The dominant owner must exercise the right in the mode least onerous to the servant owner, and the servient owner must not do any act tending to restrict the easement or to render its exercise less convenient.

Baker—The facts of this case are fully set out in the judgments of the Courts below. It has been found that the plaintiffs have a right to have their land irrigated by the water which passes through their land from the sluices in question and that the flow of the water to their land is obstructed by the channel which the defendant has dug at right angles to the existing channel. The lower Courts have ordered this to be removed.

2. It is now contended that instead of removing the channel the defendant should be ordered to construct, and is willing to construct a trough or aqueduct, which will carry the water to the plaintiffs' fields over the nala in dispute, and reference is made to Ss. 22 and 23 of the Easements Act. It has been stated by the lower appellate Court that it is not possible to carry the water across the nala in dispute by an aqueduct.

3. I may mention that during the pendency of this appeal a stay of execution was granted to the appellant on his agreeing to put in a wooden pipe or trough to carry the water in the way which he now proposes to do, and there has been a continual dispute over it on the ground that the respondents were not getting water. I do not think that the placing of a trough at the place in dispute is likely to prove satisfactory as the plaintiffs would complain that all the water to which they are entitled does not flow through it, and it is practically certain that in heavy rain it will either overflow or will be washed away. I do not see any reason for differing from the view of the lower appellate Court, and although under S. 22 of the Easements Act the dominant owner must exercise his right in the mode which is least onerous to the servant owner, this does not appear to be a case where the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage. Under S. 27 of the Act the servient owner must not do any act tending to restrict the easement or to render its exercise less convenient. The cases quoted by the learned pleader for the appellant, Clifford v. Hoare followed in Tooleemony Debee v. Jogesh Chander Shaha,1878 ICLR 425, do not seem to me to apply. The owner of the servient tenement must not so deal with the servient tenement as to render the easement incapable, or more difficult, of enjoyment by the owner of the dominant tenement.

4. The counsel for the respondents relies on Raja of Venkatagiri v. Raja Muddukrishna,1905 23 Mad 15, but this case is one where the water did not flow through any definite channel on to the plaintiff's land.

5. In these circumstances, I do not think the order of the lower appellate Court should be disturbed as I have sufficient reason to believe that the erection of the trough will lead to fresh disputes.

6. The question of whether the plaintiffs will be entitled to the water from the weir distinct from the sluice is not of much importance as what they get is the overflow of the water from the defendant's land through the channel which is fed from the tank by the weir or the sluice according to the level of the water in the tank.

7. Lastly, as regards the question of damages I do not see any reason to differ from the lower appellate Court. Although no particular amount of damage has been proved the stoppage of the water to the plaintiffs' fields must have caused damage to them, which they are entitled to recover.

8. The appeal is dismissed with costs.

Final Result : Dismissed