Murray Court Trotter, C.J.
1. This appeal raises certain questions of fact with which we are not concerned. The question of law to which our attention has been directed is whether the owner of a plot of land on a lower level on to which water flows in the ordinary course of nature from adjacent land on a higher level is entitled in law so to deal with his land as to obstruct the escape of water from the higher land. It is said that any right which the owner of the higher land has is not in the nature of an easement and that terms such as dominent and servient tenements are inapplicable. That may be true in the abstract but it seems to me that the Privy Council and the House of Lords have clearly recognised a very close analogy between the two classes of cases and that if the owner of the land at the lower level raises an obstruction to the natural flow of the water he will be restrained if it causes or tends to cause damage to the owner of that on the higher. Gibbons v. Lenfestey 113 LT 55 is a direct authority of the Privy Council binding upon us. In the judgment of the Committee which was delivered by Lord Dunedin we have at page 57.
The right of the superior proprietor to throw natural water on the lower land is not an ordinary servitude to which this rule can apply. It is a natural right inherent in property; it is a question of nomenclature whether it is or is not called a servitude.
2. Later on we have
Where two contiguous fields belong to different proprietors one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water that falls from: the superior. If the water which would otherwise fall from the higher ground insensibly without hurting the inferior tenement should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property.
3. In John Young and Co. v. Bankeir Distillery Company (1993) AC 691 Lord Watson says at page 696
The right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive, natural water, whether flowing in a definite channel or not, and whether upon or below the surface, are incidents of property arising from the relative levels of their respective lands and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has been unduly and unreasonably increased by operations which are in aemulalionem vicini. But he is under no legal obligation to receive foreign water brought to the surface of his neighbour's property by artificial means; and I can see no distinction in principle between water raised from a mine below the level of the surface of either property, which is the case, here and water artificially conveyed from a distant stream.
4. And then His Lordship quotes Lord Giffard in Blair v. Hunter Finlay and Co. 9 Court Sess. Cases, 3rd Series, Macpherson at p. 207 'Although there is a natural servitude on lower heritors to receive the natural or surface water from higher gounds, the flow must not be increased by artificial means, although reasonable drainage operations are permissible.'
5. The same principle clearly underlies the decision in Smith v. Kenrick (1849) 7 CB 515 and in that case Mr. Justice Cresswell in delivering the judgment of the Court said:
There are many cases in which the principle has been recognised, that one land owner cannot, by altering the condition of his land, deprive the owner of the adjoining land of the privilege of using his own as he might have done before. Thus, he cannot by building a house near the margin of his land prevent his neighbour from excavating his own land, although it may endanger the house, nor from building on his own land, although it may obstruct windows, unless indeed by lapse of time the adjoining land has become subject to a right analogous to what in the Roman Law was called a servititude. So also in Acton v. Blundell (1843) 12 M&W; 324 where the subject' was very much discussed, the Court held that one land owner having dug a well on his own lands could not maintain an action against a party who afterwards sunk a coal-pit in the neighbourhood which had the effect of drawing the water away from his well: the act not being done by the defendant negligently or maliciously, but in a proper manner for the purpose of winning his own coal. We think that the same principle is applicable to the present case. The water is a sort of common enemy as was said by Lord Tenterden, in Rex v. The Commission,ers of Sewers for Pagham (1828) 8B & C 355 against which each man must defend himself. And this is in accordance with the Civil Law, by which it was considered that land on a lower level owed a natural servitude to that on a higher, in respect of receiving without claim to compensation, the water naturally flowing down to it.
6. This last case also touched on the distinction between natural and artificial accumulations of water which was later in 1888 made the basis of the celebrated decision in Rylands v. Fletcher (1868) LR 3 HL 330 The reference seems to have been made on account of the conflict of views expressed in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbako-nam : (1906)16MLJ582 and Sangana Reddiar v. Perumal Reddiar (1910) MWN 545 on the one hand and Ramaswami v. Rasi : (1913)25MLJ276 on the other. The referring Bench in accepting the distinction drawn in Ramaszvami v. Rasi : (1913)25MLJ276 held that the decision in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam : (1906)16MLJ582 only referred to urban areas and we agree that no such distinction arises. It doubtless came from the accident that illustration (a) to Section 7 of the Easements Act instances a case of land in an urban area because it wishes to safeguard the statutory rights of urban authorities to restrict unapproved methods of dealing with land and buildings. In our opinion Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam : (1906)16MLJ582 was wrongly decided and the reasoning on which it is based is clearly at variance with the decisions of the Privy Council and the House of Lords to which we have referred; and the same observations apply to Sangana Reddiar v. Perumal Reddiar (1910) MWN 545. It cannot be that the law recognises two inconsistent rights in adjacent owners, the exercise of one of which would necessarily destroy the other.
7. It was contended by the respondent that, if the argument of the appellant should be correct, the owners of the adjoining lands at a lower level would be prevented from improving their lands; but this is clearly not so as the adjoining owner can improve his lands to any extent he pleases even to the extent of raising the level of his lands provided that he makes suitable arrangements for carrying off the water from his neighbour's land. We are confirmed in our view by the fact that the decision in Ramaswami v. Rasi : (1913)25MLJ276 was referred to by the Puivy Council in Maunga Bya v. Mating Kyi Nyo (195) LR 52 IA 385 with approval as being consistent with the authorities.
8. We refer the case back to the Division Bench for final disposal with this expression of opinion.