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Babaji Ramling Gurav Vs. Appa Vithavja Sutar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patents Appeal No. 5 of 1920
Judge
Reported inAIR1924Bom154; (1923)25BOMLR789
AppellantBabaji Ramling Gurav
RespondentAppa Vithavja Sutar
DispositionAppeal dismissed
Excerpt:
easement - underground water flowing in a defined channel-abstraction of such water-diminution of water pissing to the spring from which the plaintiff took his supply of water-infringement of right of easement. ;the defendants abstracted water, which passed by an underground channel to the springs from winch the plaintiffs received their supply of water, at a distance of fourteen feet from the sources of thoses prings. the plaintiff's supply of water was thereby considerably diminished. there was clear justification for presuming that there was a direct and defined channel by which the water sought to be tapped found its way to the adjacent springs. the plaintiffs sued for an injunction restraining the defendants from diminishing their supply of water:- ;that the defendants had infringed.....pratt, j.1. the plaintiffs are held to have acquired an easement to water flowing from springs in defendants' land through the small watercourse s o t into the larger watercourse l j m and thence to their own lands.2. defendants had obstructed this easement by darning the mouth of s o t at a b and by cutting a channel a c whereby the water held up behind the dam was conducted to their fields on the other side of the main watercourse.3. the easement is admitted before us and there is no complaint as to injunction granted as regards the dam a b and the channel a c.4. two points, however, are raised in this appeal (1) as to the trench h i g, (2) the underground drain f e d.5. now 1 do not understand why there should be any complaint about h. i. g. when defendants dammed the small watercourse.....
Judgment:

Pratt, J.

1. The plaintiffs are held to have acquired an easement to water flowing from springs in defendants' land through the small watercourse S O T into the larger watercourse L J M and thence to their own lands.

2. Defendants had obstructed this easement by darning the mouth of S O T at A B and by cutting a channel A C whereby the water held up behind the dam was conducted to their fields on the other side of the main watercourse.

3. The easement is admitted before us and there is no complaint as to injunction granted as regards the dam A B and the channel A C.

4. Two points, however, are raised in this appeal (1) as to the trench H I G, (2) the underground drain F E D.

5. Now 1 do not understand why there should be any complaint about H. I. G. When defendants dammed the small watercourse S O T at A B, it was necessary to provide another outlet. Otherwise the accumulated water iu S O T might have overflowed. With this object the trench H I G was out. Now that the dam A B is removed the trench H I G must be useless. This was an unauthorized diversion of S O T and merely a work ancillary to the illegal dam A B. The injunction as to H I G must stand.

6. But as to the underground drain FED the case is more difficult. This was constructed by the defendants during the hearing of the suit. This underground trench takes off from a point fourteen feet away from the outlet of the springs which pour into SOT.

7. The learned Chief Justice treats the construction of this drain as an interference with the easement of water prohibited by Section 27 of the Indian Easements Act. This was so held in Budden v. Clutton Union (1857) 1 H. & N. 627 and Mostyn v. Atherton [1899] 2 Ch. 360, where water was taken at the springhead although it had not entered the channel from the top of the spring.

8. It is, however, contended that as the drain takes off fourteen feet from the outlet of the spring the defendants have merely tapped subterranean water not flowing in a defined channel which cannot be the subject of an easement under Section 7 of the Indian Easements Act, If this were so, then under Chasemore v. Richards (1859) 7 H.L.C. 349 and Mayor, & c. of Bradford v. Pickles [1895] A.C. 587, the owner of the soil may do as he pleases and if in constructing a drain he intercepts water which would have otherwise reached a spring he cannot be made responsible.

9. But the drain takes off so very near the outlet that even if it is not the actual water of the spring as in Dudden v. Clutton Union yet there can be little doubt that there must be a direct channel between the top of the drain and the outlet. This is an underground continuation of the watercourse which is the subject of plaintiffs' easement and therefore an infringement of right. That the existence of this subterranean channel was known to the defendants is proved by the furtive manner in which they constructed the drain.

10. I, therefore, think the judgment of Macleod C.J. is right and would confirm it and dismiss this appeal with costs.

Fawcett, J.

11. I concur.

12. The principle on which water percolating through the soil under the surface in unknown or undefined channels cannot be the subject of an easement is clearly laid down in Acton v. Blundell (1843) 12 M. & W. 324 I refer to the part of the judgment commencing 'But in the case of a well sunk by a proprietor in his own land, the wp-ter which feeds it from a neighbouring soil does not flow openly in the sight of the neighbouring proprietor, but through the hidden veins of the earth beneath its surface'. It depends ultimately on the absence of knowledge enabling the Court to say to what extent, if at all, the supply of water to a well, spring or stream, is affected by any water percolating from one piece of land to another (cf. the opinion of the Judges in Ghasemore v. Richards (1859) H.L.C. 349. This principle clearly applies to cases like those dealt with in the last named case, and Mayor, &c;, of Bradford v. Pickles [1895] A.C. 587 where the diversion complained of was a considerable distance off the spring or stream, whose water was said to be diminished by the diversion. But, when the diversion takes place at or in close proximity to the source of a spring, there arises a different case altogether, as is shown by the authorities oited in my learned brother's judgment. In the present case the abstraction of water begins only fourteen feet from the sources of five springs, and there is clear justification for presuming under Section 114 of the Indian Evidence Act that there is a direct and defined channel by which the water sought to be tapped finds its way to the adjacent springs. The close proximity favours a direct connection between the flow tapped by the defendants and the springs, and there is no room for the uncertainty and indefinite-ness, which underlie the principle followed in Mayor, & c. of Brad ford v. Pickles. It may be added that the Indian Easements Act, Sections 7 and 17, only speak of underground water not passing 'in a defined channel.' There is, therefore, no occasion to apply the rule laid down in Bradford Corporation v. Ferrand [1902] 2 Ch. 655 that the course of the channel must also be 'known' and that if this cannot be ascertained except by excavation, the water (though flowing in a defined channel) must be treated as in the same position as water percolating through the soil, That is a strictness of view which is not, I think, authorized by anything in the Indian law of easements. And in any case there would be ground here for saying that the places concerned are so close to one another, that knowledge of the course of the channel can be presumed, just as it is in a case like that of the river Mole. (see at p. 665 of the report).


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