C 507 )
Present: Lascelles C.J.
MABTKAB et al. v. DE ROSAIRO.
326—C. R. Puttalam, 6,466.
Servitude—Right of owner of upper tenement to discharge water on thelower tenement—3ns fliiminia.
It is incumbent on the owner of a lower tenement to receive thewater flowing by gravitation from tbe upper tenement.- But thelower proprietor is obliged only to receive such water as flows inthe ordinary course of nature from the upper tenement. He is notbound to receive water which the upper proprietor has dischargedinto his premises by any artificial means which alters the naturaldrainage of the land.
fjlHE facts appear from the judgment.
' H. A. Jtayewardene, for the defendant, appellant.
Tambyah, for the plaintiff, respondent.
November 7., 1912. Lascelles C.J.—
This appeal is limited to so much of the decree as orders the•defendant-appellant to remove the obstruction in the drain leadingthe water which flows from the premises of the plaintiff-respondent. through those of the defendant-appellant into the drain on thepublic road.
It is contended that the evidence does not support the findingthat the plaintiff-respondent was entitled to a jus fiuminie throughthe defendant-appellant’s premises. The evidence is- no doubtcontradictory, and much of it, either on the one side or the other,must be untrue. The view of the learned Commissioner of Requestsis that the evidence of Jeremias Fernando and Ponniah Udaiyar istrustworthy. The evidence of these witnesses,' if accepted, is Ithink sufficient to establish the jus fiuminis claimed by the plaintiff-respondent.
But there is a good deal of evidence, which is supported by thepersonal observation of the Commissioner, to the effect that thelevel of the premises of the defendant-appellant is lower than thatof the premises of the plaintiff-respondent, so that, on the principleexplained in Fernando v. Fernando,1 it is incumbent on the defendant-appellant to receive the water flowing by. gravitation from theplaintiff-respondent’s premises. I do not think that it is materialthat the difference in level is small, provided that it is enough todirect the water from the upper tenement to the lower tenement.
>3 Bad. 202.
Morikar v.De Rotairo
( 608 )
A natural servitude of this nature is, of course, limited in its extent.The lower proprietor is obliged only to receive such water as flowsin the ordinary-course of nature from the upper tenement. He isnot bound to receive water which the upper proprietor has dischargedinto his premises by any artificial means which alters the naturaldrainage of the land, such as a ditch or channel (Maasdorp, vol. it.,p. 178).
In my opinion the judgment of the learned Commissioner can besupported either on the ground that the plaintiff-respondent hasacquired by prescription a jus fluminis, or on the ground that thepremises of the defendant-appellant are subject to a natural servi-tude which obliges the proprietor to receive water flowing naturallyfrom the plaintiff-respondent’s premises.
I dismiss the appeal with costs.
MARIKAR et al. v. DE ROSAIRO