Sir John Edge, C.J, and Aikman, J.:— The suit out of which this second appeal has arisen was brought by H. Wutzler and, J. Guibert, who describe themselves in their plaint as proprietors of the Charleville Hotel, Mussoorie. The defendant, who is appellant here, is described in the plaint as “Major Sharpe, owner of the Vicarage.” The plaint was presented to the Court of the Subordinate Judge of Dehra Dun on the 7th of October 1889. Omitting the formal heading and the verification, the plaint was as follows:—

“Plaintiffs state as follows:—

1. That plaintiffs and their predecessors in title have peaceably and openly through their servants used the road marked S.S in annexed map, as a road to the spring in Captain Lee's ground, for the purpose of fetching water for the use of the Hotel, as of right and without interruption for more than 20 years.

2. That the defendant closed the road from 19th to 22nd April last, and from 27th September up to date, and denies that plaintiffs have a right of way over it.

3. Plaintiffs pray for a declaration that they have a right of way over the said road.”

It is obvious from the wording of the plaint that it was framed on s. 26 of Act No. XV of 1877 (The Indian Limitation Act, 1877). From the fact that the plaintiffs did not, under section 59 of the Code of Civil Procedure, produce any title deed in Court when the plaint was filed or enter any title deed in any list added [272] or annexed to the plaint, it is further obvious that the plaintiffs did not sue upon any title deed or intend to rely on any title deed as evidence in support of their claim. The plaint did not allege or claim any right of way with ponies or mules.

The defendant did not tender any written statement, nor did the Subordinate Judge require, under s. 112 of the Code of Civil Procedure, any written statement from the defendant.

The Subordinate Judge proceeded under ss. 117, 118 and 119 of the Code of Civil Procedure, and examined one of the plaintiffs and the defendant, and it then appeared that the plaintiffs were claiming a way to and fro over the defendant's land for their servants on foci and with ponies and mules for the carriage of water from a spring known as Captain Lee's spring to the Charleville Hotel, and that they further claimed the way as one of necessity. The defendant entirely denied that the plaintiffs were entitled to any right of way whatever over his land. The onus of proof was upon the plaintiffs. No amendment of the plaint was made. The Subordinate Judge proceeded to try the suit on the basis of the more extensive right of way which the plaintiff who was examined had in such examination orally claimed. The defendant required the plaintiffs to produce their title deeds, but the plaintiffs refused to produce, and did not produce any title deed. The Subordinate Judge declined to order the plaintiffs to produce any title deed.

We think it necessary for a right understanding of the procedure in the trial of the suit and of the findings of the Subordinate Judge to set out his judgment. That judgment, omitting the formal heading and the signature of the Subordinate Judge, was as follows:—

JUDGMENT

“Messrs Wutzler and Guibert, the proprietors of the Charleville Hotel, Mussoorie, claim a private right of way for their pakhal animals over a piece of road (S.S marked purple on exhibit No. 1, a map the accuracy of which is admitted), running through the grounds of Major Sharpe. Major Sharpe denies that the plaintiffs have any right of way whatever.

[273] “After taking the statements of the parties, I framed the following issues:—

1. Is Mr. Wutzler barred by any defect in his title to the Charleville Hotel from bringing this suit?

2. Has the proprietor of the Charleville enjoyed a right of way as of right and without interruption over the disputed bit of road for 20 years?

3. Has no right of way accrued as an casement by reason of the Charleville property and the Happy Valley having been within the last-six years one property?

4. Must. Mr. Wutzler practically of necessity go this way to enjoy the full right to get water from Captain Lee's spring?

It may be as well first to decide what the facts of the case are.

There seems to be no dispute as to the following facts. The Charleville, Happy Valley, Major Sharpe's, and other estates were originally all owned by Mr. Hobson.

The Mussoorie Bank got possession of them all in 1881.

In 1888 Major Sharpe got his part of the estate from the Bank by-purchase. The bit of road runs through his estate.

The defendant is much aggrieved at the action of the Mussoorie Municipality, which seems at first to have considered that Major Sharpe was interfering with a public right of way and to have promised Mr. Wutzler (an offer subsequently withdrawn), when he complained to the Board, to pay half his legal expenses in asserting the right, but afterwards to have discovered that the right was a private one. This, however, seems to me to have no bearing whatever on the case. I have no doubt whatever that the members of the Board who have been examined have honestly arrived at the opinion they hold, in the matter, and they are not the men to dishonestly distort facts in any way. Whatever the Board may have done does not affect the private rights existing between Mr. Wutzler and Major Sharpe. It is also clear that another road down to the spring (a zigzag from E. on the map [274] Nos. I to X) has recently, in January 1889, been repaired by the Municipality. I have been over all the roads. The Charleville Hotel is, it seems, supplied with water from two springs, the one to which this road goes down and one out beyond Heme Dale. Mr. Wutzler and Mr. Treherne, a former manager, state that neither of these springs in the hot weather supplies (considering that water is taken from them for many other houses also) sufficient water by itself for the Hotel, the requirements of which are large. This is not seriously challenged by the other side, which brings no evidence on the point, and Mr. Wutzler's evidence is somewhat (of course one can't say certainly) confirmed by what I saw when I inspected them. They seemed small springs and the one behind, the General's is high up the hill. I have no doubt whatever that it is in the hot weather, and even I should say all the year round, absolutely necessary for the Hotel people to go down to Captain Lee's spring to get sufficient water. There seem to be no other springs anywhere near. The parties mention none.

Down to this spring there are four roads. With one of these we have nothing to do. It runs behind Pleasure View and the Theatre at the end of the Happy Valley through Captain Murray's land. He strongly asserts that it is a private road, saying he made it, and no one challenges his statement. The other three roads are the one in dispute leading from a walnut tree grove in the corner of the Happy Valley to Undercliff Cottage, one running from the Deanery gate to Undercliff Cottage, and the zigzag above referred to. These three roads it has been agreed to call A, B, and C respectively. With regard to road B we need not consider it, as Major Sharpe says it runs through his property, and he is as ready to dispute Mr. Wutzler's right of way over it as he is his right over A.

The main dispute in this case is whether the zigzag way is one which can be used by Mr. Wutzler or not. There is evidence on the one side to the effect that it is impossible for mules laden with pakhals to get up it, while on the other hand there is the evidence of Captain Lee, who says he has seen mules laden with pakhals [275] go up, and that of a bhishti, who says he has taken them up there, while it is urged that the Municipality would not have repaired the road unless animals could get up.

The only way to decide such a point was by an inspection of the spot. I have walked up the road C; though it has been repaired by the Municipality, it is even now practically inaccessible. From the state of it now, I am of opinion, that before it was repaired it must have been merely a ‘pugdandi’ or foot path, such as are common in the hills down to springs and capable of being used only by men on foot. The money spent on it by the Municipality has, I think, been practically wasted; the road must soon fall out of repair, and there does not appear to be any chance of the Municipality repairing it again. Without going so far as to say that a mule with very small pakhals might not struggle up, I without the slightest hesitation say that it is practically impossible for Mr. Wutzler to get the large quantity of water he wants up that hill. If I were living in the Deanery at the top of the zigzag and had no other way down to the spring and no other spring to go to, I should not send animals down them; I should send bhishtis down. It would be cheaper, as the animals would be killed. Mr. Wutzler requires so much water, and to keep his hotel going has to consult ways and means so much, that it is out of the question his getting all his water by bhishtis. In concluding my notice of the facts of the case I can only draw attention to Captain Murray's evidence, which is thoroughly trustworthy, as his land adjoins the spot in dispute, and he has lived near there for over thirty years while his bona fides is above suspicion.

Having now considered the facts, I proceed to take up the issues seriatim.

As Mr. Wutzler is shown to be in possession of the Charleville and recently (i.e, since 1886) been in the habit of sending his pakhal animals by the way in dispute, it was incumbent on the defendant, who denied his ownership (s. 90, Indian Evidence Act), to prove that Mr. Wutzler was not the owner.

[276] “He accordingly called for Mr. Wutzler's title-deeds. Mr. Wutzler said he could get them, but would take his legal representative's advice. Mr. Melville on his behalf objected,—a natural objection in this country, where deeds are imperfectly drafted, and in Mussooree, in which it is said you can find a legal flaw in the title-deeds of every house in the place. He said he had not seen the deeds, but he was not going to allege that there had been any express grant of the right of way.

Anant Narain said he did not want to contest Mr. Wutzler's right to the hotel, though he might be only the manager, but be wanted to contest the right of way. For all he knew there might be a special clause in the title-deeds, showing that this right of way was not granted.

Now it has been held by the High Court in—that in a case like this, where reasonable objections exist on other grounds to the production of documents and when the party wishing them to be produced has no definite knowledge of what they contain, they may not be called for merely in the hope that something favourable to the person calling for them may be discovered. I therefore refused to insist on their production. Mr. Webb has sworn he sold the Charleville to Messrs Wutzler and Guibert, and the other side have absolutely no evidence whatever that these gentlemen are not the owners of the Charleville.

On the first issue then I find that Mr. Wutzler is not shown to be unable by any defect in his title in the dominant tenement to bring this suit.

On the second issue I find for the defendant. Up to 1886 the two tenements were united in the same ownership. The casement then cannot be said to have existed as of right, and no casement has been acquired by prescription.

The fourth issue I find in favour of the plaintiff. The necessity-seems to me to be clearly apparent, and it would amount to much more than a mere inconvenience to Mr. Wutzler to have to send his mules clown the zigzag. He would, I think, have to shut [277] up his hotel. As the owner of the properties sold Mr. Wutzler the hotel, and I find that in Mr. Hobson's time and during the time Mr. Treherne managed the Hotel for the Bank, the pakhal ponies had always gone down by the way in dispute, I find that the grant of the casement is capable of being presumed by implication of law arising out of the severance of tenements, although it must be taken that no mention of it was made in the title-deeds.

In coming to this decision I have been much assisted by a ruling brought to my notice by Mr. Melville—that in Charu Surnokar v. Dokonri Chunder Thakoor. I have above stated that in this case I find an casement of necessity exists.

Mr. Melville urges that, even if I did not find that, still the principle laid clown in that case, that the right of way, though not absolutely-necessary to the enjoyment of the defendant's tenement, might be necessary for its enjoyment in the state in which it was at the time of severance and in this case if the casement were apparent and continuous, there would be a presumption that it passed with the defendant's tenement. In this I agree with him. See my remarks on the state of the road before it was improved by the Municipality.

It has been urged by Anant Narain that no claim of an casement by necessity or by implied grant is claimed in the plaint, but a litigant in this country cannot be bound too bard and fast by the pleadings. In this case too the exact legal nature of the right only became apparent as the case progressed, and in the plaint I notice that paragraph 3 claims ‘a right of way’ merely, not defining what sort of right of way.

The third issue I also decide in favour of the plaintiff.

I find therefore that Messrs Wutzler and Guibert have a private right of way for their pakhal animals and bhishtis over road A, and I order that Major Sharpe pay them their costs.”

From the decree based upon that judgment the defendant appealed to the Court of the District Judge. The judgment of the [278] then Officiating District Judge was, omitting merely formal parts, as follows:—

JUDGMENT

“Plaintiffs and defendant in this case are now owners of different portions of a property which was joint and united down to 1886, when plaintiff and his partner bought the Charleville Hotel. Plaintiff now resides in the Hotel and occupies it as manager, and he sues defendant for a declaration of right of way for his mules loaded with pakhals (big leather bags to hold water), to pass over a portion of defendant's property down to and up from a well of water. Defendant denied the right of way. The lower Court has found that there was an casement of necessity and decreed plaintiffs' claim, and this order is appealed here.

“The first ground of appeal taken here was that plaintiffs could not sue unless they produced the title-deeds to the property. Now an casement is, under s. 4 of the Basements Act, one which the owner or occupier of the dominant tenement is entitled to enjoy. I am therefore of opinion that plaintiff was entitled to sue without producing any title deeds since he was in possession of the Charleville Hotel, the more so as no notice was duly served on him by law requiring him to produce those deeds.

“Secondly, it is urged that plaintiffs have not proved their right to take water from Captain Lee's spring. But that has not been denied, nor was any question put to Captain Lee on the subject, though he was a witness in the case.

“We must come to the main point in the case, which is as to the casement claimed being one of necessity, viz., in the words of the Calcutta High Court in Cliaru Surnokar v. Dokouri Chunder Thakoor, whether the casement is necessary for the enjoyment of the Charleville Hotel ‘in the state in which it was at the time of severance.’ Now it is abundantly evident from the evidence on the record that the Charleville Hotel requires more water than it can get from the only other spring within a practicable distance from it. Hence it is a necessity that it should [279] get water from this spring. There are only two ways in which it can get to this spring; one is by the pathway in dispute, and the other is by a road which is called the zigzag in the judgment of the lower Court and goes from B. to N.B on the map.

The evidence before the lower Court on this point produced entirely by the defendant is somewhat conflicting, but the weight of that evidence is certainly against the practicability of this road for mules laden with pakhals. The lower Court inspected the spot and has recorded its emphatic opinion on the point. I am therefore not inclined to go against that opinion, backed up as it is by the weight of evidence. The learned counsel for the appellant has stated that his client knows nothing of any local investigation, and it is a pity that notice was not given of that to the defendant. At the same time, since the investigation was a mere inspection of the roads, I do not consider that notice was necessary. I find therefore, upholding the decision of the lower Court on the point, that the casement in this case was one of necessity.

The only other pointraised in appeal was that the road stops short at the Pavilion on the map and is not continued to meet any other public road. I do not consider that this would affect the right of way. Plaintiff 8 may be stopped at any other part of this road to the path in dispute, but that will not affect his having the right of way over it.

One other point raised is that the decision is against the claim which was one of right of way exercised for 20 years. It would have been better had the plaint been amended, but since the issues were fixed so as to try the merits of the case under s. 147, Civil Procedure Code, I do not consider it necessary to return the plaint for amendment. The question was not argued for appellant, and the right of way claimed in the latter portion of the plaint is not specified.

For the above reasons 1, would dismiss this appeal with, costs.”

[280] From the decree based upon that judgment of the Officiating District Judge, this second appeal has been brought by the defendant, who challenges the correctness of the conclusions of law of the Courts below, and in any event disputes the right of the plaintiffs to a decree on a case not stated in their plaint and to a relief not included in the prayer of the plaint.

Although the findings of fact of a Court in first appeal must, when there is evidence on the record in support of them, be accepted as final by a Court bearing an appeal from an appellate decree, yet the correctness of the conclusion of law from the facts found can be considered in second appeal.

The first observation to be made is that a right of way for the plaintiffs' servants with ponies or mules was not specifically claimed in the plaint, but apparently that was the right which the Courts below considered to be established and intended to decree.

As the case is one of considerable importance to the parties, we shall consider whether on the facts found the plaintiffs have in law any right of way at all over the path in question.

In order to do this it is necessary for us to state concisely what the facts admitted and what the facts found, disentangled from the inferences of law drawn by the Lower Courts, appear to be.

The Charleville Hotel property, in connection with which the right of way is claimed as an casement, the defendant's property, over which the right of way is claimed, and some other properties adjoining belonged at onetime to a Mr. Hobson. In 1881 the Mussoorie Bank got possession of those properties, but how or under what title does not appear by the findings. It also appears from the findings that the Charleville Hotel was for some time managed for the Mussoorie Bank by a Mr. Treherne, and that during Mr. Treherne's time as Manager, and previously when Mr. Hobson was owner of the properties, ponies carrying pakhals for the supply of water to the Charleville Hotel had gone to and fro between the Hotel and Captain Lee's spring by the path over which the right of way is claimed. The Charleville Hotel property was sold to the [281] plaintiffs by the Mussoorie Bank in 1886. In 1888 the Mussoorie Bank sold to the defendant the land over which the way is claimed. From 1886 the plaintiffs have carried on the Charleville Hotel as an Hotel. On two occasions in 1889 the defendant closed the path in question. We think the result of the finding is that sufficient water for the use of the Charleville Hotel could not be obtained, at any rate in the hot weather, from any source or sources in the neighbourhood other than Captain Lee's spring. Leaving out of account two admittedly private paths or roads, over which the plaintiffs have no right of way, there is in addition to the way in dispute a path referred to in the judgment of the Subordinate Judge as the “zigzag,” over which water for the use of the Charleville Hotel could be carried from Captain Lee's spring. The zigzag is a public path and is very steep. As we understand the findings of fact, the plaintiffs could, by using the zigzag, procure sufficient water for the use of the Hotel, but at much greater expense than by using the way in dispute, as the zigzag is, according to the findings, unsuitable for use by ponies or mules carrying pakhals, although it could be used by bhisbtis carrying water.

The Subordinate Judge declined to find that a mule with very small pakhals could not pass up from Captain Lee's spring over the zigzag. The Officiating District Judge did not on that point express any dissent. Even if the plaintiffs are not entitled to use the way in dispute the Charleville Hotel is not cut off from access to Captain Lee's spring, as sufficient water for the use of the Hotel can be brought to the Hotel from Captain Lee's spring by bhishtis passing over the zigzag, which is a public path; but it is much less expensive and more convenient to have the water carried in pakhals on ponies or mules over the way in dispute. There can therefore be no absolute necessity for the using of the way in dispute by the plaintiffs. The question is merely one of expense, affecting the profitable working of the Hotel.

We must now ascertain what are the conclusions of law to be drawn from those facts. No question was apparently raised in either of the Courts below as to whether since 1886 the Charleville Hotel [282] has been so much extended as to materially increase the quantity of water required for the use of the Hotel and necessarily the number of ponies or mules employed for carrying water from Captain Lee's spring to the Hotel. The counsel for the defendant, appellant in this appeal, asserted that since 1886 the Hotel had been largely extended, and the burden materially increased; but as that question was not raised in either of the Courts below, we do not think that we should now refer an issue on that question for trial, particularly as each Court was apparently allowed to deal with the case on the basis of there having been no material increase in the requirements of the Hotel, so far as this question is concerned, since the Charleville Hotel property was purchased by the plaintiffs in 1886.

On the facts found, the case of right of way acquired by a twenty years' user on which the plaintiffs relied in their plaint entirely failed. There was no severance of ownership until 1886.

Mr. Hobson, and after him the Mussoorie Bank, used the way in right of their ownership of the two properties. The way could not be said to have been enjoyed by Mr. Hobson and the Mussoorie Bank “claiming title thereto as an casement and as of right” within the meaning of s. 26 of Act No. XV of 1877. There can be no claim as of right within the meaning of that section unless there is a several owner of the servient tenement.

When the plaintiffs refused to produce their title deeds their vakil stated to the Subordinate Judge that the plaintiffs did not allege that there had been any express grant of the right of way claimed. No express grant of any right of way was proved. Owing to the non-production of the plaintiffs' title deeds, it cannot be assumed that there are any words in those title deeds from which a grant of the right of way claimed for any purpose could be inferred.

As there was no severance until 1886, and as the plaintiffs admittedly have in their possession the title deeds relating to the Charleville Hotel property, it would be impossible to presume that the right of way claimed was created by a grant which is lost.

[283] The plaintiffs, if they are to succeed in establishing any right of way over the defendant's land, can consequently only do so by proving that the casement which they claim is an casement of necessity, or an casement which, in some other way on the facts found, and notwithstanding their refusal to produce their title deeds, it must be presumed that they acquired on the transfer of the property to them in 1886.

Act No. V of 1882 (the Indian Easements Act, 1882) does not apply in this case, as it was first made applicable to these provinces by Act No. VIII of 1891 on the 6th of March 1891, on which day it first came into force so far as these provinces are concerned. S. 2 of Act No. V of 1882 enacts that nothing in the Act contained shall be deemed to derogate from “(c) any right acquired, or arising out of a relation created, before the Act came into force.”

So far as we are aware the only legislative enactments under which an casement might have been acquired in these provinces in 1886 were Act No. XV of 1877 and Act No. IV of 1882. As Act No. V of 1882 did not extend to these provinces until the 6th of March 1891, section 3 of that Act had not in 1886 repealed, so far as these provinces were concerned, s. 26 of Act No. XV of 1877; but, as we have already shown, s. 26 of Act No. XV of 1877 cannot be applied in this case.

We shall now consider Act No. IV of 1882. In doing so we must bear in mind that the plaintiffs' have, by their refusal to produce their title deeds, prevented us from ascertaining whether there is anything in those title deeds which would preclude us from inferring that it was intended that a right of way over the path in question should pass to them.

We must now see how far, if at all, s. 8 of Act No. IV of 1882 (The Transfer of Property Act, 1882) affects the question before us. Section 8, of Act IV of 1882, so far as is material for present purposes, is as follows:—

“Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the [284] interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.

“Such incidents include, where the property is land, the casements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth, * * * and, where the property is a house, the casements annexed thereto, the rent thereof accruing after thetransfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith.”

As s. 8 of Act No. IV of 1882 applies without limitation to all “the easements annexed thereto,” and as casements corning within the meaning of those words do not pass on a transfer of property if “a different intention is expressed or necessarily implied,” and as we have not in this case the deed of transfer on the record, and consequently cannot ascertain ‘whether’ such different intention was expressed or is necessarily to be implied, it is necessary to discover, if we can, what the words “the casements annexed thereto” mean, so as to see what casement, if any, may pass independently, of s. 8 of Act No. IV of 1882.

Act No. IV of 1882 does not contain any definition of the word casement. The definitions of casements contained in Act No. V of 1882 are not available in this that Act did not come into force in these provinces until the 6th of March 1891, after the rights of the parties to this litigation had been acquired. “Easement” is not defined in Act No. I of 1868 (The General Clauses Act, 1868).

Under s. 8 of Act No. IV of 1882 the casements which may pass on a transfer of land or a house are “the casements annexed thereto.” What meaning the Indian Legislature intended to express by the use of the word “annexed” in s. 8 of Act No. IV of 1882, we are unable to ascertain. It is not in this connection at least an ordinary term of law, and Act No. IV of 1882 does not define it. “Annexed” as a term of law is not to be found in Wharton's Law Lexicon, nor does it appear in Stroud's Judicial Dictionary as a term which has received a judicial interpretation in [285] the Courts in England. According to Webster's Dictionary “annex” as a verb means—

“1. To join or attach; usually to subjoin; to affix; to append.”

“2. To join or add, as a smaller to a greater.”

3. To attach or connect, as a consequence or condition; viz., as to annex a penalty to a prohibition, or punishment to guilt.”

We may assume from Dr. Whitley Stokes' introduction to Act No. IV of 1882, in his edition of the Anglo-Indian Codes, that the statute 44 and 45 Vict., Chap. 41, was before the Legislature in India or its advisers when Act No. IV of 1882 was passed; yet the Indian Legislature for some reason did not think it advisable to use in s. 8 of Act No. IV of 1882 the plain language of section 6 of 44 and 45 Vict., Chap. 41, which could be understood by every one possessed of a knowledge of the English language, lawyer and layman alike. Possibly it was not intended to extend to India the broad principles of what appear to us to be the justice, equity and good conscience to be found in s. 6 of 44 and 45 Vict., Chap. 41. The latter section, so far as is material for purposes of comparison, is as follows:—

“(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include, and shall by virtue of this Act operate to convey with the land, houses, or other buildings, all out-houses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, casements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of, or appurtenant to, the lands, houses, or other buildings conveyed, or any of them, or any part thereof.”

“(4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject [286] to the terms of the conveyance and to the provisions therein contained.”

Whether it was intended by s. 8 of Act No. IV of 1882 to apply the broad principles of justice, equity and common sense to be found in the sub-ss. (2) and (4) of s. 6 of 44 and 45 Vict., Chap. 41, which we have just quoted, we do not know and are unable to ascertain from an examination of s. 8 of Act No. IV of 1882.

The same word “annexed” is used in the illustrations to s. 5 of Act No. V of 1882. As Act No. IV of 1882 and Act No. V of 1882 were passed in the same session of the Indian Legislature and received the assent of the Governor-General on the same day, namely, on the 17th February 1882, we might expect that some light as to the meaning of a word common to the two Acts might be obtained by a comparison of those Acts.

Clause (b) of s. 13 of Act No. V of 1882, referring to an casement in other immoveable property of a transferor or a testator who transfers or bequeaths immoveable property to another, enacts “(b) if such an casement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took place, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such casement.” Turning to s. 5 of Act No. V of 1882, which defines the terms “apparent” and “continuous” to be found in s. 13, and which consequently must be read with clauses (b), (d) and (f) of s. 13, we find “5. Easements are either continuous or discontinuous, apparent or non-apparent. A continuous casement is one whose enjoyment is, or maybe, continued without the act of man. A discontinuous casement is one that needs the act of man for its enjoyment * *

Illustrations.

“(a) A right annexed to B's house to receive light by the windows without obstruction by his neighbour A. This is a continuous casement.

[287] “(b) A right of way annexed to A's house over B's land. This is a discontinuous casement.”

Thus we have in the illustrations (a) and (b) which we have quoted two rights described respectively in each illustration as annexed “to a house, and further, each right is described as an casement.” If the words “annexed” and “easements” are used with the same common meaning in s. 8 of Act No. IV of 1882, and in s. 5 of Act No. V of 1882, we have, in cases not falling within s. 19 of Act No. V of 1882, this extraordinary result that on a transfer of a house an casement, whether it was continuous or discontinuous, apparent or non-apparent, so long as it was one of “the casement annexed” to the house, would by virtue of s. 8 of Act No. IV of 1882, pass to the transferee, “unless a different intention is expressed or necessarily implied,” and yet when we turn to Act No. V of 1882, which more exclusively and exhaustively deals with casements, we find that the same casement, if it was not continuous and apparent, although it was necessary for enjoying the subject as it was enjoyed when the transfer took effect, and although it was an casement annexed to the house, would not under s. 13 of Act No. V of 1882, pass to the transferee. Yet we presume that the Legislature could not have intended that in cases not falling within s. 19 of Act No. V of 1882, an casement which would not on a transfer of property pass by virtue of s. 13 of Act No. V of 1882, might pass by virtue of s. 8 of Act No. IV of 1882. In s. 19 of Act No. V of 1882, which applies to the transfer or devolution of a heritage which at, and prior to, the time of the transfer or devolution was a dominant heritage, the same generic word “easement” is used and is, by the illustration to that section, applied to a case in which “A” has certain land to which a right of way is “annexed……………”

In order to guard against its being suggested that we have carelessly read ss. 5 and 13 of Act No. V of 1882, it is necessary to point out that, although the only apparent object of s. 5 was to provide definitions, by inclusion and exclusion, of the words “continuous” and “apparent” used in s. 13, none of the [288] illustrations to s. 5 seem to be strictly applicable to any casement provided for by s. 13. For instance, illustrations (a) and (c) to s. 5, which are respectively illustrations of a continuous casement and of an apparent casement, assume the existence of a dominant and a servient tenement and a several ownership, but clauses (b), (d) and (f) of s. 13 apply to casements, necessary for enjoying the subject or the share, which were apparent and continuous at and before the time when a several ownership and a dominant and servient tenement were created by the transfer, bequest, or partition, as the case might be. However, although the illustrations to s. 5 are not apposite to the cases provided for by s. 13, the meaning of s. 5 is obvious.

It is obvious from what we have pointed out that from a comparison of Act No. IV of 1882 and Act No. V of 1882, confusion and not light is obtained as to the meaning to be attached to the word “annexed” as used by the Legislature. It is also obvious that if Act No. V of 1882 applied in this case and were to be considered as the governing Act and as limiting, so far as casements are concerned, s. 8 of Act No. IV of 1882, no right of way over the path in question passed to the plaintiffs as an incident of the transfer, unless the way was an casement of necessity as distinguished from an casement apparent and continuous and necessary for the enjoyment of the Charleville Hotel property, as that property was enjoyed when the transfer took effect in 1886.

It may be that such a way as that, which Blackburn, J., held in Kay v. Oxley was capable of being considered as appurtenant might be one of the “casements annexed” within the meaning of s. 8 of Act No. IV of 1882. In Kay v. Oxley Blackburn, J., dissented from the proposition that there can be no using and enjoying by the common owner of two closes of a way over one of them to the other as a way appurtenant. We quote from page 365 of the report what Blackburn, J., said on the subject:—

“Mr. Herschell says that, where a man is occupier of two adjoining pieces of land, and uses both for the convenience of [289] himself as the actual occupier of both, anything that he may do on the one is prima facie not a right appurtenant to the other, and would not pass as appurtenant; and that when he passes across the one close to the other he exercises the right of going from one to the other merely for his convenience as the occupier of the two, and that he does not prima facie enjoy or occupy the way as appurtenant to the other, and that the way would not pass as a right enjoyed or as appurtenant. But though that may prima facie appear to be the case, yet if there be acts of ownership and user of a road by a man across land for the enjoyment and exclusive convenience of himself as occupier of the adjoining lands, notwithstanding the cases cited, I do not think, in point of law, we can say that the fact of the road having been so enjoyed and occupied only during the time he had unity of possession or unity of seisin prevents it being enjoyed as appurtenant.”

It is further obvious that even if the way claimed was at the time of the transfer to the plaintiff of the Charleville Hotel property one of the “easements annexed thereto,” whatever those words mean in s. 8 of Act No. IV of 1882, we would not be entitled to hold that any casement passed by virtue of than section to the plaintiffs as a legal incident of the property, as the plaintiffs have by refusing to produce their title deeds prevented us from ascertaining whether a “different intention is expressed or necessarily implied” in the conveyance to them, and it is only when a different intention is not expressed or necessarily implied in the transfer of property that “casements annexed thereto” pass by virtue of s. 8 of Act No. IV of 1882.

As we understand s. 8 of Act No. IV of 1882, there must be nothing in the conveyance which would negative the right to the way claimed. Consequently when a person claims a way, except possibly a way of absolute necessity, as having passed by virtue of a transfer of property, it is incumbent on him to put the conveyance in evidence.

When, as in the present case, the person claiming a way refuses to put in evidence the conveyance to him, the Court may act on the [290] principle of illustration (g) of s. 114 of Act No. I of 1872, and presume that evidence which could have been and was not produced, would have been, had it been produced, unfavourable to him.

Section 8 of Act No. IV of 1882 cannot be regarded as exhaustive of the casements which may pass on a transfer of property otherwise than by express words of grant or under general words of grant. In no possible meaning of the word “annexed” as it is used in s. 8 of Act No. IV of 1882 could an casement of necessity which first came into existence as a consequence of a transfer of a house or land be said to have been one of the “easements annexed thereto,” which must mean in any sense of those words casements which at and prior to the transfer were existing casements. We could not credit the Legislature with the intention of excluding by s. 8 of Act No. IV of 1882 in those territories to which Act No. V of 1882 did not extend a right of way as an incident to a transfer where such way was one strictly of necessity.

We must now consider what a way as an casement of necessity is, and how and under what circumstances it arises as an incident of property or as an incident of a transfer of property. For this purpose Act No. V of 1882 is not available to us except as showing what the Legislature enacted should be an casement of necessity in the territories to which that Act was made applicable.

As we understand the authorities a right of way arising on a grant or lease of land as an casement of necessity, is a way which in law is necessarily implied to be granted, or reserved on the severance of land when the property, whether it be land simply or land with a building upon it, granted or leased, or the property reserved out of a grant or lease cannot be enjoyed by a way over land of the grantee or lessee in the one case, or over land of the grantor or lessor in the other. A way of necessity would in the former case necessarily pass as incident to the grant or lease, and in the other case arises as incident to the reservation. In Williams' Notes to Saunders' Reports, Vol. 1, at page 570, Ed of 1871, it is said: “So where [291] a man having a close surrounded with his own land, grants the close to another in fee, for life or years, the grantee shall have a way to the close over the grantor's land as incident to the grant; for without it he cannot derive any benefit from the grant. So it is where he grants the lands and reserves the close to himself. 2 Rol. Abr. 60, pl. 17, 18, S.C Cro. Jac. 170, Clarke v. Cogge, Owen, 122; Jorden v. Atwood, 6 Mod. 3; Staple v. Heydon, 8 T.R 56; Howton v. Pearson, Willes' Rep., 72, 73, n. (6). This principle seems to be the foundation, of that, species of way which is usually called a way of necessity.”

Rolle's Abridgment is not in this Court's library, and we quote from, page 140 of Gale on Easements, 6th edition.

Easements of this nature are thus described in Rolle's Abridgment:—

“‘If I have a field enclosed by my own land on all sides, and I aliens, this close to another, he shall have a way to this close, over my land, as incident to the grant for otherwise he cannot have any benefit by the grant, and the grantor shall assign the way where he can best spare it. So too, if the close aliened be not entirely enclosed by my land but partly by the land of strangers for he cannot go over the land of strangers. Quære’. The chapter of Rolle in which these sections occur is headed ‘In what case one thing shall pass by grant of another.—Incidents.’—And the, first Pl. is: ‘The grant of a thing passes, everything included therein, without which the thing granted could not he had.’ Pl. 16 is ‘If a man grant or reserve wood, that implies liberty to take and carry it away,’, thus evidently treating it as a necessary implication of the intention; of the grantor, as in the case of all other incident which the law attaches, to grants.”.;

The illustrations (a) and (b) to s. 13 of Act. No. IV of 1882 are consistent with the view of the law as to ways of necessity to be gathered from the passages in Rolle's Abridgment and Williams' Notes to Saunders' Reports, which we have quoted above. It is [292] evident on the facts found in this case that the way claimed here, cannot be regarded in law strictly as an casement of necessity for the sufficient reason that the plaintiffs, although at very much greater expense, can procure from Captain; Lee's spring sufficient water for the use of the Charleville Hotel by bhishtis passing to and fro over the “zigzag” which is a public path. If Act No. V of 1882 applied to this case it would be plain from an examination of s. 13 of that Act and the illustrations to s. 13 that no casement of necessity over the defendant's land exists, so far as the plaintiffs are Concerned.

As the Courts below, on the authority of Charu Surnokar v. Dokouri, Chunder Thakoor, held that on the facts which they found he plaintiffs had proved an casement of necessity, it is necessary, to, consider whether prior to 6th of March 1891 there could have been in these provinces as a necessary incident to a transfer a way of necessity other than a way which would be strictly an casement of (necessity under circumstances similar to those mentioned in clauses (a), (c) and (b) of s. 13 of Act No. V of 1882.

Act No. V of 1882 did not apply in the case of Charu Surnokar v. Dokouri Chunder Thakoor. If the learned; judges in that case had considered that s. 13 of Act No. V of 1882 read with s. 5 of that Act correctly embodied the principles of law which existed, independently of that Act, they could not have held that a way over the path and ghat in that case might pass as an casement apparent and continuous and necessary for the enjoyment of the defendant's tenement in the state in which, it was at the same of the severance. As their Lordships of the Privy Council held in Maharani Rajroop Koer v. Syed Abdul Hossein, that Act No. IX of 1871 did not exclude or interfere with titles, and modes of acquiring easements existing independently of that Act, it follows that Act No. XV of 1877 does not exclude modes of acquiring casements existing independently of that Act, and we are consequently entitled to see whether on general principles a way which [293] is not strictly an casement of necessity, but which was a made and visible path and was used at the time of the transfer, and was, and is, necessary to the enjoyment of the land or house transferred in the state in which it was at the time of the severance, is capable of passing as an incident to the transfer and can be inferred to have passed in this case.

We have been able to obtain little assistance on this point from the decisions of the Courts in India. In Charu Surnoknr v. Dokouri Chunder Thakoor, it was apparently assumed by the Calcutta High Court that such a way would pass as a quasi-easement of necessity. We know of no other decision of a Court in India throwing any light on this particular question. We shall now examine some of the cases decided in England relating to the acquirement of casements of ways by implication or as incidental on a grant. In referring to decided cases on this subject it is necessary to bear in mind that there can be here no suggestion of a lost grant, and as the plaintiffs have not put any title deed in evidence that those cases in which a grant of a right of way has been inferred from the use of particular or general words in deeds of conveyance, or in wills, can throw no light upon the legal questions to be decided in this case.

It is difficult to deduce any clear and uniform rule from the decisions of the Courts in England on this particular question.

In Polden v. Bastard, in Ex. Ch., Erle, C.J, in 1865, said—

“There is a distinction between casements, such as a right of way or casements used from time to time, and casements of necessity or continuous casements. The cases recognize this distinction, and it is clear law that, upon a severance of tenements, casements used as of necessity or in their nature continuous, will pass by implication of law without any words of grant; but with regard to casements which are used from time to time only, they do not pass, unless the owner, by appropriate language, shows an intention [294] that they should pass. This right to go to a well and take water is not a continuous casement, nor is it an casement of necessity.” In the judgment of Erle, C.J, in Polden v. Bastard, Pollock, C.B, Willes, Byles, and Keeling. JJ., Bramwall and Pigott, B.B, concurred.

In Worthington v. Gimson, in which on a partition of two farms which belonged to two persons as joint owners the question to be decided was, whether on the partition by conveyance of the farms to separate owners in severalty there was an implied grant of the right to use a way which had been regularly used for many years by the occupier of one of the farms over the other. It did not appear whether there was a hard or visible track. It was held there was no implied grant of a right to use the way. In that case Crompton, J., in 1860, after approving of the distinction drawn in Gale on Easements between apparent and continuous casements on the one side and ways on the other, said (at page 626 of 2 E. and E.): “It is said that this way passed as being an apparent and continuous casement. There may be a class of casements of that kind, such as the use of drains or sewers, the right to which must pass, when the property is severed, as part of the necessary enjoyment of the severed property. But this way is not such an casement. It would be a dangerous innovation if the jury were allowed to be asked to say from the nature of a road whether the parties intended the right of using it to pass.”

On the other hand, there are some cases from which it may be inferred that a necessary implication of an intention to grant a right to use a way arises when parts of a building are so constructed for use that they cannot conveniently and usually be used except by using a way over other premises which at the time of the grant belonged to the grantor and were then in his possession or came into his possession before the grant was to take effect. The case of Hinchliffe v. Earl of Kinnoul, which was decided in 1838, [295] was one in which Earl Grosvenor, in 1819, who was entitled, in reversion expectant on a ground lease which would determine in 1824, to a messuage and an adjoining passage, granted a lease of the messuage to the plaintiff for a term to commence on the expiration of the ground lease. In 1822 Earl Grosvenor granted a lease of the passage to Lord Hampden for a term to commence on or about the expiration of the ground lease. At the time when the lease of the messuage was granted to the plaintiff in 1819 the messuage had a coal shoot opening into the passage. The occupants of the messuage had long used the passage for the purpose of filling the coal cellar. The jury found that the coal shoot was necessary for the convenient and beneficial use and occupation of the messuage, and that the coal shoot could not be used without passing and repassing over the passage. On that finding the Court of Common Pleas held that the plaintiff was entitled by the legal operation of the lease to a right of way over the passage for the purpose of using the coal shoot. Tindal, C.J, in his judgment in that case said: “Since therefore, as it appears to us, the right in question passed to the lessees under the reversionary lease of 1819 as incidental to the enjoyment of that which was the clear and manifest subject matter of demise, it becomes unnecessary to consider the question argued at the bar before us how far the same right might or might not pass to the lessees under the express words used in the lease itself as ‘an appurtenant unto the said piece or parcel of ground, messuage, or tenement, erections, buildings, and premises belonging or appertaining.’”

In Morris v. Edgington, which was decided in 1810, the facts were as follows. The defendant had granted a lease of a public house to the plaintiff. The greater part of the leased premises was on the west side of a gateway of the defendant, which led to a yard of the defendant. A portion of the leased premises, being the tap room of the public house, was on the east side of the gateway. By the lease the gateway and the yard were expressly reserved to the defendant, but it granted a right of way to the [296] plaintiff through the defendant's yard to some cellars at the back of the yard, but no right of way to the tap room was expressly granted. Access to the tap room might he had either by entering that part of the public house to the west of the gateway from the public street by a door and passing through the coffee room and thence out and across the gateway to the tap room, or by passing through the gateway direct from the public street to the tap room. On entering the gateway the door of the tap room and a finger board pointing to the tap room could be seen. On the finger board were the words “To the tap room.” The defendant shut the gate in the gateway at nightfall, and thus caused the plaintiff some loss of custom. Bor that obstruction of the direct way from the street to the tap room and the consequent damage, the plaintiff brought his action and got a verdict, which the Court of Common Pleas refused to set aside. It was there contended that the express grant of the right of way to the coal cellars excluded any implied grant of a right of way direct from the street through the gateway to the tap room. In delivering his judgment Mansfield, CL, said: “I say nothing of what is a way of necessity. I know not how it has been expounded. But it would not be a great stretch to call that a necessary way without which the most convenient and reasonable mode of enjoying the premises could not be had. Then what are the circumstances of this case? First, it is much move convenient for any one to go to the tap room through the gateway than through the coffee room, and it is much more convenient to carry out beer through the gateway than through the coffee room. Can it then be doubted that the intent was to give the same use of the way over the gateway as the lessor before used to have? *****The argument founded in the expression of the special right of way goes too far; for, if it deprives the plaintiff of this way it deprives him of all ways to the tap room.” It is rightly said of that case by the learned editor of Gale on Basement, 6th edition, at page 113: “This case is not conclusive on the point” (of an implied grant of a way as apparent and continuous) “as it is sufficiently supported by the principle that, some way being necessary, the most usual and convenient should be taken. [297] But the dictum of Sir, J. Mansfield is of great importance.” That view is apparently based upon a dictum of Park, B., in the course of the argument in Pheysey v. Vicary. In that case Parke, B., said: Is the way contended for by the plaintiffs to be construed as of absolute necessity for access to property in its strict sense, as in the older cases, or as necessary to the convenient enjoyment of his dwelling house with reference to its condition at the time the testator had the use of it, as put in Morris v. Edgington by Sir James Mansfield, who says: it would not be a great stretch to call that a necessary way without which the most convenient and reasonable mode of enjoying the premises could not be had.’ One or other of the ways there in question was essential to the use of the house, and the Court ruled that the most convenient of them was that way of necessity to which the party was entitled.” With the fullest respect for the opinion of so eminent a lawyer as Lord Wensleydale, we think it may be doubted if Sir James Mansfield could have intended to base his decision on the way through the gateway horn the street being an “easement of necessity” by which the tenant's customers should go to, or return from, the tap room, as in that case it might be doubtful if there could be another way for the tenant's customers' use from the coffee room across the gateway to the tap room, with the result that a customer of the public house who might be in the coffee room and who desired to carry away a pot of beer, would have to go from the coffee room into the public street, and thence through the gateway to the tap room instead of passing directly from the coffee room across the gateway to the tap room.

The English cases which we have cited afford examples of the difficulty of deducing a certain rule on this question from the decisions in England.

Although the more recent decisions in England show that where in consequence of a severance of unity of possession such general words of grant as “together with all ways now used or enjoyed therewith” [Barkshire v. Grubb, Kay v. Oxley] or as “with all [298] rights, members, or appurtenances to the hereditaments belonging, or occupied, or enjoyed as part, parcel, or member thereof” [Bayley v. G.W.R Co.] are used the distinction between a continuous casement and a discontinuous casement does not apply and a right to use any made and visible road over other land of the grantor which at the date of the grant was in fact used for access to the land conveyed passes under such general words, yet we are not aware of any authorities in England in which it was necessary to decide, and in which it was decided, that a way without any express or general words in a conveyance and apart from any structural peculiarities of a building indicating that for the use of the building, a way must have been intended to pass, would pass on a severance as an apparent and continuous casement. In Bayley v. G.W.R Co. Fry, L.J, appeared to have been prepared to go further than we think any English Judge had previously gone. He there said (at p. 457 of the report): “If one person owns both Whiteacre and Blackacre, and if there be a made and visible road over Whiteacre, and that has been used for the purpose of Blackacre in such a way that, if two tenements belonged to several owners, there would have been an casement in favour of Blackacre over Whiteacre, and the owner aliened Blackacre to a purchaser, retaining Whiteacre, then the grant of Blackacre, either ‘with all rights usually enjoyed with it,’ or ‘with all rights appertaining to Blackacre,’ or probably the mere grant of Blackacre itself without general words, carries a right of way over Whiteacre.” We do not suppose that Fry, L.J, intended to suggest by the illustration that he would hold that a mere grant of Blackacre itself without any general words would carry a right of way over Whiteacre unless it either appeared on the production of the conveyance or was admitted by the parties concerned that the conveyance contained nothing from which a contrary intention should be implied.

In our opinion an examination of the authorities does not support the decision in Charu Surnokar v. Dokouri Chunder Thakoor, that a way under the circumstances of that case might pass [299] by implication on a severance as an apparent and continuous casement.

We are not prepared to hold that in this case, in which the plaintiffs who had to make out their title to a way over the defendant's property, and who could have produced, but refused to produce, their title deed, any right of way whatever over the property which now belongs to the defendant passed to them by implication or as incidental on the transfer to them of the Charleville property in 1886.

In conclusion, we may say that in these provinces in which strict rules of conveyancing based on cases decided in England are little understood, and are consequently seldom followed, the principle of justice, equity, and good conscience embodied in sub-ss. (2), (4) and (5), read together, of s. 6 of 44 and 45 Vict., Chap. 41, should be applied by us in this case, and that we should hold, as we do, that the plaintiffs have failed to make out a right to use any way whatever oyer the defendant's land. If the plaintiffs' title deeds would show that we might in justice, equity, and good conscience hold that a way over the defendant's land passed by implication or as incidental on the transfer to them in 1886 of the Charleville property, they have only themselves and their legal adviser to blame for the result of this litigation.

We allow the appeal and dismiss the suit with costs in all Courts.

Appeal decreed.