JUDGMENT 1. This is an Appeal by the Defendants in a suit for declaration that the Plaintiff has acquired a prescriptive right to discharge the surplus water of his land and tank on the land and tank of the Defendants through a channel across a public road. The properties owned by the parties are not contiguous and are separated by a public road. The case for the Plaintiff is that the surplus water of his tenement flows into his tank, and when there is an overflow, the water is discharged into a channel across the public road and then enters into the Defendants' land where it finds its way into a tank. The question in controversy is, whether a prescriptive right of easement of this description can be acquired. If the tenements had been contiguous, there is no doubt that the Plaintiff might by prescription have acquired a right to discharge the surplus water of his land through a channel into the land of the Defendants. But in the case before us, a public way intervenes between the two tenements. It cannot be disputed that the Plaintiff cannot possibly have acquired a right of easement in so far as passage of his water through the channel across the public way is concerned. If any authority is needed for this proposition, reference may be made to the cases of Fowler v. Sanders Cro. Jac. 446 and Dowell v. Sanders Cro. Jac. 490, where it was laid down that there can be no prescription to make a common nuisance which is prejudicial to all people because it cannot have a legal beginning by license or otherwise, being against the common law. [Comyn, Dig. Pres. F. 2 Viner. Abridg. Pres. E.] Consequently the Plaintiff has not acquired a right under the law to discharge the water from his land into the channel in the public road. How can it be contended then, that he has acquired a right to discharge water from his premises into the servient tenement of the Defendants ? He is bound to show that he has acquired a right to carry water by lawful means to the boundary of the land of the Defendants before be can claim to have acquired a right to discharge that water into the Defendants' tank through a channel on another's land. He is bound to show that he has acquired a right to carry water by lawful means to the boundary of the land of the Defendants before be can claim to have acquired a right to discharge that water into the Defendants' tank through a channel on another's land. It has been argued, however, that although the way is a public way, it is possible that the Plaintiff has a prescriptive right of easement to discharge his water through the channel across that road. In support of this proposition, reliance has been placed upon the well-known principle that a private right of way and a highway may exist over the same road, and the acquisition by the public of a highway over a road in respect of which private individuals enjoy a right of way does not necessarily destroy the right of the latter. This proposition need not be disputed and is supported by the cases on which reliance has been placed on behalf of the Respondent, namely, Brownlow v. Tomlinson 1 Man. & Gr. 484 (1840), Duncan v. Louck 6 Q. B. 904, 915 (1845), R. v. Chorley 12 Q. B. 515, 520 (1848) and Attorney-General v. Esher Lenoleum Co. [1901] 2 Ch. 647. As was pointed out by Lord Denman, C. J., in R. v. Chorley 12 Q. B. 515, 520 (1848), it is conceivable that a man may have acquired a right of easement over property while it is still private property : if subsequently the owner has dedicated the property to the public, the public have a right subject to the pre-existing easement ; in this sense, a private person may have a right of easement over property dedicated to the public. The case before us, however, is not of this description. There is no evidence to show that the land now described as a public road was at any time private property or that before it was dedicated to the public, the Plaintiff had acquired a prescriptive right of easement to discharge the water of his tenement across it. The case before us, however, is not of this description. There is no evidence to show that the land now described as a public road was at any time private property or that before it was dedicated to the public, the Plaintiff had acquired a prescriptive right of easement to discharge the water of his tenement across it. We must consequently hold that the Plaintiff has failed to establish a right to take the surplus water of his tenement: by lawful means across the public road up to the boundary of the tenement of the Defendants : it follows that the Plaintiff has no prescriptive right, to discharge the water of his tenement into the land of the Defendants. The result is that this Appeal is allowed, the decree of the Subordinate Judge set aside and the suit dismissed. As the ground upon which the suit fails does not appear to have been taken in the Courts below, each party will pay his costs throughout the litigation.