C RAMASUBBIER Vs. GMUHOMED KHAN SAHEB

JUDGEMENT

(1.) The judgment of the lower appellate Court is in my opinion utterly wrong and cannot be supported. The plaintiff and the defendant own adjacent houses with backyards abutting on each other. A drain has been constructed on the defendant's land, through which the sewage is poured through an opening into the plaintiff's backyard. Somewhere near the drain on the defendant's property stands a latrine. The plaintiff complains that the defendant has no right to pour the filthy matter on his land and prays for an injunction both to restrain him from doing so and to direct the removal of the drain. The finding of both the Courts is, that the drain on the date of the suit was in existence for about thirteen years, and the simple point that arises for decision is, whether the plaintiff is entitled to the remedy of injunction. The right of throwing filthy water on a neighbour's land is an easement which can be acquired either by grant or under Section 15 of the Easements Act by prescription: the words " any other easement " in that section are comprehensive enough to include such a right. Where such a right has not been acquired, the act of polluting amounts to a nuisance which is actionable. In an action for nuisance (and in my opinion this is essentially a suit of that sort) the defendant may justify his act by relying upon prescription ; but in this case, his enjoyment, as already stated, being for less than the statutory period, that defence is not available to him. Transmitting filthy water may be likened to the polluting of the air and in both cases there is a right of action. The following passage in Goddard on Easements dealing with the subject of polluting the air, shows what the true legal principle is underlying such an action: A right to pollute the air has been shown to be an easement which can be acquired only by grant or by prescription--that is, when an uninterrupted practice of polluting has been continued for twenty years in a manner capable of being resisted on account of it being a nuisance and it has not been resisted.

(2.) Then he goes on to say that a person, until an adverse easement is gained against him, may rely upon his natural right and sue for the pollution. (Goddard on Easements, 8 Edition, p. 438.)

(3.) That is to say, in respect of the throwing of filthy water, as in the case of polluting the air, an action lies for nuisance, which the defendant can resist by proving an acquisition by him of the easement, or, in the words of Pollock, " the defendant may in some cases justify by prescription". (Pollock on Torts, 13 Edition, p. 426.) Thus, if the defendant could establish an adverse right acquired by prescription, what would ( otherwise amount to a nuisance would cease to be so; or, what amounts to the same thing, the act complained of would cease to be an actionable nuisance. In this case, upon the facts that the plaintiff is entitled to some remedy, there can be no doubt. The remedies for nuisance are three-fold abatement, damage and injunction. The plaintiff here could have abated the nuisance by merely filling up the hole opening on his land; but where the remedy by injunction is available, that is, the preferable course as abatement may prove a hazardous proceeding. (Pollock on Torts, 13 Edition, p. 436.) However, had the plaintiff chosen by his own act to abate the nuisance, would the Court have granted at the defendant's instance an injunction? In Bonner V/s. Great Western Railway, Co (1883; 24 Ch. D. (C.A.) 1 the plaintiff was the owner of a house, some of the windows of which overlooked a piece of land belonging to the Railway company. After the house had been in existence for sixteen years, the company put up a screen opposite the plaintiff's windows to prevent his acquiring an easement of light and air. The plaintiff brought an action for injunction and the Court of Appeal held that he had no equity to restrain the company from taking measures to prevent prescriptive rights from being acquired for windows looking upon their land. Baggallay, L.J., observes that it is contrary to every principle that a person who has no right should obtain an injunction to restrain anybody from doing that which will interfere with his acquiring a right, by reason of his being unmolested for a certain length of time (p. 8). This case is not exactly parallel, there being no question there of anything amounting to a nuisance; but it furnishes an illustration of the right which a person has, to take measures to prevent prescriptive rights from being acquired.