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Bengal Provincial by. Co. Ltd. Vs. Rajani Kanta De and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal564,165Ind.Cas.371
AppellantBengal Provincial by. Co. Ltd.
RespondentRajani Kanta De and ors.
Cases ReferredWyatt v. Harrison
Excerpt:
- .....supported. apart from cases coming within the principle in rylands v. fletcher (1869) 3 h l 330 an owner is entitled to use his land in any way he pleases if he does not act in a negligent manner. if there is no negligence on his part, when a lawful act of his done on his own property causes damage to his neighbour, the law would give the neighbour no relief. the act of negligence therefore being out of the way, the plaintiffs' claim can only be supported if they had the right of lateral support from the defendants' land. there is a natural right of support from his neighbour's land, but that right is only in respect of land in unburdened and natural state. an owner has got no right for the support of his building or of his land burdened with the additional weight of his building unless.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of the Bengal Provincial Railway Company Limited, defendant 1, against the judgment and decree of the Additional Subordinate Judge of Burdwan dated 29th June 1933 in a suit brought by the plaintiffs for damages and for permanent injunction restraining the defendant company from digging burrow pits or deepening them. The plaintiffs have got a decree for damages amounting to Rs. 10 and their prayer for injunction has also been granted; hence this appeal by the company. The facts are these: the defendant company have burrow pits on their own land. The pit in question has been in existence from a very long time. The plaintiffs had their but near the burrow pit on their land, but in the year 1927 or 1928 they replaced their but by a masonry building. The building was raised close to the pit. In February 1930, the men of the defendant company deepened the pit, but at the time of the digging operations, admittedly no damage was caused to the plaintiffs' building. It is only after the rains had set in, in July 1930, that cracks appeared on the building. They claimed damages from the railway company on account of damage done to the building; and as they apprehend that further excavations would cause further damage to the building they have asked for permanent injunction restraining the defendant company from deepening the burrow pit or digging further burrow pits near about the plaintiffs' land in such a way as would endanger the stability of their building.

2. In the plaint the ground on which the claim was based was negligence, but there is no finding by either of the Courts below that the digging was in a negligent manner. The fact that there was no negligence is also supported by the fact that no cracks appeared on the building shortly or immediately after the excavation. They appeared after the rains had set in and the soil being of a sandy nature had been washed away to some extent. The case of negligence being out of the way, I do not see how the decrees made by the Courts below can be supported. Apart from cases coming within the principle in Rylands v. Fletcher (1869) 3 H L 330 an owner is entitled to use his land in any way he pleases if he does not act in a negligent manner. If there is no negligence on his part, when a lawful act of his done on his own property causes damage to his neighbour, the law would give the neighbour no relief. The act of negligence therefore being out of the way, the plaintiffs' claim can only be supported if they had the right of lateral support from the defendants' land. There is a natural right of support from his neighbour's land, but that right is only in respect of land in unburdened and natural state. An owner has got no right for the support of his building or of his land burdened with the additional weight of his building unless such a right has been acquired as an easement. If there is no easement, to have lateral support of his building, on his neighbour's land, the neighbour is within his rights to make excavations on his own land, and provided that he does not act negligently, he is not liable at all for damages caused to the building of his neighbour. This proposition is well settled on the authorities. In same as Wyatt v. Harrison (1832) 3 B & Ad 871, Lord Tenterden, C.J. states the law in these terms:

The question reduces itself to this whether, if a person builds to the utmost extremity of his own land, and the owner of the adjoining land digs the ground there, so as to remove some part of the soil which formed the support of the building so erected, an action lies for the injury thereby occasioned. Whatever the law might be, if the damage complained of, were in respect of an ancient messuage possessed by the plaintiff at the extremity of his own land, which circumstance of antiquity might imply the consent of the adjoining proprietor, at a former time, to the erection of a building in that situation, it is enough to say in this case that the building is not alleged to be ancient, but may, as far as appears from the declaration have been recently erected: and if so, then, according to the authorities, the plaintiff is not entitled to recover. It may be true that if my land adjoins that of another, and I have not by building increased the weight upon my soil, and my neighbour digs in his land so as to occasion mine to fall in, he may be liable to an action. But if I have laid an additional weight upon my land, it does not follow that he is to be deprived of the right of digging his own ground because mine will then become incapable of supporting the artificial weight which I have laid upon it. And this is consistent with 2 Rall. Ab. Trespass (1), pl. 1. The judgment will therefore be for the defendant.

3. In Clerk and Lindsell on Torts, Edn. 8, p. 349, it is said as follows:

Again, the right of support, apart from any easement to have a greater degree thereof, is limited to support afforded to land in its natural state, that is to say, to land on the one hand unburdened with the weight of buildings, reservoirs of water or other artificial erections which would tend to increase the natural downward or lateral thrust. But if, in an action against the adjoining owner for removing the support afforded to the soil under the plaintiff's house and thereby causing the plaintiff's house to fall, it be proved that the land on which the house stood would have subsided appreciably even if it had been unburdened with the weight of the house, the plaintiff is entitled to recover in respect of the damage to the house, although it may be modern and no right of support for it has been acquired. An owner of a modern house which de facto enjoys the support of the adjoining soil, though not entitled as against the adjoining owner not to have that support withdrawn, is so entitled as against a wrongdoer.

4. The plaintiffs' case is that the building is quite a recent one erected in 1927 or 1928. On the principles mentioned above, I am clearly of opinion that the plaintiffs have no right to claim support from the defendants' land, of his land burdened by their building, and inasmuch as there is no evidence to show that their land would have subsided if in a natural state and unburdened with their building by reasons of the excavations made by the defendant, I do not see on what principle the plaintiffs are entitled to get damages from the defendant company for a lawful act done on their own land, an act which as owner they are entitled under the law to do. If the defendant company had been guilty of negligence in doing the particular act, the plaintiffs' case would have stood on a different footing. I hold, accordingly, that the Courts below have gone wrong in passing a decree in favour of the plaintiffs. On the principles noticed above, the plaintiffs' suit ought to be dismissed. The result is that this appeal is allowed, the decrees of the lower Courts are set aside, and the plaintiffs' suit dismissed with costs throughout. The cross-objection of the plaintiffs is dismissed but without costs.


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