| Citation(s) |
|---|
| 1951 SLG 120 1951 SLD 120 1951 PLD 249 |
Lahore High Court
Letters Patent Appeal No 18 of 1948 under Clause 10 of the Letters Patent decided on 13th March 1951,
MUHAMMAD MUNIR, C.J. AND MUHAMMAD SHARIF, J.
B. Z. Kaikaus, for Appellants. Muhammad Amin, for
Respondents (minors). Karam Elahi, for
Respondent No. 37.
Letters Patent Appeal No 18 of 1948 under Clause 10 of the Letters Patent decided on 13th March 1951,
MUHAMMAD MUNIR, C.J. AND MUHAMMAD SHARIF, J.
B. Z. Kaikaus, for Appellants. Muhammad Amin, for
Respondents (minors). Karam Elahi, for
Respondent No. 37.
Qazi TUFAIL AHMAD and others
VS
AHMAD and others
Law:
Section:
(a) Easement-Surface water-Arising on tenement in form of springs or fountains or- rain-water-Is exclusive property of owner of tenement-Neighbour bound to receive water coming to him in ordinary course of nature-Stich right and corresponding obligation is incident of property arising out of natural configuration of lands-Right of easement to get rain-water through natural course might be acquired by prescription-Easement exists for convenience or advantage of owner of dominant tenement-Owner of servient tenement cannot compel owner of dominant tenement to continue to exercise easement-Permissive user cannot ripen into easement. Surface water arising on a tenement in the form of springs or fountains, or coming to it from melting snows, or falling on it as rain water froth the skies, is the exclusive property of the owner of the tenement. The owner has a natural right to collect, retain and enjoy such water within the boundaries of his land. He may, however, at his option let this surface water take, according to the force of gravitation, its natural course and affect his neighbour. The neighbour is bound to receive without complaint this water coming to him in the ordinary course of nature, and even to suffer damage which may be done to him by them. This right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive natural water, as an incident, of property, arises out of the natural configuration of lands and due to the natural difference in their relative levels. The rain water could either spread itself out or could be sent down through clear cut water channels. In the case of the latter, a right of easement might be acquired by prescription by the defendants. An easement exists for the convenience or advantage of the owner of the dominant tenement and there is nothing to prevent him from foregoing the easement. The owner of a servant tenement cannot compel that of the dominant tenement to continue to exercise the easement; because it might give some extra facility or advantage to him. The user that was no more than permissive could not ripen into an easement which must be "as of right". A. I. R. 1919 Cal. 1062,…
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