The burden imposed on the servient land by the claimed easement and the absence of evidence of an agreement between the parties were central to the court's decision.

Phillips, J.

1. This appeal relates to a question of easement. The plaintiffs father and the 1st defendant effected a partition about 25 years ago and now the plaintiff claims to have a right to drain off the water from his house and sits through a hole in the wall, marked A.R.W. on the plan and across the defendants yard to the street in the north.

2. It is conceded that this is not an easement of necessity but the learned Advocate-General contends that it is an easement within the meaning of Section 13(f) of the Easements Act namely, that it is an apparent and continuous easement and that it was enjoyed before the partition. It is, however, admitted that since the partition took place this wall A.E.W. has been built by the parties jointly. It is further clear that prior to the partition there was no particular easement right to take water through that one point B. It is possible and indeed probable from the lie of the land that the water from the plaintiffs site did drain off towards the north across the defendants site. That easement is of a different nature to collecting all that water into one spot and directing it on to the defendants land in a concentrated form as is sought to be done now. Before the partition it is unlikely that water flowed in any channel across the defendants land and it would be likely to be absorbed as it would be spread over the whole area. Now that the whole amount of this water is concentrated into a narrow channel five inches across, it imposes a burden upon the defendants of a very different nature to that which was in existence before the partition. It cannot therefore he said that it is now necessary for enjoying the plaintiffs share as it was enjoyed when the partition took effect. The burden cast upon the defendants is undoubtedly a more onerous burden now than it was before.

3. It is further argued that this arrangement must have been by agreement between the parties and from the fact that the wall was built by both in common and that this opening has been there for some time past it might be possible to infer such an agreement. Both the lower Courts have considered the question of agreement which was pleaded by the plaintiff and have definitely found that there was no such agreement. In this view I do not think that this finding can be interfered with or that fresh finding is called for.

4. In the result, the appeal fails and is dismissed with costs.