S. Subrahmania Aiyar, O.C.J.
1. The plaintiff's Inam village and the first defendant's Zamindari village are irrigated by a common tank. As found by both the lower courts, the surplus water of the tank has from time immemorial been discharged through a weir and the water thus discharged passes over some of the lands of both the parties and eventually escapes through a channel separating the two villages. It is further found that if the plaintiff puts up the bund which he proposes to construct in order to save from inundation the portion of his property hitherto affected by the flow of the surplus water, such bund would throw back upon the defendant's land more water than has customarily flowed on to his property and increase the damage to which he has been hitherto subject.
2. In these circumstances there can be no doubt that the lower courts were right in refusing to grant the injunction prayed for by the plaintiff, to restrain the defendants from interfering with the erection of the proposed bund.
3. Assuming the plaintiff: was entitled to protect his land from inundation by erecting a bund, it would by no means follow that the court would grant an injunction in his favour when there has been nothing more than mere assertions on the one hand and denials on the other as to the right of the plaintiff to raise it; It is, however, unnecessary to say more on this point as the plaintiff has clearly no right to raise any bund in the way proposed1 by him. Now, having regard to the fact that the surplus waters of the common tank have from time immemorial been discharged so as to overflow certain lands of both the parties, an agreement must be implied as between the owners to the effect that neither can interfere with the accustomed flow of the surplus water so as to increase the burden of the other.
4. Apart from this and even were the parties not the owners in common of the tank, the plaintiff would not, according to the authorities, be at liberty to put up the proposed bund. It is quite true that every land owner exposed to the inroads of; the sea has the right to protect himself, by erecting such works as are necessary for that, purpose and that if he acts bona fide, he is not liable for any damage occasioned to his neighbours who must protect themselves (Bex. v. Pagham Commissioners 32 R.R. 406. But I take it that the law does not, except in the case of extra ordinary floods, give, such large powers for protection to riparian owners, it having been distinctly laid down that such owners have a right to protect their lands with reference to ordinary floods, only if they do so without injury to others. (Rex. v. Trafford 8 Bing 204 : 34 R.R. 680 Cf. also Ridge v. Midland Railway Co. 58 J.P. 55 cited in Coulson and Forbes' Law of Waters, 2nd Edn., p. 155).
5. Here, however, the bund proposed would, as found by the lower courts, affect the defendant's land injuriously. The case is therefore analogous to Menzies v. Breadalbane 8 Bligh 414 where the House of Lords, speaking through Lord Lynd-hurst, pointed out the similarity between the English, Scotch and Roman Laws bearing on the matter and held that a proprietor of land on the bank of a river ought to be restrained from erecting a mound, which, if completed, would in times of ordinary flood throw the waters of the river on to the grounds of a proprietor on the opposite bank, so as to overflow and injure them.
6. This decision of the House of Lords is referred to in Whalley v. Lancashire and Yorkshire Railway Co. 13 Q.B.D. 131 as illustrative of the second of the four heads of the classification there adopted by the Master of the Bolls. He observed : 'Then we come to the case of having property which is subject to this defect, that unless you can prevent the injury which the ordinary course of nature will bring upon it, by transferring that injury to your neighbour's property, your property must suffer as the natural consequence of its position. That is the case of Menzies v. Breadalbane 13 Q.B.D. 131 where property was so situated with regard to a river that if the river was left alone with its ordinary flow of water, it must, in the course of nature, eat away the property or occasionally overflow it. If the owner of such property, in order to cure that defect were to do something to his land which by turning the stream out of its ordinary course would throw that defect on his neighbour's land, he would, I think, according to the ordinary principles of law, become liable to pay the damages this would occasion and farther be prevented from continuing to do it by an injunction.'
7. That is practically the case here. The land of the plaintiff by its situation, has from time immemorial been exposed to the periodical overflow of the water discharged by the weir and, therefore, the owner of such land even if he had no interest in the tank would not be at liberty to construct an embankment such as that proposed, to the injury of the proprietor of lands on the other side.
8. The case of Nield v. London and North-Western Ry. Co. I.L.R. 10 Ex. 4 is not in point for the reason that, apart from the water sought to be turned away in that case being extraordinary flood water, neither party to the contest was responsible for the coming in of the water; while here the water which is sought to be kept off by the plaintiff, is the surplus of what comes into the tank in the interest of both the parties and has to be discharged for the safety of the common property--the tank. This circumstance would distinguish the present from the case of Gopal Reddi v. Chenna Reddi I.L.R. 18 M. 158 also.
9. I feel some difficulty in understanding what the precise ratio decidendi of Gopal Reddi v. Chenna Reddi I.L.R. 18 M. 158 is. In one part of his judgment, Shephard, J., observes: ' It is found or admitted that it has long been the practice to have some sort of bunds.' If this be the real reason for the final decision in the case, it would not be in conflict with Menzies v. Breadalbane 32 R.R. 103 where the Lord Chancellor distinguished the case of Farquharson v. Farquharson on the ground, among others, that the mound in question there was erected on old foundation and that it had been shown that there was a custom of practice of riparian owners in that part of the country to embank against each other. In another part of his judgment, however, Shephard, J. says that the stream, when in flood, spread|itself over the defendant's lands and did not come in its full volume to the plaintiff's lands. If such spreading was the usual state of things in times of ordinary flood; so as to make the ground on which the spreading took place a part of the regular course of the river in certain seasons of the year, the construction of an embankment which would confine such ordinary flood waters within narrower bounds so as to damage the lands of others, would have been actionable according to Menzies v. Breadalbane 3 Bligh 414 and the conclusion in Gopal Reddi v. Chenna Reddi I.L.R. 18 M. 158 would be in conflict therewith; for a stream may have one course ordinarily and a wider course in particular seasons and any work which interferes even with the latter wider course calculated to injure the property of others would be within the rule laid down by the House of Lords, as pointed out by the Lord Chancellor thus : ' The ordinary course of the river is that which it takes at ordinary times; there is also a flood channel; I am not talking of that which it takes in extraordinary or accidental floods, but the ordinary course of the river in the different seasons of the year, must, I apprehend, be subject to the same principle3'. The distinction thus drawn by the Lord Chancellor between usual or ordinary floods and accidental or extraordinary floods would seem to be denied by Shephard, J., when he observes, ' I fail to understand why the periodical rising of a stream, consequent on the fall of rain, should any the less be considered an extraordinary danger.' Though thus some portions of his judgment are calculated to create a doubt on the point, yet, I take it that Shephard, J., did not intend to lay down anything inconsistent with Menzies v. Breadalbane 94 Am. Dec. 97 since the learned Judge in terms says that the act complained of did not divert the stream from its natural course. Be this as it may, the facts of the present case are altogether different from those of Gopal Reddi v. Chenna Reddi I.L.R. 18 M. 158 as will be clear from what has been already stated.
10. It now remains only to notice the argument on behalf of the appellant that his case was supported by the view of the law accepted by certain American authorities cited in Angell on Water Courses and Washburn on Basements. But those authorities relate to the improvement of one's land with reference to surface water strictly such--that is, water due to fall of rain or snow, percolation, etc.--and not flowing in a definite watercourse. On the contrary, the rule that the course of water in a stream including its course in times of ordinary flood should not be changed or obstructed for the benefit of one class of persons to the injury of another, seems to be generally admitted in the United States (Angell on Water Courses, 7th Edition, Section334 and note). It a seems to be admitted also that there is no liability in respect of extraordinary floods on the manifest ground that they are (to use the elegant language of Agnew, J., in Pittsburg Ry. Co. v. Gillieland 94 Am. Dec. 97. ' unexpected visitations whose comings are not foreshadowed by the usual course of nature and must be laid to the account of Providence whose dealings, though they may afflict, wrong no one.' In some of the States, however, the Courts have had, from the necessity of the case, to refrain from extending the recognised Pule as to the ordinary flood-channel of a river, to the case of some great rivers which periodically bring down huge floods that overflowing the banks, sweep down populous and fertile low lands on either side for miles. In Kansas City, &c;, Ry. Go. v. Smith 37 Am. L.R. 713 cited by a writer who has recently discussed the subject the matter is put strikingly. There the Supreme Court of Mississippi said :--'If the waters of the Mississippi river which at flood times spread from twenty to forty miles and flow in a continuous and unbroken body down the valley are to be dealt with as the waters of a stream and the whole valley is to be given up as the course way of the stream, the most fertile portion of our State may at once be abandoned * * *. There are farms innumerable and rail roads, villages, towns and cities situated in a watercourse if the usual course of the flood water of the Mississippi river mark and define the course of chat stream. It is manifest that to apply the strict rules of law controlling in cases of streams and the obstruction thereof to such a stream and to such conditions, is in the very nature of things impracticable and impossible. Calling these overwhelming floods surface or channel water for the purpose of dealing with them under rules applicable to entirely different conditions advances us no step in the solution of the question involved. We must deal with things and not names and conditions inherently and radically different cannot be assimilated by mere terminology.' The gist of this argument is that conveyed by the observation of Dr. Hunter, (Roman Law, 2nd Edition, p. 313) that ' occasional floodings do not change the legal extent of the bank, otherwise all Egypt would be a bank of the Nile.'
11. But the special features of the Mississippi and Nile floods can constitute no good reason for discarding with reference to rivers and streams generally the well established definition that the bank of a river is the furthest reach of the river so long as it keeps within its natural course (Hunter's Roman Law, p. 313); and it is scarcely necessary to say that, as the circumstances of rivers and streams in this Presidency are in no way comparable to those attending the Mississippi, the Nile and the like, they do not' warrant a departure from the rule of law laid down by th House of Lords in the case already cited.
12. Further, river conservancy legislation (Madras Act VI of 1884) having provided for State interference where such would seem to be necessary for the definition, control and protection of waterways in the country, there would seem to be so much less reason for our courts adopting, on the ground of any public policy, a rule different from that established by authorities ordinary followed here.
13. I would accordingly dismiss this appeal with costs.
14. The District Judge has, I think, given good reasons for the opinion which he holds that this is not a case in which the injunction asked for should be granted. It is within the discretion of the court to grant an injunction or refuse it. The plaintiff has refused to join the 4th defendant at the latter's request in order to deepen the channel F, which would then in all probability carry away all the surplus water of the tank A running in the direction of F in ordinary times and little or no damage would result to the plaintiff if this were done. Till the plaintiff has done in this respect all that can reasonably be expected of him, I do not think he is entitled to any relief except what the law allows him as a matter of absolute right.
15. This water which the plaintiff wishes to bund up and throw back on the defendant's land is either running in a defined stream or it is not. If it is running in a defined stream, then the case of Menzies v. Breadalbane 3 Bligh 414 makes it quite clear that the plaintiff has no right to erect the bund referred to by him. The plaintiff does not seek to protect himself from an extraordinary flood.
16. He wants to protect himself from the ordinary overflow of the common tank. This flow runs in a defined channel and owing to the fact, no doubt, that the surplus channel F is silted up this ordinary surplus water runs on to the plaintiff's land and injures it. It is settled law that ' a prescriptive right to throw back water and keep it standing on the land of another exists only in the case of water flowing in a defined stream and cannot apply to surface water not flowing in such a stream, though it might ultimately, if not arrested, flow into a tank.' (Robinson v. Ayya Kristnama Chariyar 7 M.H.C. 37. The' plaintiff could in the present case be allowed to erect the bund proposed by him only if he had a prescriptive right to do so and if the water is running in a denned stream. He has no such right for no such bund has ever been erected before. Even, however, if the water is not running in a defined stream, the plaintiff would not under the circumstances be entitled to put up a bund the effect of which would be to throw additional water On to the defendant's land and thus cause greater injury to the defendant than is caused at present. It appears that the surpius water escapes rom tank A and runs in a defined channel for about 100 yards. It then divides into three branches and the waters in all the branches more or less diffuse themselves over the surface of the lands they pass through.It is with the southern branch this case is concerned. The watercourse is there clearly marked at intervals. Thus the case is as follows. There is a channel which, in its present state, is insufficient to carry away, without overflowing its banks, all the surplus water flowing into it from the tank A. The flooding of its banks is the normal condition of things. There is no extraordinary flood. The case of Menzies v. Breadalbane 3 Bligh 414 just quoted shows that the plaintiff cannot be allowed to erect a bund and throw the water which would ordinarily flow on to his land over on to the defendant's land and thus cause an injury to the latter. This is what the plaintiff seeks to do. The obvious remedy is that proposed by the 4th defendant. The parties should join and deepen the common drainage channel.
17. The appeal is dismissed with costs.