F.C. 1898 HOWITT V. FITZGERALD. Cussen referred to the following cases upon implied grant from the Crown collected in Forsyth on Constitutional Law, pp. 174, 187:-Lord v. Commissioners of Sydney (w); Jewison v. Dyson (x); Duke of Beaufort v. The Mayor, etc., of Swansea (y); Doe d. Irvine v. Wilson (z); Falkland Islands Co. v. The Queen (a); Des Barres v. Shey (b); Turner v. Walsh (c); Trego v. Hunt (d); Polden v. Bastard (e); Canham v. Fiske (ƒ); Phillips v. Lowe (g); O. W. Holmes, Common Law, p. 383; Chisholm v. Macaulay (h); Stevens v. James (i). Irvine referred to Duke of Somerset v. Fogwell (k); Allen v. Taylor (1); Birmingham, Dudley, and District Railway Co. v. Ross (m); Rigby v. Bennett (n); R. v. Mayor, etc., of London (o). Cur, adv. vult. A'BECKETT, J., read the judgment of the Court [MADDEN, C.J., WILLIAMS and A'BECKETT, JJ.] The plaintiff seeks damages for injury to her land caused by the defendant filling up a drain which relieved it of the water that accumulated upon it in flood time and did damage unless allowed to escape through this drain. The drain originated in a small cutting made by the plaintiff's husband in 1868 for the purpose of carrying off flood water from other land of his own. It was cut, with the consent of the Chief Commissioner of Police, over Crown land used as a police paddock, but the drain was not cut for any Crown purposes. Its dimensions and condition varied from time to time. It was cleared out occasionally, and its course seems never to have been altogether obliterated. The land through which it ran, with other adjacent Crown land, was divided into allotments and sold by the Crown in June 1887. The plaintiff purchased from the Crown grantee two of the allotments then sold. In September 1896, after the plaintiff had purchased, the defendant blocked the drain in another of the allotments, which then belonged to his daughter. At the point where he blocked it the drain was then a well-defined watercourse, and he filled it with logs and clay. The plaintiff's rights, as asserted in her statement of claim, are based, firstly, on sec. 4 of the Water Act 1890, which provides that "when any Crown land is conveyed and any stream creek race or drain flows through or over the land or the bed or channel of any disused stream race or drain is upon the land so conveyed although no reservation or exception be contained in the Crown grant no person unless specially authorized by the Minister shall obstruct destroy or interfere therewith under a penalty not exceeding Fifty pounds." It is contended that the case falls within the principle of Couch v. Steel (p); that the plaintiff, whose land benefited by the drain, was a person for whose benefit the statutory prohibition against interfering with it was intended, and was entitled to sue for damages caused by the infraction of the prohibition, just as the sailor plaintiff in Couch v. Steel was entitled to sue as a person for whose benefit the statutory obligation to keep a supply of medicine on board ship was created. The correctness of the decision in that case has been questioned, and there is no inclination in the courts to extend it: See Atkinson v. Newcastle Waterworks Co. (q). It would be a considerable extension of the principle to apply it to the present case, which is one of prohibition of interference with a right reserved to the Crown. Stevens v. Jeacocke (r) is an authority in which the facts more nearly resemble those now before us. There a statutory prohibition against fishing in a particular manner was disregarded, and a fisherman thereby deprived of his turn to fish brought his action, and it was held that the action would not lie. For these reasons we hold that the plaintiff has failed to sustain her first ground of action. The second, raised in argument though not expressly raised by the pleadings, is of an entirely different character, depending (p) 3 E. & B. 402. (q) 2 Ex. D. Div. 441. F.C. 1898 HOWITT v. FITZGERALD. A'Beckett, J. (r) 11 Q.B. 731. F.C. 1898 HOWITT V. FITZGERALD. A'Beckett, J. on the existence of a quasi easement at the time when the plaintiff's allotments and the allotments through which the drain ran were sold by the Crown. It is contended that there was then a continuous and apparent easement over the lands through which the drain ran, entitling the Crown grantee of the allotments which afterwards became the plaintiff's to have the drain kept open over the other allotments by virtue of the wellrecognized principle applied to ordinary vendors who subdivide and sell property one part of which can only be fully enjoyed by exercising rights over another part. Rights of this class are described in Gale on Easements as derived from the disposition of the owner, who has chosen to subject one of his tenements to a burden for the better enjoyment of another tenement. He can alter this disposition as he pleases while he remains owner of both, but if he sells the two tenements to two different persons at the same time the service which one rendered to the other, if it was continuous and apparent at the time of the sale, becomes permanent, and the owner of the servient tenement cannot deprive the dominant tenement of the advantage theretofore possessed. As it is contended that this rule, which holds good in sales by subjects, cannot hold good in sales by the Crown, it is desirable to look closely to see how the Court works out the result which secures the enjoyment of easements thus created without any words describing them. The question generally arises in applications for an injunction to restrain interference with the easement asserted. The Court looks into the facts subsisting at the date of conveyance, and if in the case of interference with light, for example, it finds that at this date a house stood on the boundary of one allotment with windows opening on vacant land on the adjoining allotment it restrains the owner of the adjoining allotment from building on the vacant space so as to obstruct the passage of light to these windows. It does not profess to find in the words of the conveyance any reference to an easement of light, nor does it resort to any fiction of presumed grant, but construing the conveyance with regard to the condition of the property conveyed, it holds that the easement passed as part of the property described in the conveyance. In the old case of Compton v. Richards (s), in which a right to light thus acquired was in question, Wood, B., said:" I consider Dr. Compton claiming here a right by grant, and when the house was granted to Auriol, the plaintiff's lessor, he became grantee of everything necessary to its enjoyment as much as if it had been said at the time that no one should obstruct the light which it then enjoyed." In Phillips v. Low (t), a case in which the question was as to the mutual rights of two devisees of two adjoining properties with regard to a claim for light, Chitty, J., said:" The question, then, may be stated in this simple form. A man being seized in fee in possession of a house with windows and of an adjoining field over which the light required for the windows passes, devises the house to one and the field to another; does the right to the light over the field pass to the devisee of the house or is the devisee of the field entitled to block up the windows? If the owner of the house and field by deed for value grant the house but retains the field it is settled law that a right to the light required for the enjoyment of the house passes to the grantee. Why? The reason stated in Palmer v. Flitcher (u), the leading case on the subject, is that the lights are a necessary and essential part of the house. In other words, what is conveyed is not a mere brick or stone building, with apertures called windows, but a house with windows enjoying light. This is the broad, substantial reason which commends itself at once to the common-sense of mankind. Worked out somewhat more technically, the conveyance operates as an implied grant of the light. Blocking up the windows by the grantor is regarded as an attempt on his part to derogate from his grant—a form of expression which assumes that the right to light has passed to the grantee. The implication does not necessarily arise upon a mere perusal of the deed itself; the implication of grant arises primâ facie so soon as the facts are ascertained. On these facts being known, and in the absence of any other special circumstances, the law imputes to the parties an intention that the easement of light should pass with the house by virtue of the grant." (t) [1892] 1 Ch. 47. (u) [1615] 1 Levinz. 122. (8) [1814] 1 Price 27. F.C. 1898 HOWITT บ. FITZGERALD. A'Beckett, J. F.C. 1898 HOWITT V. FITZGERALD. A'Beckett, J. Such being the reasoning on which the Court proceeds in these cases, we see nothing at variance with the legal maxims applicable to the Crown, or derogatory to its dignity or interest, in giving the same construction to grants from the Crown made under similar circumstances. There is no reason for refusing to draw the same inferences from facts where the Crown was vendor as would be drawn in a similar case where the subject was vendor. The case of Lord v. Commissioners for the City of Sydney (v), shows that facts extrinsic to a Crown grant may be regarded in determining what passes by it. There it was held that a grant of land described as bounded by a creek passed the soil of the creek ad medium filum aquæ, as the description of boundaries did not exclude that portion of the creek which, by the general presumption of law, would go along with the ownership of the land on the banks of it. It was contended that as this was a Crown grant it could. not be construed by intendment, but according to the express terms of the grant, for nothing can pass by implication in a Crown grant. Sir John Coleridge, in dealing with this contention in his judgment, observes-" Their Lordships are clearly of opinion that upon the true construction of this grant the creek where it bounds the land is ad medium filum included within it. In so holding they do not intend to differ from old authorities in respect to Crown grants, but upon a question of the meaning of words the same rules of common-sense and justice must apply whether the subject matter of construction be a grant from the Crown or from a subject. It is always a question of intention to be collected from the language used with reference to the surrounding circumstances." The surrounding circumstances referred to are manifestly those existing when the grant was made. Crown lands are not excluded from general legal presumptions which arise from facts. The presumption of dedication may be made where the land belongs to the Crown, as it may be where the land belongs to a private person. From long-continued user of a way by the public, whether the land belongs to the Crown or to a private |