. As Act No. V of 1882 did
not extend to these provinces until the Gth of March 1891, section 3 of
that Act had not in 1886 repealed, so far as these provinces were con-
cerned, s. 26 of Act No. XV of 1877 ; but, as we have already shown,
a. 26 cf Act No. XV of 1877 cannot be applied in this case.

We shall now consider Act No. IV of 1882. In doing so we must
bear in mind that the plaintiffs have, by their refusal to produce their
title-deeds, prevented us from ascertaining whether there is anything in
those title-deeds which would preclude us from inferring that it was
intended that aright of way over the path in question should pass to them.

We must now see how far, if, at all, s. 8 of Act No. JV of 1882 (The
Transfer of Property Act, 1882) affects the question before us. Section 8
of Act IV of 1882, so far as is material for present purposes, .is as
follows :

" Unless a different intention is expressed or necessarily implied, a
transfer of property passes forthwith to the transferee all the [284]
interest which the transferor is then capable of passing in the property,
and in the legal incidents thereof.

" Such incidents include, where the property is land, the easements
annexed thereto, the rents and profits thereof accruing after the transfer,
and all things attached to the earbh, and, where the property

is a house, the easements annexed thereto, the rent thereof accruing after
the transfer, and the locks, keys, bars, doors, windows, and all other things
provided for permanent use therewith. "

As. s. 8 of Act No. IV of 1882 applies without limitation to all " the
easements annexed thereto, " and as easements coming within the mean-
ing of those words do not pass on a transfer of property if " a different
intention is expressed or necessarily implied, " and as we have not in this
case the deed of transfer on the record, and consequently cannot ascertain
whether such different intention was expressed or is necessarily to be

898



YII]



WUTZL3E V. SHARPE



15 All. 286



implied, it is necessary to discover, if we can, what the words " the ease-
ments annexed thereto " mean, so as to see what easement, if any, may
pass independently of s. 8 of Act No. IV of 1882.

Act No. IV of 1882 does not contain any definition of the word
easement. The definitions of easements contained in Act No. V of
1882 are not available in this case, as that Act did not come into force
in these provinces until the 6th of March 1891, after the rights of the
parties to this litigation had been acquired. '' Easement " is not defined
in Act No. I of 1868 (The General Clauses Act, 1868J.

Under s. 8 of Act No. IV of 1882 the easements which may pass
on a transfer of land or a house are " the easements annexed thereto."
What meaning the Indian Legislature intended to express by the use of
the word " annexed " in s. 8 of Act No. IV of 1882, we are unable to
ascertain. It is not in this connection at least an ordinary term of law,
and Act No. IV of 1882 does not defioe it. " Annexed " as a term of
law is not to be found in Wharton's Law Lexicon, nor does it appear in
Stroud's Judicial Dictionary as a term which has received a judicial
interpretation in [285] the Courts in England. According to Webster's
Dictionary '' annex " as a verb means

" 1. To join or attach ; usually to subjoin ; to affix ; to append. "

" 2. To join or add, as a smaller to a greater. "

" 3, To attach or connect, as a consequence or condition ; viz., as
to annex a penalty to a prohibition, or punishment to guilt. "

We may assume from Dr. Whitley Stokes ' Introduction to Act
No. IV of 1882, in his edition of the Anglo-Indian Codes, that the Statute
44 and 45 Viet., Chap. 41, was before the Legislature in India or its
advisers when Act No. IV of 1882 was passed ; yet the Indian Legis-
lature for some reason did not think it advisable to use in s. 8 of Act
No. IV of 1882 the plain language of section 6 of 44 and 45 Viet.,
Chap. 41, which could be understood by every one possessed of a
knowledge of the English language, lawyer and layman alike. Possibly
it was not intended to extend to India the broad principles of what
appear to us to be the justice, equity and good conscience to be
found in s. 6 of 44 and 45 Viet., Chap. 41. Tha latter section, so far as
is material for purposes of comparison, is as follows :

" (2) A conveyance of land having houses or other buildings thereon,
shall be deemed to inculde*, and shall by virtue of this Act operate to
convey with the land, houses, or other buildings, all out-hoases, erections,
fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains,
ways, passages, lights, watercourses, liberties, privileges, easements, rights,
and. advantages whatsoever, appertaining or reputed to appertain to the
land, houses, or other buildings conveyed, or any of them, or any part
thereof, or at the time of conveyance demised, occupied, or enjoyed
with, or reputed or known as part or parcel of, or appurtenant to, the
lands, houses, or other buildings conveyed, or any of them, or any parfc
thereof."

" (4) This section applies only if and as far as a contrary inten-
tion is not expressed in the conveyance, and shall have effect subject
286] to the terms of the conveyance and to the provisions therein
contained. "

Whether it was intended by s. 8 of Act No. IV of 1882 to apply the
broad principles of justice, .equity and common sense to be found in the
sub-ss. (2) and (4) of s. 6 of 44 and 45 Viet., Chap. 41, which we have



1893

JUNE 27,

APPEL-
LATE
CIVIL.

13 A. 270 =
13 A.W.N.
(1893) 151.



899



15 All. 287 INDIAN DECISIONS, NEW SERIES [Yol.

1893 Just quoted, we do not know and are unable to ascertain from an examina-
JUNE 27. tion of s. 8 of Act No. IV of 1882.

The same word '' annexed", is used in the illustrations to s. 5 of Act

APPEL- No. V of 1882. As Act No. IV of 1882 and Act No. V of 1882 were

LATE passed in the same session of the Indian Legislature and received the

CIVIL, assent of the Governor-General on the same day, namely, on the 17th

February 1882, we might expect that some light as to the meaning of a

15 A. 270= wor( j common to the two Acts might be obtained by a comparison of

13&.W.N. those Acts.

Clause (6) of s. 1$ of Act No. V of 1882, referring to an easement in
other immoveable property of a transferor or a testator who transfers or be-
queaths immoveable property to another, enacts "(6) if such an easement is
apparent and continuous and necessary for enjoying the said subject as it
was enjoyed when the transfer or bequest took place, the transferee or
legatee shall, unless a different intention is expressed or necessarily implied
be entitled to such easement. Turning to s. 5 of Act No. Vof 1882 which
defines the terms " apparent " and " continuous " to be found in s. 13, and
which consequently must be read with clauses (6), (d) and (/) of s. 13, we
find " 5. Easements are either continuous or discontinuous, apparent or
non-apparent. A continuous easement is one whose enjoyment is, or may
be, continued without the act of man. A discontinuous easement is one
that needs the act of man for its enjoyment.

Illustrations.

" (a) A right annexed to B's house to receive light by the windows
without obstruction by his neighbour A. This is a continuous easement.

[287] ''(&) A right of way annexed to A's house over B's land. This
is a discontinuous easement."

Thus we have in the illustrations (a) and (6) which we have quoted
two rights described respectively in each illustration as "annexed " to a
house, and further, each right is described as an " easement. " If the
words " annexed " and " easements " are used with the same common
meaning in s. 8 of Act No. IV of 1882, and in s. 5 of Act No. V of 1882, we
have in cases not falling within s. 19 of Act No. V of 188?., this extra-
ordinary result that on a transfer of a house an easement, whether it was
continuous or discontinuous, apparent or non-apparent, so long as it was
one of " the easement annexed " to the house, would by virtue of s. 8 of
Act No. IV of 1882, pass to the transferee, "unless a different intention is ex-
pressed or necessarily implied, " and yet when we turn to Act No V of 1882,
which more exclusively and exhaustively deals with easements, we find
that the same easement, if ifc was not continuous and apparent, although
it was necessary for enjoying the subject as it was enjoyed when the
transfer took effect, and although it was an easement annexed to the
house, would not under s. 13 of Act No. V of 1882, pass to the transferee.
Yet we presume that the Legislature could not have intended tbat in
cases not falling within s. 19 of Act No. V of 1882, an easement which
would not on a transfer of property pass by virtue of s. 13 of Act No. V
of 1882, might paws by virtue of s. 8 of Act No. IV of 1882. In s. 19 of
Act No. V of 1882, which applies to the transfer or devolution of a heri-
tage which at, and prior to, the time of the transfer or devolution was a
dominant heritage, the same generic word "easement " is used and is, by
the illustration to tbat section applied to a case in which " A " has certain
land to which a right of way is "annexed "

900



YII]



WUTZLBB y. SHARPB



15 All. 289



In order to guard against its being suggested that we have carelessly
read ss. 5 and 13 of Act No. V of 1882, it is necessary to point out that,
although the only apparent object of s. 5 was to provide definitions, by
inclusion and exclusion, of the words " continuous " and " apparent " used
in s. 13, none of the [288] illustrations to s. 5 seem to be strictly applic-
able to any easement provided for by s. 13. For instance, illustrations (a)
and (c) to s. 5, which are respectively illustrations of continuous easement
and of an apparent easement, assume the existence of a dominant and' a
servient; tenement and a several ownership, but clauses (b), (d) and (/) of
s. 13 apply to easements, necessary for enjoying the subject or the share,
which were apparent and continuous at and before the time when a several
ownership and a dominant and servient tenement were created by the
transfer, bequest, or partition, as the case might be. However, although
the illustrations to s. 5 are not apposite to the cases provided for by s. 13,
the meaning of s. 5 is obvious.

It is obvious from what we have pointed out that from a comparison
of Act No. IV of 1882, and Act No. V of 1882, confusion and not light is
obtained as to the meaning to be attached to the word " annexed " as used
by the Legislature. It is also obvious that if Act No. V of 1882 applied
in this case and were to be considered as the governing Act and^as limiting,
so far as easements are concerned, s. 8 of Act No. IV of 1882, no right? of
way over the path in question passed to the plaintiffs as an incident of
the transfer, unless the way was an easement of necessity as distinguished
from an easement apparent and continuous and necessary for the enjoy-
ment of the Oharleville Hotel property, as that property was enjoyed when
the transfer took effect in 1886.

It may be that such a way as that which Blackburn, J., held in Kay
v. Oxley (1) was capable of being considered as appurtenant might be one
of the " easements annexed " within the meaning of s. 8 of Act; No. IV of
1882. In Kay v. Oxley (1) Blackburn, J., dissented from the proposition
that there can be no using and enjoying by the common" owner of two
closes of a way over one of them to the other as a way appurtenant. We
quote from page 365 of the report what Blackburn, J., said on the
subject :

" Mr. Herschell says that where a man if occupier of two adjoining
places of land, and uses both for the convenience of [289] himself
as the actual occupier of' both, anything that he may do on the one
is prima facie not a right appurtenant to the other, and would not pass
as appurtenant ; and that when he passes across the one close to the
other he exercises the right of going from one to the other merely for his
convenience as the occupier of the two, and that he does not prima facie
enjoy or occupy the way as appurtenant to the othtr, and that the way
would not pass as a right enjoyed or as appurtenant. But though that
may prima facie appear to be the case, yet if there be acts of ownership
and user of a road by a man across land for the enjoyment and exclusive
convenience of himself as occupier of the adjoining lands, notwithstanding
the cases cited, I do not think, in point of law, we can say that Che fact
of the road having been so enjoyed and occupied only during the time
he had unity of possession or unity of seisin prevents it being enjoyed as
appurtenant."

It is further obvious that even if the way claimed was at the time of
the transfer to the plaintiff of the Charleville Hotel property one of the

(1) L.R. 10 Q.B. 360.
901



1893

JUNE 27,

APPEL-
LATE
CIVIL.

15 A. 270 =
13 A.W.H.
(1893) 151.



15 All. 290



INDIAN DECISIONS, NEW SEKIES



[Vol.



1893 easments annexed theret to, whatever those words mean in s. 8 of Acfc

JUNE 27. No. IV of 1882, we would not be entitled to hold that any easement

passed by virtue of that section to the plaintiffs as a legal incident of the

APPEL- property, as the plaintiffs have by refusing to produce their title-deeds

LATE prevented us from ascertaining whether a "different intention is expressed

p VTT or necessarily implied " in the coveyance to them, and it is only when a

' different intention is not expressed or necessarily implied in the transfer

15 A. 270= of property that "easements annexed thereto " pass by virtue of s. 8 of
13 A.W.N. Act No. IV of 1882.

(1893) 151. As we understand s. 8 of Act No. IV of 1882, there must be nothing

in the conveyance which would negative the right to the way claimed.
Consequently when a person claims a way, except possibly a way of
absolute necessity, as having passed by virtue of a transfer of property,
it is incumbent on him to put the conveyance in evidence.

When, as in the present case, the person claiming a way refuses to put
in evidence the conveyance to him, the Court may act on the[290]
principle of illustration (g) of s. 114 of Act No. I of 1872, and presume
that evidence which could have been and was not produced, 'would have
been, had it been produced unfavourable to him.

Section 8 of Act No. IV of 1882 canot be regaded as exhaustive of
the easements which may pass on a transfer of property otherwise than
by express words of grant or under general words of grant. In no posssible
meaning of the word " annexed" as it is used in s. 8 of Act No. -IV of
1882 could an easement of necessity which first came into existence as a
consequence of a transfer of a house or land be said to have been one of
the " easements annexed thereto," which must mean in any sense of those
words easements which at and prior to the transfer were existing ease-
ments. We could not credit the Legislature with the intention of exclud-.
ing by s. 8 of Act No. IV of 1882 in those territories to which Act No. V
of 1882 did not extend a right of way as an incident to a transfer where
such way was one strictly of necessity.

We must now consider what a way as an easement of necessity is,
and how and under what circumstances it arises as an incident of property
or as an incident of a transfer of property. For this purpose Act No. V
of 1882 is not available to us except as showing what the Legislature
enacted should be an easement of necessity in the territories to which that
Act was made applicable.

As we understand the authorities, a right of way arising on a grant or
lease of land as an easement of necessity, is a way which in law is neces-
sarily implied to be granted, or reserved on the severance of land when the
property, whether it be land simply or land with a building upon it, grant-
ed or leased or the property reserved out of a grant or lease cannot be en-
joyed by a way over land of the grantoa or lessee in the one case, or over
land of the grantor or lessor in the other. A way of necessity. would in the
former case necessarily pass as incident to the grant or lease, and in the
other case arises as incident to the reservation. la Williams' Notes to
Saunders' Eeports, Vol. 1, at page 570, Ed. of 1871, it is said : "So where
[291] a man having a close surrounded with his own land, grants the close
to another in fee, for life or years, the grantee shall have a way to the close
over the grantor's land as incident to the grant ; for without it he cannot
derive any benefit from the grant. So it is where he grants the lands and
reserves the close to himself. 2 Eol. Abr. 60, pi. 17, 18, S.C- Cro. Jac.
170, Clarke v. Cogge, Owen 122 ; Jorden v. Atwood, 6 Mod. 3 : Staple v.
Heydon, 8 T. E. 56; Eowton v. Pearson, Willes' Eep., 72, 73, n (6). This

902



YII]



WUTZLER V. SHARPE



15 All. 292



principle seems to be the foundation of that species of way which is
usually called a way of necessity."

Rolle's Abridgment is not in this Court's library, and we quote from
page 140 of Gale on Easements, 6th edition.

Easements of this nature are thus described in Eolle's Abridg-
ment :

' 'If I have a field enclosed by my own land on all sides, and I aliene
this close to another, he shall have a way to this close over mv land, as
incident to the grant ; for otherwise he cannot have any benefit by the



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 132 of 155)