1. The plaintiffs on behalf of themselves and other land-holders seek for a permanent injunction restraining the District Board of Tanjore from increasing the size of two tunnels or culverts passing under a public road. The road runs from north to south, and for a part of its length on the west side of it, and running parallel with it, there is an irrigation channel called the Pallavan Channel; it is in this part of the road that the two tunnels in question are situated, and water from the Pallavan Channel passes through them under the road and is used for the irrigation of the seed beds of the plaintiffs and other landholders, lying on the east side of the road. These two tunnels having fallen into disrepair the District Board, the authority responsible for the maintenance of the road, decided, in repairing them, to increase their size, the object being to allow a greater volume of water to pass through them and thus to prevent the waters on the west side of the road from rising in the rainy season to such a height as to damage the road surface. The complaint of the plaintiffs is that the increased volume of water discharged by the tunnels is, or is likely to be, too great to be carried off by the channels on the east side of the road, and that consequently their fields will be submerged and their crops injured.
2. Both the lower Courts find that they will be injured in the way they allege, and the question is, therefore, whether they are in these circumstances entitled to the injunction for which they pray.
3. We endeavoured by calling for a finding of fact to ascertain whether the tunnels were constructed at or after the time of the construction of the road for the purposes of the road, or whether they existed before the construction of the road as irrigation conduits or pipes. The Subordinate Judge has, however, been unable to find any evidence sufficient to establish either position, and is able only to find that for fifty years or so the tunnels and the road have existed together without alteration in the dimensions of the former.
4. We must take it, then, that the road was vested in the Local Fund Board by Section 8 of Madras Act IV of 1871 and transferred to the District Board by Section 4(iii) of Act V of 1884, and that when it first vested in the Local Fund Board the two tunnels now in question were in existence.
5. It seems to be accepted by both sides that the injury to which the plaintiffs' lands are liable will be caused, if caused at all, by the waters of the Pallavan Channel; that there is no finding whether it will be caused when the water in the channel is at its normal level in the irrigation season, or when it is at its ordinary seasonal flood level, or only at a time of extraordinary flood.
6. There is some evidence and a finding by the Subordinate Judge that injury is done annually to the road in the rainy season, but on the question of the injury done to the plaintiffs' lands the only evidence referred to by the District Munsif showed that even in a time of 'unprecedented' rain, a protective bank on the east side of the road was sufficient to prevent any damage. The findings of fact being in many respects wanting in precision the case has been argued by both sides upon the footing that the District Board, to make a successful defence, must rely on the powers conferred upon it by the Local Boards Act V of 1884, and we deal with the matter on this footing.
7. Mr. Seshagiri Aiyar contends that the power given to the Board to construct culverts under their roads, if it exists at all, is merely permissive, and can be exercised only in such a way that no injury is done to others. But this contention will not bear examination. By Section 95 of Act V of 1884 (Madras) the District Board is directed to provide, so far as its funds allow, for the construction, repair and maintenance of roads, bridges and other means of communication. The road in question is, it is not denied, one of the roads to which the provisions of this section are applicable, and even assuming that a culvert or tunnel is neither a 'bridge,' nor a 'means of communication,' it is vested by Section 50 of the Act in the District Board, and it is clearly impossible, or so it seems to us, for the Board to maintain the road passing over a culvert or tunnel unless it, at the same time, maintains the culvert or turnel which by the Act is vested in it. The duty cast upon the Board of maintaining the road necessarily involves, then, the duty of maintaining the necessary culverts and tunnels under it. It can hardly be denied that an authority to construct a 'road' carries with it the authority to construct the water-ways necessary to enable the road to be carried safely across the drainage of the country, and we did not hear from Mr. Seshagiri Aiyar any argument which should lead to the application of a different rule in the case of a road which was vested ready-made, in the District Board in 1884. If in order to 'maintain' such a road it is necessary to improve the water-ways, it seems to us that there is imposed upon the District Board the duty of making the necessary improvements. Mr. Seshagiri Aiyar relied upon the judgment of Sir Subrahmanya Aiyar J. in Sankaravadivelu Pillai v. Secretary of State for India in Council I.L.R. (1905) M. p.72 and likened the culverts or tunnels in the present case to the 'bye-wash' dealt with in that case. He argued that they are to be treated as 'new works' constructed under an authority which is 'in the strict sense of law permissive.'
8. We think the two cases are distinguishable. In the case before us the statute enjoins the maintenance, of the road and does not confine the Board to its maintenance as originally designed and executed; and, in the absence of any such express restriction, we are of opinion that the injunction to maintain imposes the duty to provide such new works as it may be found necessary from time to time to provide, in order that the road may be properly maintained.
9. There is no resemblance between the present case and the case of Canadian Pacific Railway v. Parke (1899) A.C. p. 535 in which Lord Watson makes use of the phrase 'in the strict sense of law permissive.' In that case the authority was given to the defendant for his own benefit; here it is given solely for the benefit of the public : the District Board makes no profit out of the roads. There, having got the water to his land, the defendant was entitled to use it or not, as he pleased, in irrigating that land or any part of it : here, it is the duty of the Board to provide, so far as its funds admit, for the proper maintenance of the road. The cases are far apart. The case before us is nearer to the case of London, Brighton and South Coast Ry. Co. v. Truman (1886) 11 A.C. p. 435 where for the purposes of the cattle traffic on the railway the Company was authorised to acquire land for, and to construct, cattle docks and yards-which, when constructed, formed, as Lord Watson says in Canadian Pacific Railway v. Parke (1899) A.C. 55, 'just a part of the railway' which it was the business of the Company under its statute to make.
10. The case of Cracknell v. Mayor and co. of Thetford (1869) L.R. 4 C.P may also be referred to in this connection.
11. It may, no doubt, be suggested that in these cases the work done was expressly authorised by the statute, but we do not think that makes any real difference : in the present case, as we have endeavoured to show, the power is given by necessary implication. Mr. Seshigiri Aiyar suggested that we cannot imply more than a mere permissive authority in the present case, because it was not incumbent on the District Board to put a culvert in the place which was selected for it; but the case of London, Brighton and South Coast Ry. Co. v. Truman (1886) 11 A.C.435 is sufficient authority for the contrary view. We may also refer to the opinion expressed by Sir George Jessel in Hawley v. Steele (1877) 6 Ch.D. P. 521 - a case where laud acquired for purposes of the defence of the realm was utilized for rifle-shooting in such a way as to be a nuisance to a resident in the vicinity. The Master of the Rolls was of opinion that 'the power conferred upon the military authorities was a legal right to the use of the land for that purpose, although such a use would, without the authority of Parliament, have been illegal. If that is so, it is impossible to maintain an action for nuisance.' And he pointed out that it was not for the Court to decide for what purpose any particular part of the land was to be used.
12. It is found that action was necessary to prevent the annually recurring injury to the road, and it is found that to accomplish this object three courses were open: (i) to raise the road-way; (2) to construct a bank along the west side of the road; and (3) to enlarge the water-ways, The first two courses are practically identical in effect, and it is not clearly found that either of them by itself will be effective to prevent the mischief : the Subordinate Judge, who accepts the District Munsif's finding, seems to take it that it was necessary both to raise the road and widen the tunnels, and this is, we think, the effect of the District Munsif's finding and of the, evidence to which he points in support of it. It is obvious that in the case of an embanked road the raising of the surface to any great extent, or the raising of one side of the road, may involve the narrowing of the road to an extent which impairs its utility, and that, in the present case, to erect a bank separate from the road along its western side may be impracticable from want of room, or so expensive that the funds of the District Board will not admit of its being done. There is, therefore, nothing apparently unreasonable in the finding that the extension of the water-ways was necessary in the interests of the public for the maintenance of the road. There was no negligence in the carrying out of the work, and the plaintiffs have not shown that the Board could have constructed a culvert at any other part of the road which, while effective to protect the road, would have done no injury to the lands on the east side of it.
13. We dismiss the second appeal with costs.