A person without acquired easement cannot maintain an action to prevent a stranger from obstructing the use of a way over his neighbor's land, unless the obstruction substantially deprives the person of the enjoyment of his property.

Alfred Henry Lionel Leach, C.J.

1. The question which has been referred reads as follows:

Whether a person who is in the enjoyment of an easement, but who has not acquired a title to it by prescription or otherwise, can maintain an action to prevent its obstruction by any person other than the owner of the servient tenement?

2. The considerations which may apply when the interference complained of has reference to the access of light and air or to support from adjoining land may not apply when the interference has reference to the use of a way over anothers land and as this reference arises out of a case relating to an alleged right of way we consider that the question should be re-framed in these terms:

Can a person who has been using a particular way over land adjoining his, but for less than the prescriptive period, maintain an action to prevent a stranger from obstructing him using the way?

3. In Jootoor Acchanna v. Kanamala Venkatamma (1895)5MLJ24 , a Bench of this Court (Collins, C. J., and Parker, J.) held that a plaintiff who had received light through a window opening on vacant ground, but had not enjoyed the light sufficiently long to acquire an easement, was entitled to an injunction against a person who was not the owner of the vacant land, restraining him from building on it so as to cause obstruction to the light. The Court said:

It was not necessary for plaintiff to establish prescriptive rights of easement against a wrong doer and that the mere fact of plaintiffs enjoyment is sufficient to entitle him to an injunction.

4. The authority for this statement was the well known case of Jeffries v. Williams (1850)

5 Ex.792 : 155 E.R. 347, where Parke B., observed:

If a house is de facto supported by the soil of a neighbour, this appears to us to be sufficient title against any one but that neighbour or one claiming under him. Just as one who should prop his house up by a shore resting on his neighbours ground, would have a right of action against a stranger, who by removing it, causes the house to fall; but none against his neighbour, or one authorized by the neighbour to do so, if he took it away and caused the same damage.

5. The strict form of pleading of the olden days was an important factor in the decision in Jeffries v. Williams (1850) 5 Ex.792 : 155 E.R. 347, but nevertheless the case established the principle that a person without title cannot interfere with the enjoyment of property by one whose title does not even extend beyond possession. Jeffries v. Williams (1850) 5 Ex.792 : 155 E.R. 347, cannot, however, be read as laying down the proposition that there is in the person in possession the right of action against a stranger who interferes with the acquisition of an easement which is not essential for the enjoyment of the property possessed. Interference with the normal enjoyment of the property is the essence of the decision.

6. What the Court is called upon to decide in this case is whether a person who has been in the habit of using a way over his neighbours land, but has not acquired an easement, can prevent a stranger obstructing his user of the way. There is no direct authority to be found either in the English or in the Indian decisions, but there are emphatic statements against the maintenance of such an action to be found in "The Common Law" by Holmes, in Salmond on "The Law of Torts" and in Pollock on " Torts ". Holmes takes the case of a way used de facto for four years, but in which no easement has been acquired, and asks whether the possessor of the quasi-dominant tenement would be protected in his use as against third persons. He says;

It is conceivable that he should be, but I believe that he would not "The Common Law" by Holmes at p. 241.

7. At p. 354 we have this passage:

A way, until it becomes a right of way, is just as little susceptible of being held by a possessory title as a Contract.

8. And at p. 382 this:

But, as has been said before, the Common Law does not recognise possession of a way