A right of way of necessity can only exist where the implied grantee of the easement has no other means whatsoever of reaching his land. The mere inconvenience of an alternative way will not of itself give rise to a way of necessity.

1. The suit, as instituted by the appellant as the second plaintiff and another as the first plaintiff, was to declare a right of way in favour of the appellant over the adjoining property of the respondents, both as an easement by prescription and as an easement of necessity. The two Courts have concurrently held, that the appellant is not entitled to the right as an easement of prescription; they have also held that the appellant has not established the right as an easement of necessity on the ground, that there is an alternative means of access to the public road. The finding of the appellate court on this is recorded thus:

"The fact that the northern pathway, which is called by some of the witnesses as a channel, some of them as a gutter and the others as a pathway, can be used as a way for ingress and agress, shows that MNO pathway is not imperatively necessary for the reasonable enjoyment of the property blocked in Survey No. 25/10 A & B".

The finding of the trial Court is also the same. The complaint of the appellant's counsel was, that this finding is not sufficient to negative the right claimed as an easement of necessity and also, that the appellant had claimed an alternative right of way a little to the north along the line PQ shown in the sketch appended to the plaint The argument was, that it is not sufficient for the Court to find, that there is another pathway which could be used as such but that in order to negative the claim, the Court must be prepared to hold that the appellant is entitled to use it as of right. On considering the matter, I am of the opinion that this contention cannot prevail. The law is stated thus in Halsbury's Laws of England, Volume XII, 3rd Edition, page 574, Para.1246:

"A right of way of necessity can only exist where the implied grantee of the easement has no other means whatsoever of reaching his land. If there is any other means of access to the land so granted, no matter how inconvenient, no way of necessity can arise; for the mere inconvenience of an alternative way will not of itself give rise to a way of necessity."

Joshi on Easements and Licences, third edition, page 62 says as follows:

"The claimant for an easement of necessity has therefore to prove that though in order to enjoy the tenement granted or reserved by him he did actually employ all those means which people situated as he was, were generally in the habit of employing in the circumstances, yet he found himself incapable of enjoying his share without the additional aid of the right claimed. Unless such proof is forthcoming no court can be justified in compelling an adjacent proprietor to submit against his will to such a detrimental right as an easement of necessity over his land. True, a court cannot ask a claimant to resort to extraordinary or unusual means in attempting to enjoy his share, yet it may with perfect justice ask a claimant whether all usual means were employed by him before he pressed his claim, and in cases of doubt refuse to grant him any relief."

The findings are, that what is referred to as a pathway or channel constitutes a means of access to the appellant's property from the public road. In Ext G, report, the commissioner has referred to it as a channel three feet wide on the top and two feet wide at the bottom, but has said, that because it is overgrown with shrubs and is filthy in some places, it is not a convenient pathway. During rainy season this serves to drain water from the public road to the paddy lands on the east. On the statement of the law as above, the appellant claiming an easement of necessity cannot complain of such inconveniences. The findings of the two Courts, that the above constitutes a means of access is sufficient to deny the appellant an easement of necessity. The fact, that it was not being used as a pathway or that it may not fall within the survey limits of the property of the respondents, is not the deciding factor. The appellant's claim to the pathway in ques