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Present: Wood Renton J.COWELL v. CASIE CHITTY.
3—C. R. Colombo, 11,854.
Servitude—Interfering with the natural drainage of the upper tenement—
Building a cement drain—De minimis non curat lex.
Defendant owned a land to the north of the plaintiff’s land.Just outside the northern, boundary of the defendant’s land stooda “ bathing-well ” for forty-seven years, from which the wastewater flowed into the defendant's premises and on into the plaintiff’spremises. The plaintiff raised the level of his land to preventthe flow of water into his premises. The defendant thereuponcemented his drain after raising its level.
Held, that as the building of the cement drain had not sensiblyincreased the flow of water into the plaintiff’s premises* he was notentitled to any damages.
Wood Renton J.—Where the servient owner himself acts in away which affects the exercise of the dominant owner's rights,and the dominant owner takes steps with a view to protectinghimself against that conduct on the part of the servient ownerand to secure the enjoyment of his servitude, and where nosubstantial damage has been caused from the protective steps sotaken, the legal maxim de minimis non curat lex should be heldto apply.
HE facts of this case are fully set out iti the judgment of theCommissioner of Requests (M. S. Pinto, Esq.) :—
The plaintiff is the owner of the land bearing assessment Nos. 24 and25, situated at .Pickerings road. The defendant is the owner of theland adjoining it in the north. Immediately to the north of thedefendant's land is a well, which has stood there for about forty-sevenyears.
The plaintiff complains that on August 27, 1908, the defendantbuilt a cement drain across his land to carry off the water from the wellacross his own land into the defendant's land. It has been provedbeyond doubt that this water is the waste water resulting from the useof this well for bathing purposes. This well is what is called a
bathing well. No sewage comes along the drain
The lay of the land is in the defendant’s favour. The land slopesdown from the well down the defendant’s land to the plaintiff’s land.There are the remains of a bridge at the site of the drain in question,showing that there was a water-course there. Unless there are anyobstacles, I would expect water from the well to flow down to theplaintiff’s land
I found on my visit to the spot that the level of the defendant’s landappeared to have been raised. No explanation of this ha* been given
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unless the plaintiff’s statement that she “ put some earth ’* over themess caused by the water which had come along the drain from thewell ” is to be regarded as an explanation.
I do not know what drain the plaintiff referred to; if it was thecement drain, her statement is not true; for I am satisfied that thelevel was raised before the cement drain was built (see InspectorSerasinghe’s evidence). If she meant a water-course on the site of thecement drain, then she practically admits there was a water-course onthe site of the cement drain, unless her case is that this water-course wasspecially constructed. There is no doubt that the plaintiff had the levelof her land raised to prevent the flow of water into her land
The next question, is whether the defendant was entitled to build acement drain to carry off the water which previously flowed along awater-course. The decision of this question gave me considerabledifficulty, for no law was quoted to me covering the facts of this case.This case has to be decided by the application of principles deduciblefrom the decided cases.
If the water came down the slope, along every incline of the slope,the defendant could not confine the flow of water to a defined course,for by so doing he would increase the volume of water along thatparticular course, and might increase the burden of the servient tenementless able to receive the overflow at a particular part of the boundarythan all along the boundary. I am doubtful whether, if it is provedthat the burden of the servient is not sensibly increased by such analteration of the flow, the alteration cannot be effected. Again, the
Cowell u.Caste Chitty
narrower the space over which the flow ts lies place, the less of absorptionthere is; and the narrowing of the water-course would increase the.burdenof the servient tenement by increasing the quantity of the overflow.
But here the flow was mostly along a defined water-course. Iappreciate the fact that there will be a certain amount of absorptionwhen the drain is uncemented, and that the cementing of the drain willaffect the volume of the overflow to a certain extent. But de minimisnon curat lex. The defendant had a right to send the waste waterinto the plaintiff’s land. The defendant had to cement the drain, afterraising its level, as the plaintiff had raised the level of the land
Case dismissed with costs, and defendant is declared entitled to aservitude in terms of the 2nd clause of his prayer.
Sampayo, K.C. (with him Aserappa), for appellant.
Van Langenbergy for respondent
July 15,1910. Wood Renton J,—
For the purpose of the present appeal, I must take the findingsof facts by the learned Commissioner of Requests on two points ;in the first place, that the defendant-respondent had to cement hisdrain after raising its level, as the plaintiff-appellant had himselfraised the level of his land ; in the second place, that the damagedone is practically nil. I do not think that the passage fromMaasdorp //., p, 123, which Mr. Sampayo cited-in support of theappeal here to-day, pud which I have also had to consider some time
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CotoeU v.Caste ChiUy
ago in another case, is applicable to the circumstances with whichwe have here to deal. It merely deals with the relative rights andduties of upper and lower proprietors under normal conditions. Itdoes not show, and no authority has been cited to me showing,that where the servient owner himself acts in a way which affectthe exercise of the dominant owner’s rights, where the dominar.owner takes steps with a view to protecting himself against th..conduct on the part of the servient owner and to secure tbcenjoyment of his servitude, and where no substantial damage hrsbeen caused from the protective steps so taken, the legal maxii'.de minimis non curat lex, which the learned Commissioner ha.quoted in this case, should not be held to apply. On these groundsI would dismiss the appeal with costs.
COWELL v. CASIE CHITTY