1. The plaintiff in a suit for injunction in respect of an admitted pathway is the appellant. Defendants assigned the A schedule property to the plaintiff specifically mentioning that the plaintiff has a right of way on its western side. They do not retract from the grant; but contend that it is only a restricted right, which does not allow vehicular traffic.

2. A Commission was rightly deputed by the trial court and a plan prepared by the Advocate-Commissioner gives a clear picture of the lie of the lands and the length and width of the fairly long route.

3. The plaint A schedule property is only part of an extensive area bearing the;same name. The defendants and their predecessors in interest were owners of the whole area. They sold the property part by part and the plaintiff is now the owner of plot A. Wynad road forms the western boundary of the entire land. It runs north-south. It branches off to the lands of the defendants to the east, extending to a length of about 80 ft. and maintaining a width of about 14 and half ft. It then takes a turn to the south; as it reaches the plaintiff's northern boundary, the width is reduced to 12 ft. and odd and this is maintained to form the western boundary of the plaint A schedule. Thus between the defendants' land and the plaintiff's property there is in fact, in existence a pathway measuring more than twelve feet in width.

4. Having admitted that an easement of way has been granted over this land, can the grant, by implication, be restrictive in its user, prohibiting vehicular traffic? This is the substantial question of law arising for determination in this Second Appeal.

5. Corpus Juris Secundum in Vol. 28 states thus:—

“Where an easement exists by express grant, its use must be confined to the terms and purposes of the grant, but may of course be used in accordance therewith; but the owner of the dominant tenement cannot increase the servitude imposed on the servient tenement, and he can use it only in a reasonable manner and so as not unnecessarily to injure the rights of the other party, especially where the grant expressly so provides. If the grant is in general terms, it is limited to a use which is as reasonable and as little burdensome to the servient estate as the nature of the easement and its object will permit”.

“Also the use must be reasonable so as not unnecessarily to injure the rights of the owner of the servient estate or of others likewise entitled to use the way.”

“On the other hand, where a way is granted or reserved without any limitation as to is use, it will not necessarily be confined to the purposes for which the land was used at the time the way was created, but may be used for any purpose to which the land accommodated by the way may naturally and reasonably be devoted. It may be used for all the ordinary purposes of a way, subject to the general rule that the use must be reasonable, for it is well settled that, where a right of way is granted in general terms no right, in or power over, the land but what is necessary to its reasonable enjoyment is conferred.”

6. Halsbury's Laws of England, (Fourth Edition), Vol. 14, paras 149 to 151, relevant for our purpose, states thus:—

“If a right of way is claimed under an express grant which is actually existing, the nature and extent of the right depends upon the proper construction of the language of the instrument creating it. It is for the court to put the true construction upon the words used in the grant, guided, in the absence of any clear indication of the intention of the parties, by the maxim that a grant must be construed most strongly against the grantor.

The construction of the grant depends on the circumstances surrounding the execution of the instrument. Thus, a grant of a right of way per se and nothing else may be a right of footway or a general right of way or a right to any other kind of way, according to the circumstances of the case. Among these circumstances the nature and description of the land or buildings comprising the dominant tenement, and the nature of the place over which the right is granted as it existed at the date of the grant, are always very material considerations.”

“The right granted may be a right of way by the means of access existing at the date of the grant, or may be a right of way to or from any point of the boundary of the dominant tenement. A grant of a right of way to a building used as a factory, or for the purposes of any other business which would require heavy weights or bags or packages to be brought to it, prima facie includes a right to use the way for reasonable purposes sufficient for the purposes of the business, including usually the right to bring up lorries and vans at reasonable times and the right to stop. A grant of a right of way to a dwelling house prima facie amounts to a grant of a right of way for all reasonable purposes required for the dwelling house, and would include the right to the user of cars by the occupant, or a right to have a van draw up to the door.”

“The natural tendency is to construe a grant of a right of way as conferring per se only the right to use the way for the purposes for which it would be ordinarily used at the time of the grant. If the grant is so worded as expressly to give the fullest rights of user to the dominant owner, however, the grant is not restricted to access for the purposes for which it would be required at the time of the grant. Thus, if a right of way is granted for the purpose of being used as a way to a cottage, and the cottage is changed into a tanyard, the right of way ceases; but if there is a general grant of all ways to a cottage, the right is not lost by reason of the cottage being altered.”

7. In the leading case on the subject, Cannon v. Villars (1878) 8 Chancery Law Reports 415 Jessel, M.R, spoke, if I may say so with respect, in very clear terms thus:—

“As I understand, the grant of a right of way per se and nothing else may be a right of footway, or it may be a general right of way, that is a right of way not only for people on foot but for people on horseback, for carts, carriages, and other vehicles. Which it is, is a question of construction of the grant, and that construction will of course depend on the circumstances surrounding, so to speak, the execution of the instrument. Now one of those circumstances, and a very material circumstance, is the nature of the locus in quo over which the right of way is granted. If we find a right of way granted over a metalled road with pavement on both sides existing at the time of the grant, the presumption would be that it was intended to be used for the purpose for which it was constructed, which is obviously the passage not only of foot passengers, but of horsemen and carts. Again, if we find the right of way granted along a piece of land capable of being used for the passage of carriages, and the grant is of a right of way to a place which is stated on the face of the grant to be intended to be used or to be actually used for a purpose which would necessarily or reasonably require the passing of carriages, there again it must be assumed that the grant of the right of way was intended to be effectual for the purpose for which the place was designed to be used, or was actually used.

Where you find a road constructed so as to be fit for carriages and of the requisite width, leading up to a dwelling-house, and there is a grant of a right of way to that dwelling house, it would be a grant of a right of way for all reasonable purposes required for the dwelling-house, and would include, therefore, the right to the user of carriages by the occupant of the dwelling-house if he wanted to take the air, or the right to have a waggon drawn up to the door when the waggon was to bring coals for the use of the dwelling-house. Again, if the road is not to a dwelling-house but to a factory, or a place used for business purposes which would require heavy weights to be brought to it, or to a wool warehouse which would require bags or packages of wool to be brought to it, then a grant of right of way would include a right to use it for reasonable purposes, sufficient for the purposes of the business, which would include the right of bringing up carts and waggons at reasonable times for the purpose of the business. That again would afford an indication in favour of the extent of the grant. If, on the other hand, you find that the road in question over which the grant was made was paved only with flagstones, and that it was only four or five feet wide, over which a waggon or cart or carriage ordinarily constructed could not get, and that it was only a way used to a field or close, or something on which no erection was, there. I take it, you would say that the physical circumstances showed that the right of way was a right for foot-passengers only. It might include a horse under some circumstances, but could not be intended for carts or carriages. Of course where you find restrictive words in the grant, that is to say, where it is only for the use of foot-passengers, stated in express terms, or for foot-passengers and horsemen, and so forth, there is nothing to argue. I take it that is the law. Prima facie the grant of a right of way is the grant of a right of way having regard to the nature of the road over which it is granted and the purpose for which it is intended to be used; and both these circumstances may be legitimately called in aid in determining whether it is a general right of way, or a right of way restricted to foot-passengers, or restricted to foot-passengers and horsemen or cattle, which is generally called a drift way, or a general right of way for carts, horses, carriages, and everything else.”

8. Gale on Easements (Fourteenth Edition) states thus:—

“In particular, in construing a grant the court will consider (1) the locus in quo over which the way is granted (2) the nature of the terminus ad quem and (3) the purpose for which the way is to be used.”

9. S. 28 of the Easements Act, necessary for our purpose, reads thus:—

“28. Extent of easements.—With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:—

(a) Easement of way.—A right of way of any one kind does not include a right of way of any other kind;”

10. Right of way as an easement can arise in three way:—(a) as an easement of necessity; (b) by way of express grant; and (c) as an acquisition by prescription. In the present case, we are concerned only with an easement by grant and its implications. The grant controls the easement. The rights so granted will limit the extent of the user. Where, the grant however is silent about the extent of the user, the grant “must be construed most strongly against the grantor” and a reasonable user in the circumstances of each case is to be inferred. A right of way cannot be enlarged in such cases to extend the area of the right of easement; it cannot also be unduly restricted within that area either. If, therefore, the right of way admits the use of vehicles, that right cannot normally be refused and a right of way in such cases cannot be reduced to a mere footpath. The dominant owner cannot, in such circumstances, dictate that a right of way available for vehicular traffic can be used by the servient owner only as a footpath.

11. In the present case, the courts below have found that there is no easement of necessity; but there is an easement by grant. The trial court accepted the Commissioner's report, found that the width of the road on the western side of the plaintiff's property is more than twelve feet, that the defendant was attempting to plant improvements blocking the pathway and therefore a prohibitory injunction was issued. The Sub Court, in appeal, held that the plaintiff can succeed only if there is evidence that the defendants agreed to the plaintiff “taking vehicular traffic” through the Schedule property and then found that the plaintiff can use only the six feet of land adjoining his land for the right of passage. The prohibitory injunction was restricted to this six feet.

12. It is this decision that is challenged in this Second Appeal. The B schedule of the plaint is the disputed pathway, where the width is shown as 12 feet. This is not disputed in the written statement. The Commissioner's plan also showed the width of the road as 12 feet 2 inches. Under such circumstances, there was no warrant for the conclusion that the plaintiff could use only 6 feet of this road. The property to the south of the plaint property belonged to Mariyamma, the wife of the plaintiff. It was contended in the lower court by the defendants that the plaintiff's right was only to use the 6 feet road on “the south western portion of Mariyamma's property”. This case was rejected and the court below held that the plaintiff had a right of way “through six feet on the eastern side” of the B schedule property. That decision was rendered to negative the case of easement of necessity. The dispute in this case is not regarding the road on the eastern side of the plaint A schedule property but on its western side. The court need not have traversed outside the pleadings and the admitted fact regarding the width of the road—the B schedule property. When the B schedule disputed pathway is thus more than 12 feet wide, the court below was wrong in proceeding on the footing that vehicular traffic cannot be allowed. The conclusion of the court below and its direction regarding the extent of the right of way are therefore contrary to the pleadings and the report and plan of the Commissioner, accepted by both the courts below. The court below misdirected itself on a substantial question of law regarding easement of way by a grant or failed to note the general law on the terms of the grant to be implied in the circumstances of the case. The court below failed to note that the plaintiff, having business in this land requires the way for vehicular traffic; the pathway was sufficiently wide to admit vehicular traffic. There is nothing in the grant to restrict this right. This is only a reasonable use of the right of way. This right is implied in the grant. The judgment and decree of the court below cannot be sustained. In the result, the Second Appeal is allowed, the judgment and decree of the lower court are set aside and the judgment and decree of the trial court restored. The parties will bear costs throughout.

13. Allowed.