050-NLR-NLR-V-52-BANDAPPUHAMY-Appellant-and-SWAMY-PILLAI-Respondent.pdf
Present: Dias S.P.J. and Pulle J.BANDAPPUHAMY, Appellant, and SWAMY PIRRAI, RespondentS. C. 527—D. G. Colombo, 119 Z
Servitude—Right of lateral support—Breach of it—Quantum of damages claimable.Plaintiff sued the defendant for damages for cutting earth from his (defen-dant’s) premises so as to deprive of lateral support a contiguous allotment ofland belonging to the plaintiff.
Held, that the damages that could be claimed should be restricted to whatwas incurred by, and naturally flowed from, the subsidence of soil which actuallyresulted from the excavations. Plaintiff was not entitled to claim the costof putting up a retaining wall to prevent further damage.
A PPEAU from a judgment of the District Court, Colombo.
TT'. Jayewardene, for the defendant appellant.
Kingsley Herat, for the plaintiff respondent.
Gar. adv. vidt.
May 24, 1950. Pulle J.—
' The defendant in this case appeals from a judgment awarding theplaintiff a sum of Rs. 400 as damages for cutting earth on his own landso as to deprive a contiguous allotment of land belonging to theplaintiff of lateral support.
In his plaint the plaintiff alleged that the defendant in August, 1944,Out earth not only on his .own land but encroached on the plaintiff'sland by excavating and cutting into his soil, below the surface level. Atthe trial, however, the scope of the action was restricted to the issueswhether the defendant in or about August, 1944, cut earth from his own
premises so as to deprive the plaintiff of his right of lateral support, andif so, to what damages was plaintiff entitled. A survey had previouslyestablished that the surface under plaintiff’s land had not been eut into'.
On the facts the learned District Judge found substantially in favoifrof the plaintiff. It would appear that the defendant’s land is contiguousto and lies on the south-west of plaintiff’s land- They were separated bywhat is described as a barbed wire live fenee. The plaintiff’s land wasat a higher elevation and sloped gradually down to defendant’s land.During the passage of rain water the plaintiff’s land would not sufferfrom anything more than the normal wear and tear of bad weather butthe position would be entirely different if along the boundary the defend-ant cut earth to an average depth of about five. feet. Water failing1- onplaintiff’s land would gather an abnormal momentum causing substantialloss by erosion in course of time.. <_.j
It is clear from the evidence that in or about August, 1944, the defemdant had cut earth on his own land practically along half the length of thfeboundary, a distance of seventy-two feet, causing a perpendicular dropof about five feet. Along this portion of the boundary were two treeswhich formed part of the fenee. These and an arecanut tree collapsedas a result of the excavation and earth washed off in this area exposedthe roots of other fence trees… j
It is not contested that the collapse of the two fence trees and thearecanut tree and some damage to the fence were due to the subsidencecf the soil caused by the excavation. Had the plaintiff sought compen;sation for the loss of the trees and cost of consolidating the fence, hipclaim would have been unanswerable. He thought, however, that lieshould protect himself against all damage in the future and requesteda carpenter-mason to prepare an estimate for the construction of a 13-foptwall, 16 inches thick to prevent the washing away of his land. It -Wgpon the basis of this estimate that plaintiff claimed Es. 1,090 as damages.
On the authority of the case of Pedris v. Batcha,1 it was submittedto the trial Judge on behalf of the defendant that the plaintiff was notentitled to claim damages in respect of the subsidence which the plaintifffeared might occur in the future and that damages could not ug assessedon the basis of the costs of constructing a retaining wall to prevent thpsurface erosion of the land. On this point the learned Judge expressedhimself as follows:—t
“ So long as there is some injurious consequence as a result of thecutting of earth from his land by the defendant the plaintiff has acause of action against him and that the damages that may be claimedare not to be restricted to the immediate damage caused. It is obviousthat even after the falling of the two trees on the boundary theremust have been a gradual washaway of earth from plaintiff’s land and.I am unable to agree with defendant's counsel's contention 'whichwould mean that plaintiff must wait until there is some big subsidenceof earth before he can claim damages.”'•:(
It is clear from the authorities cited to the learned Judge that under £h6English Law which is applicable to Ceylon the excavations in themselves^give no right of action. A right of action only accrues when damage is
1 (1924) 26 JST. L. B. 89.
caused, by subsidence resulting from the excavations. That every newsubsidence gives rise to a fresh cause of action is set out clearly by LordHalsbury in the following passage in Darley Main Colliery Company v.Mitohall 1: —
“ Since the decision in this house in Bonomi v. Backhouse it isclear that no action would lie for the excavation. It is not, therefore,a cause of action; that case established that it is the damage and notthe excavation which is the cause of action. I cannot understand whyevery new subsidence, although proceeding from the same original. act or omission of the defendants, is not a new cause of action forwhich damages may be recovered. ”t
At the hearing of the appeal learned counsel for plaintiff-respondentaccepted the correctness of the propositions stated above but proceededto argue that upon the application of those propositions the assessment ofdamages was right. He relied on the following passage in Mayne on^Damages (11th Edition p. 140): —
1' ’“ If the owner of land by working out his own minerals deprives his
neighbour of the support to which he is entitled for his land, the latterfi. has no cause of action until some subsidence results from the working.
1 On that happening, he is entitled to claim for all damage, actual orprospective, from that subsidence, and cannot afterwards claim for any. additional damage in respect thereof suffered subsequently.”
Had the learned Judge awarded Es. 400 as damages for actual physicaldamage caused by the subsidence and the damages flowing naturally fromthat physical damage one could accept the argument adduced on behalfof the plaintiff. Unfortunately for the plaintiff that was not the basison which the damages were assessed. As I understand the judgmentof the learned District Judge he assessed as damages the cost to theplaintiff of putting up a retaining wall to prevent further wash away s.•I fail to see how the further washaways on the whole land can be regardedas prospective damage resulting from the first and only subsidence whichcaused the collapse of three trees and the washing away of some soil nearfihe fence exposing the roots of other trees along the fence. In myopinion the basis on which damages have been awarded in this case cannott>e supported.
It was, however, strenuously' argued that if the excavations in questioncaused an abnormal erosion of plaintiff’s land by the rapid passage of:rain water he ought to be in a position to claim the expenses which he.must incur to prevent such erosion. Without expressing a concludedopinion, the position might have been different had the plaintiff allegedthat his right, as the owner of a dominant tenement, to discharge rain■water on his land to the defendant’s along a natural gradient, was inter-fered with by the acts done by the defendant and that he was entitledto take all reasonable measures for the conservation of his soil. In thatcase the act of excavation would by itself have amounted to an infringe-ment of plaintiff’s right of property. He chose, however, to make hisclaim only on the basis of loss of lateral support. I think it is too latenow, in the sixth year of litigation, for the plaintiff to found a claim on an.additional cause of action which was not pleaded or tried in the lower
1 (1S86) U A.C. 127.
Court. I cannot say with confidence that it is possible to come to afinding on the new cause of action on the existing evidence. Besides,one should not overlook that the pleading of a new cause of action byway of amendment ought not to be allowed if it would result in deprivingthe defendant of a plea of prescription.
In my opinion this appeal should be allowed, with costs. It wouldnof serve any practical purpose to send the case back for assessment ofdamage, actual or prospective, as a result of the subsidence. Any damagesthat the plaintiff is likely to be awarded on a proper basis will fall farshort of the amount claimed by him and thus he might have to pay asubstantial part of the costs of a fr$sh inquiry. In the result the plain-tiff’s action should be dismissed but each party will bear his own costs.The defendant took up the position that he did not make any excava-tions in August, 1944, that his own land extended to a ditch lying onplaintiff’s land and that water falling on plaintiff’s land was drainedalong that ditch and not into his land. On all these points the learnedJudge has rightly found against the defendant.
Appeal allozved.
Dias S.P.J.—I agree.