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Murli and ors. Vs. Hanuman Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All520; 163Ind.Cas.877
AppellantMurli and ors.
RespondentHanuman Prasad and anr.
Excerpt:
- - of the available power and plaintiffs' mill would not work efficiently. the right of every owner of immoveable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation......court pointed out that plaintiffs did not state whether they based their claim on easement or on natural rights. para. 4 of the plaint stated that the mills. of the plaintiffs had been working for 15 or 16 years. this period was less than. 20 years required for an easement and therefore the plaintiffs did not claim that they had a right of easement. the plaintiffs argued that they had a natural right. the court below found that plaintiffs had no natural right to dam up the river and to divert the flow of water for the working of their mills, that such rights could be acquired by prescription but could not be enforced as a natural right and that this was not in connection with riparian tenement. the learned single judge has relied on a passage in wright v. howard (1823) 1 lj (os) ch 94.....
Judgment:

1. This is a Letters Patent appeal by the defendants against the decree of the learned single Judge of this Court restoring the decree of the trial Court in favour of the plaintiffs. The plaintiffs brought a suit for damages caused to the working of their flour mills on the river Paisoni in Banda district by the raising of the height of a bund two miles further down the river for a similar mill by the defendants. The findings of fact of the lower appellate Court are that the defendants had raised the dam and sluices. 'it is proved by the evidence...that on account of accumulations of water near their blades plaintiffs' mills do not work properly' and that 'on account of raising of defendants' dam, water accumulated at the causeway,' and that by raising their dam the water below the plaintiffs' mill was raised 11 inches and plaintiffs would therefore lose about 23 per cent. of the available power and plaintiffs' mill would not work efficiently. The lower Court pointed out that plaintiffs did not state whether they based their claim on easement or on natural rights. Para. 4 of the plaint stated that the mills. of the plaintiffs had been working for 15 or 16 years. This period was less than. 20 years required for an easement and therefore the plaintiffs did not claim that they had a right of easement. The plaintiffs argued that they had a natural right. The Court below found that plaintiffs had no natural right to dam up the river and to divert the flow of water for the working of their mills, that such rights could be acquired by prescription but could not be enforced as a natural right and that this was not in connection with riparian tenement. The learned single Judge has relied on a passage in Wright v. Howard (1823) 1 LJ (OS) Ch 94 and a passage at p. 99 is quoted which stated in regard to a river:

But each proprietor of land on the banks has a right to use it; consequently, all the proprietors have an equal right: and therefore, no one of them can make such a use of it, as will prevent any of the others from having an equal use of the stream when it reaches them. Every proprietor may divert the water for the purpose, for example, of turning a mill; but then he must carry the water back into the stream, so that the other proprietors may in their turn have the benefit of it. His use of the stream must not interfere with the equal common right of his neighbours; he must not injure, either those whose lands lie below him on the banks of the river or those whose lands lie above him. Injury may be done to the proprietors below him, by diminishing the quantity of water which descends to them; it may be done to those above him, by turning the water upon them, so as to overflow their lands, or to disturb any of the operations in which they may have occasion to use the water, as for example by diminishing the extent of its fall.

2. We would refer to a later ruling, Embrey v. Owen (1851) 6 Ex 352 at pp. 370 to 371, where it is laid down:

All that the law requires of the party by or over whose land a stream passes, is that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish or affect the application of the water by the proprietors above or below on the stream. He must not shut the gates of his dams and detain the water unreasonably, or let it off in unusual quantities, to the annoyance of his neighbour. Pothier lays down the rule very strictly, that the owner of the upper stream must not raise the water by dams, so as to make it fall with more abundance and rapidity than it would naturally do, and injure the proprietor below. But this rule must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietors. It must be subjected to the qualifications which have been mentioned: otherwise rivers and streams of water would become utterly useless, either for manufacturing or agricultural purposes.

3. In Miner v. Gilmour (1858) 12 Moo P C 131 it was laid down at p. 156 as follows:

By the general law applicable to running streams every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right' to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury.

4. This passage has been referred to with approval by Lord Halsbury in John White & Sons v. J. & M. White (1906) AC 72 at pp. 79 and 80 as follows:

Lord Kingsdown, in Miner v. Gilmour (1858) 12 Moo P C 131 at p. 156 stated the rule in terms that have generally been adopted ever since. By the; general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water-flowing past his land. Further he may, subject to the condition that he does not thereby interfere with the rights of other proprietors either above or below him, dam up the stream for the purpose of a mill.

5. This judgment may be referred to in regard to a question which arose as to whether the dam erected by the plaintiff turned the channel into an artificial stream. The map shows that there is a large rock in the stream and the plaintiff has made a dam using the rook as part of the dam, and his mill is apparently worked by the water from one side of his dam so that the mill is actually adjoining the. river. On p. 80 Lord Halsbury stated:

In some curious manner-a manner which it is very difficult to understand-it seems to have been assumed in some of the arguments here that the artificial addition to the natural rock, which to some extent forms the dam, has made some difference to the rights of the parties. The right to maintain that artificial addition to the rock may be assumed; but it does not follow that the addition to the rock has in any respect altered the legal relations of the parties....

6. It is also stated in Gale on Easements,. Edn. 11, p. 262:

It seems that the use of artificial aids (as mill leats, etc.) by a riparian owner does not in any way affect his natural right to the use of the water.

7. On the other hand prescriptive rights are referred to in Gale at p. 274:

In the case of water flowing through a natural watercourse with a defined channel, rights may be acquired by prescription which interfere with what would otherwise be the. natural rights of other proprietors above and below. A riparian owner may by user acquire a right to use the water in a manner not justified by his natural rights; but such acquired right has no operation against the natural rights of a landowner higher up or lower down the stream, unless the user affects the use such landowner has of the stream, or his power to use it, so as to raise the presumption of a grant, and so render the tenement above or below a servient tenement.

8. It appears therefore that the law to apply in the present case is the law applicable to natural streams and not the law applicable to artificial channels. The rights of riparian owners are the subject of paras. 620 to 622 in Halsbury's Laws of England, Vol. 1, p. 352, Edn. 2, and a similar rule is laid down. Now the evidence in this case establishes that the dam raised by the defendants has caused a rise of 11 inches in the level of the stream below the dam of the plaintiffs. The raising of the level by this small amount does not appear to us to be such an interference with the natural rights of the plaintiffs as would give cause to a right to sue for damages. The natural rights of the plaintiffs as a riparian owner or tenant are to have the use of the water in the stream and they may use such water for the purpose of running a mill. The action of the defendants has not prevented the plaintiffs from making use of the water for the purpose of a mill. All that the action of the defendants has done is to cause a slight diminution in the efficiency of the existing mill of the plaintiffs. The plaintiffs can obviously remedy this matter by raising their mill, and if necessary their dam, by a corresponding height of 11 inches.

9. It would only be, in our opinion, if the plaintiffs had acquired by prescription an easement to use that particular mill in that particular manner, that it could be said that a case would lie for damages. The plaintiffs have not acquired any easement in regard to that particular mill. They have only got the right to have a mill on the river. The action of the defendants does not prevent the plaintiffs using their natural right. The distinction appears to us to be an important one between the exercise of a natural right and the exercise of that right in a particular manner with a particular machine. Considering the principles laid down in 6 Ex 353(2) we think that the defendants have not acted in an unreasonable manner and have not destroyed or rendered useless the application of the water by the plaintiffs. We think the defendants are not shown to have acted in a manner which would give rise to a claim for damages. Learned Counsel for the respondents referred to Subramaniya Ayyar v. Ramchandra Rau (1876-78) 1 Mad 335 and Perumal v. Ramasami Chetti (1886) 11 Mad 16, but in our opinion those rulings have no bearing on the. point. The principle which we have enunciated from the English rulings have been adopted in the Basements Act. Section 7(b) sets out the following natural right:

The right of every owner of immoveable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

Illustration (h). The right of every owner of land that the water of every natural stream which passes by, through, or over his land in a denned 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....

10. But rights to particular conditions of water for a particular mill are acquired by prescription and are not natural rights: Section 29, Illustration (a):

A, an owner of a mill, has acquired a prescriptive right to divert to his mill part of the water of a stream. A alters the machinery of the mill. He cannot thereby increase his right to divert water.

11. And similarly in Section 23, Illustration (a):

A, the owner of a saw-mill, has a right to a flow of water sufficient to work the mill. He may convert the saw-mill into a corn-mill, provided that it can be worked by the same amount of water.

12. Accordingly we allow this Letters Patent appeal and we set aside the decree of the learned single Judge and we restore the decree of the lower appellate Court with costs throughout.


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