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Unde Rajah Raja Sri Raja Velugoti Sri Rajagopala Krishna Yachendrala Varu Bahadur, K.C.i.E. Maharajah of Venkatagiri Vs. the Secretary of State for India in Council and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1915)28MLJ98
AppellantUnde Rajah Raja Sri Raja Velugoti Sri Rajagopala Krishna Yachendrala Varu Bahadur, K.C.i.E. Maharaja
RespondentThe Secretary of State for India in Council and ors.
Cases Referred and Imam Ali v. Poresh Mundal I.L.R.
- - 2. the upper reaches of the nallavagu admittedly form a natural stream, though like other streams in this part of the country it only flows during the north-east monsoon, from october to december, and for a short time after heavy showers at other periods of the year, some three or four miles higher up than the suit bund the stream bifurcates, one branch taking a north-easterly course and finding its way into the buckingham canal which flows parallel with the coast, while the branch now in question admittedly flows in an easterly or south easterly direction down to a point above two miles distant from the place where the bund was erected, and then, according to the defendants, ceases to flow in a defined channel and spreads over the surface of the country, whereas, according to the.....john edward power willis kt., o.c.j.1. the plaintiff is the secretary of state, the 1st defendant the rajah of venkatagiri, and the other defendants are ryots of the village of vasapallipadu in the guntur district. the suit is brought for the removal of a bund or dam placed by the defendant across what is alleged by the plaintiff to be a natural stream of salt water known as the nallavagu which has the effect of throwing back the saline waters of the stream on to the lands of the government village of allur and sending it into the irrigation tanks of the village to the injury of the wet crops raised with the tank water. the district judge has given the plaintiff a decree and the 1st defendant appeals. the bund in question was put up first in 1896, and was removed by the orders of the.....

John Edward Power Willis Kt., O.C.J.

1. The plaintiff is the Secretary of State, the 1st defendant the Rajah of Venkatagiri, and the other defendants are ryots of the village of Vasapallipadu in the Guntur District. The suit is brought for the removal of a bund or dam placed by the defendant across what is alleged by the plaintiff to be a natural stream of salt water known as the Nallavagu which has the effect of throwing back the saline waters of the stream on to the lands of the Government village of Allur and sending it into the irrigation tanks of the village to the injury of the wet crops raised with the tank water. The District Judge has given the plaintiff a decree and the 1st defendant appeals. The bund in question was put up first in 1896, and was removed by the orders of the Divisional Officer at the end of 1897. It was again put up in 1904, and after some correspondence this suit was instituted for its removal in 1908. The main defence put forward was that the Nallavagu was not a stream flowing in a defined course at this point. Witnesses were examined and cross-examined at very great length to prove this, and a very lengthy argument based on their evidence was addressed to us by the learned Vakil for the appellant who on the other hand passed very lightly over the documentary evidence for the twelve years preceding the filing of the suit. This is not surprising, because a reference to the correspondence which passed and to the statements which were taken from both sides during that period shows that this contention was raised for the first time in the 1st defendant's written statement, and that till then no one had ever doubted that it was a natural stream.

2. The upper reaches of the Nallavagu admittedly form a natural stream, though like other streams in this part of the country it only flows during the North-East monsoon, from October to December, and for a short time after heavy showers at other periods of the year, Some three or four miles higher up than the suit bund the stream bifurcates, one branch taking a north-easterly course and finding its way into the Buckingham Canal which flows parallel with the coast, while the branch now in question admittedly flows in an easterly or south easterly direction down to a point above two miles distant from the place where the bund was erected, and then, according to the defendants, ceases to flow in a defined channel and spreads over the surface of the country, whereas, according to the plaintiff, it pursues its course to the site of the bund and, before the bund was erected, flowed southward, through the wet lands of the defendant's Vasapallipad village and ultimately found its way in-to the Buckingham Canal further South.

3. Below the point C in the plan Exhibit I (a), where the defendants say the Nallavagu ceases to flow in a defined channel, the water is admittedly confined on the right bank and does not overflow to the South over the Vasapallipad lands until it reaches the site of the bund. If it spread out at all it must therefore have been to the North, and if there was nothing on the North to contain it, it must obviously have spread over the country until it was absorbed and very little water could have found its way to the bund site. On the other hand, if as appears to have been the case, the natural configuration of the country to the North was such that saline water admittedly flowing down the vagu to the point C was subsequently directed to the bund site whence it flowed down through the defendant's lands, this would appear to be sufficient to satisfy the definition of a natural stream in the explanation to Section 7 of the Easements Act, viz., 'a stream flowing by the operation of nature only and in a natural and known course.' I confess that it appears to me very largely a case of res ipsa locquitur seeing that admittedly the saline waters brought down by the vagu found their way to the site of bund and then before its erection flowed down into the wet lands of the defendants.

4. How long this state of things had existed is not perhaps very material. It may be that the other branch became silted up and that in consequence a larger volume of water passed down the branch in question than had formerly been the case. The fact that the northern branch is clearly marked in the survey map of 1862 while the other is not, makes this probable. There are near the point of bifurcation the remains of a bund which is said to have been erected about 1872 and to have fallen into ruins or been dismantled about 1879. This bund no doubt had the effect of sending most of the water down the north east branchAccording to the earliest statement of the Allur ryots in 1896, it was removed or allowed to fall into disrepair because the ryots on the north east branch objected that it caused their lands to be flooded. This again is not improbable, as in the correspondence which passed prior to suit. There is a letter of the 1st defendant Exhibit J. in which it is stated that the erection of a similar bund would have that effect. Whatever the origin of the south-east branch of the Nallavagu, it seems perfectly clear that in the rainy reason it was flowing in a natural stream at the site of the suit bund in 1896 when the bund was first erected and for many years previously, The statement Exhibit N. taken by P.W. 4 from the Vasapallipad ryots on 14th August 1896 in answer to the complaint of the Allur ryots shows that there was then no question of its not being a natural stream. They say they were present when the officer inspected the bund and the course taken by the Nallavagu and describe the Nallavagu as flowing south of the bund through their wet lands forming nattus, or grass-grown hollows. Exhibit L. 2 is the report of the officer and Ex. L. 15 the plan submitted by him in which the course of the vagu is clearly shown both above and below the bund. The subsequent petition of the Vasapallipad ryots Exhibit L. 5 dated 25th September 1896 denied that they had 'newly erected a bund to the said Nallavagu.' Similar statements by them are to be found in L. 10 dated 6th January 1897. L. 13 dated 6th August 1897 is an order for the removal of the bund. The bund was removed on 26th September 1897 Ex. O. Exhibit 2 dated 10th October 1837 is a complaint of the Allur ryots that the bund was bein greerected. The order for the removal of the bund was set aside as irregular on 9th December 1897, J. 7, and nothing more is heard of it until Ex. L. 16 dated 22nd September 1904 which is a complaint of its having been recently re-erected. L. 17 is the Revenue Inspector's report and L. 18 the plan he prepared at the time. Exhibit R. of 14th November 1904 is the reply by the 1st defendant to the letter written to him by the Sub-Collector of Ongole complaining of the erection of the bund to divert the course of Nallavagu. In his reply the 1st defendant refers to the damage done 'by the Nallavagu stream' to the wet lands of the Vasavallipad village which are below the suit bund-Exhibit I a is a plan prepared shortly after on 20th November 1904 by the Assistant Engineer. The defence relies very much on this plan because it shows the water as spreading out at the point C about two miles above the bund, but this plan which was made in the middle of the north-east monsoon shows the state of things then existing consequent on the erection of the bund which, as the Executive Engineer says in his evidence, had the effect of throwing back the waters of the vagu, raising their level to a considerable distance higher up the stream and making them over-flow the dry lands on the north. The same observation applies to the evidence of Mr. Pogson the Architect and Surveyor called by the defendants as their 1st witness. He visited the place during the rainy season immediately before the trial, and observed the state of things caused by the bund during heavy rain, a state of things which would have been very different if the bund had not been there. In my opinion the admission made by the defendant in the correspondence, the plans prepared in 1896 and 1904, and the admitted facts of the case all show conclusively that the Nallavagu flowed in a natural stream at the place where the suit bund was erected, and I think this is also the effect of the oral evidence which I do not propose to examine in detail. If this be so the erection of the suit bund was admittedly an infringement of the natural rights of the plaintiff as declared in Section 7 illustration (b) of the Easements Act that the water of the natural stream passing through the lands of his Allur village in a defined natural channel should be allowed to flow within his limits without material alteration in quantity or direction. Even if there was no natural stream flowing in a defined natural channel through the plaintiff's lands adjoining the site of the bund, which was erected just over the border line in the 1st defendant's lands, I do not think this would make any difference, because I think the bund would equally be an infringement of the plaintiff's natural right as the owner of the upper land that water naturally rising in or falling on such land and not passing in defined channels should be allowed by the owner of adjacent lower land to run naturally thereto. The defendants say that, if there is no natural stream, they are not bound to allow the water to run down on to their land and quote Mahamahopadayaya Rangachariar v. The Municipal Council of Kumbakonam I.L.R. (1906) M. 539 : 16 M.L.J. 582. The decision proceeded on an alleged conflict between the natural right recognised in illustration (a) to Section 7 of every' owner of land in a town to build on such land subject to any Municipal law for the time being in force, and the natural right defined in illustration (1) of every owner of upper land against the owner of adjacent lower land in respect of water naturally running in or falling on such land and not flowing in defined channels. Illustration (a) does not apply to the present case, and the question decided in that case does not arise here, but the defendants rely on an observation of Subramania Aiyar J. at p. 546 that the right mentioned in illustration (1) is 'a right only in the sense that the passage of water from the higher to the lower close gives no right of action to the owner of the latter, that being but the result of the operation of the laws of nature.' I don't think this passage should be taken apart from its context. As a general proposition it appears to be unsupported by authority and with great respect I am unable to accept it. To say, as the defendants do, that, while the plaintiff as owner of the upper land in the open country has a natural right that water naturally running in or falling on his land and not flowing in defined channels should be allowed by the owner of adjacent lower land to run naturally thereto, the latter has a right to erect just over the border of his land a barrier which has the effect of throwing back the water back upon the land of the upper owner appears to me to be in direct contradiction to the language of the section, as well as to the law on which the section is founded. In Menzies v. The Earl of Breadalbane (1828) 3 BNS 414.: 4 E.R. 1387 the Lord Chancellor cited with approval the following passage from the Digest (39 Digest 3. C. 1.) ' Opus quod quis facit ut aquam excluderet, quoe exundante palude in agrun ejus refiners solet, si ea palus aqua pluvia ampliatur, eaque aqua repulsa eo opera agri vicini no-ceat, aquae pluvioe actione cogetur tollere,' that is to say, the action aquoe pluvioe or of rain water will lie against a land owner for the removal of a work erected by him to keep water off his land which naturally overflows on to it from a marsh, when in time of heavy rain the water forced back by the work so constructed does damage to the lands of the adjoining owner. To the same effect are the decisions Broder v. Saillard (1876) 2 Ch. D. 692 and Hurdman v. North Eastern Railway Co. (1878) 3 C.P.D. 168 which was approved in Whalley v. Lancashire and Yorkshire Railway Co. (1881) 13 Q.B.D. 131. The present seems to be one of the class of cases referred to by Brett M.R. in that case at p. 136. Where your property is subject to the defect that, unless you can prevent the injury which the ordinary course of nature will bring upon it by transferring it to your neighbour's property, your property must suffer as the natural consequence of its position. In such a case, as pointed out by the master of the Rolls, an owner who to cure the defect to his own property were to turn the water on to his neighbour's land would be liable to an injunction and damages. I do not think that this can be said to be the case of an extraordinary peril coming on the defendant's lands, because the evidence is that for at least more than thirty years before the suit and possibly very much longer these saline waters have found their way in times of heavy rain to the site of the suit bund and flowed on to the defendants lands. No authority has been cited to us to show that the fact that natural water carries a certain amount of saline matter in solution which renders it injurious to crops in any way takes it out of the law governing the distribution of natural surface water, and I think that cases such as Bex v. Commissioners of Sewers for Pagham (1828) 8 B&C; 355 : 108 E.R. 1075 and Nield v. London and North Western Railway Co. (1875) L.R. 10 Ex. 4 have no application to the present case. The Government pleader does not suggest the award of damages and the decree will be modified accordingly. Otherwise in my opinion the appeal fails and must be dismissed with costs. The defendants will be restrained from diverting or obstructing the course of the south eastern branch of the Nallavagu stream at the site of the suit bund or elsewhere so as to prevent the same from flowing in its natural course past the site of the said bund, and they will be directed to remove so much of the suit bund or any other work as may wholly or partially divert or interfere with the flow of the south-eastern branch of the Nallavagu stream in its natural course.

Seshagiri Aiyar, J.

5. The suit is by the Secretary of State for India for the removal of a bund erected by the 1st defendant, the Rajah of Venkatagiri and his tenants across a stream known as the Nallavagu. Both parties admit that this stream originates in the Ongole Taluq and that up to A, (1 shall refer to plan 1 a, as it was filed for the defendant and as its accuracy as representing the state of affairs as it existed at the time of its preparation in 1904 was not questioned by the plaintiff) it has a defined course. The 1st defendant contends that from A, it proceeds in a north westerly direction as a well defined stream, and that it is not a stream in its passage in the south easterly direction from A. It is common ground that there is a bifurcation at this point. It was finally admitted by the defendants that from A to C in the south westerly course, Nallavagu has all the requisites of a running stream; they allege that beyond C, it diffuses itself over a large area; It is not denied that despite this diffusion, the water of Nallavagu finds its way through depressions into a marsh and that ultimately its waters empty themselves into the Buckingham Canal. The defendants state that from A. to C, the distance is a mile and a quarter and from C to the Buckingham Canal, it is 4 miles. They say that this irregular flow of water from C caused considerable damage to their crops as it was saline and that in order to enable them to cultivate their fields to the best advantage they put up the dam complained of. They do not dispute that the effect of this dam is to throw a great quantity of water on the lands of the plaintiff during the flood seasons, but they demur to having caused any actual damage to the crops grown on plaintiffs land. The District Judge came to the conclusion that the defendants were not entitled to raise the dam and directed its removal. He did not find any actual damage, and awarded nominal damages. The 1st defendant has appealed.

6. The first question for consideration is whether Nallavagu is a natural stream in its south easterly course; The evidence is not very full and definite, but after giving my careful consideration to the arguments advanced by the learned vakils for the appellant, I have come to the conclusion that it is a natural stream. It was pointed out that in the Surveys carried on by the plaintiff, the lands through which Nallavagu passes up to C are not entered as river bed, where as in its north westerly direction this has been done. This may show that from A. to C. the outlet has been more recent than from A. to B. For more than 30 years from 1878, this part of Nallavagu has been in existence and yet the Survey Officers have not recorded the numbers through which it passes as river bed. I do not think that much importance should be attached to this omission. I see no reason to disbelieve the evidence of P.W. 4. He was a Revenue Inspector of Ongole in 1896. It was in that year that the defendants first put up a dam across the Nallavagu very near the site of the present one. He inspected the locality and submitted a report (Exhibit 12). He also submitted a sketch of the course of the stream (Exhibit 15). This plan was not made by a professional man and its very imperfections impress me with its truth and honesty. The legal significance which would attach to Nallavagu, if it were regarded as a natural stream was unknown to him. The report and the plan may be said to be practically ante litem motam, and I am prepared to act upon both. The plan traces a very defined course in 1896, and is confirmed by the report 12. In the witness box he has given evidence in support of the existence of the course of the stream. P.W. 6, the karnam of Allur, one of the villages through which the stream passes and who was one of the signatories to the report 11, in 1896 supports the Revenue Inspector. I see no reason to discredit this evidence. I have rejected from consideration the evidence of other villagers, because they are interested. As against the evidence of P.W. 4 and P.W. 6, there is the evidence of D.W. 3, the Tahsildar under the defendant, He does not give any definite evidence and is not supported by any record which he has made. The other evidence for the defendants is that of persons who are interested in the result of the litigation. I do not place any reliance on it. My conclusion is that up to the year 1896, Nallavagu flowed in a south easterly direction in a defined channel. It may be, as contended by the appellants that the branching off in this direction was only about 1878. However the existence of a ruined masonry bund at A is against this contention. It is amply proved that in or about the year 1872, a masonry dam was put up near the point of bifurcation either by or at the instance of the 1st defendant; unless the stream had been flowing south it was hardly likely that such a permanent construction to divert its course would have been thought of. I am inclined to think that this south easterly course of the Nallavagu must have existed even prior to 1872. At any rate it is clear that from 1878 it had been flowing in this direction. In that year, the evidence shows, that the dam was either breached or washed away; about that time the branch in the north westerly direction was becoming silted up. Consequently a large volume of water must have found its way from A to C and downwards.

7. Even if I feel any doubt regarding this conclusion of mine, I am satisfied that on the facts admitted by the defendants, the Nallavagu in the south easterly direction was a natural stream in the eye of the law. As stated by me already, it is conceded that from A to C in this direction, it has all the requisites of a natural stream. It is from this point that a defined course is denied to it. It is said that it has no banks, that it does not pass within specified limits, and that it has not a marked flow. These, it is argued by the learned vakils for the appellant are essential to constitute a stream; it is in evidence that from C. Nallavagu passes through Zamin lands at first thence through Government lands and finally spreads itself out over a large extent of Zamin lands. It is to prevent this diffusion that the dam, according to the defendant was erected. It is admitted by the witnesses whose lands will be submerged if the dam were removed that before the year 1896, the water of the Nallavagu found its way though not within banks on either side into a marsh nearly three miles lower down and ultimately emptied itself into the Buckingham Canal. See D.W. 2 at page 244, D.W. 3 at page 248, D.W. 4 at page 251, D.W. 6 at page 263 D.W. 14 at page 276 and D.W. 10 at page 245. This last witness is 70 years of age. He says 'a portion of the water of this southerly branch flows over the wet lands of Vasapallipadu and empties itself into the Buckingham Canal. I have known this for the last 50 years.' There is absolutely no reason why this witness should be disbelieved.

8. The evidence above set forth establishes that up to point C for a mile and a quarter from the point of bifurcation there is a defined stream, from that point the water moves and is not stagnant, it spreads itself out over a large area, and ultimately finds its way into the Buckingham Canal. In accepting this evidence on the side of the defendants, it must be allowed that from point C up to the Buckingham Canal, the course is not well defined and there are no visible bunds restricting the flow of the water. Do these facts take away from the character which the Nallavagu has up to C?

9. The question to be considered is what are the attributes of a natural stream. Lord Tenderden in Bex v. Oxfordshire (1880) B. & A. 301 : 109 E.R. 794 said that 'water flowing in a channel between the banks more or less defined' formed a water course. It has since been decided that there need be no continuous flow of water. Angell in his book quotes from an American decision which says ' It is not essential to a watercourse that the banks should be absolutely unchangeable, the flow constant, the size uniform, or the waters entirely unmixed with earth, or flowing with any fixed velocity; but the law does not and cannot fix the limits of variation in these particulars.' (Angell on water courses, p. 4, 7th edition). The facts of this case are on all fours with Gillett v. Johnson 80 Com. 180 and Macomber v. Godfrey 108 Mass 219 quoted by Angell in the footnote (1) at page 3. Farnham collects all the authorities bearing on the question and in volume, II, page 1564 points out that the term water course has been extended to 'depressions in a prairie country which drain large extents of territory of enormous quantities of surface water, although they have no well-defined channel or banks, but still are well defined water courses for surface water'. The opinion of Kelly C.B. in Holker v. Porritt (1873) L.R. 8 Ex.107 fully supports this view, although in the appellate Court (L.R. 10 Exchequer 59) the point was left open. Whitehead v. Parks (1857) 2 H. & N. 870 takes the same view. The passages in volume 40 of the American Encyclopedia to which our attention was drawn by the learned vakils for the appellant are somewhat contradictory in their character. It often happens that the various states of the United States adopt different interpretations of well known terms. It is not safe to rely upon isolated passages to be found in this volume for the definition of a water course. Farnham draws attention to these conflicting views and states the general trend of the American law on the subject. I accept his statement as expressing the view which finds most favour with eminent Judges in that country. Reason and principle are in favour of the view suggested. A volume of water which has acquired a distinctive character as a stream up to a point does not lose it by the fact that in the rest of its course it is not well defined. From an examination of the authorities, the attributes of a, natural stream may be thus summarised. It must have a fairly defined course. It must move. Its water must be capable of identification. It need not always be confined within banks. It need not have a continuous flow. Its width need not be of particular dimensions. It is by these tests that a natural stream has to be judged. I am of opinion that in the case before us the Nallavagu satisfies all the positive requirements above mentioned and is a natural stream. The recent decision in Adinarayana v. Ramudu I.L.R. (1912) M. 304 practically agrees with this conclusion of mine.

10. It was argued by the learned Government Pleader that even apart from the question of Nallavagu being a natural stream, the action of the defendants in putting up the dam so as to flood the plaintiff's land with saline water is actionable. The language of illustration (1) to Section 7 of the Easements Act is relied on. While illustration (h) deals with water in a running stream, illustration (i) is limited to water rising or falling on the land of the upper owner. I have felt some doubts whether this illustration is not confined to cases where a spring has its origin in the upper land and to those in which the upper land serves as a bed for a water fall. In Domat's Civil Law, the rule is stated in these words: 'If waters have their course regulated from one ground to another, whether it be the nature of the place, or by some regulation, or by a title or by an ancient possession, the proprietors of the said ground cannot innovate anything as to the ancient course of the water. Thus, he who has the upper ground cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds. Neither can he who has the lower estate do anything that may hinder his grounds from receiving the water which they ought to receive, and that in the manner which has been regulated.' Farnham in commenting upon this rule says that even in regard to surface water, there must be a well regulated flow before interference with it becomes aqtionable. In the Digest, the rule is stated slightly differently: (See Rule 110, Ware's Roman Water Law, page 57). But as, pointed out by Lord Chancellor in Menzies v. Breadalbane (1821) 3 BNS 414 there are conflicting views on this subject. The collection of authorities made by Mr. Ware shows it. Under these circumstances, I do not feel justi-fied in presuming that the Indian legislature intended illustration (i) to represent the views of Ulpian in Digest 39, 3. 1. 1. The distinction between illustrations (h) and (i) in my opinion amounts to this. In the former case, the water must flow in a natural stream. In the latter, although there may be no defined channel, the water must have a regulated course. The one deals with the developments of a stream while the other deals with its beginnings. At the beginning of a stream, it is not to be expected that water will flow within well defined bounds. Even in such a state, the upper owner is entitled to say that its natural course should not be obstructed provided the water moves on regularly. It is true that in Hurdman v. North Eastern Railway Co. (1878) L.R. 3 C.P.D. 168 Cotton L.J. held that a lower owner is not entitled to protect himself against the flow of rain water falling on the upper land, but the learned Lord Justice would, I think, exempt the carrying on of agricultural operations from this rule. I do not think that that case affects the question we have to decide. In that case a wall was erected in the course of a building which had the effect of totally shutting out the drainage of the water from the field above. I shall therefore not rest my decision upon illustration (i).

11. I think this case is governed by illustration (h). I prefer to decide this case on the footing that there is a stream. Mr. T.R. Ramachandra Aiyar argues that the defendant was justified in putting up a dam on his own land to save his property from being inundated by the flow of the saline water. He draws a distinction between preventing a nuisance before it reaches a man's land and taking steps to free himself from it after it has entered his land. In the former case, the action will be justifiable though it may cause damage to the upper owner. In the latter case, care will have to be taken to see that the upper owner is not injured. I fail to see any real distinction between the two classes of cases. The cases which were quoted to which I shall presently refer relate to extraordinary floods. It has been held that it is open to a person to protect himself against such dangers in anticipation. The right of any other person is not in question in such cases. Each one has a right to use means to prevent a possible sudden danger. The decision of Bramwell B. in 10 Exchequer 4 has been much relied on. It is stated in judgment that 'the flood is a common enemy against which every man has a right to defend himself.' And that 'the law allows a kind of reasonable selfishness in such matters; but the sentences which immediately follow make a reservation in cases 'where there is a natural outlet for natural water.' This case therefore does not apply to conditions where the ordinary flow of water in a natural stream is concerned. It was argued that as the upper owner will be damaged by the dam only during seasons of flood, this case is within the rule relating to extraordinary floods. The fact that a larger volume of water will year after year flow in a channel during well-known periods will not constitute the water an extraordinary flood. There are very few perennial streams in this country, and the extension of the doctrine of extraordinary floods to streams which during particular seasons let out a large quantity of water would render the position of the upper riparian owners entirely insecure. I think the principle of Nield v. The London and N.W. Railway Co. (1875) 10 Ex. 4 should be confined to cases where the anticipated danger is occasional, abnormal and unusual, Menzies v. Breadalbane (1821) 3 BNS 414 which Bramwell B. quotes with approval in 10 Ex. 4 lays down quite distinctly that a riparian proprietor should not erect mounds on his premises to protect himself from ordinary floods if the result of so doing will be to cause damage to the proprietor on the opposite bank. The Lord Chancellor points out in this case that under the Scottish Law which follows the Roman Law in this respect ' though the river threatens to change its channel you cannot protect yourself to the prejudice of the opposite proprietor.' As regards the law of England, he says there can be no doubt on the point.

12. The various cases to which we have been referred in the course of the agrument can be grouped under one of the other of these two cases. I shall very briefly' notice them. The King v. Commissioners of Sewers of Pagham in Sussex (1828) 8 B&C; 356 is followed in Nield v. London and North West Railway Co. (1875) 10 Exch. 4. The defences erected in that case were intended as a protection against the inroads of the sea, which in the language of Lord Tenterden C.J. was a common enemy. In Attorney General v. The Earl of Lonsdale 7 Equity 377 Vice Chancellor Malins says that the principle of protecting oneself against a common enemy has no application to natural streams. The case of Fletcher v. Rylands (1852) L.R. 3 H.L. 330 and the Madras Railway Co. v. Zemindar of Karvetnagar (1874) L.R. IIndAp 364 belong to the same category. On the other hand in Miner v. Gilmour (1858) 12 M.P.C. cas. 131 Lord Kingsdown laid down that a riparian owner should so use his rights as not to interfere with those of other proprietors either above or below him. This has been accepted as the correct exposition of the law on the subject in Orr Ewing v. Colquhaun (1877) 2 A.C. 839. In this case Lord Blackburn after an elaborate discussion of the question states the law to be ' the owner of the banks of a non-navigable river has an interest in having the water above him flow down to him and in having the water below him flow away from him as it has been wont to do.'

13. Whalley v. The Lancashire and Yorkshire Railway Co. (1884) 13 Q.B.D. 131 lays down that although a man may not bring the water on his land, he has no right to protect his property by transferring the mischief from his own land to that of another. These principles have never been departed from in the subsequent cases in the English Courts. In this country where facilities for the drain-age of water have not been yet provided to the same extent as in England it is necessary to see that the owners of property on the banks of streams are not allowed to gain advantages to themselves at the expense of the others: Nowhere is there greater need for the strict enforcement of the doctrine that each riparian owner should so conduct operations oh his property as not to effect injuriously those above and below him. We are governed in most cases by considerations of mamul and usage, and it would lead to disturbance to allow any one of the owners to introduce innovations which would render his neighbour's exercise of ordinary rights of property infructuous. Mr. Ramachandra Aiyar said that by erecting a dam, his client was not doing anything extraordinary; he was only engaged in agricultural operations. I think the learned Government Pleader is right in pointing out that the putting up of a dam to enable the defendants to better cultivate their fields is not an ordinary agricultural operation.

14. There are not very many Indian cases dealing with the question. Gopal Reddi v. Chinna Reddi I.L.R. (1891) M. 158 is only an illustration of the principle laid down in Nield v. London and N.W. Railway Co. (1875) L.R. 10 Ex. 4 Mr. Justice Shephard in following Rex v. Pagham Commissioners (1828) 8 Ba.&C.; 355 has not adverted to the distinction which has been maintained in the latter case in Attorney General v. Earl of Lonsdale L.R. 7 Equity. Subramania Aiyar J. in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam I.L.R. (1906) M. 539 lays down that were there is a conflict of rights between two owners, that one who wants to exercise his ordinary rights should be protected although by that exercise he may injure his neighbour. The case itself related to the erection of buildings in' an urban area. Text writers and Courts have recognised that in such areas, it would be injurious to public welfare that a person should be prohibited from building because he will thereby cause danger to his neighbour. There is the sanction of Roman Law for this position. See Farnham Vol. III page 2607 and 40, American Encyclopedia 643. Even in such a case, it is said that some provision by way of a drain would be made in order that the neighbour may not suffer by an overflow. I do not think the learned Judge intended to lay down that the principle regarding conflict of rights should be extended to agricultural areas in rural parts. If that was the intention, I must respectfully differ from such a proposition. In Sankarappa Naicker v. Rani Nachiar : (1913)25MLJ276 Sankaran Nair and Old field JJ. lmited the application of this rule to urban areas. I entirely agree with that conclusion.

15. My conclusions are that the Nallavagu is a natural stream and that the defendant is not entitled to put up the dam cornplained of as it would result in inflicting injury upon the plaintiff.

16. Having regard to the decisions in Abdul Hakim v. Ganesh Dutt I.L.R. (1885) C 323 and Imam Ali v. Poresh Mundal I.L.R. (1882) C. 468 the only declaration the plaintiff is entitled to is that the defendant should not put up a bund which will have the effect of submerging the plaintiff's lands. If he can adopt measures by which he can protect himself without causing an injury to the plaintiff's land he is entitled to do so.

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