1. This second appeal involves a very interesting question of the liability of a person who changes the course of a channel for damages to a neighbouring owner whose lands were flooded by excessive rainfall.
2. The appelant is the owner of some lands on which he had raised chrysanthemum (Javanthi) crop. The defendant-respondent is the owner of the land situated at some distance to the east of the plaintiff's land and his land is on a higher level than the plaintiff's land. The defendant's land, survey field 345/2 was originally a Kuttai or pond which used to receive the water drawn from the adjacent lands. It was assigned by the Government for cultivation to one Abdul Salam Saheb by Ex. D-2 in the year 1932. He made some improvements on the land by raising me level of the pond and the very purpose of the darkhast grant was to permit me grantee to raise crops on the kuttai which could only be done by filling up the pond, There was a surplus channel flowing northward from this pond leading to a pa lam or a deep hollow. Abdul Salam put up a bund across the head of the cnannel and opened a new channel to the east of it diverting water along the new water-course running northwards into the same pallam or deep hollow.
3. In 1937 Abdul Salam sold the land to the defendant-respondent by Ex. D-1. The respondent got the patta transferred to his name and made some further improver ments by still further raising the level of the pond and by blocking up the bund at the head of the old northward surplus drainage channel. On the 10th June, 1941, there was an unusually heavy rain, the like of which had not been seen for several years past. The plaintiff's land was flooded and considerable damage was caused to the Chamanthi flower crop. The present suit was filed for recovering damages for the loss of that crop. Both the lower Courts have dismissed the plain-tiff's suit though on different grounds and hence this second appeal.
4. It is common ground that the plaintiff's land is so situated that water from three sides flows into it. There is a pond in one of the lands belonging to the plaintiff himself and when owing to a heavy rainfall that pond becomes full, the overflow finds its way into the plaintiff's lower garden. Not only that, water from some other directions also flows into the plaintiff's land. The appellate Judge has summed up this part of the case fairly accurately in paragraph 10 (E) of his judgment. He says :
It appears from the evidence of plaintiff's witnesses themselves that the plaintiff's land was a converging focus for flow of water from not only the defendant's kuttai but also from other sources and other directions. The Revenue Inspector P.W. I says that the water would have flowed into the plaintiff's land from the south and west from the Itteri which is to West of S.F. No. No. P.W. 3 also says that the water flows from the Itteri on the south on to the plaintiff's land. Plaintiff himself as P.W. 2 says that the land of Arusami Goundan, north and south of defendant's land is higher in level (than defendant's land) and that the water from those lands also flows into the plaintiff's lands.
5. It has been found by the lower appellate Court that there was unprecedented rainfall on the day in question and that the defendant's act in shifting the course of the channel slightly to the east was not the proximate or primary cause of the damage caused to the plaintiff's crop. Mr. V. Ramaswami and Mr. Venkataramanan who both addressed arguments on behalf of the appellant raised very interesting questions of the liability of a person who changes the course of a channel or stream and took me through a number of decisions of the English Courts which deal with such questions. In Coulson and Forbes (Law of Waters) 5th edition, the position is well summed up at page 143 thus:
The principles of law regulating the duties and liabilities of the owners of land with regard to the escape and overflow of water, and the rights they have of protecting their land from such overflow, have been discussed of late in a series of important cases, and seem now to be settled on a satisfactory basis. The general principle regulating the liabilities of landowners, with regard to the escape and overflow of water, seems to be as follows : Where the owner of land, without wilfulness or negligence, uses his land in the ordinary manner of its use, though mischief thereby accrues to his neighbour, he will not be liable for damages; but where for his own convenience he diverts or interferes with the course of a stream, or where he brings upon his land water which would not naturally have come upon it, even though in so doing he acts without wilfulness or negligence, he will be liable for all direct and proximate damages, unless he can show that the escape of the water was caused by an agent beyond his control, or by a storm, which amounts to vis major, or the act of God, in the sense that it is practically, if not physically, impossible to resist it.
6. The present case is not one in which the defendant brought upon his land water which would not naturally have come upon it. Cases where the defendant constructs a reservoir and collects water in it stand on quite a different footing and different considerations apply in those cases. Sir Frederick Pollock in his treatise on the ' Law of Torts ', 14th edition, deals with this subject in chapter 12 under the heading of, Duties of Ensuring Safety.
7. The decision strongly relied upon for the appellant is that of the House of Lords in the Corporation of Greenock v. Caledonian Railway Co. (1917) A.C. 556. The law was laid down there in these terms:
It is the duty of any one who interferes with the course of a stream to see that the works, which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damages results from the deficiency of the sub (sic)te which he has provided for the natural channel he will be liable. . Owing to a rainfall of extraordinary violence, the stream overflowed at the pond, and, as the result of the operations of the authority a great volume of water which would otherwise have been carried by the stream in its natural course without mischief poured down a public street into the town and damaged the property of two railway companies.
8. There a Municipal authority laid out a park and in so doing altered the natural course of a stream and constructed a concrete paddling pond and diverted the water of the natural stream into the pond. Thereafter water was let back into the natural stream at a further point. Owing to extraordinary rainfall, water overflowed at the pond and a great volume of water which would otherwise have been carried off by the stream in its natural course without mischief poured down into the town and damaged the property of the railway companies. It was held by the House of Lords that the extraordinary rainfall was not a 'damnum fatale ' which absolved the authority from responsibility, and that they were liable in damages to the raijway companies. One fact which was found in that case is very important and that is that the stream in its natural course would have carried away the water due to the extraordinary rainfall on the day in question if its course had not been altered in the way in which it was altered by the defendant. At page 567 Finlay, L.C., said this:
9. I agree with the Lord Ordinary in thinking that in point of fact the flood coming down Inverkip Road caused by the diversion into this road of the water, -which, but for the Corporation's works, would have found its way to the sea by the open channel, substantially contributed to the disaster.' Then he considered the law on the subject and said this at page 571:
These authorities justify the view of the law propounded by Professor Rankine in his work on the Law of Land Ownership in Scotland, 4th edition, page 376: 'The sound view seems to be that even in the case of an unprecedented disaster the person who constructs an opus manufactum on the course of a stream or diverts its flow will be liable in damages provided the injured proprietor can show (1) that the opus has not been fortified by prescription, and (a) that but for it the phenomena would have passed him scathless.
10. Then he dealt with the defence that the disaster was really caused by an act of God and that the injury was in the nature of ' damnum fatale.' After referring to the definition given of the expression damnum fatale in an earlier case by Lord West-bury as a thing which does not involve any legal liability, a circumstance which no human foresight can provide against and of which human prudence is not bound to recognise the possibility and which when it occurs is a calamity which does not involve the obligation of paying for the consequences that may result from it, the Lord Chancellor proceeded thus:
In my opinion, the appellants have entirely failed to establish any defence on this ground. It is true that the flood was of extraordinary violence, but floods of extraordinary violence must be anticipated as likely to take place from time to time. It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable. Such damage is not in the rtature of damnum fatale, but is the direct result of the obstruction of a natural watercourse by the defenders' works followed by heavy rain.
11. Nichols v. Marsland (1875) L.R. 10 Ex. 355 was then referred to and was distinguished as based really on the finding of the jury there arrived at that the flood was so great that it could not reasonably have been anticipated and that that was in substance a finding that the escape of water was owing to an act of God. Lord Shaw put the matter thus at page 578:
12. The case, on the facts, is, so far as the operations of the corporation were concerned, of a simple character. That body made an operation in the alveus of a natural stream. This stream, added to in volume here and there by little tributaries, was wont to flow to the sea in a wide natural channel. It is admitted that on the occasion of the heavy rainstorm in question, apart from the check, accumulation, and distortion caused by the appellants' operations, the natural channel would have accommodated the rainstorm and passed its waters safely to the sea.' He laid down the law thus:
A person making an operation for collecting and damming up the water of a stream must so work as to make proprietors or occupants on a lower level as secure against injury as they would have been had nature not been interfered with. And this is so although the water accumulated suddenly, or the fall was extraordinary or even un-precedented in quantity. These are the general propositions of the law (The Italics are mine.).
13. Then he referred to the fact that in Scotland wherefrom the case came, extraordinary rainfalls were not uncommon and cannot be called a damnum fatale. Lord Wrenbury stated thus:
My Lords, the other matter, upon which I will add a word is as to the law. Numerous cases have been cited, beginning in England with Rylands v. Fletcher (1868) L.R. 3 H.L. 330, and in Scotland with Samuel v. Edinburgh and Glasgow Railway Co. 13 D. 312. v and Kerr v. Earl of Orkney 20 D. 298. But in.none of these was the question one as to liability for the consequences resulting from works in alveo fluminis whereby the natural alveus was filled up and the flow of water under the force of gravity thrown into a new channel at a new and higher level. The effect of the corporation's works was that, except in so far as their culvert sufficed to take and took water coming from the westward, the Inverkip Road was substituted for the V of the valley, and became the channel by which all that water had to be drained away. In such a case the corporation is responsible, I conceive, for resultant damage howsoever arising. The responsibility to provide a substituted channel is not limited to providing a channel suiBcient to meet 'all demands which might reasonably be anticipated, or even all demands (in excess of the ordinary) short of the act of God. The corporation must provide a substituted channel which will be equally, efficient happen what will. Assuming an act of God, such as a flood, wholly unprecedented, the damage in such a case results not from the act of God, but from the act of man in that he failed to provide (as there was before) a channel sufficient to meet the contingency of the act of God. But for the act of man there would have been no damage from the act of God (The italics are mine.).
14. From the various passages set out above it is clear that the decision of this case rested really upon the finding of fact that the stream in its natural course would have carried away the water caused by the extraordinary rainfall if the course of the stream had not been altered. In fact as laid down in the passage extracted from Rankine's work by the Lord Chancellor, before the plaintiff can succeed in a suit for damages one of the things which he has to prove is that but for the defendant's act, the phenomena would have passed him scathless, that is to say that but for the interference caused by the defendant, the phenomena, the extraordinary rainfall would have passed him scathless.
15. Only one other decision need be noticed and that is Fletcher v. Smith (1877) 3 A.C. 781. Lord Penzance stated that three possible views might be taken as to the liability in law of a person who interferes with a water course. We find this at page 787:
At the threshold of the inquiry, as to the defendants' liability to the plaintiff lies the question--what obligations did the defendants incur when they diverted the natural water course? It is not on the one hand a question in this case, whether the defendants were required thus to divert the watercourse before they pursued their mining operations in its neighbourhood; and on the other hand, it is not made a ground of complaint against them that they did divert it. But, in diverting water what were their obligations?
16. Was it enough to make the new and artificial watercourse as efficient, but no more so, than the old and natural one, so that whatever defects, incapacity, or otherwise, the old one had, might, without responsibility, be re-produced in the new one
17. Or, secondly, were they bound (as they, for their own convenience, were making a new and artificial water course) to construct it in such a manner that it would be capable of conveying off the water that might flow into it from all such floods and rainfalls as might reasonably be anticipated to happen in that locality?
18. Or, thirdly, were they bound to make provisions for any such quantities of water as might possibly be discharged into it from any mere rainfall, however heavy,however unusual, and however contrary to all previous experience?
19. Having said this, Lord Penzance said that he was inclined to think that the second proposition defines the true measure of the defendants' obligations, but that he desired to express no positive opinion to that effect, because whatever test was applied it was found the defendants were bound to fail. On page 789 he said this:
It is clear therefore, I think, that the jury considered the new channel not as efficient as the old one would have been. And although it seems to have been proved as a matter of measurement that the cubical capacity of the new channel surpassed that of the old, it must be borne in mind that the bends and curves in the new channel, which did not exist in the old one,may have had the two-fold effect of impeding the rapid discharge of a great body of water, and of creating by a great accumulation of water an unusual strain upon the banks, at the points where these bends occurred, causing the overflow of the water and the gradual destruction of the banks themselves. The jurors, several of whom appear to have viewed the spot, may well therefore have been justified in coming to a conclusion against the sufficiency of the new watercourse as compared with the old, not withstanding the evidence as to its cubical capacity upon which the defendants' counsel so strongly relied.
20. These cases do not, in my opinion, afford any help for the extreme contention put forward by the appellant's earned Counsel that once a watercourse is interfered with and a new channel substituted for the old one, a defendant is bound to ensure against all risk irrespective of the question whether but for the defendant's interference with the old channel, the plaintiff would or would not have suffered damage by the rainfall in question. In the present case, the findings of the District Judge which I have set out show unmistakably that the defendant's action was not the primary or the proximate cause of the damage suffered by the plaintiff. It is also in evidence that there were crops on some lands situated between the defendant's land and the plaintiff's land and that those crops did not suffer. This makes it clear that the water which flowed from the defendant's land by itself did not cause the damage. The damage must have been caused by the overflow of water from other sides as well and the existence of a small pond which would have got filled up very soon after the rainfall commenced would not have really prevented the damage. Further even if the channel which existed before had been allowed to continue uninterfered with, it is equally clear that the damage would still have occurred and that the water that fell that day would not have been drained off by that old channel.
21. Thus there are two difficulties in the way of the plaintiff succeeding. First, it has not been established that the old channel was sufficient to satisfy the requirements of law as laid down by the later decision of the House of Lords in Corporation of Greenock v. The Caledonian Railway Co. (1917) A.C. 556, that but for the interference, the phenomena, i.e., the extraordinary rainfall would have passed the plaintiff scathless and the second difficulty is that the overflow from the defendant's land did not cause the damage and that really the damage might well have been caused and was in all probability caused by the overflow of water from two other directions.
22. It is contended that the lower appellate Court did not view the case from this standpoint and has not arrived at the conclusions of fact which would be enough to non-suit the appellant. Evidently the decisions now brought to my notice were not placed before the District Judge and his judgment cannot be assailed for the simple reason that he has not answered the questions in the form in which it is stated in the two decisions referred to above. But the effect of the findings is really against the appellant and therefore there is no reason shown for sending the case back for fresh findings.
23. The second appeal is dismissed with costs.