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W8.Pretent: Bertram G.J. and Garvin J.
APPUHAMY et al v. SINGHO et al.
326—D. C, Chilaw, 6,582.
Riparian owners—Right to dam up stream—Damage to owner of landhigher up.
A proprietor of a land adjoining a stream or water-course is notjustified in doing anything to dam up the stream in such away as to cause an accumulation of water injurious to the landof a proprietor higher up the stream.
JN this case the plaintiffs-appellants, as owners and cultivators
of the field described as lot No. 8,847 in plan No. 184.969,alleged that the defendants-respondents wrongfully obstructed theflow of surplus water running along a water-course through theappellants’ land and caused it to be inundated, whereby the paddycrop was destroyed, and claimed a sum of Rs. 207.50 as damages,in the Court of Bequests.
The respondents pleaded that the said field was a portion of atank, and that they had no right to cultivate it or let out the surpluswater, and olaimed a sum of Bs. 1,000 alleged to have been sustainedby them by reason of the appellants allowing the water to escapefrom the appellants’ field.
On an application to the Supreme Court the case was transferredto the District Court for trial.
The following eleven issues were framed at the trial:—
Was lot No. 8,847 part of the tank in 1877 ?
Have the plaintiffs* predecessors acquired title to lot No. 8,847
by Crown grant No. 4,586 dated June 9, 1877 ?
8. Have the plaintiffs or their predecessors acquired title to thesaid lot by prescription ?
Whether the tank as shown in the plan was necessary for cultiva-
tion of defendants’ land ?
Had the plaintiffs the right to cultivate lot 3,847 in July, 1919 ?
Were the plaintiffs entitled to keep the bund open in September,
Did such opening of the bund empty the tank ?
Were the defendants entitled to conserve water in the said tank
for the cultivation of these fields by maintaining the bund forboth or either of the cultivations maha and yala ?
Was plaintiffs* cultivation destroyed as a result of the alleged
obstruction by the defendants ?
If so, are plaintiffs entitled to claim damages; and, if so, how
Did plaintiffs cut the bund in October, 1918; and, if so, what
damage have defendants sustained ?
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The District Judge delivered the following judgment: —1983.
In this esse, though s large volume of evidenoe has been reoorded,the chief question to bo decided is simple. The first and secondplaintiffs are the owners of a piece of land bearing lot No. 8,847. Itis a low-lying land lying on the north of » tank (vide plan P 5). Thedefendants are the owners of the land on the south of the tank. Thereis a bund between the tmt and the defend ante* land. The difficultyarises in the cultivation of the two lands. The defendants' land is ofalevel than the plaintiffs* land. There is • water-oonne by the
side of tile plaintiffs’ land which feeds the tank in question.
The* plaintiffs cannot cultivate the land daring the wet season, unlessthe bund iskeptopen mid thewaterallowed to flowaway.The
defendants, on the other hand, say that the plaintiffs’ land form partof the tank which was meant for the cultivation of the lands belongingto defendantandothers. Therefore, the defendants say,theyare
entitled to keep the bund closed or open acoording to the requirements.
There is not a scrap of documentary evidence in support of the defend-ants* contention. On the other hand, there is ample evidenoe toshow that that the plaintiffs* land and the tank in question were origi-nally the propertyof the Crown.Thereis also reason tothinkthat
the defendants* land also belonged to Crown, and was asweddnmixodlong after the Crown sold away the plaintiffs’ land. There can beno doubt whatever that in 1877 the plaintiffs* land did not form partof the tank. The Crown grant (P 1)in favourof DonAlexander
Weerasinghe has annexed to it a plan.
The survey appears to have been made in 1875. This ^lan dearlyshows the plaintiffs* land as distinct and separate from the tank. Itherefore holdthatthe Crown hadeveryright to sell thatland.The
defendants* land which bears lot No. B 822 appears to have beensurveyed only in October, 1892[vide P2), and title plan for this lot
was not issued till January, 1904.
Therefore, it seems to me that the tank in question was in existencelong before the defendants’ land was aaweddumized, and it cannot besaid that this tank came into existence for the purpose of cultivatingdefendants’ land.
Whatever it is, it is clear that both plaintiffs’ and defendants’ lendshave been under cultivation fora fairlylong time.Perhapsthe good
sense of the owners prevailed, and both lands were cultivated tilltrouble appears .to have arisen about ten or twelve years ago. Fromthat time there has been frequent trouble over the bund: one partytrying to keep it open and the other blocking up each for his ownpurpose. Now, from the evidence it appears to me that it is necessaryfor the defendants to get water from this tank also for their cultivation.
Realizing the difficulties of the parties, the Mudaliyar of the pattumade an arrangement sometimeago bywhich theplaintiffs*field was
cultivated for yala or the dry season, and the defendants* fields for themaha or the wet season. Of course, it is dear that the plaintiffs couldnot cultivate daring the wet season if the bund is closed, nor wouldit be possible for defendants to cultivate them if the bund is keptopen and all the water allowed to run out. The defendants cannotalso cultivate their land during the dry season, the arrangement madeby the Mudaliyar appears to me to be the only solution of the diffi-culty under the circumstances. Neither the plaintiffs nor the defend-ants can get all they ask for. The only order that I can make underthe circumstances is that the plaintiffs will have control of the bondduring the yala season and the defendants during theseason.
Of course, even this will give room for clashing of interests, hot it willbe impossible for the Court to fix any definite time for the commencingor dosing of any harvest. This will depend on the existing conditions-at the time, and it most be left to the good sense of the parties to seethat the two cultivationsdo notclash,or therevenueauthorities
should frame rules fur the control of the cultivations.
Now there is< the respective claims for damages, lhe plaintiffs saythat their crop Was damaged by the defendants obstructing the flow ofwater.. This obstruction is said to have taken place in October, 1918.According to the Mudaliyar's arrangement, it was the maha season,and the defendants were entitled to the cultivation for that season.
If the plaintiffs also cultivated they disturbed the arrangement, andif they sustained any loss they have themselves to blame. Further,there were very heavy, rains, andthe submersionofplaintiffs* fields
was partly due to that.
Now the defendants saythat thebundwas cutattheinstance of
the plaintiffs, and therebythey sustaineddamageofBs.1,000. The
defendants did not claim the damages until the. plaintiffs filed the actionin the Court of Bequests.
From the evidence it would appear that there were unusnally veryheavy rains *dnring that time, ^.and the breach was made by the forceof the water itself. I do not think that either party is entitled to anydamages.
Enter decree giving the right to the plaintiffs to have the bundclosed or. open as they may require during the yala harvest, and thedefendants to have the bund closed or open as they may require duringthe maha harvest. Costs will be divided.
Samarawichreme (with him Croon-Da Brera), for the plaintiffs,appellants.
Bawa, K.C. (with him H. V. Perera), for the defendants,respondents.
February 20, 1923. Bertram C.J.—
This is an action by certain proprietors, through whose landsa certain water-course runs, claiming damages against certainproprietors lower down the water-course for interference with the natu-ral flow of the water-course in such a manner as to cause damageto the plaintiffs. It appears . that when things take theirnatural course, the water-course in question flows through thelands of the plaintiffs and can be used for the irrigation of theselands. The water-course runs alongside a tank, and apparentlythe lands of the defendant cannot effectively be irrigated fromthe tank, unless the water-course is obstructed and the water turnedinto the tank in such a way as to raise the level of the tank. Theraising of the level of the tank results in the flooding of the plaintiffs*’fields, and it is in respect of the damage caused that the action isbrought.
The learned District Judge does not seem to have made anyattempt to determine the legal issues in the case. He has actedas a sort of arbitrator, and has given a decree based upon what
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he considers to be a reasonable and equitable arrangement betweenthe two sets of proprietors. Unfortunately this is not thefunction of the District Judge. The District Court is not a Courtof arbitration, but is a Court of law. What the District Court andwhat this Court has «to determine is the legal rights of the parities.
This is not the common case of the obstruction of a water-courseby upper proprietors to the damage of the lower proprietors. Itis a case in which the upper proprietors claim damage in respectof an extraordinary proceeding on the part of the lower proprietors,causing an accumulation of water and the flooding the lands of theupper proprietors. It appears that in the Indian Courts there wasa somewhat similar case, and the general principles of the civillaw regulating the matter cannot be better stated than they arestated in that case. The case in question in Sheik Monoour Hosseino. Kanhya Lai.1 The principles laid down are as follows: ” Theriparian proprietor may deal with the stream as freely-as with anyother portion of his land, provided only that he must not, by sodoing, sensibly disturb the natural conditions of the stream as itexists within the limits of other proprietors, whether above or below,or on the opposite Bide ” ; and it is stated that the plaintiff in thatcase might justify any interference what he thought' it necessary tocarry through, so as to remove the obstruction on the ground that“ the plaintiffs’ bund at the time of the defendants’ trespass waseither actually producing, or was on the point of producing, as anecessary result, such a disturbance of the natural conditions of thestream abreast of the defendants’ land as entitled them, eitherforcidly to abate the nuisance, or to bring a suit to compel itsremoval.” That is to say, a proprietor is not justified in doing any-thing to dam up the course of a stream in such a way as to causean accumulation of water injurious to the land of a proprietorhigher up the stream. These are the legal principles, and these arethe only principles, we are competent to determine.
There are often* matters arising between proprietors with regard toirrigation that cannot be settled by law, but ought to be determinedby some reasonable arrangement, if possible, under the IrrigationOrdinance. It is not for us to say whether the provisions of thatOrdinance could be made use of in the present instance. I wouldonly point out that under section 12 of the Irrigation Ordinance,No. 45 of 1917, the powers of proprietors of even to a verylimited area are very comprehensive for the purpose of makingrules which may decide such a question as thiB. I do not affectto determine whether the tank in this case, together with the- water-course which flows alongside of it, can be considered as an irrigationwork under that Ordinance. It is eminently, however, a matterin which the rights of the parties ought to be settled by some friendly
Suth. W. B. Vd. III. 218.
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adjustment. It appears that the lower proprietors cannot irrigatetheir fields unless the tank is raised to a particular level, andtile tank cannot be raised to-that particular level without damagingthe crops of the upper proprietors. A rotation has been suggestedunder which the plaintiffs could cultivate for the yala harvest,ftH the defendants could cultivate for the maha harvest. It seemsto be eminently a case in which some equitable settlement shouldbe made. We ourselves, however, con only determine legal rights,and, on the legal principles governing those rights, the plaintiffsare entitled to the allowance of this appeal, with costs, here andbelow.
Gabvin J.—I agree.
APPUHAMY et al. v. SINGHO et al