Sheik Hussain Sahib vs Pachipulusu Subbayya and Another

Murray Court Trotter, C.J.—This appeal raises certain questions of fact with which we are not concerned. The question of law to which our

attention has been directed is whether the owner of a plot of land on a lower level on to which water flows in the ordinary course of nature from

adjacent land on a higher level is entitled in law so to deal with his land as to obstruct the escape of water from the higher land. It is said that any

right which the owner of the higher land has is not in the nature of an easement and that terms such as dominent and servient tenements are

inapplicable. That may be true in the abstract but it seems to me that the Privy Council and the House of Lords have clearly recognised a very

close analogy between the two classes of cases and that if the owner of the land at the lower level raises an obstruction to the natural flow of the

water he will be restrained if it causes or tends to cause damage to the owner of that on the higher. Gibbons v. Lenfestey 113 LT 55 is a direct

authority of the Privy Council binding upon us. In the judgment of the Committee which was delivered by Lord Dunedin we have at page 57.

The right of the superior proprietor to throw natural water on the lower land is not an ordinary servitude to which this rule can apply. It is a natural

right inherent in property; it is a question of nomenclature whether it is or is not called a servitude.

Later on we have

Where two contiguous fields belong to different proprietors one of which stands upon higher ground than the other, nature itself may be said to

constitute a servitude on the inferior tenement, by which it is obliged to receive the water that falls from: the superior. If the water which would

otherwise fall from the higher ground insensibly without hurting the inferior tenement should be collected into one body by the owner of the superior

in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any

servitude, bound to receive that body of water on his property.

In John Young and Co. v. Bankeir Distillery Company (1993) AC 691 Lord Watson says at page 696

The right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive, natural water, whether flowing in a

definite channel or not, and whether upon or below the surface, are incidents of property arising from the relative levels of their respective lands

and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has

been unduly and unreasonably increased by operations which are in aemulalionem vicini. But he is under no legal obligation to receive foreign water

brought to the surface of his neighbour''s property by artificial means; and I can see no distinction in principle between water raised from a mine

below the level of the surface of either property, which is the case, here and water artificially conveyed from a distant stream.

And then His Lordship quotes Lord Giffard in Blair v. Hunter Finlay and Co. 9 Court Sess. Cases, 3rd Series, Macpherson at p. 207 ""Although

there is a natural servitude on lower heritors to receive the natural or surface water from higher gounds, the flow must not be increased by artificial

means, although reasonable drainage operations are permissible.

The same principle clearly underlies the decision in Smith v. Kenrick (1849) 7 CB 515 and in that case Mr. Justice Cresswell in delivering the

judgment of the Court said:

There are many cases in which the principle has been recognised, that one land owner cannot, by altering the condition of his land, deprive the

owner of the adjoining land of the privilege of using his own as he might have done before. Thus, he cannot by building a house near the margin of

his land prevent his neighbour from excavating his own land, although it may endanger the house, nor from building on his own land, although it may

obstruct windows, unless indeed by lapse of time the adjoining land has become subject to a right analogous to what in the Roman Law was called

a servititude. So also in Acton v. Blundell (1843) 12 M&W 324 where the subject"" was very much discussed, the Court held that one land owner

having dug a well on his own lands could not maintain an action against a party who afterwards sunk a coal-pit in the neighbourhood which had the

effect of drawing the water away from his well: the act not being done by the defendant negligently or maliciously, but in a proper manner for the

purpose of winning his own coal. We think that the same principle is applicable to the present case. The water is a sort of common enemy as was

said by Lord Tenterden, in Rex v. The Commission,ers of Sewers for Pagham (1828) 8B & C 355 against which each man must defend himself.

And this is in accordance with the Civil Law, by which it was considered that land on a lower level owed a natural servitude to that on a higher, in

respect of receiving without claim to compensation, the water naturally flowing down to it.

This last case also touched on the distinction between natural and artificial accumulations of water which was later in 1888 made the basis of the

celebrated decision in Rylands v. Fletcher (1868) LR 3 HL 330 The reference seems to have been made on account of the conflict of views

expressed in Mahamahopadyaya Ranga Chariar Vs. The Municipal Council, and Sangana Reddiar v. Perumal Reddiar (1910) MWN 545 on the

one hand and Sankarappa Naicker and Others Vs. Rani Nachiar and Another and Kondama Naiker and Others, on the other. The referring

Bench in accepting the distinction drawn in Sankarappa Naicker and Others Vs. Rani Nachiar and Another and Kondama Naiker and Others,

held that the decision in Mahamahopadyaya Ranga Chariar Vs. The Municipal Council, only referred to urban areas and we agree that no such

distinction arises. It doubtless came from the accident that illustration (a) to Section 7 of the Easements Act instances a case of land in an urban

area because it wishes to safeguard the statutory rights of urban authorities to restrict unapproved methods of dealing with land and buildings. In

our opinion Mahamahopadyaya Ranga Chariar Vs. The Municipal Council, was wrongly decided and the reasoning on which it is based is clearly

at variance with the decisions of the Privy Council and the House of Lords to which we have referred; and the same observations apply to

Sangana Reddiar v. Perumal Reddiar (1910) MWN 545. It cannot be that the law recognises two inconsistent rights in adjacent owners, the

exercise of one of which would necessarily destroy the other.

It was contended by the respondent that, if the argument of the appellant should be correct, the owners of the adjoining lands at a lower level

would be prevented from improving their lands; but this is clearly not so as the adjoining owner can improve his lands to any extent he pleases even

to the extent of raising the level of his lands provided that he makes suitable arrangements for carrying off the water from his neighbour''s land. We

are confirmed in our view by the fact that the decision in Sankarappa Naicker and Others Vs. Rani Nachiar and Another and Kondama Naiker

and Others, was referred to by the Puivy Council in Maunga Bya v. Mating Kyi Nyo (195) LR 52 IA 385 with approval as being consistent with

the authorities.

We refer the case back to the Division Bench for final disposal with this expression of opinion.