1. This appeal arises out of a suit for injunction. Plaintiff's case briefly stated is as follows: Plaintiff is the proprietor of touzi No. 566 of the 24-Parganas Collectorate. Mouza Khariberia appertains to this touzi. Through this mouza runs a natural navigable water course called Sunti Nadi or Haroa Khal (hereinafter referred to as the khal) north to south. Plaintiff has been in uninterrupted possession of the said khal by leasing out the jalkar and fishery right to various persons. In 1909-10, the defendant company acquired a portion of this khal comprised within C.S. Plot 1663 by a proceeding under the Land Acquisition Act for the purpose of constructing a bridge over that portion. To the south of the bridge plaintiff has a market comprised within C.S. Plot 1662. Country boats laden with merchandise used to ply from the northern and southern directions of the khal to this market. This yielded an income to the plaintiff in the shape of tolls and tolas paid by the boatmen. Some burrow pits were made by the defendant company by excavation of earth for construction of the embankment for laying out the railway line to the west of the embankment of the khal and the north of the embankment of the railway line. These burrow pits had no connexion with the khal.
2. In March 1937, the defendant company converted the burrow pits into a channel. Thereafter, they cut the embankment of the khal and diverted the water of the khal into the channel. This act of the defendant company has caused considerable loss to the plaintiff by depriving him of tolls and tolas as by the diversion of water into the channel boats which formerly used to come to the plaintiff's market to the south of the bridge are now passing through the channel and the water in the khal on the northern portion is gradually drying up rendering impracticable the access of boats from the northern side to the plaintiff's market to the south of the bridge. On these allegations the plaintiff prays : (1) for a declaration that the plaintiff is the proprietor of the embankment of the khal which has been cut by the defendant company and of the portion of the khal to its east; (2) for a declaration that the defendant company have no right to divert the water of the khal or to cut its bank; and (3) for a mandatory injunction upon the defendant company directing them to close the bank of the khal which has been cut by them so as to prevent any flow of water of the khal into their channel, and (4) for a perpetual injunction restraining the defendant company from doing any act which will connect the khal with their excavated channel and permit the flow of water of the Sunti Khal into their channel.
3. The defence of the defendant company in substance is this : There was already existing an old channel formed of the burrow pits as a result of frequent inundation. This channel was widened and deepened for the purpose of affording transport facilities to the fish dealers and boatmen from whom the plaintiff used to realise exorbitant tolls for mooring their boats to the plaintiff's lands. The defendant company have acquired absolute title to the portion of the embankment cut by them and also to the portion of the khal to the east of this portion of the embankment by proceedings under the Land Acquisition Act. The widening and deepening of the old channel formed of the burrow-pits and the cutting of the embankment of the khal for diverting water from the khal into the channel were necessary for the use of the passenger and goods sheds of their adjoining railway station by fish dealers and boatmen. The Courts below have overruled the defence and have decreed the suit. Hence this appeal by the defendant company. Only two points were urged on behalf of the appellant company in this appeal, (1) that the appellants having acquired absolute title to the disputed bank of the khal and the disputed portion of the khal to its east by the land acquisition proceedings of 1909-10 are entitled to divert the entire volume of water coming on this portion of the khal from the north by cutting the embankment, (2) that in any view of the case the acts complained of by the plaintiff were done by the appellants in exercise of their powers under Section 7(1)(f), Railways Act, 1890, and if any damage was caused by the acts the remedy of the plaintiff was to get damages under Section 10 of the said Act.
4. As regards the first point, there is no dispute between the parties in this case that the portion of the bed of the khal under the railway bridge was acquired under the Land Acquisition Act. There was dispute however between the parties before the trial Court as to whether the disputed portion of the khal viz., the portion lying to the north of the bridge and the bank to its west were acquired under the land acquisition proceedings of 1909-10. A commissioner was appointed to ascertain by local investigation (whether the) 'exact point where the channel cut (excavated) by the defendant company (meets) Sunti Khal and the precise point where the bank of the khal has been cut (are) included within the area covered by the land acquisition proceedings.' The commissioner was directed amongst other things to prepare a map showing the location of the channel cut by the defendant company, measure the plot and relay the land acquisition map. When the commissioner went to the locality for local investigation, the pleader for the defendant company asked him not to relay the land acquisition map as directed in the writ but only to survey the locality and show the existing boundaries of the acquired land in the locality. The commissioner accordingly prepared a map and submitted a report stating that the disputed channel and the mouth of the channel where it falls into the Sunti Khal which has been widened by the defendant company fell within the boundary line of the acquired portion belonging to the Railway company relying mainly upon certain boundary pillars erected by the defendant company at the locality. It does not appear from the judgment of the Courts below that the defendant company relied on this report in support of their case. It seems to us that this report was not relied on inasmuch as the land acquisition plan was not relayed and without relaying the land acquisition plan at the locality it was not possible to determine whether the disputed portion of the embankment or of the khal was covered by the proceedings under the Land Acquisition Act 1909-10.
5. This being the state of the evidence on the record, we are not in a position to say that the appellants have succeeded in establishing their title to the portion of the embankment which they have cut as well as to the portion of the khal lying to its east. Assuming that the disputed portion of the bed of the khal vested in the appellants by the proceedings under the Land Acquisition Act, can the appellants claim the right to divert the entire volume of water from this portion of the khal into the channel excavated by them? The contention of the advocate for the appellants is that they can inasmuch as the burden upon this portion of the khal of passing the water received by it from its upper portion to its lower portion was an incumbrance within the meaning of Section 16, Land Acquisition Act, and was extinguished by the land acquisition proceedings. The word 'incumbranee' has not been defined in the Land Acquisition Act. In Shorter's Oxford English Dictionary, vol. I, p. 606, under the heading 'Encumbrance law', it is stated that the word 'incumbrance' means a claim, lien, liability attached to property; as a mortgage etc., (Wharton). The word 'incumbrance', in our opinion, means some burden created by acts or omissions of human beings. It does not mean a burden or obligation created by nature. We are, therefore, unable to accept the contention of the appellants that the burden upon the alleged [acquired portion of the khal to pass the I running water downwards was extinguished by the proceedings under the Land Acquisition Act.
6. The next contention of the advocate for the appellants is that the water coming from I the upper portion of the khal as soon as it reaches the bed of the khal of which the appellants are owners becomes their private property and accordingly they are entitled to the exclusive use thereof:
It is generally laid down in the text-books and in the earlier reported oases that the right of private property in a watercourse is derived as a corporeal right and hereditament from or is embraced in the ownership of the soil over which it naturally passes, according to the well-known maxim, cujus est solum, ejus est usque ad coelum. 'A watercourse,' says Woolrych, 'may be either a real or an incorporeal hereditament. If by grant, prescription, or otherwise, one should have an easement of this kind in the land of another person, it would partake of the latter quality; but if the water flow over the party's own land, although indeed it cannot be claimed as water, yet it is in effect identified with the realty, because it passes over the soil, and cujus est solum, ejus est usque ad coelum.' 'An action cannot,' says Blackstone, 'be brought to recover the possession of water by the name of water only, but it must be brought in respect of the land which lies at the bottom, and the description of it must be - so much land covered with water.' From this identification of the land with the water a grant of a field or meadow will carry all the timber and water standing and being thereupon. This doctrine is supported by modern authority with regard to standing and percolating water, and also, it would appear with regard to running water which raises and remains for the whole of its course on the land of a single owner, for in such cases the water is the absolute property of such owner, and no one is entitled to share the use of it with him; but with regard to natural streams flowing through adjoining lands, the enjoyment of which is only usufructuary and not absolute, the right to use the water has been held in modern cases not to arise from the ownership of the soil on the stream, but from the right of access to it which land owners on its banks have by the law of nature. (Conlson & Forbe's Law of Waters, Edn. 4, page 74.)
Water flowing in a known channel or percolating through the soil is not, except in the cases mentioned below, the subject of property or capable of being granted to anybody. For flowing water is publici juris not in the sense that it is bonum vacans, to which the first occupant can acquire an exclusive use, but in the sense that it is public and common to all who have a right of access thereto.
The exceptions to this rule are as follows:
(1) Where Parliament has declared otherwise; (2) where the water flows to a person's property and there is no one to share with him the use of the water, or to call him to account for any use he may make of it; (3) where flowing water is appropriated or taken into possession, but the right of property exists during such possession only; and (4) where water is supplied by a water company, even though in the consumer's own pipes. (Halsbury's 'Laws of England,' Hailsham edition, Vol. 33, Article 845.)
Every owner of land adjacent to water running in a defined natural channel has at common law a right to have a continuance of the accustomed flow of water, both as regards quantity and quality. This right, which is generally called a natural right arising jure nature is an incident arising by law from the ownership of each plot of land over or through which the water passes, with the result that there is a mutual benefit to and mutual burden upon each owner. Consequently, one particular owner cannot, in general, appropriate the whole of the water, for not only has his land the advantage of being washed by the stream, but the lands of others have a similar advantage which must be preserved. Since the facts of nature constitute the foundation of his right the law recognizes and follows the course of nature in every part of the stream. In the same manner as a riparian owner is bound to pay regard to the effect which the result of his user of the stream has upon the stream affecting the lands of others, so has he also a corresponding mutual benefit from a similar duty imposed upon other owners. And each riparian owner has a natural right subject to the similar rights of other riparian owners to the reasonable enjoyment of the water, and a right of action in respect of any unreasonable and therefore unauthorized use of this common benefit. (Ibid, Vol. 2, Article 620).
7. From these authorities it is clear that the water which comes over the disputed portion of the bed of the khal, the proprietary right of which is alleged to have been vested in the appellants by the proceedings under the Land Acquisition Act is not and cannot be their private property and that they have no right to the exclusive use of the said water. They have got, therefore, no right to cut the embankment and divert the water of the khal in such a way as to interfere with the natural rights of other persons including the plaintiff in the stream as it is an admitted fact in this case that the khal in question is a natural navigable stream and that it flows through the lands of many owners including the plaintiff. The first ground in support of the appeal, therefore, fails. As regards the second point the contention of the advocate for the appellant is that on the facts found by the lower appellate Court it cannot be said that the acts complained of by the plaintiff in the present case do not come under Section 7(1)(f), Railways Act. Clause (f) of Section 7(1) authorises the railway company to do acts (other than those mentioned in Clauses (a) to (e) of the said section) which are necessary for making, maintaining, altering or repairing and using the railway. The argument in support of this contention is this : The word 'railway' in Clause (f) includes stations, warehouses, etc. Excavation of the channel and diversion of the water from the disputed portion of the khal into this channel by cutting the embankment are acts necessary for using the passenger and goods sheds in the adjoining railway station. Consequently the appellants were within their powers in doing the acts complained of in the present case. The provisions of Section 7, Railways Act, are substantially the same as the provisions of the Railways Clauses Consolidation Act, 1845. Under the English Act certain specified works which are necessary for making, maintaining, altering, repairing and using the railway can be executed. In Halsbury's 'Laws of England' Hailsham Edition, vol. 27 at page 43 it is stated:
Only those works may be executed which are reasonably necessary for the authorised purposes and the fact that certain works will effect a saving of expense to the company is not sufficient to constitute such necessity; but the Court does not as a rule interfere with a company in the bona fide exercise of its discretion to execute authorised works, on the ground merely that other equally authorised works would be less inconvenient or cause less damage to individuals.
8. In this case the facts which are either admitted or found by the Courts below are these : The railway station was constructed in or about the year 1910. After the construction of the railway boatmen and fishermen used to go to the station platform by certain steps constructed over the embankment of the khal. There had been no complaint by anybody that the access to the railway station by these steps was not adequate. There was also no demand by anybody that a channel should be excavated by joining the burrow-pits and that this channel should be connected with the khal by cutting the embankment. In March 1937, the appellants widened and deepened the burrow-pits and connected them to form a channel. This was done in a hurry without going through the processes generally adopted by the railway administration. The channel was connected with a big Bhasa Jalkar lying to its west and with the khal to its east by cutting its embankment. The fishery right in the channel was let out to a contractor of the appellant company who also had obtained a fishery right in the Bhasa Jalkar with the result that loss was caused to the plaintiff and the income of the company in the shape of freight increased. The lower appellate Court on a consideration of the facts, circumstances and evidence on the side of the appellant company has come to the conclusion that the acts complained of by the plaintiff in the present case were not authorized by Section 7(1)(f), Railways Act. In view of the facts admitted and found we are not prepared to say that the conclusion of the lower appellate Court is wrong. Both the points urged in support of the appeal fail. The appeal is accordingly dismissed with costs.