Flow to

the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner's limits without material alteration in quantity or temperature 1.

(i) The right of every owner of upper land that water naturally lower land. rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto 2.

for use.

Right to () The right of every owner of land abutting on a natural take water stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners 3.

Explanation.-A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course *.

occupant of the river-bank whatever
the nature of his tenancy, 7 Bom. 209.

3 Suth. Civ. R. 218: 13 ibid. 48:
18 ibid. 525: Miner v. Gilmour, 12
Moore, P. C. 156: Goddard, 79. That
it is in England actionable to heat
the water of a natural stream see
Mason v. Hill, 5 B. & Ad. 1, 26, per
Denman C.J.: Gale, 260.

28 Cal. 468, following Smith v. Kenrick, 7 C. B. 515; and see 7 Suth. Civ. R. 498, per Markby J.: Suth. F. B. 25: 20 Suth. 287: 1 Mad. 335: 12 Cal. 326. The owner of lower land has no corresponding right that water naturally rising in, or falling on, adjacent upper land, and not passing in defined channels, shall be allowed to run naturally to the lower land, Suth. 1864, Civ. R. 147: Marshall, 506: 20 Suth. Civ. R. 287.

3

II Suth. 254.

4 Compare the English rules as to these rights codified by Mr. Monahan, The Method of Law, 1878, pp. 193198. The Act is designedly silent as to rights to passage of fish. In a case reported in Suth. 1864, Civ. R. 275, the Court seemed to recognise a right in Bengal of every owner of land that in every natural stream which passes by &c. his land in a defined natural channel, fish shall be allowed by other persons to go within his limits without obstruction. See Weld v. Hornby, 7 East, 195, where the defendant had converted a weir of brushwood through which fish might pass, into one of stone, which barred escape, except in times of flood.

CHAPTER II.

THE IMPOSITION, ACQUISITION AND TRANSFER OF

EASEMENTS.

easements.

8. An easement may be imposed by any one in the circum- Who may stances, and to the extent, in and to which he may transfer impose his interest in the heritage on which the liability is to be imposed 1.

Illustrations.

(a) A is tenant of B's land under a lease for an unexpired term of twenty years, and has power to transfer his interest under the lease. A may impose an easement on the land to continue during the time that the lease exists or for any shorter period.

(b) A is tenant for his life of certain land with remainder to B absolutely. A cannot, unless with B's consent, impose an easement thereon which will continue after the determination of his life-interest.

(c) A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an easement on the land or on any part thereof 2.

(d) A and B are lessees of the same lessor, A of a field X for a term of five years, and B of a field Y for a term of ten years. A's interest under his lease is transferable; B's is not. A may impose on X, in favour of B, a right of way terminable with A's lease.

9. Subject to the provisions of section 8, a servient owner Servient may impose on the servient heritage any easement that does owners. not lessen the utility of the existing easement. But he cannot, without the consent of the dominant owner, impose an easement on the servient heritage which would lessen such utility.

Illustrations.

(a) A has, in respect of his mill, a right to the uninterrupted flow thereto, from sunrise to noon, of the water of B's stream. B may grant to C the right to divert the water of the stream

1 No instrument in writing is required.

See Kent, Comm. 13th ed., iii. 436. Of course a company or any

other corporation cannot impose an
easement where to do so would be
ultra vires, Mulliner v. Midland Ry.
Co., rn Ch. D. 6.

Lessor and mortgagor.

Lessee.

Who may

acquire

from noon to sunset: provided that A's supply is not thereby diminished.

(b) A has, in respect of his house, a right of way over B's land. B may grant to C, as the owner of a neighbouring farm, the right to feed his cattle on the grass growing on the way: provided that A's right of way is not thereby obstructed.

10. Subject to the provisions of section 8, a lessor may impose, on the property leased, any easement that does not derogate from the rights of the lessee as such, and a mortgagor may impose, on the property mortgaged, any easement that does not render the security insufficient. But a lessor or mortgagor cannot, without the consent of the lessee or mortgagee, impose any other easement on such property, unless it be to take effect on the termination of the lease or the redemption of the mortgage.

Explanation.-A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.

11. No lessee or other person having a derivative interest may impose on the property held by him as such an easement to take effect after the expiration of his own interest, or in derogation of the right of the lessor or the superior proprietor.

12. An easement may be acquired by the owner of the easements. immoveable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.

Easements

One of two or more co-owners of immoveable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property 1.

No lessee of immoveable property can acquire, for the beneficial enjoyment of other immoveable property of his own, an casement in or over the property comprised in his lease 2.

13. Where one person transfers or bequeaths immoveable of necessity and quasi property to another,

easements.

1 See Large v. Pitt, Peake, Add. Ca. 152, as to the incapacity of one tenant of A to acquire an easement

over the holding of another tenant of A. But see infra, p. 907, note 1.

2

7 Mad. H. C. 64.

(a) if an easement in other immoveable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or

(b) if such an easement is apparent and continuous 1 and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement 2;

(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immoveable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or

(d) if such an easement is apparent and continuous 3 and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement *.

Where a partition is made of the joint property of several persons 5,

(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or

(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

1 See sec. 5, supra.

2 2 Mad. 46: 8 Bom. H. C., O. C. J. 181. As to the disposition of the owner of two tenements (destination du père de famille), see 8 Cal. 959: Gale, 97.

There is a distinction between discontinuous and continuous easements in regard to the circumstances in which they will be held to pass. A grant of a discontinuous easement (not being an easement of necessity)

cannot be implied from the disposition of the severed tenements, and will not pass under a grant or lease of land without express words showing an intention to pass it along with the land, 2 Mad. 52.

3 See sec. 5, supra.

* See Wheeldon v. Burrows, 12 Ch. Div. 31 (S. C. 48 L. J., Ch. 853). As to the result of this and other English decisions, see Goddard 172.

58 Bom. H. C. 181.

The easements mentioned in this section, clauses (a), (c), and (e), are called easements of necessity 1.

Where immoveable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.

Illustrations.

(a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A's adjoining laud or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A's adjoining land to the field sold.

(b) A, the owner of two fields, sells one to B, and retains the other. The field retained was at the date of the sale used for agricultural purposes only and is inaccessible except by passing over the field sold to B. A is entitled to a right of way, for agricultural purposes only, over B's field to the field retained.

(c) A sells B a house with windows overlooking A's land, which A retains. The light which passes over A's land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land 2.

(d) A sells B a house with windows overlooking A's land. The light passing over A's land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A's hands 3.

(e) A is the owner of a house and adjoining land. The house has windows overlooking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.

(f) A is the owner of a house and adjoining land. The house has windows overlooking the land. A, retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.

1 As to these see infra, secs. 14, 41, 47 and 51, and Gale, 131.

396.

Coutts v. Gorham, Moo. & Mal.

3 See Robinson v. Grave, 21 W. R.

4 Compare Barnes v. Loach, 4 QB. Div. 494 (S. C. 48, L. J., Q. B., 756.

5 Otherwise in England, White v. Bass, 7 H. & N. 722.