Venkataramana Rao, J.
1. This is a batch of 43 second appeals which arise out of suits filed by the plaintiff as the proprietor of Tyajampudi estate for the recovery of compensation for the use of water taken from a channel called Kurukuru Yeti Kalwa by the defendants who are tenants in occupation of lands in the village of Ammepalli Agraharam. The said Agraharam is owned by the deities of Pattisem. The facts necessary for the disposal of these appeals lie in a narrow compass. The villages of Tyajampudi and Kurukuru, which adjoin each other, belong to the plaintiff. The village of Ammepalli adjoins the village of Kurukuru on the east. There is a tank by the name of Ava tank in Tyajampudi and from it there runs a channel which is called Kurukuru Yeti Kalwa. The water is laid down into the channel from the Ava tank by means of sluices. There are two dams erected during the course of the channel in Kurukuru, one at the point marked A and the other at the point marked B in the plan Ex. W-37. The object of erecting these dams is to divert the water for the purpose of irrigation to the lands of Kurukuru which are on a higher level. Up to the point B the control of this channel is with the plaintiff and it is in evidence that he has been effecting repairs to this channel up to that point. From the point B water is let down or excess water flows down in a course straight from the point B until it joins a stream called Barla Vagu within Ammepalli limits. Over the course of the water from the point B or at any rate within the Ammepalli limits, the plaintiff does not purport to exercise any control. The drain water from the fields of Kurukuru irrigated by the Kurukuru Yeti Kalwa also flows into Ammepalli limits. Also excess in the Kurukuru Yeti Kalwa flows into Ammepalli limits and water is also let down at the point B after the needs for the irrigation of the Kurukuru village are satisfied.
2. The water reaching Ammepalli village in the various ways mentioned above is utilized by the persons in occupation of Ammepalli lands for the purposes of irrigation by means of bodes constructed within the limits of Ammepalli. Ava tank itself is fed by three natural streams and there is always a perpetual supply from these natural streams. There is another natural stream called Barla Vagu which runs almost parallel to Kurukuru Yeti Kalwa more or less forming a boundary on the northern side of the villages of Tyajampudi and Kurukuru and then passes through the village of Ammepalli and empties itself into Yerra Kalwa. Yerra Kalwa is another stream which runs on the southern side of the villages of Tyajampudi and Kurukuru and passes through the village of Ammepalli. The stream Barla Vagu during its course receives excess supply of water from the Ava tank and also drainage from the irrigated fields of Kurukuru. The villages are BO situated that the lie of the lands in the various villages slopes towards Ammepalli so that the village of Ammepalli is on a lower level than Kurukuru or at any rate many of its lands are on a lower level than those of Kurukuru at the point where water flows down from Kurukuru village into the limits of Ammepalli village. This is the topographical feature which is prevailing and has been prevailing from time beyond living memory. There is absolutely no evidence as to the origin of the Ava tank or Kurukuru Yeti Kalwa or various bodis in Ammepalli limits.
3. It is the contention of the plaintiff that the Ava tank and Kurukuru Yeti Kalwa are artificial streams, and therefore water flowing from it into the Ammepalli limits must be deemed to be water belonging to him. The defendants having used it without his permission were bound to compensate him for such user. Even with reference to the land drained by Barla Vagu, his case is that water from Kurukuru Yeti Kalwa gets into it either by drainage from 4ha Kurukuru fields or the excess water from the Kurukuru Yeti Kalwa flowing into it and he is entitled to demand compensation for using the water because during most of the time Barla Vagu will never have water supply and the lands of the defendants must substantially be deemed to be irrigated by the use of the Kurukuru Yeti Kalwa water. The case of the defendants is that Ava tank is a natural depression, that the watercourse which runs from the Ava tank to Barla Vagu is also a natural water course and that the defendants are entitled, to appropriate the use of the water which runs into their lands by virtue of their natural right as incidental to the ownership of the soil. They also plead that this system of irrigation is prevailing from time beyond living memory, that no water rate was charged at any time and that they must be deemed to have acquired the right to use the water, free from any liability to compensate the plaintiff, either by prescription or by lost grant. A question was also incidentally raised by the plaintiff with reference to the lands which are irrigated exclusively by the use of Barla Vagu water within Ammepalli limits and also with reference to certain lands which are irrigated by Kurukuru Yeti Kalwa that the defendants in occupation of those lands are bound by certain compromise decrees in prior litigations in and by which the liability to pay water cess to the plaintiff was declared and established. The following facts are concurrently found by both the Courts:
(1) Barla Vagu is a natural water course; (2) water from Kurukuru Yeti Kalwa reaches Ammepalli village in three ways : (a) the surplus drainage water from the irrigated fields of Kurukuru; (b) the excess water flowing from the Kurukuru channel from the point B and (c) the water let down at the point B when it is not wanted for the purpose of irrigating Kurukuru fields. It was also admitted by the plaintiff and found by both the Courts that the land slopes from Tyajampudi Ava to Ammepalli side, that the suit lands form the badava or low lying lands and that water must naturally be let down and that Ammepalli ryots cannot prevent the same. It is also found that the defendants do not go into the plaintiff's land to take water and they have never at any time meddled with the course of the water of Kurukuru Yeti Kalwa within Kurukuru limits. It is admitted by the plaintiff's witnesses, that all the drainage water from Kurukuru flows into Ammepalli limits and that if its flow is blocked by the defendants Kurukuru lands will be damaged. The learned District Munsif negatived the claim of the plaintiff so far as the lands irrigated by the use of the water of Barla Vagu are concerned. He gave a decree in respect of the lands irrigated by either the drain water from the irrigated fields of Kurukuru or the channel water from Kurukuru Yeti Kalwa. The learned Subordinate Judge on appeal dismissed the plaintiff's suits holding that the plaintiff is not the owner of the water with which the lands of Ammepalli village are irrigated and that the defendants must be deemed to have acquired a right by lost grant and by prescription. Both the Courts found in regard to the suits where the question was raised as to the liability of the defendants based on a compromise in a prior litigation that the compromise was never acted on, that no tax was collected from the date of the compromise decrees from any of the tenants in pursuance thereof and that no liability could be fastened on the defendants on the strength of such decrees. It is against this decision the above appeals are filed by the plaintiff.
4. Mr. Raghava Rao on behalf of the plaintiff did not question the correctness of the decision so far as the appeals relate to lands irrigated by the use of the water of Barla Vagu. There are 26 second appeals relating thereto and all of them must be dismissed. But in regard to some of them, Mr. Raghava Rao has contended that by reason of the compromise in prior litigation the respondents will be bound to pay his clients the amount agreed to be paid thereunder. In regard to the lands irrigated by the use of Kurukuru Yeti Kalwa, Mr. Raghava Rao was fair enough to concede that so far as the lands irrigated by the drainage water or excess overflow of the water in the channel are concerned for the recovery of the water tax, the plaintiff would have no cause of action but he urged that in regard to the water let down from Kurukuru Yeti Kalwa, his client is entitled to claim compensation on the ground that the said water must be deemed to be his. His contention is that Tyajampudi Ava must be deemed to be an artificial tank and not a natural depression and that Kurukuru Yeti Kalwa must also be deemed to be an artificial watercourse and therefore the defendants cannot claim as incident to the ownership of the soil any right to the water from the said channel unless they are able to establish a grant or have acquired a right thereto by prescription.
5. It seems to me that this contention is unsustainable. Assuming Kurukuru Yeti Kalwa is not a natural watercourse, in view of the topographical features of the irrigation system now prevailing, it may be open to argument that having regard to the existence of the stream from time beyond living memory the defendants must be deemed to have acquired the same rights in regard to the water from Kurukuru Yeti Kalwa as they would have had if it were a natural watercourse. But it is unnecessary to rest any decision on this ground or express any opinion thereon. Assuming Kurukuru Yeti Kalwa to be artificial, it is clearly established by the evidence that the plaintiff does not exercise any control over the water in the Kurukuru Yeti Kalwa after it is let down at the point B. Though according to the lie of the land a person owning lands in a lower level is bound to receive water coming in its natural course from a higher level, the same cannot be said with reference to water in an artificial stream flowing on the land of the party by whom it was caused. If the stream is made to flow] upon the land of another without his consent, it is a wrong though the discharge of such water for a considerable number of years may create a right in favour of the upper owner by subjecting the land of the lower owner to the servitude of being bound' to receive the water.
6. But the upper owner cannot claim then water so discharged as his, unless it is eon-fined in a channel belonging to him because if it is so confined, the rights of persons owning land adjacent thereto would depend upon several considerations, i.e., whether they have acquired any right by contract or grant or by prescription. But if it is not so confined, the owner of the land on which such water falls is entitled to appropriate for his own use and the upper owner cannot claim to take advantage of his own wrong by discharging the water which ordinarily he could not do but for the prescriptive right he had acquired under the law. So far as the water that is let down from Kurukuru Yeti Kalwa from the point B is concerned, it is in evidence that it is unwanted water, that is water not wanted for the purpose of irrigation and for which the owners of Kurukun village have no use. The water is thus discharged for the convenience of the Kurukuru village people. It is open to an upper owner to discontinue the letting of water if he can, but it is another thing to claim compensation for the use of water which could no longer be said to be his. The right of the lower owner to the flow of water or to have the water discharged on his land is distinct from his right to appropriate it when it flows or is discharged. If the upper owner has not retained the water under his control by confining it in a channel of his own, the lower owner can take it and use it in any way he likes : vide Wood v. Waud (1849) 3 Ex. 748. The plaintiff has therefore no cause of action to claim any compensation even in respect of lands irrigated by the use of the water let down at the point B and allowed to flow into Ammepalli limits.
7. The only question remaining and which was argued with considerable emphasis by Mr. Raghava Rao is that both in respect of the lands irrigated by the use of the water of Barla Vagu and also by the use of the water of Kurukuru Yeti Kalwa there were compromise decrees to which the defendants who own those lands or their pre-decessors-in-title were parties and at any rate, in regard to those lands, his clients are entitled to a decree. As I have already said, the plaintiff's claim was disallowed by the learned District Munsif even in regard to those lands because the compromise was never acted on. The learned Subordinate Judge has not given a definite finding in regard thereto but instead of remanding the case for such a finding, I have heard counsel on both sides and they have taken me through the evidence. In regard to the claim of the plaintiff based on the compromise, the main defence of the defendants was that not only was the compromise not acted on but that contracts were entered into in ignorance of their legal rights. So far as the Water from Barla Vagu is concerned, there could certainly be no doubt that the compromise must have been entered into under a clear misapprehension of the rights of the parties. Barla Vagu is a natural stream and the fact that the drainage water or other water from Kurukuru Yeti Kalwa joins Barla Vagu in its course cannot make Barla Vagu any the less a natural watercourse.
8. The defendants as owners of land abutting the said water course are entitled to utilize the water therefrom for the purpose of irrigation as a natural right incidental to the ownership of such lands. In regard to both classes of lands, the defendants also pleaded that they were induced to enter into the contract by reason of a representation made to them that water for the second crop would be allowed free but it must be said that this plea was not specifically raised in the written statement. Most of the defendants have gone into the witness-box and they have consistently stated that no demand was ever made in pursuance of the compromise decree of any water-tax in respect of the suit lands. It is not possible to understand why no such demand was made both parties apparently thought that the rights could not be successfully enforced. But for a period of eight years from 1923 to 1931 neither the plaintiff nor his predecessors-in-title collected nor the defendants paid water-tax. Having regard to the facts and circumstances of this case, it is open to the Court to draw an inference that the rights thereunder were abandoned and the contract was treated as at an end. I think the view taken by the learned District Munsif that the compromise was not acted on appears to be correct. In the result, all the second appeals fail and are dismissed with costs. I fix a consolidated vakils' fee of Rs. 500 to be shared by all the respondents in all the appeals. Leave to appeal refused.