Lawerence Jenkins, C.J.
1. The plaintiff sues for the removal of a dam. Whether the dam is on the plaintiffs land, or not, is one of the matters left in doubt in this suit. And it is because of this doubt that it is impossible to allow the judgment of the Assistant Judge to stand.
2. The first Court appears to have thought that the dam was on the plaintiff?s land.
3. The Assistant Judge considers that the dam was built on the defendants? land and he came to that conclusion on what he took to be an admission in the plaint.
4. We can find no such admission though no doubt there is not a distinct allegation that the dam stands on the land of the plaintiff. We think this is a point that must be cleared up.
5. But even if the dam stands on land that does not belong to the plaintiff, it is by no means clear on the materials before us that the defendant is not liable in damages. For instance, if we look at the plan and to the Commissioners report and if we have regard to what is said not only in the judgment of the Subordinate Judge but also of the Assistant Judge, the dam is built in the bed of a stream and the plan represents the dam as built across the stream. If a man erects in the bed of & stream a dam which has the effect of diverting the water from its natural water course on the land of the plaintiff and damage is thereby done, the plaintiff prima facie has a good right of action; and to such state of circumstances the case of Moholal v. Bai Jivkore (1904) 6 Bom. L.R. 529 has no application.
6. Before, therefore, the case can be satisfactorily disposed of, it is necessary to have the position made clearer and to that end we send back the case for the determination of the following issues:
1. Is the dam on the land of the plaintiff?
2. Does the dam run across the bed of the stream, or how is it placed therein ?
3. Is the effect of the dam to divert the water from the bed of the stream so as to pass over the land of the plaintiff?
4. Has the plaintiff suffered any and what damage?
5. Is the bed of the stream in which the dam stands the bed of a natural watercourse?
7. Parties would be at liberty to adduce further evidence and return should be in two months.
8. The findings on issues 1, 3 and 4 were in the negative? the fifth issue was found in the affirmative. The finding on issue 2 was that the dam ran across the bad of the stream.
9. The Court (Jenkins C.J. and Beaman J.) confirmed the decree of the lower appellate Court, on the 16th July 1906.