1. This is a second appeal from the Court of the Additional Subordinate Judge of Allahabad. The plaintiff's brought the suit for damages. They alleged that the defendants had dug a trench on their own land, but adjoining the wall of the plaintiffs, so that the foundations of the plaintiffs' house were uncovered, and it being the rainy season, rain had accumulated in the trench and had percolated into and under the foundations of the plaintiffs' house, so that damage had been caused to the walls and floors of their house. The lower appellate Court came to a conclusion in law that the defendants were not liable; but failed to come to a conclusion on the facts of the case. The plaintiffs have appealed. I remanded the case to the lower appellate Court for findings on the questions of fact which arose in the case. Those findings have now been returned. The lower appellate Court has found in fact that damages to the extent of Rs. 200 was caused to the plaintiffs by the accumulation of rain water in the trench dug by the defendants, that the trench had been dug to the depth of from 4 to 6 feet and was in some places deeper than the foundations of the plaintiffs' wall land that no proper precautions had been taken by the defendants to prevent rain water from accumulating in the trench. No question arises in this case as regards the removal of the lateral support to the plaintiffs' land.
2. On the findings of fact which are binding upon this Court, the question arises as to the legal liability of the defendants. This raises an interesting question of law. There does not appear to be any authority on this point in this High Court. The Bombay High Court however on precisely similar facts, has come to the conclusion that the defendants would not be liable : see Mohonlal Maganlal Sha v. Bai Jivkore  28 Bom. 472. However the Madras High Court has doubted the decision in the Bombay case, and for reasons which I shall hereafter give, I am, with great respect, of the opinion that that case was wrongly decided. It is contended on behalf of the defendants that a man may do anything he likes with his own land so long as he is using the land for a proper purpose, and if in that user of his land he does anything which occasions damages to the proprietor of neighbouring land, he is not liable; that is, taking the facts of this case, that any owner of land may dig a trench which may entirely uncover the foundations of his neighbour's house, leave that trench unguarded so that in the rainy season the trench may become filled with water to such an extent that his neighbour's house may be completely destroyed and yet he would be under no liability for the damage thus caused. This seems to me to be an extraordinary proposition, which I could only support on the clearest possible authority. The defendants' contention is based upon the distinction drawn in the well-known case of Rylands v. Fletcher  3 H.L. 330 between the natural and non-natural user of property. It is said that Rylands v. Fletcher  3 H.L. 330 lays down that so long as there is a natural user of property the owner of that property may do anything he likes on that property, even although his act occasions damage to his neighbour.
3. However it has never yet been defined in any case of which I have knowledge what is a natural and what is not a natural user of land. Is it a natural use of land to build a house upon it. In one sense it undoubtedly would be. But equally there could be no more natural use of land than putting cattle to graze upon it; yet it has been held that if cattle so placed upon land stray, and do damage to neighbouring property the owner of the land is responsible. In my opinion, from a consideration of the authorities, a natural user of land in the rule in Rylands and Fletcher is confined to the use of the land in its natural condition with the exception perhaps of those cases which deal with mining operations, to which different considerations apply. Where any alteration is made from the normal in land, in my opinion, the owner of that land is liable for any damage which may accrue to his neighbour, if there has been want of care by the landowner in making the alteration. In my opinion, the rule in Rylands and Fletcher has really no application in a case of this sort. The ordinary rule of law 'sic utere tuo ut alienum non laedas' applies to and governs this case. This principle has been applied in England in two cases which were decided after Rylands v. Fletcher  3 H.L. 330. They are Broder v. Saillard  2 Ch. D. 692 and Hurdman v. North Eastern Ry. Co.  3 C.P.D. 168. In the former case there was some made earth, that is, a heap of earth not naturally there, but which had been placed there by the defendants or their predecessors-in-title near to the plaintiff's house. That earth collected water, which in due course caused dampness in the plaintiff's house. The Master of the Bolls in his judgment came to the conclusion that the plaintiff must, succeed. He says at p. 700:
But however it comes (i.e. water), if it comes through an artificial work which collects it, in the nature of a large artificial sponge, which absorbs it and keeps it together until it oozes out by reason of the nature of the sponge, it appears to mo I have to say that an artificial work, a work made by man, is a work which if it causes a nuisance is a thing for which the owner of the land is responsible.
4. It might have been argued in that case that the defendants had made a perfectly natural use of their own land; but apparently it was not thought useful to advance any such argument. In the second case alluded to above the facts were that the surface of the defendant's land had been artificially raised by earth placed upon it, that rain had fallen and been absorbed by the earth and that because of that the rain water had percolated through the wall of the plaintiff's house and caused damage. The Court of appeal decided in that case that an action would lie. Cotton, L.J., in his judgment approved of the decision in Broder v. Saillard  2 Ch.D. 692 and laid it down that:
If any one artificial erection on his land causes water, even though arising from natural rain fall only to pass into his neighbour's land and thus substantially to interfere with his enjoyment, he will be liable to action at the suit of him who is so injured.
5. The learned Lord Justice distinguishes this case from those cases dealing with mines. It might be suggested that there is a further distinction in the mine cases, namely, that the plaintiff in those cases had altered the natural condition of the land himself by excavating the minerals, and therefore that he might be said to have brought the damage upon his own head. A mine owner might guard himself against percolation of water from a neighbouring mine by leaving sufficient barriers of coal between the two mines. If he likes on the other hand, to take away in the course of his mining operations all the coal in seams, he cannot complain if his neighbour does the same. Cotton, L.J., in this case laid it down that if a person by artificial means (allowed things in themselves inoffensive to pass into a neighbour's property to the prejudice of his enjoyment thereof, then he would be liable for the damage occasioned. The digging of a trench, as in the case under discussion, is undoubtedly artificial. There is no difference in principle between an artificial erection and 'an artificial excavation. In both instances the legal maxim alluded to above would apply : see also Whatley v. Lancashire and Yorkshire Ry. Co.  13 Q.B.D. 131.
6. My opinion therefore is that if a landowner digs a trench, and by failing properly to cover it, permits water to accumulate in the trench in such quantities that it naturally percolates through the soil into his neighbour's ground and damage is caused thereby, he is responsible for all the damage so caused. There lean be no doubt in this case that the defendants were negligent in not taking care in a period such as the rains in India to cover up their trench and that the defendants negligence was the occasion of the damage to the plaintiffs' house. The defendants could have prevented the damage and; they owed a duty to the plaintiffs to take care. Under the ordinary law of tort the plaintiffs are entitled to recover from the defendants the damage so caused. The appeal is allowed and judgment will be entered for the plaintiffs for the sum of Rs. 200 with costs. Leave is granted to the defendants to file a Letters Patent appeal.
7. N.B. - On Letters Patent appeal the judgment was confirmed by Sulaiman and Mukerji, JJ., in Letters Patent Appeal No. 38 of 1931, on 20th May 1932.