Norman Macleod, Kt., C.J.
1. The plaintiff alleged that a stream passed between his Survey Nos. 638 and 639 in Gadag and the defendants' lands to the south ; that a road passed to the east of the parties' lands; that the water from the lands beyond that road belonging to the Acharyas of Annigeri and Sortur alone passed to the stream and none else; that a portion of the rain-water from the lands to the east of defendants' lands passed into the defendants' lands by certain passages shown in the sketch, Exhibit 62; that the defendants dug earth from the road and stopped the passages, with the result that the water in the stream was thereby increased and washed away the banks on the plaintiff's side and caused him damage.
2. The lower Court granted the plaintiff a decree directing the defendants to restore the plaintiff's land to the extent to which . it had been washed away as marked in Exhibit 63 in red pencil, and to plant kalnars or devubalis there to prevent further washing away of the plaintiff's land. The Court refused to grant an injunction against the defendants, but stated that if the plaintiff found that any other portion of his land was washed away, he might take steps in execution of this decree, to ascertain what portion was washed away and to get it restored. There were various other directions in the order.
3. Both parties objected to the decree, but in first appeal the Assistant Judge confirmed the decree of the lower Court. Even now the plaintiff is not satisfied with what he has got, while the defendants have filed cross-objections, and maintain that the lower Court ought to have dismissed the plaintiff's suit.
4. The position even now, after all the evidence has been taken, is not perfectly clear. But there is a ditch which runs between the lands of the plaintiff on the north and the lauds of the defendants on the south. It does not seem to be a natural water-course, because it admittedly stops at the road on the east. It does not cross the; road so as to drain the lauds which are on the east. The lands slope from the east to the west. It has been found that the rain-water which falls on the lands to the east, when there is a heavy fall of rain, Hows down the slope, across the road, and over the lands of the respective parties. For very many years the plaintiff has diverted the water which would otherwise have flowed across his land into the ditch, and while only the water which would have flowed over the plaintiff's land went into the ditch, no damage was caused to the plaintiffs lands through the water flowing down the ditch. The defendants thought they would protect themselves in a like manner from the water which flowed over their lands from the lands of their eastern neighbours, and so they built bandhs on the road which prevented the water from the eastern lands, flowing over their lands, and turned that water into the ditch. Owing to the increase of water flowing down the ditch the banks of the ditch on the plaintiff's side were washed away. One should be able to see, therefore, from those facts what are the rights of the parties. It has not been proved to a certainty in whose ownership is the ditch. One plan makes out that the boundary of Survey Nos. 638 and 639 passes along the bed of the ditch. Another map makes it pass to the north of the ditch, and it is not clear whether as a matter of fact any part of the ditch was included in the Survey Numbers belonging to either the , plaintiff or the defendants. But the map which the learned trial Judge relied upon most, Exhibit 63, shows that the ditch, if it belonged to either party, belonged to the defendants. Probably it comes within Section 37 of the Bombay Land Revenue Code, and if so it belongs to neither party, if that is so, both the plaintiff and the defendants had equal rights to protect themselves against water, which threatened to come over their lands from the east.
5. As laid down in the case of Nield v. The London and North-Western Railway Company (1874) L.R. 10 an owner of property is entitled to protect himself against water which he has not brought on his land himself. He is entitled to divert water which threatens to do damage to his land. Likewise his neighbours have a right to protect themselves against water which threatens to do damage to their properties. In this case it seems to me that both the plaintiff and the defendants had equal rights to protect their own properties by turning the water which threatened to flow over their land in times of flood from the east, into this ditch. If in consequence of that the combined water, which would otherwise have gone on to the lands of the plaintiff and the lands of the defendants, caused damage to the banks of the ditch, then I would only say, it is the business of both parties to protect themselves against damage which may result when there is an excessive flow of water in the ditch.
6. In the case of Nield v. The London and North Western Railway Co. the defendants, owners of a canal, being threatened by an overflow of flood water from a neighbouring river, and fearing damage to their premises, situated on the banks of the canal, placed across it, at a point above their premises, planks reaching from the bottom of the canal to the coping atone, which was some inches higher than the surface of the canal water. The flood water afterwards broke into the canal at a point, above the barricade of planks, and opposite to the plaintiff's premises, which were also situated on the banks of the canal above the premises of the defendants, and being penned back by the planks, the water rose in the canal until it flooded the plaintiff's premises In an action brought to recover damage for the injury so caused, it was held that the defendants were not liable, on the ground that the water which did the mischief was not brought there by them, and that there is no duty on the owners of a canal analogous to that on the owners of a natural water-course, not to impede the flow of water down it.
7. Here, therefore, the defendants had not brought this water from the east. It came owing to the heavy rain-fall. They were entitled to protect themselves, just as the defendants in that case were entitled to protect themselves from an overflow of flood water from the neighouring river. That seems to be a simple proposition of law which applies to this case, and therefore, in my opinion, the judgments of both the lower Court were wrong.
8. The appeal is dismissed, and the cross-objections are allowed, and the suit dismissed with costs.