Exclusive possession of incorporeal rights, such as the right to take water, requires the exclusion of others from exercising similar rights, and establishing such exclusive possession can be challenging, especially when the right is still in the process of acquisition.

Miller, J.

1. The plaintiff prays for an injunction to prevent the defendants from cutting a channel from a tank, from which he waters some of his fields, so as to deprive him of the water. He alleged, inter alia, that the defendants were threatening to construct a dam to prevent the water from flowing to his fields, but this they denied.

2. The District Munsif, as I understand him, held that the plaintiff has a right to a supply of water from the pond in question to the exclusion of the defendants and on that ground issued the injunction prayed for. The District Judge holds that the plaintiff has no right to the water of the pond, though he had been in the habit of taking it through a channel for some time not exactly determined, but less than twenty years. He dismissed the suit.

3. In second appeal it is contended that on the finding of the District Judge we ought to hold that the plaintiff, though he has not by prescription acquired a right to take the tank water through his channel, is nevertheless entitled, having been for some time taking it in that way, to preventive defendants, who have also no rights to take the water, from taking it so as to deprive him of his supply, and in support of this contention reliance is placed on Kondapa Rajan Naidu v. Dwarakonda Suryanarayana 6 Ind. Cas. 266 : 20 M.L.J. 803 : 34 M. 173 : 7 M.L.T. 352 : (1910) M.W.N. 117. It is perhaps unfortunate that in th at case the learned Judges have referred to the right for which protection was there claimed as in the nature of an incorporeal right in process of acquisition." It seemed to me during the argument before us that reliance, was sometimes placed on this observation as suggesting the existence) in the eye of the law, of what I may call a partially acquired easement, as though the, period required for the acquisition of an easement were a period of gestation, during which the easement gradually acquires form and life by a process of growth within the womb of prescription, and during which it is capable of suffering an injury.

4. It is perhaps hardly necessary to say that this is not the law. That is made clear by Farwell, J., in Greenhalgh v. Brindley (1901) 2 Ch. 324 : 70 L.J. Ch. 740 : 84 L.T. 763 : 49 W.R. 597 : 17 T.L.R. 574 You have your easement or you have nothing. You have nothing more for 19 years enjoyment than for 19 months, except possibly a greater prospect of success. What is growing and gradually ripening is not your easement, but your chance of success, and that is not a thing which the law protects. But I do not think that the learned Judges had in their minds anything in the nature of an inchoate or embryonic easement. Their decision was based on the view that in many cases incorporeal rights are as much capable of possession as rights to corporeal hereditaments. This means that you may have an enjoyment of a thing incorporeal without title, an enjoyment which may properly be called possession and which will be protected in the same way that possession without title of corporeal things is protected. The question in each case will, therefore, be not whether the plaintiff has been enjoying the benefit which he seeks to retain, but when their he has possession of it.

5. In the opinion of Sir Frederick Pollock, no mean authority on questions of possession, easements are not capable in an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession and gives no possessory right before the due time is fulfilled. The only possession that can come in question "is the possession of the dominant tenement itself"--Pollock on Torts, 8th Edition, page 375 and in Holmes Common Law it is pointed out that where an easement has been actually created, whether by deed or prescription, although it is undoubtedly true that any possessor of the dominant estate would be protected in its enjoyment, it has not been so protected in the past on the ground that the easement was in itself an object of pos