Even granting that the Custom-Sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near their villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a Court's verdict. The right exercisable by the tenants in the vii· lages to excavate limestone for trade purposes was not claimed by the plaintiff as an easement: it could not be so claimed, for it is not a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyment of that land, to do and con· tip.ue to do something, or to prevent and continue to prevent something being done, in, or upon, or in respect of, certain other land not his own: Section 4 of the Indian Easements Act, 5 of 1882. The Indian Easements Adi no doubt makes no distinction for the purpose of acquisition by prescription between the right of easement strictly so-called and the right which under the English common law is called a profit-a-prendre. By the Explanation to s. the expression ''to do something" include& removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of ,the servient heritage, or anything growing or subsisting thereon. A profit-a-prendre is therefore included in the definition of "easement" !n s. 4 of the Indian Easements Act. But an easement being a right which is super-added to the ordinary common law incidents of the owner· 1ship of a dominant tenement, and which connotes a correspond- ing burden on a servient tenement, can only be created by grant, or by statute. An apparent exception to this rule is a customary easement. But a customary easement is not an easement in the true sense of that expression. It is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement· it is recognised and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate· class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is en· forceable as a right to do and continue to do something upon land or as a right to prevent and continue to prevent something being done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.
