Sri Lanka Law Reports
(1980) 2 Sri L.R.
PELIS AND ANOTHER v. ARNAASHALCOURT OF APPEAL
WIMALARATNE, J. (PRESIDENT) AND VICTOR PERERA, J.
S. (S.C.) 678/73 (F),
C. GALLE 7801,
Cause of action – Delict – Essentials for liability under the Aquilian Action -Culpa – Dolus – Doctrine of abuse of rights.
The plaintiff was a cultivator of a paddy field and the defendants were cultivators ofanother lying to the south of the plaintiff’s field. The plaintiff having prepared his fieldfor sowing, pulled down the wakkadas in order to drain the water which normallyflows through the defendants’ field to the ela in the south. The defendants blockedthe pitawana of their field and thereby prevented the flow of water from the plaintiff’sfield. This act of the defendants resulted in about 2 acres of the plaintiff’s field beinginundated with water which extent of land could not be cultivated during that seasonthereby causing loss to the plaintiff. Plaintiff claimed damages.
The defendants owed no duty towards the plaintiff to open the pitawana of theirfield to permit water from the plaintiff's field to be drained in to the ela. Theplaintiff had therefore no cause of action under the Lex Aquilia. An act (oromission) would constitute an abuse of rights, if such act is done by a personwith the sole or predominant object of harming another, but with no appreciableor legitimate interest to himself. Plaintiff’s action fails as the object of the act of thedefendants appears to have been to save their own field from disaster.
Cases referred to:
Haynes v. Harwood (1935) 1 KB at 152,
Union Governmentv. National Bank ofS. Africa Ltd. (1921) A.D. 121 at 134.
Bradford Corporation v. Pickles (1895) A.C. 587.
Mathews v. Young (1922) A.D.. 492 at 506.
Holywood Silver Fox Farm v. Emmett (1936) 2 K.B. 468.
Union Governments. Marais (1920) A.D. 240.
Kirsch v. Pinus (1927) T.P.D. 199 at 206.
Van Eck and Van Rensberg Etna Stores (1947) 2 S.A. 984 at 999.
Milwaardv. G/aser(1949) (4) S.A. 931 at 942.
Herschel v. Mrupe (1954) 3 S.A: 464 at 485.
Jayawardene v. William 21 NLR379.
David v. Abdul Cader 65 NLR 253.
APPEAL from the District Court of Galle.
N R. M. Daluwatte for defendants-appellants.
Nihal Seneviratne for plaintiff-respondent.
Cur adv vult.
Pelis and Another v. Arnaashal (Wimalaratne, J.)
16th January, 1980.
WIMALARATNE, J. (President, Court of Appeal)
The plaintiff-respondent is the cultivator of a paddy field called lot4 of Majuwana Waturawa. The defendants-appellants are thecultivators of the field to the south, called lot 2 of BogahaliyaddaKumbura. Both these fields form portions of a large tract of paddyfield (yaya) which is about 90 acres in extent. An ela which runsalong the western boundary of Majuwana Waturawa flows under aculvert across the road separating the two fields, along the westernboundary of Bogahaliyadda and enters the Digane Ela which is tothe South of Bogahaliyadda. Majuwana Waturawa is on a slightlyhigher elevation than Bogahaliyadda. It is from the Digane Ela thatthe cultivators of this yaya draw their water for cultivation.
The plaintiff’s case was that on 1.9.69 after spraying insecticide hebuilt the necessary wakkadas to store water in his field. He thenploughed and mudded the field for the purpose of sowing his fieldwith a variety of seed paddy called R4 which gave a greater yield buttook a longer time to harvest than the older variety of seed. On16.9.69 he pulled down the wakkadas to drain the water, whichnormally flows through the defendants field to the ela on the South.The defendants wrongfully and unlawfully blocked the pitawana ofBogahaliyadda kumbura and thereby prevented the water from hisfield flowing into the ela to the South. As a result of this wrongful andunlawful act of the defendants about 2 acres of Majuwana Waturawawas inundated with water and could not be cultivated during theMaha season in October 1969. He claimed from the defendants asum of Rs. 2250/- as damages.
The defendants’ position was that the cultivators of this tract of 90acres worked their fields on a mutual understanding regarding thedate of sowing. The Maha crop was sown towards the beginning ofOctober and the Yala during the middle of February. The cultivatorsobtained their supply of water at the same time. According to aGazette notification issued in 1969 by the Commissioner of AgrarianServices sowing for the Maha crop could begin only on 1.10.69 andfor this purpose the field had to be prepared earlier. By 14.9.69 the2nd defendant had built the wakkadas and collected water forBogahaliyadda by blocking its pitawana in order to prepare his fieldfor sowing on 1.10.69. Had he complied with the plaintiff’s request toopen the blockade of the pitawana of Bogahaliyadda, the drainageof water from Majuwana Waturawa on 16.9.69 would have madeBogahaliyadda unfit for sowing on 1.10.69. Therefore the failure ofthe plaintiff to cultivate an extent of 2 acres of Majuwana Waturawawas due to his own fault in commencing the sowing on 16.9.69.
Sri Lanka Law Reports
(1980) 2 Sri L.R.
The learned District Judge has taken the view that the plaintiff’scause of action is based on negligence. Having defined negligence asthe breach of a legal duty to take care which results in damage,undesired by the defendant to the plaintiff (Winfield on Torts in 2ndEdition p. 439) he says “The test of the duty is the judgment of areasonable man. In the present case the 2nd defendant admitted thaton 14.9.69 he blocked the pitawana of the field called Bogahaliyadda.Lot 4 of Majuwana Waturawa cultivated by the plaintiff lay immediatelyto the north of the defendants’ field across the road. The defendants asreasonable prudent men should have foreseen that the likely result oftheir act would be that the water would inundate the portion of the fieldprepared by the plaintiff for sowing and that he would be unable tosow the paddy by mid September”.
It was also the plaintiff’s evidence that on 14.9.69 he met thedefendants and asked them not to block the flow of water becausehe had to commence sowing his field on 15.9.69. Although thedefendants promised to let out the water storing sufficient water fortheir use, they did not keep to that undertaking, and allowed thewater to remain until long after the date for sowing by the plaintiff hadexpired. Although the defendants denied that the plaintiff saw themto make the request, the learned District Judge has accepted theplaintiff’s evidence. He draws ihe conclusion that the defendants, innot letting out the water even after they were apprised of the situationby the plaintiff shows that “the defendants were fully aware of theconsequences of their act and intended such consequences. The1st and 2nd defendants had committed a breach of the legal dutythey owed the plaintiff to take care that the water they stored in theirfield did not inundate the field cultivated by the plaintiff”
Learned Counsel for the defendants-appellants has contendedthat the plaintiff has no cause of action in delict. The essentials forliability in the Aquilian action are (1) a wrongful act (or omission) onthe part of the defendant; (2) pecuniary loss resulting thereby to theplaintiff and (3) fault on the part of the defendant. The firstrequirement means that the act complained of must involve theviolation of a right vested in the plaintiff, which means the violation ofa legally protected interest pertaining to the plaintiff. Whilst thesecond requirement speaks for itself, the third requisite means thatthe loss must be imputable to the defendant; that means that thedefendant must have either intended the loss or else that by theexercise of reasonable care he could have prevented it. In otherwords he must be guilty of dolus or culpa.
Now, culpa denotes the absence of care where there is a duty toexercise care, and thus denotes conduct which is both wrongful and
Pelis and Another v. Arnaashal (Wimalaratne, J.)
careless. Likewise dolus denotes not merely intention, but intentionaland wrongful infliction of harm. For dolus to be actionable there hasalso to be a duty to refrain from doing the act which caused theharm. It is therefore clear that whether liability is based on culpa ordolus, the plaintiff must establish that the act which resulted inpecuniary loss to him was the result of a wrong done by thedefendant; that it was the breach of a duty which the defendant owedto the plaintiff.
Learned Counsel for the defendants-appellants relied strongly onthe absence of a right vested in the plaintiff with a correspondingduty on the part of the defendant that the water from the plaintiff’sfield should go via the defendants field into the Ela. No right in thenature of a servitude was either pleaded, put in issue or proved atthe trial. What then, asks Counsel, was the legally protected interestof the plaintiff which the defendant has violated ? “Negligence in theair will not do; negligence in order to give a cause of action must bethe neglect of some duty owned to the person who makes the claim”per Greer, L.J. in Haynes v. Harwood.™ That is the English Law. So isthe Roman Dutch Law, for “Negligence is the neglect of duty, andwhere there is no duty towards the party affected, there can be nonegligence" per Solomon, J.A. in Union Government v. National Bankof S. Africa LtdP
Dolus, in the wide sense with which we are concerned here asbeing an element necessary to found in action under the Lex Aquiliameans wilful and conscious wrong doing. An intentional act, even if itis done with the knowledge that it will cause harm to the plaintiff willnot suffice if there is no duty to refrain from committing the act. InBradford Corporation v. Pickles (3) the defendant abstracted waterpercolating through undefined channels beneath his land, whichwould otherwise have reached the plaintiff’s adjoining reservoir. Toabstract percolating water was in itself lawful, and the fact that thedefendant might have acted with bad motive towards the plaintiff (inthat he wanted to make the plaintiff pay an inflated price for the land,which they required in connection with their reservoir) did nottherefore make his act wrongful or actionable. “If it was a lawful act,however ill the motive might be, he had a right to do it”, observedLord Halsbury, L.C. at p. 594. So too in the Roman Dutch Law. "Thereis no onus upon a defendant until the plaintiff has proved that a legalright of his has been infringed. Under the Lex Aquilia there is only anaction for damnum injuria datum -for pecuniary loss inflicted througha legal injury – and the defendant is not called upon to answer theplaintiff’s case before the plaintiff has proved the pecuniary loss andthat it directly results from what is, in the eye of the law, an injuria",per de Villiers, J. A. in Mathews v. Young.™
Sri Lanka Law Reports
(1980) 2 Sri L.R.
To found an action under the Lex Aquilia on the ground of dolusthere must be a breach of a duty to refrain from doing that which heknows will involve the violation of another’s legal right. Thus damagecaused by the disturbance of a servitude or the inducement of abreach of contract is prima facie actionable. There can be severalcategories of such infringements of rights in which the intentionalinfliction of pecuniary damage may give rise to a cause of action,although the mere failure to take care to avoid causing it would not.But on the other hand there can be many causes – when there is nosuch duty – in which a person may with impunity do that which heknows will cause another financial loss. They are not actionable. Theyare cases of damnum sine injuria. In the present case the defendantsowed no duty towards the plaintiff to open the pitawana of their fieldto permit the water from the plaintiff's field to drain into the Ela. Theplaintiff had therefore no cause of action under the Lex Aquilia.
There is a finding by the learned trial Judge that the defendantswere fully aware of the consequences of their act, and intended suchconsequences. Logically, therefore, the doctrine of the “abuse ofrights" arises for consideration. By this doctrine an act which isotherwise lawful becomes an actionable wrong if the sole ordominant motive which prompted it was a desire to injure another.
English Law still appears to be dominated by the House of Lordsdecision in Bradford Corporation v. Pickles (above) decided in 1895 inaccordance with which a person is at liberty to do with his propertywhat he likes, except for certain statutory restrictions, and someisolated decisions in 'nuisance cases’ which have given preference tothe plaintiff’s reasonable economic interest as against the defendantsunsocial use of his private property rights – see Hollywood Silver FoxFarm v. Emmetts “Keep within the law, and you may gratify yourmalice to your hearts content, seems to be the view in English Law” -C. K. Allen, Legal Duties, 96 referring to Bradford v. Pickles.
In the United States there seems to be a distinct tendency towardsrecognition of abuse of rights as a tort. In many of the U.S.jurisdictions “spite fences" are not permitted. The right to use onesproperty for the sole purpose of injuring another is not one of theimmediate and indestructible rights of ownership – Restatement,Torts Section 389. In most Continental systems although the doctrineof abuse of rights is recognised there has been little attempt to give adefinite content to the theory – see R. C. Gutteridge, “Abuse ofRights" Cambridge Law Journal V (1933) p. 22. W. Friedmann inLaw in a Changing Society (abridged edition) p. 30 takes the viewthat the practical significance of the whole doctrine is very muchsmaller that its theoretical interest. “In the practice of American,
Pelis and Another v. Arnaashal (Wimalaratne, J.)
French, German or Swiss courts, it means little more than that the veryunusual kind of landowners who creates obstacles out of spite for hisneighbour, or who prefers to leave a piece of land unused rather thangrant a right of passage, may be restrained by the courts".
There was no general rule in Roman Law against the abuse ofproprietary rights, although there are passages in the Digest fromwhich it might be inferred that a person who used his property animonocendi vicino, that is, for the purpose of injuring his neighbour, is notpermitted to shelter himself from liability behind the maxim ‘qui sue jureutiturnemini facit injuriam’-McKerren, The Law of Delict (6th Ed.) 47.
One of the passages attributed to Ulpian is Digest 188.8.131.52which is as follows:-
“Then Marcellus writes that no action can be brought againstone who by digging on his own land intercepts another's spring,not even the actio doli; and certainly he ought not to have it, ifhe did it, not with the intention of hurting his neighbour but ofusing his own land better”. (Lawson’s translation).
Although Buckland and Mcnair in Roman Law and Common Law(2nd Ed.) 96 seem to take the view that there was no rule of RomanLaw that a man might not exercise his rights merely for the detrimentof another, with no economic or betterment aim for himself, Innes,C.J. in Union Government v. Maraid6) has paid tribute to Ulpian byremarking that notwithstanding Groenewegan's statement of thedoctrine of abuse of rights not being observed in Dutch practice “thehigh authority of Ulpian cannot be lightly disregarded” at 247.
McKerren says (at p. 48) that many of the medieval commentatorson the Roman Law express the view that a man may not use hisproperty with the intention of injuring or spiting his neighbour. Theviews of the medieval jurists have been admirably summarised byDr. J. E. Scholtens, Professor of Roman Law in the University ofWitwatersran, Johannesburg, in a contribution he has made in Col.LXXV Part I (1958) page 39 of the South African Law Journal. Thelimited purpose of the article, he says, is to investigate whether thedoctrine of ‘abuse of rights’ may be accepted as part of the law ofSouth Africa. In discussing the question whether the doctrine waspart of the Roman Law as received in Western Europe the writer, afteran exhaustive survey of the writings of the Glossators and PostGlossators, suggests that they took the view that an act is unlawfulwhen it is done animo necendi with the intention to injure another’sinterests, or that a right may not be exercised ad aemulationemalterius, that is out of jealousy or rivalry or to spite another.
Sri Lanka Law Reports
(1980) 2 Sri L.R.
The consensus of opinion in the Roman Dutch Law appears tohave been in favour of the recognition of a doctrine founded onabuse of rights, in the Southern Netherlands the doctrine of abuse ofrights was recognised by Zoesius and Perezius, whilst in the NorthernNetherlands we have the authority of Voet (39.3.4) who says:-
“Then again if a person by digging on his own ground has cutoff the spring of a neighbour, not with the intention of harmingthe neighbour but of improving his own land, no suit can bebrought against him, so also can no suit be brought against himwho cuts off a rushing stream so that the water may not comedown on to his land, if perhaps harm is done to a neighbour towhom the inflow of water could have been beneficial. It isallowed to every single person to divert water and thus tohinder its onflow, provided that he has done this not with theintention of harming his neighbour, but to prevent harm tohimself”. (Gane’s translation).
The doctrine made its appearance also in the practice of the law;Scholtens gives us an illustration on opinion given by two Utrechtadvocates in the year 1621.
“The question to be decided was whether the one party hadlawfully erected a certain building on his property. The advocatesstate the law to be that everybody is entitled to do on his ownproperty what furthers his own advantage even if this might beinjurious to another, provided that he does not do so adaemulationem. They add the further preliminary statement that aperson is presumed to build to his own advantage and not inorder to spite another. The decision finally arrived at was that onthe facts of the case the defendant did not appear to haveerected the building in order to spite and injure his neighbour.”
Although Groenewegen had raised a dissenting voice in hiscomment on Digest 184.108.40.206 and stated that the above rule was notobserved in the practice of the law of his time, a decision of theWooge Raad reported by Bynkershock in the 18th century castdoubts on the correctness of the statement of Groenewegen.
The modern law also contains authority which reflects the attitudeof the majority of the Roman Dutch jurists. In Union Government v.Marias (supra) Innes, C.J. expressed his unreserved acceptance ofUlpians approach to the problem. In Kirsch v. Pincud7) Barry, A. J. A.was of opinion that, where property is used in an ordinary andreasonable manner, the animus nocendi might make a difference. InVan Eck and Van Rensberg v. Etna Stores,m Davis, A.J.A., although
Pelis and Another v. Amaashal (Wimalaratne, J.)
not committing himself, suggested that the principle that a wrongmotive cannot affect the validity of an act, may possibly admit of anexception in circumstances where an owner used his right only withthe intention of injuring another. In Milwaard v. Glased and inHerschel v. Mrupd'01 Van den Heever, J. A. thought it probable that aremedy would be granted by the Roman Dutch Law where a man didsomething which otherwise would not be illegal, out of malicetowards another.
Two decisions of our Courts have a bearing on the subject ofabuse of rights. In Jayawardene v. Williarrf"1 Bertram, J.J. took theview that a lawful act does not become unlawful because of amalicious motive. The learned Chief Justice appears to have beeninfluenced much by the House of Lords decision in Bradford v.Pickles (supra) a quarter of a century earlier. But a more cautiousview appears to have been taken 40 years later by the Privy Councilin the case of David v. Abdul Cadet'21 where Viscount Radcliffe heldthat an applicant for a statutory license is entitled to damages if therehad been a malicious misuse of the statutory power to grant thelicense. This ruling of the Privy Council is entirely consistent with therecognition in our country of a doctrine of abuse of rights. Thedoctrine, as Scholtens observes, may be considered as being inconformity with modern conceptions of equity and justice.
There is, therefore, sufficient authority for the recognition of adoctrine of abuse of rights under our law. I would formulate thedoctrine so accepted as follows:- An act (or omission) wouldconstitute an abuse of right if such act is done by a person with thesole or predominant object of harming another but with noappreciable or legitimate interest to himself.
The evidence in this case does not show that the predominantintention of the defendants in blocking the pitawana ofBogahaliyadda was to injure the plaintiff. The object appears to havebeen to save their own field from disaster. I would hold that there hasbeen no abuse of rights by the defendants.
I would allow this appeal, set aside the judgment of the learnedDistrict Judge and dismiss the plaintiff’s action with costs. Thedefendants will also be entitled to the costs of appeal.
VICTOR PERERA, J. -1 agree.Appeal allowed.
PELIS AND ANOTHER v. ARNAASHAL