1. This is an appeal against an order passed by the Assistant Judge at Jalgaon in Civil Appeal No. 138 of 1942 confirming the decree of the Subordinate Judge of Bhusawal in Regular Suit No. 328 of 1941. The plaintiff in this case was the owner of Survey No. 80 which is on a lower level than the Survey No. 82 belonging to the defendant which adjoins it. The relevant positions of the two survey numbers can be seen from the map which is exhibit. 34 in this case.
2. The plaintiff's case was that till the year 1940 the rain water from the defendant's land, Survey No. 82, used to flow along a broad channel from B to D in the defendant's survey number and from D to E in the plaintiff's survey number. In the year 1949 the defendant put up an embankment from the point B along the line BC so as to collect all the rain water which formerly used to flow generally along the line BDE. He also dug a trench to the south of the embankment BC along the broad channel BG with the result that all the water collected by reason of the embankment flowed along that trench BG. The defendant went further and dug a trench in the portion shown red in the map within the Survey No. 80 belonging to the plaintiff. The result of all this was that all the water from the defendant's survey number came to be discharged in the plaintiff's survey number with considerable force and caused damage to the plaintiff's land. The plaintiff therefore prayed (1) for a mandatory injunction enjoining the defendant to keep the flow of the rain water from his land Survey No. 82 into the plaintiff's land, Survey No. 80 as it formerly was, viz. from the point B to point D in the plan, (2) for a mandatory injunction directing the defendant to fill the trench BG and to remove the bund BC, and (3) for a permanent injunction restraining the defendant from causing damage to the plaintiff's land by altering the course of the rain water.
3. The defendant admitted that the rain water from his land Survey No. 82 flowed into the plaintiffs Survey No. 80, but contended that the course of the rain water was changed not by him but by the previous owner of Survey No. 82 prior to his (defendant's) purchase in the year 1917. He said that since then the rain water had been flowing as at present. He further denied that any damage had been caused to the plaintiff's land by reason of the diversion, and contended that the suit was barred by limitation.
4. The learned trial Judge held that the original course of the channel was altered to its existing condition in the year 1940. He held that the suit was in time and found as a fact that the plaintiff had suffered damage by reason of the alteration of the course of the water channel. He therefore issued an injunction directing the defendant to fill the channel BG in the plan, exhibit 34. He further granted a permanent injunction restraining the defendant from allowing the rain water from his land, Survey No. 82, to flow into the plaintiff's land Survey No. 80 along the channel BG. Lastly, a permanent injunction was given to the defendant restraining him from letting the rain water from his land, Survey No. 82, flow into the plaintiff's land, Survey No. 80, so as to -damage the plaintiff's land. The defendant was directed to pay the costs of the suit and to bear his own.
5. Against that order the defendant filed an appeal in the Court of the District Judge:at Jalgaon. The learned Assistant Judge who heard the appeal found as a fact that alteration was made in the course of the rain water in April, 1939, and that the plaintiff's land had, in fact, been damaged as a result of the said alteration. As a result of these findings he confirmed the order passed by the lower Court. He further allowed the cross-objections filed by the plaintiff in respect of removal of the embankment BC. He was of opinion that the retention of the dam would frustrate the plaintiff's object -as it would still block the entry of the water into the defendant's land and thus divert all that water into the plaintiffs land by way of surface drainage though not along the trench BG which was directed to be filled up. He therefore allowed the cross-objections and directed the defendant to remove the embankment BC. It is against that order that the defendant has come in second appeal.
6. It was contended by Mr. A. G. Desai for the respondent-plaintiff that both the lower Courts had entirely misconceived the plaintiff's case. The plaintiff's grievance as stated in the plaint was that the water channel which was described as a nalla originally lay along the line B to D in the defendant's survey number and then from D to E in the plaintiff's survey number, and that, in the year 1940, the defendant had altered this course of the nalla which carried all the surface rain water in the defendant's land during the monsoons and had made a new channel BG by erecting an embankment at BC. This was therefore a case of an alteration of a defined water channel which carried surface rain water along a particular line. According to Mr. A. G. Desai therefore the plaintiff's case came within ill. (A) to Section 7 of the Indian Easements Act under which every owner of a land has a right that the water of every natural stream which passes over his land in a defined natural channel shall be allowed by other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature. We are of opinion that there is some substance in this contention put forward by Mr. A. G. Desai. There can be no doubt that there is a well-defined natural channel as shown along the line BDE. This channel is only a part of a big nalla which is shown in the map of the village as prepared by the revenue authorities. The plaintiff produced that village map exhibit 40 along with the plaint, exhibit 1, and from the map it can be seen that the nalla drains the water from ten or twelve different survey numbers. It goes through about eight or ten survey numbers before it enters the defendant's survey number at the point B and then after going along the line BDE goes to the lands of other villagers in the village which are presumably at a somewhat lower level. It is possible that this water channel which he describes as a nalla in the plaint is dry for the best part of the year. In the case of Secretary of State v. Balvant Ganesh I.L.R (1903) Bom. 105: 5 Bom. L.R. 790 it was held by this Court that a perennial flow is not a necessary condition to the legal conception of a stream. It is along this well defined water channel that during the monsoons the surface water of all the lands flows. Hence during the rainy season when this nalla is full, the water that enters the defendant's land at the point B is really water which is foreign to the defendant's survey number although if it had been allowed to flow along the original channel it would have been augmented by the surface water of the defendant's land also. By resorting to the new device what the defendant has in fact done is to divert the flow of the channel 'bringing water from other lands along the trench BG by erecting an embankment at BC. This would therefore appear to be a case of a material alteration in the direction and force of a defined natural channel falling within the scope of ill. (h) to Section 7 of the Indian Easements Act. But both the lower Courts appear to have proceeded on the footing that the channel from B to D and D to E was an undefined natural course. The learned trial Judge says ' that the plaintiff's case was that the rain water in the defendant's land flowed on to his land in a broad undefined course from B to D and then from D to E.' This statement is not strictly borne out by the wording of the plaint. Though the English notes of the evidence in the trial Court show that the plaintiff admitted that there was an undefined natural course, no such statement appears in the Marathi record of the plaintiff's deposition. The learned Assistant Judge also says in his judgment that ' it is common ground that the course of the rain water originally was along side BD and that the water flowed originally in a natural undefined flow into the plaintiff's land.' We are now in second appeal. We have to proceed on the footing that the water coming on to the defendant's survey number from land on a higher level and the rain water falling on the defendant's land itself flowed in a natural, undefined way on to the plaintiff's land which is on a lower level. If on this basis we were to come to a conclusion adverse to the plaintiff, We would have been bound to consider whether it would not be in the interest of justice to send the suit back for retrial; for it seems to us on the averment made in the plaint that both the lower Courts have proceeded on a complete misconception of the plaintiff's case. On the case made out in the plaint different principles come into play as regards the legal rights of the parties. As, however, in our opinion the plaintiff must succeed in getting the injunction for which he has prayed even on the basis adopted by the two lower Courts - -injunction which he could have obtained more easily on the case which he made out in the plaint-we see no necessity of sending the suit back for a retrial.
7. We accept as a finding of fact that the defendant constructed the embankment at BC and dug the channel at BG in order to preserve his land, the better to utilize it for the purposes of cultivation without any intention of causing any deliberate damage to the plaintiff's survey number. We also accept the finding of the lower Courts that the action of the defendant has in fact caused considerable damage to the plaintiff's land. The learned Assistant Judge observes as follows in dealing with this aspect of the case:
As the village map, exhibit 40, shows, a small nalla comes from the south and passes through Survey Nos. 82 and 80 towards the north-east, and the water thus entering the defendant's land comes from eight fields situated on the south. By the erection of the dam the defendant has diverted the course of the nalla itself by blocking the entrance thereof in his field with the result that the water of the lower lands passes through the channel BG with a large force and damages the plaintiff's land. As for, the damage, the evidence of the plaintiff and his witnesses shows that pits have been caused by the rush of water through the said channel and that the south-western portion of the land has been rendered uncultivable and the plaintiff has been obliged to keep the land fallow for some years past. As damage has been caused on account of the defendant's wrongful act, the plaintiff is entitled to the injunction sought on this ground also.
This quotation incidentally bears out what we have stated in the preceding paragraph of the judgment; for, what the defendant has in fact done is to alter the course of the nalla bringing water from eight fields higher up on the south by blocking the entry thereof into his field and thus diverting the course of the nalla along a new channel into the plaintiff's land. If the lower Courts had correctly appreciated the position, the decision of this case would have been far simpler than is the case now as a result of findings of fact which are binding on us in second appeal.
8. We therefore proceed on the footing that the water falling or coming naturally on the defendant's land and flawing on to the plaintiff's land in an undefined channel has been diverted for the purpose of drainage and for better cultivation of his lands along a new channel artificially brought into existence by the defendant and has in fact caused considerably more damage to the plaintiff's land than the natural flow would have caused. The question is whether in such circumstances the plaintiff is entitled to obtain an injunction restraining the defendant from diverting the water along, the new channel and for directing him to allow the water to flow on to the plaintiffs land without causing more damage than what the former natural gravitational flow would have caused.
9. It was contended by Mr. V.S. Desai for the defendant-appellant that the defendant as the occupant of a land on a higher level had a natural right to discharge the water,, described in ills, (g) and (t) to Section 7 of the Indian Easements Act, viz. (1) the right of every owner of land to collect and dispose of within his own limits all water on the surface of the land which does not pass in a defined channel; (2) the right of every owner of upper land .. that water naturally falling on such land and not passing in. defined channels, shall be allowed by the owner of the adjacent lower land to run naturally thereto. He therefore argued that the defendant in putting up the embankment and collecting the water in a trench was acting within the scope of the right given by ill. (g) and in discharging such water on to the plaintiff's land he was acting in accordance with the right given to him by ill. (j). He urged that the defendant was entitled to make the best possible use of his land and to drain the land in such way as he thought fit. He submitted that so long as the defendant made reasonable use of his land with respect to the water which came on the land naturally, the question whether such an action caused damage to the plaintiff's land was immaterial. He argued that the words ' water naturally falling on the land shall be allowed by the owner of the adjacent lower land to run naturally ' could not possibly mean that the defendant was bound to allow the natural state of things to continue and must not make any alterations therein. He gave the instance of an owner who under ill. (a) to Section 7 had a right to build on his own land. The exercise of such a right was bound to cause some alteration in the existing state of things and must result in the water from that land flowing on to the land of the owner of the adjacent land in a manner different from, the original natural way. His contention was that the word 'naturally' occurring in ill. (z) only meant that the owner of the upper land was not entitled by such means as pumping to allow the water from his land to go on to the adjacent lower land and that there was nothing to prevent even accumulated water being allowed to run on to the lower land by means of natural gravitation. In this connection he relied on the decision of the Privy Council in the case of Gibbons v. Lenfestey .AI.R  P.C. 165, and particularly on the following observations of their Lordships in that case (p. 167):
If the water, which would otherwise fall from the higher grounds 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.
10. As stated by Peacock at p. 293 of the 3rd edition of ' The Law Relating to Easements in British India,' there is a natural right of drainage from higher lands to lower lands of water flowing in the usual course of nature in undefined channels. This principle is embodied in ill. (i) to Section 7 of the Indian Easements Act which says that every owner of upper land has a right that water naturally falling on such land shall be allowed by the owner of the adjacent lower land to run naturally thereto. This right is incidental to the enjoyment of property and partakes of all the characteristics of an easement, but is really a part of the total content of the proprietary rights. This natural right exists ab initio and does not depend for its creation on prescription, grant or custom, but is inherent in the geographical configuration of the property. As-this right is strictly not an easement as defined in the Indian Easements Act, Section 23 of that Act does not come into play. Under that section the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose additional burden on the servient heritage. If Section 23 of the Indian Easements Act could have been applied to the present case, the matter could have been easily disposed of, for it is obvious that the method of enjoyment of the right of the owner of the upper land to discharge water on the adjacent lower land could be altered only so far as it does not impose additional burden on the servient tenement. In the present instance the defendant could have altered the method of discharging his surface water on to the plaintiff's land in any manner he pleased provided that he did not cast additional burden on the plaintiff's servient tenement. As in point of fact additional burden has been cast, the defendant could be held to have contravened the provisions of Section 23 of the Indian Easements Act. But the question arises whether the principle contained in Section 23 of the Indian Easements Act cannot be applied to the exercise of natural rights described in Section 7 of the Act. As Peacock has pointed out at p. 121 of his book:
Every landowner has a natural right to deal with his surface drainage-water as he pleases. He can either let it find its way to his neighbour's land if that is at a lower level than his -own, or he can collect it or use it as he pleases) on his own land, subject always to the reservation that if he allows it to flow for the prescriptive period through defined and permanent artificial channels on to his neighbour's land, his neighbour may acquire a right to its continuance, and, conversely, the enjoyment of an outlet for his surplus water for over twenty years through defined artificial channels, may give him a right to the continuance of the outlet.
11. The natural right described in ill. (i) to Section 7 of the Indian Easements Act is really in the nature of an easement imposed by nature on the owner of the servient tenement (land of the lower level) for the benefit of the owner of the dominant tenement (land on a higher level). As Salmond has pointed out in his book ' Law of Torts,' 9th edition, at p. 252:
Easements are either natural or acquired. Natural easements are those which are naturally appurtenant to land and therefore require no special mode of acquisition., Thus, the light of land, unencumbered by buildings, to the support of the adjoining land is a natural easement; but the right of a building to the support of adjoining land or buildings is an acquired easement. The term ' easements' is generally limited to the second of these two classes, but, as natural easements are essentially of the same nature as those which are acquired, this limitation of the term seems inadvisable.
That this natural right is really in the nature of an easement is also clear from the observations of the Privy Council in Gibbons v, Lenfestey. At p. 167 their Lordships observe:
But the right of the superior proprietor to throw natural water on the lower land is not an ordinary servitude to which this rule ((constitution of ordinary servitudes only by grant according to the law of Guernsey) 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.... It is true that the Roman law designated this right as servitude, but they explained the distinction by dividing servitude into three classes natural, legal, and conventional and it is to the first class that this belongs. The law may be stated thus: Where two contiguous fields, one of which stands upon higher ground than the other, belong to different proprietors, nature itself may be said to constitute a servitude on the inferior tenement, by which it is: obliged to receive the water which falls from the superior. If the water which would otherwise fall from the higher grounds 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.
Thus their Lordships regarded this natural right as a constitution of a servitude on the inferior tenement which obliges such inferior tenement to receive the water from the superior. If so, the principles of Section 23 of the Indian Easements Act should apply. It is true that their Lordships also contemplated an alteration in the use of the tenement by the collection of the water in one body as a natural use of his property by the superior. But this is what Section 23 of the Indian Easements Act permits when it says that the owner of a dominant tenement may alter the mode of enjoyment of the easement. But their Lordships do not say that by the alteration in the mode of enjoyment of the easement a higher burden may be imposed on the servient tenement. If, as we think, the principles of Section 23 of the Indian Easements Act should apply in such a case, it. was implicit in the judgment of their Lordships that no higher burden than that imposed by nature on the servient tenement should be imposed on that tenement by the alteration in the use of the easement by the owner of the dominant tenement. All that the Privy Council said was that the owner of the servient tenement was bound to receive the body of water collected by the owner of the superior in the natural use of his property for drainage or otherwise for improving it. If therefore we apply the principles of Section 23 of the Indian Easements Act, it would follow that though the defendant was entitled to alter the mode and place of enjoying the easement, he must not thereby impose an additional burden on the plaintiff's servient heritage. There is a finding of fact in this case that this alteration in the mode of enjoying the natural easement has in fact cast additional burden on the plaintiff's servient heritage, and in our opinion therefore the plaintiff was entitled to the injunction sought.
12. So far we have examined the question from the point of view of regarding the natural right as a natural easement. But even if this is not the correct view of looking at the question, the point that arises for consideration is what are the limits within which the natural right embodied in ills, (g) and (i) to Section 7 of the Indian Easements Act may be exercised. It was argued by Mr. V. S. Desai for the appellant-defendant that under ill. (g) to Section 7 of the Indian Easements Act, the defendant was entitled to collect and dispdse of within his own limits all water on the surface of his land which did not pass in a denned channel. His contention was that under this illustration it was open to the defendant to collect all the surface water and to dispose of it by taking it up to its edge of the defendant's survey number which abuts on that of the plaintiff. In his submission this amounted to disposing of within the limits of the defendant's land the water which the defendant was entitled to collect; and under ill. (i) the plaintiff was bound to receive that water when it flowed into the plaintiff's land naturally, i.e. by force of gravitation. In our opinion, ill, (g) to Section 7 only means that if the owner of a survey number collects and disposes of within his own limits all the surface water which does not pass in a defined channel, no one has any right to object. Mere collection of surface water in a trench and taking it up to the edge of the survey number does not in our view constitute disposal of the collected water. Every owner of land has a natural right in regard to the use and consumption of all the water that comes to it not in a denned channel. No one else has a natural right in respect of such water and no prescriptive right can be acquired in respect of that water by reason of Section 17(c) of the Indian Easements Act. In West Cumberland Iron and Steel Company v. Kenyan (1879) 11 Ch. D. 782 James L. J. stated the law as follows (p. 286):
I have always understood that everybody has a right on his own land to do anything with regard to the diversion of water, or the storage of water, or with regard to the usage of water, in any way he chooses, provided that when he ceases dealing with it on his own land, when he has made such use of it as he is minded to make, he is not to allow or cause that water to go upon his neighbour's land so as to affect that neighbour's land in some other way than the way in which it has been affected before.
Applying that dictum to the facts of the present case, it would appear that the defendant was entitled to make such use as he pleased of the surface water on his lands, 'but that it was not open to him after he had made the desired use to allow the water to go upon the plaintiff's land so as to affect it in a manner more injurious than was the case before such use. In the present case the defendant has not only collected the water in his own land but disposed of it not within his own limits but by digging a trench shown in red line in the map in the plaintiff's land. This action of his, apart from the dictum of James L. J, referred to above, deprives the defendant of any protection which ill. (g) to Section 7 of the Indian Easements Act might give him.
13. Then it was argued by Mr. V. S. Desai that under ill. (t) to Section 7 the defendant as the owner of the upper land had a right that the water naturally falling on that land and not passing through a defined channel shall be allowed by the plaintiff who was the owner of the adjacent lower land to run naturally thereto. On the other hand, Mr. A. G. Desai for the plaintiff-respondent laid stress on the word ' naturally ' and contended that any alteration in the natural disposition of water could not be said to be ' allowing the water to run naturally to the adjacent lower land.' The law on the subject has been stated by Peacock in the third edition of his book, ' The Law Relating to Easements in British India' at p. 121 as follows:
Every landowner has a natural right to deal with his surface drainage-water as he pleases. He can either let it find its way to his neighbour's land if that is at a lower level than his own, or he can collect it or use it as he pleases on-his own land.
The question then arises how is this natural right to be exercised and within what limits At p, 257 of the book Peacock makes the following statement:. natural rights are regarded by law as incident to the ownership of land and as inherent in land ex jure naturae, of natural right, that they are rights in rem enforceable against all the world, .. . It is a fundamental maxim that every landowner should so use and enjoy the natural rights of ownership as not to cause damage to his neighbour, and this is a duty incidental to the possession of land. ' Sic uteie tuo ut alienum non Ixdas.
14. But the duty enjoined by the maxim is not absolute, for a user which is natural is not actionable if it be not negligent. And if the user be lawful, the motive for the user is immaterial.
15. In truth, the maxim is not applied to restrict a reasonable and natural user if not negligent, but to afford relief to adjoining landowners from the mischievous or harmful consequences of a negligent, unreasonable, or non-natural user unless the mischief or the damage is assignable to the default of the person damaged, or, perhaps, was the result of vis major, or the act of God.'
16. This right, however, of the superior proprietor to discharge water on the land of the inferior proprietor is not absolute, for instance, it would not be within his right to introduce water which was foreign to the land (see Coulson and Forbes on 'Waters and Land Drainage,' 5th edition, pages 142-143). Further this right is subject to the condition which Peacock has mentioned at p. 293 of his book where the following observations occur:
Not only has every landowner a natural right to collect and retain within the limits of his own land surface water not flowing in a denned channel, but he has also the right to draw it off on to his neighbour's lower lands or put it to whatever use he pleases, agricultural or otherwise. But though there is a natural right of drainage from higher lands to lower lands of water flowing in the usual course of nature and in undefined channels, there is no obligation upon an adjoining landowner to submit to an artificial discharge of water from his neighbour's lands, unless, as has been seen, he is bound by an easement to do so.
In John young & Co. v. Bankier Distillery Company  A. C. 691 which has been cited as an authority for the above proposition, Lord Watson makes the following remarks (p. 696):
17. 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 semulationem 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.'
The learned Judge then proceeded to quote the observations of Lord Gifford in Blair v. Hunter, Fmlay & Co., 9 Court Sessions Cas. 3rd Series (Macpherson), p. 207, to the following effect:
Although there is a natural servitude on lower heritors to receive the natural or surface water from higher grounds, the flow must not be increased by artificial means, although reasonable drainage operations are permissible. The rule that the upper heritor cannot interfere with the gravitation of the water so as to make it more injurious to the land below is clearly Stated by Erie C. J,, in Baird v. Williamson (1863) 15 C. B. N. S. 376 which was rightly accepted by the First Division as establishing a principle conclusive of the present case.
Applying the law as laid down in these authorities to the facts of the present case, it would appear that the artificial drainage operations, though permissible within reason, have in the present instance resulted in causing to the plaintiff's land damage far in excess of what it was subjected to under the natural servitude. The channel dug by the defendant is seven cubits in breadth and 1 1/2 cubits in depth, and according to the finding of the trial Court the water collected by the erection of the embankment rushes with great force towards the plaintiff's land and causes considerable damage. The part of the channel shown FG in the map is actually dug in the plaintiff's own land. It seems to us that the drainage operations adopted by the defendant in order to protect his land go beyond reasonable requirements. The damage caused to the plaintiff's land by such operations gives, in our opinion, to the plaintiff the right to the injunctions claimed.
The same position has been summarised by Kerr in his book ' A Treatise on the Law and Practice of Injunctions', 6th edition, p. 231. The relevant passage is as under:
The owner of land lying on a lower level is subject to the burden of receiving water which drains naturally or in the course of ordinary agricultural operations, such as by deep ploughing, from land on a higher level. The upper proprietor may drain his land, and the proprietor below must receive the water so drained; but the upper proprietor may not, by adopting a particular system of drainage, or by introducing alterations in the mode of drainage, cause the drainage water to flow on his neighbour's land in an injurious manner, or obstruct the drainage of other lands by overloading the ancient drains with water.
The authorities quoted for this proposition do not exactly justify the wording adopted in the passage just quoted. Smith v. Kemick (1849) 7 C.B. 515 was a colliery mine's case and Greyvensteyn v. Hattingh  A. C. 355 was a case where damage had been caused to the plaintiff's land by the defendants' action in driving away a swarm of locusts as a measure of self-protection. But the quotation given above in such an authoritative book as Kerr on Injunctions does seem to indicate that, if the defendant, as in this case, by adopting a particular system of drainage caused the drainage water to flow on to the plaintiff's land in an injurious manner, the defendant would be responsible for the consequences.
18. The case which comes nearest to the facts of the present case is that of Whalhy v. Lancashire and Yorkshire Railway Co. (1884) 13 Q. B. D. 131 which has been summarised in Salmond's ' Law of Torts ', 10th edn. as follows:
In that case, a railway embankment caused an accumulation of flood water, and in order to get rid of this accumulation (which was endangering the safety of the railway), the defendant railway company pierced the embankment and so caused the flood-water to escape in a concentrated volume and with destructive violence into the adjoining land of the plaintiff, where it did more harm than if the flood had reached his land in the ordinary course of gravitational flow unobstructed by the embankment. It was held that the company was liable for the damage so done.
In the case before us also the defendant has caused accumulation of water by the-erection of an embankment and has got rid of that accumulation by constructing a trench and allowing the water so collected to escape in the plaintiff's land in a concentrated volume and with destructive violence and this action of the defendant has done more harm than if the water had reached his land in the ordinary course of gravitational flow unobstructed by the embankment. In the course of the judgment the Master of Rolls has examined at pp. 135 to 137 various kinds of cases which give rise to an action of this kind. The first case mentioned by him is where one has a property in such a position with regard to his neighbour that it must be injured if the neighbour use his property at all in a natural way. The learned Judge then states the law as follows (p. 135): .if the neighbour were not to be allowed to use his property in a natural way one would be putting a burden upon him by reason of the defect in one's own property, and would be transferring that, defect to his. That is the case of mines; where the person who has a lower mine has it in such a defective position that it must suffer unless he can prevent his neighbour from using his mine in the ordinary way. That I take it the law will not allow; so-that if the neighbour only uses his property in the ordinary and natural way he is not liable for the damage the other may have suffered from what was really a defect in his own property.
These cases of mines are in the nature of an exception to the general principle that a person is liable for causing the escape of his water from his land into that of his neighbour as pointed out by Salmond at p. 584 of the 9th edition of ' The Law of Torts.' These cases of mines are Smith v. Kmrick (1849) 7 C. B. 515 which was followed in Baird v. Williamson (1863) 15 C. B. N. S. 376, and Wilson v. Waddel (1876) 2 A.C. 95, and they have established the rule that no action can lie for the escape of water by natural gravitation into the plaintiff's mine, if this escape is caused merely by the working of the defendant's mine in the ordinary manner. This was the first class of cases which the Master of Rolls considered in Whalley v. Lancashire and Yorkshire Railway Co. (1884) 13 Q. B. D. 131. After considering two other classes of cases which have no direct bearing on the points which we have to consider here, he comes to the fourth class and makes the following observations (p. 136):
There is something existing which is injurious to your property, and the question is whether, by any active act of yours in order to get rid of that mischief, you are entitled to do something which would cause a misfortune to your neighbour. Now it has been held that if a person brings something on to his own land, which if he does not take precaution may produce danger to his neighbour, he is liable though he does not do any second act whatever, because he did the act which brought about the danger, and he failed to guard against it. One of these cases is where a man brings water on to his own land, and dams it up, so that if it breaks away it must be a danger to his neighbour, and must do him injury: there such man is liable though he does nothing to let the water out-but it bursts away without any subsequent act of his.
But then it is suggested that if a person has not brought the danger on his land it makes a difference. So it does. If he has not brought the danger there, and without any act of his it breaks through his land on to his neighbour's land, I take it he is not liable... In this case the water endangered the embankment, and moreover it would have gone on to the plaintiff's land in any event, but then if it had been left alone and allowed simply to percolate through the embankment, even though all of it would have gone on the plaintiff's land, it would have gone without doing the injury which was done by reason of its passing through the cuttings which the defendants made. The defendants did something for the preservation of their own property which transferred the misfortune from their land to that of the plaintiff, and therefore it seems to me that they are liable. But then it is said that the defendants are not, because they have only used the railway in the ordinary course a railway would be used, and therefore the case comes within the principle that;I endeavoured first to state, namely, that the plaintiff had land which had a defect in it by reason of its neighbourhood to a railway which had to be used in the ordinary way of railways..,. but it is impossible to my mind to say that to cut holes through a railway embankment is the ordinary use of it, on the contrary, the more holes are cut through it, that less fit is it for use as an embankment.
Applying the principle in this case to the facts before us, it seems to us that the defendant must be held liable. It is undoubtedly true that without the embankment the surfaca water would have reached the plaintiff's land but it would have reached it in such a diffused flow that practically no harm would have been done. The defendant for the protection of his property was entitled to effect drainage, but he was not, in our opinion, entitled to raise an embankment for catching all the water which came from other survey numbers in the neighbourhood and to divert the whole flow on to the plaintiff's land by erecting a wide channel not only in his own survey number but also in that of the plaintiff in such a way as to discharge water in a concentrated volume and with destructive violence.
19. Mr. V. S. Desai relied particularly on the Privy Council case of Gibbons v. LenfesteyA.I.R  P.C. 165, from which the relevant passages have already been quoted. Their Lordships do lay down that (p. 167):
If the water, which would otherwise fall from the higher grounds 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.
This passage in the judgment of their Lordships clearly lays down the liability of the servient owner to receive the body of water which the superior holder may have collected, and he is therefore not entitled unless there exists a positive constitution of any servitude to obstruct the flow of such water. But it does not follow from those observations that in so doing the owner of the superior tenement is entitled to cause more damage to the servient, tenement than nature itself imposes upon it by reason of its being on a lower level. Their Lordships themselves go on to observe that 'this right of the superior proprietor is not quite absolute. The limits cannot be defined by any definition, but each case must depend on its own circumstances.' Then they go on to illustrate two circumstances where this right must be held to be restricted. One case is of the defendant who brings foreign water on his land. They say:
It would not, for instance, be within his right to introduce water which was foreign to the land for example, by procuring a pipe supply, or draining another watershed-and then insist that all the water so brought on the land should be received by the inferior proprietor to his detriment.
Another case which they cite as an instance of the restriction of the superior proprietor's right is where a person builds a house on the extreme verge of his property and then throws water of his roof on to the neighbour's land. But these cases are merely illustrative and do not constitute the only limits within which the right of the superior holder may be exercised.
20. Mr. A.G. Desai for the respondent-plaintiff sought to argue that at the point where the water was collected by means of the embankment and the trench the water was foreign water and therefore the rule in the Privy Council case applied. This immediately raises the question as to what is foreign water with respect to a particular land. If the defendant was the owner of four or five adjoining lands, he could not bring all the water from those lands on to Survey No. 82 and say that all that water was not foreign water and thus seek to discharge all of it on to the plaintiff's Survey No. 80. That would be one extreme limit. The other extreme limit is the argument advanced by Mr. A. G. Desai that the water at any place other than where it naturally falls is water foreign to that place. This argument of Mr. A. G. Desai would mean that the defendant was not entitled even to alter the course of natural water by even two inches, as by doing so he would be bringing water at a place where it was not before and thus make that water foreign to that place. (We must have some regard to the ordinary course of human conduct and take the survey number as the unit. If the right is attached to Survey No. 82 to discharge its surface water on to the plaintiffs Survey No. 80 any water falling anywhere in Survey No. 82 cannot be regarded as foreign water even though it is collected at a place where the embankment has been constructed and a trench dug. We cannot therefore accept this part of Mr. A. G. Desai's argument.
21. It would not be out of place here to consider the implications arising out of the well-known case of Rylands v. Fletcher (1868) L.R. 3 H. L. 330. The rule laid down by Blackburn J..in that case can be formulated thus: The occupier of land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape, and is liable for all the direct consequences of its escape, even if he has been guilty of no negligence. The House of Lords approved this view. But Lord Cairns distinguished natural from non-natural user of land and held that in the latter case only was the liability absolute. The rule enunciated in Rylands v. Fletcher was subject to the exception that it did not apply to things naturally on land, and an occupier is not bound to prevent damage to his neighbour by the natural escape of flood water from higher to lower levels (Nield v. London and North Western Railway Co. (1874) L.R. 10 . But a person is liable even for the escape of things naturally on his land, if he has artificially accumulated them there so that their escape does more mischief than it. would otherwise have done. If he collects in a reservoir the rain water that falls upon his land, he is no less responsible for its escape than if he had brought the, water in pipes from elsewhere. Although a person is not responsible for allowing the escape of things which are naturally on his land, he is responsible for causing their escape. He is not entitled to relieve his own land of a burden by casting it upon the land of his neighbour. Thus he is responsible for the escape of water from his land, if the escape is due to some embankments, channel or artificial structure made or maintained by him there, or to any alteration in the natural condition of his land (See p. 582 of Salmond's Law of Torts, 9th edition). But there is a distinction between the rule relating to things naturally on land and the rule relating to the natural user of land, and as pointed out by Salmond at p. 585 of the book, ' the true principle was laid down by Lawrence L. J. in Bartlett v. Tottenham  1 Ch. 114 (p. 131):
Broadly the rule in Fletcher v. Rylands applies only to things artificially brought or kept upon the defendant's land, and has no application to things which are naturally, there. Even in the case where things are artificially brought or kept upon the defendant's land, questions may arise whether the defendant is liable to his neighbour for their escape if he is only putting his land to its natural use.
22. In the present instance the defendant cannot claim protection under the principle thus enunciated for he would have to show (1) that the use of his land by putting up the embankment and the trench was a natural use, and (2.) that he had not actively caused the escape of water which had been artificially collected. As regards the first condition, it has to be remembered that there has not yet been given from the bench any definition of the expression 'natural user,' nor any exhaustive enumeration of the kinds of user which it would include. Sir John Salmond even denied the validity of such a distinction. In the earlier editions of his book, the following observations occur:
Such a distinction has little in principle to recommend it. What is the natural use of land? Is it natural to build a house on it, or to light a fire? Almost all use of land involves some alteration of its natural condition, and it seems impossible to say how far this alteration may go before the use of the land becomes non-natural or extraordinary, such unreal and impracticable distinctions are not creditable to the development of English Law.
23. In spite of this view of Sir John Salmond, there is considerable authority in support of the qualification upon the generality of the rule in Rylatids v. Fletcher. At p. 574 of Stallybrass's 9th edition of ' The Law of Torts ' it has been stated that ' extraordinary,' ' exceptional', ' abnormal' are words that are sometimes used in substitution for ' non-natural', and they suggest the true principle underlying the doctrine. In order to fall under the rule in Rylands v. Fletcher the use to which the defendant's land is put must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community. Applying these principles, it seems to us that constructing an embankment and cutting such a wide trench that the water rushes on to the plaintiff's land with considerable force and in a concentrated volume is not a natural user of the defendant's land of damming up as it does the flow of water from a large number of lands which are on a higher level than even the defendant's land. In any case the second condition which prevents the application of the rule in Rylands v. Fletcher does not obtain here. Here the defendant has not only allowed water to escape but has deliberately thrown that body of water on to the plaintiff's land by constructing a trench not on his own land but also in the plaintiff's land.
24. So far as the Indian authorities are concerned, our attention has been invited to certain cases in practically every one of which the defendant who was the owner of the land on a lower level had prevented the escape of water from the plaintiff's higher lands on to his own land. In the case of Ramasawmy v. Rasi I.L.R (1913) Mad. 149 the plaintiff alleged that the defendants who were the owners of the adjacent lower land had erected a bund or a wall which had the effect of preventing the water that fell on his, i.e. the plaintiff's land from flowing to the defendants' land as it had been doing from times immemorial. In giving the judgment Sankaran Nair J. cited with approval the passage from Kerr on Injunctions which I have already quoted above, and proceeded to observe as follows (p. 151):
It was argued before us on behalf of the defendant that the result of applying this principle would be to prevent the defendant from ever improving his land. It may be pointed oat, however],, that, if the principle is not recognised, as pointed out by the Judge, it may prevent the plaintiff from carrying on his cultivation in the usual manner. It has also to be remembered that though the principle is to be maintained it has to be prudently applied as pointed out in Kerr on Injunctions. Whether in any case the owner of the upper land has exceeded his right must be determined upon the facts of each case.
In the concluding part of his judgment the learned Judge states as follows (p. 152):
It was then argued before us ... that the plaintiff has erected a bund which would result in increasing the volume of water which would flow to the defendant's land. On this question the Subordinate Judge has given not finding. As we have already pointed out, whether the burden has been appreciably increased or not, is a question of fact which must be determined in each case. It is not the law that the owner of the upper land may not interfere with the flow of water at all. But he is not entitled to do anything that will throw on the defendant's land any water which would not have naturally gone there.
Thus according to the view of the learned Judges the question whether the burden on the servient tenement has been appreciably increased or not is a relevant point which must be decided in each case, and presumably if the burden had increased, it would give the owner of the servient tenement a cause for action. In Sami-ullah v. Makund Lal I.L.R (1921) All. 688 the learned Judges were dealing with the course of a natural stream and stated that it was well established that where there was a natural outlet for a natural stream, no one had power, for the safety of his own property, to divert or to interfere with its flow, and if he did so, he was ordinarily liable to pay to any one who was injured by his act, no matter how the water before the mischief came into the watercourse. In so deciding, the Court followed the decision in Whalley v. Lancashire and Yorkshire Railway Co. (1884) 13 Q.B.D. 131 to which I have already made a reference in the earlier part of this judgment. In the full bench case of Sheik Hussain Sahib v. Subbayya I.L.R (1925) Mad. 441 the question was 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. Following the cases of Gibbons v. Lmfestey, John Young and Co. v. Bankier Distil-lery Company and Smith v, Kenrick it was held that the owner of the land on a lower level had no right to deal with his land in such a way as to obstruct the flow, of water from the higher land. But here again, the case was decided only on the point that the; owner of the lower land could not stop the flow of water from the land higher up, but the point as to whether the owner of the higher land could so adjust his drainage as to impose upon the owner of the lower land a disability greater than what it was before the construction of such drainage, did not arise for consideration and was not decided. In Nagmethna Mudaliar v. Sami Pillai I.L.R (1935) Mad. 979 the learned Judge quoted the dictum of Lord Watson in John Young & Co. v. Bankier Distillery Company and the passage from Kerr on Injunctions and held that the right which the owner of the upper land has for discharging water on the owner of a lower land naturally by the force of agricultural operations such as by deep ploughing, extended even to the water brought to such land for irrigational purposes. This extended right, however, was based not on any principle of law but on the approved custom of the locality from time immemorial, resorting to the doctrine of lost grants. In the case of Rajpali Narain v. Kirat Narain : AIR1938Pat71 the learned Judge had also to deal with the case where the plaintiffs had' recently built a bund on their land so as to obstruct the water accumulated on the defendants' land on a higher level from going on to their land and the defendants claimed that they were entitled to have the water on their land discharged on to the plaintiffs' land. The learned Judge following the case in Sheik Hussain Sahib v. Subbaya said: It is well established that the right of the owner of a higher land to drain off its surplus rain water through the adjacent lower land is an incident of the ownership of land and not an easement (p, 72):
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 level.
Then on the authority of the Privy Council decision in Bibbons v. Lenfestey the learned Judge held (p. 73):
that the owner of the superior tenement can in the natural use of his property for draining or otherwise improving it collect the water into one body and thus discharge it and the owner of the inferior tenement is without the positive constitution of any servitude bound to receive that body of water on his property.
But here again no question arose as to what the position would be if such discharge caused considerable damage to the owner of the property on the lower level. The Indian case which is most in point is that of VtenJsitaraya v. Embrandiri A. I. R.  Mad. 649. There also the defendants by putting an embankment caused water to flow on to the plaintiffs' land and thus caused damage to it. The learned Judges quoted the passages from Peacock on Easements and Kerr on Injunctions to which I have already made a reference and observed as follows (p. 650):
The effect of the finding here is, that the water, after it had been allowed to enter B-l, would in the ordinary course have diffused itself over B, B-l and E (the defendant's plots); possibly some water might have also escaped on to the plaintiff's plot. But in the course of years since 1911, the channel was ' so trained to run ... by the defendants, that the water was diverted to the plaintiff's plot, that is the clear finding of the District Judge. They did something more; they strengthened a bund where the channel intersected E, with a view to prevent injury to that plot.. Thus it will be seen that the water descending on the plaintiff's land is not ' water which drains naturally'... This finding again is, equally fatal to the defendants' claim. True, the upper proprietor has the right to collect the water falling from the higher ground in one body in the course of draining his land; but that right again is not absolute.
Then the learned Judges referred to the Privy Council case in Gibbons v. Lenfesey, and they appear to have held that although the upper proprietor has a right to collect the water falling from the higher ground in one body in the course of draining the land, that right is not absolute and must not hurt the inferior tenant. We are therefore of opinion that the current of authorities both in England and India is to the effect that although the upper proprietor has in the course of the draining operations a right to collect surface water and discharge it in a body on the land on the lower level and although the plaintiff (owner of such land) is bound to receive this water, the upper proprietor cannot by adopting a particular system of drainage affect the land on a lower level in an injurious manner. The owner of the land on a lower level being subject to a disadvantage enjoined by nature has got to submit to all the consequences resulting from the owner of the upper land using that land in a natural way for the purpose of draining it or for the purpose of agricultural operations. But if the owner of the land on a higher level uses the land in an unnatural way or in the course of draining operations collects the water in one body and discharges it on the plaintiff's land, then although the plaintiff is bound to receive that body of water he has a cause of action if, 33 a result, the plaintiff's land is subjected to a damage greater than what it would have received as a result, of the disadvantage imposed upon it by nature. This conclusion is, in our opinion, nothing more than the application of the principle in Section 23 of the Indian Easements Act to the natural rights which are closely akin to easements, as has been pointed out by the full bench of the Madras High Court in the case of Sheik Hussam Sahib v. Subbayya I.L.R (1925) Mad. 441'
25. In our opinion therefore the appeal fails and must be dismissed with costs.
26. I should like to add only a few words.
27. We are concerned in this case with two principles: (1) that owners or occupiers of land are entitled to use their land for any purpose for which it may in the ordinary and natural course of the enjoyment of the land be used, and that they are not responsible for damage sustained by the property of others through natural agencies operating as a consequence of such user, and (2) that a person who injures the property of another or disturbs him in his legitimate enjoyment of it cannot justify that injury or disturbance as being the natural result of the exercise of his own right of enjoyment if such exercise be excessive or extravagant or extraordinary or result in danger or in injury or inconvenience which might be easily avoided, nor can any act be justified as an ordinary user of premises which results in substantial interference with the ordinary use and enjoyment of property by other persons (see Halsbury, Vol. XXIV, paras. 76 and 77 at pages 43 and 44). Where, therefore, the property of a neighbour is injured, there would prima facie be an onus on the person whose action has resulted in such injury to prove justification of such action. In this case not only has the defendant diverted the water that used to flow through his land but he has also dug a channel which results in the water flowing through the said channel with great force towards the plaintiff's land, causing considerable damage thereto. It was for the defendant to show that nothing less than the adoption of such means would have enabled him to enjoy his land in the proper manner or that the danger or injury to which the plaintiff's land is now exposed could not have been avoided by any other alternative mode of disposing of the rain-water. This burden the defendant has failed to discharge. He has, therefore, been rightly held liable for the damage caused, and his appeal must, accordingly, fail.