JUDGMENT
Norman Macleod, Kt., C.J.
1. The plaintiff sued for a mandatory injunction to the dafeudant to remove the wall that he had erected obstructing plaintiff’s way from his Survey No. 519, on the south to Naroda Road, and for an injunction to defendant restraining him from obstructing plaintiff, his servants, and tenants, their carriages, horses, etc., from using the said way on the south of his land to Naroda Road.
2. In the trial Court the plaintiff proved that he had squired a right of way by prescription over the defendant’s land. The plaintiff’s land was used for agriculture, and the plaintiff’s pleader conceded also that no horses and horse-carriages passed by the way, and to such a right they were not entitled; that the plaintiff’s way was only for agricultural purposes, and that was the use to which Survey No, 519 had been put excepting once when bones were allowed to be stored; and that the plaintiff had never exercised the right to take horse-carriages etc. The Judge, therefore, passed the following order:-
Let the defendant, his agent, servants, and workmen be perpetually restrained from obstructing plaintiff, his agent, servants, tenants to use the way of the breadth of six feet on the eastern boundary of Section No. 516 from Naroda road to the southernmost side of Section No, 519, and for their carts, ploughs, cattleand men for agricultural purposes.
3. In appeal the Judge made some variation in the decree of the lower Court with regard to the actual route for the right of way.
4. The plaintiff has appealed on the ground that it ought to have been held that the plaintiff had a right of way for all purposes mentioned in the plaint, and not for agricultural purposes only.
5. On the defendant’s land a large number of buildings had been erected, and it might be that the plaintiff in the future would erect buildings on his land, He would then require to use the right of way for the occupants of such houses.
6. The defendant relies on the decision in Desai Bhaoorai v. Desai Chunilal (1899) I.L.R. 24 Bom. 188 : S.C.1 Bom. L.R. 658. The defendants had a right of way to their field from an adjoining field of the plaintiff. Until shortly before suit, the defendants’ field had only been used for agriculture, and the way through the plaintiff’s field was used by them for ordinary agricultural purposes. The defendants, however, converted their field into a timber depot and began to use the way across the plaintiff’s field for purposes connected with the timber trade. The plaintiff sued for an injunction. It was held that the plaintiff was entitled to an injunction restraining the defendants from using the way otherwise than for agricultural purposes.
7. On the other hand, in Jesang v. Whittle (1899) I.L.R. 23 Bom. 595 : S.C. 1 Bom. L.R. 37 it was held that, under Section 23 of the Indian Easements Act, a right of way enjoyed for agricultural purposes may be used for the purposes of a factory provided no additional burden is thereby imposed on the servient heritage.
8. With all due respect it seems to us that the better order in Desai Bhaoorai v. Desai Chunilal (1809) I.L.R. 24 Bom. 188 : S.C. 1 Bom. L.R. 658 would have been to restrain the defendants from using the way across the plaintiff’s field, for purposes connected with timber trade, on the ground that a burden not contemplated by the parties when the easement was acquired had been laid on the servient tenement. It might very well have been that the defendant could have used the right of way for purposes other than agricultural, without, in any way, placing a greater burden on the servient tenement.
9. In Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch.D. 362 it was held that the immemorial user of a right of way for all purposes for which a road was wanted in the then condition of the property, does not establish a right of way for all purposes in an altered condition of the property where that would impose a greater burden on the servient tenement. Where a road had been immemorially used to a farm not only for usual agricultural purposes, but in certain instances for carrying building materials to enlarge the farm-house and rebuild a cottage on the farm, and for carting away sand and gravel dug out of the farm, it was decided that those circum-stances did not establish a right of way for carting the materials required for building a number of new houses on the land.
10. Again, in Corporation of London v. Riggs (1880) 13 Ch.D. 798 the head-note runs as follows :-
Where the owner of a close surrounded by his own land grants the land and reserves the close, the implied right to a way of necessity to and from the close over the land operates by way of re-grant from the grantee of the land, and is limited by the necessity which created it.
This re-grant, however, does not create a right to a way of necessity for all purposes for which the close may at any time be used, but only such a right of way as will enable the owner of the close to enjoy it as in the condition it happened to be at the time of the re-grant.
For instance, if at the time of the re-grant the close was agricultural land, the owner of the close can only claim such a right of way as is suitable to the enjoyment of land in that condition : he cannot claim a right of way suitable to the user of the close as building land.”
11. We vary the order of the lower appellate Court by directing that the defendant, his agent, servants and workmen be per-petually restrained from obstructing the plaintiff, his agents, servants, and tenants to use the way of the breadth of six feet, as settled by the Commissioner, for their carriages, carts, ploughs, cattle, and men. If, then, in future, the defendant has any reason to complain that the burden on the servient tenement is increased by the plaintiff’s user, he can apply to the Court to have it decided that the plaintiff is not entitled to increase the burden. No order as to costs.
