DAWOOD HASHIM ESOOF Vs. C TUCK SHEIN

JUDGEMENT

(1.) The parties to this appeal are the owners of rival saw-mills on or adjacent to the northern end of a tidal creek communicating to the south with the Rangoon River, through which the tide flows into the creek. The value of the creek is as a means of floating logs up from the river to the mills. The appellants are admittedly the owners under grant from the Government of the soil of this part of the creek, which extends for about 200 feet to the north of the Strand Road. They are also the owners of land on the north and east sides of it. Their predecessors-in-title had reclaimed a considerable portion on the east, and at the time when the suit out of which this appeal arises was instituted, only a narrow strip from 40 to 50 feet wide was left to which the tide had access. It will be convenient to refer to the part of the creek to the north of the Strand Road, with which alone the dispute is concerned, as the upper creek.

(2.) The Strand Road crosses the creek by a bridge, and immediately below it is a second bridge carrying the railway. The head-way under both these bridges is limited, being only 2'88 feet above ordinary spring tides under the Strand Road bridge, and a little more in the case of the railway bridge, but this is admittedly sufficient for the passage of logs and small boats. The respondent's saw-mill was erected in 1922 on the west side of the upper creek by his predecessor-in-title, who constructed in connexion with it on his own land a timber pond, into which he proposed to float his logs by an entrance cut into the upper creak. To this the predecessors of the appellants objected, and they planted a row of piles opposite this entrance, which effectually blocked the passage of the respondent's logs. The predecessor of the respondent then instituted his suit on the original side of the Rangoon High Court, praying for an injunction, and damages.

(3.) The parties to the present appeal are transferees from the original plaintiff and defendant, but nothing turns on the devolution of their rights, and for the purposes of this judgment the respondent will be regarded as the plaintiff and the appellants as the defendant. The case made in the plaint was that the upper creek was a public water-way through which the respondent, as a member of the public, had the right to float logs to his pond. By paras 6 and 7 of the plaint it was also alleged that since 1905 he had been floating logs and bringing them to his mill on the western bank. If this was intended to be a claim to a separate right by way of easement, it is clear that it must fail, inasmuch as the suit having been instituted in 1923, the right was not alleged to have been exercised for 20 years before suit (see S. 26 Lim. Act 1908,), and no claim as an easement has been maintained before their Lordships.