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Present: The Hon. Mr. J. P. Middleton, Acting Chief Justice, .Dec.3U 1909and Mr. Justice Pereira.
NELSON et al v. THE MUNICIPAL COUNCIL,
COLOMBO, et dl.
. D. C., Colombo, 27,847.
Continuing cause of action—Blocking up of culvert—Damage-—Prescrip-tion—Municipal Councils’ Ordinance, 1887, s. 278.
Where the blocking up of a culvert results in damage to a personby depriving him of the lawful use of the culvert, a cause of actionaccrues to the aggrieved party only on the date of the occurring ofactual damage; where a certain amount of damage occurs, thereis only a cause of action for that amount; a fresh cause of action’arises in respect of each successive damage.
PPEAL from a judgment of the Acting District Judge ofColombo (J. R. Weinman, Esq.). The Municipal. Council of
Colombo blocked up a culvert situated near the plaintiffs’ premiseson June 12, 1908, and thereby caused water to collect and stagnate
1 4 B. & C. 959.a 2 East JP. C. 498.
* 27 L. J. Ex. 23.* 29 L. J. Q. B. 70, 72.
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Dei. 31,190$ in a drain passing in front of plaintiffs’ premises- The plaintiffs on,-rr—. . November 4, 1908, sued the Municipal Council, and its ChairmanNMimicip<^ (E. M. de Coucy Short, Esq.) to recover damages caused by the actCotHpety, 0f the Council. The defendants pleaded that the action was barredotopioo. ^ prescription (section’ 278, Municipal Councils’ Ordinance, 1887).
The plaintiffs contended in the District Court that the claim wtisnot prescribed, because, until some day within the three monthsimmediately preceding the institution of the action, the defendants’ .had held out hopes to the plaintiffs that the obstruction would beremoved. The learned District Judge held that the action wasprescribed, and dismissed the action.
The plaintiffs appealed.
Bawa (with him F. M. de Saram), for the appellants.—Section 278has no application. The Council has done no act under the provi-sions of the Ordinance.. We are suing the Council for omission.todo things cast upon it by law, and not for having done anythingunder the provisions of the .Ordinance. [Pereiha J.—The cause ofaction averred in the plaint is the blocking up of the culvert.]- Theplaint puts it in a positive form; but the cause of action as averredin the plaint covers the omission to remove the obstruction.
Even,if the cause of action be the act done by the defendants inblocking up the culvert, it is not barred by section 278, as it is acontinuing cause of action, Counsel cited Backhouse v. Bonomi,1Crumble v. Wallsend Local Board,2 Earl of Harrington v. Corporationof Derby,3 Fielding v. Municipal Council of Colombo.* .
Schneider (with him F. J. de Saram), for respondents.—The actcomplained of was done under section 191 of the Ordinance. Evenif the act be ultra vires and. not justifiable under the Ordinance,section 278 would apply (Cdrimjee Jafferjee v. (Colombo Municipality3).
Earl of Harrington v. Corporation of Derby3 contemplates the caseof an act done day by day. It was not alleged in the District Courtthat the cause of action was.a continuing one.
“Cur. adv. vult. ■
December 31, 1909. Pereira A.J.—
The claim in this case, against the second defendant need not beconsidered, because’ counsel for the appellants, if I understand himaright, did not desire to press his appeal against the District Judge’sorder dismissing the plaintiffs’ claim as against that defendant.
‘ The’action may be regarded as an action against the MunicipalCouncil only. The cause of action averred in the plaint, to put itbriefly, is that the defendants, on or about August 7′, 1908, stopped
.» (1858) 9 H. L. 503.3 (1905) I Ch. SOS.
* (1891) 1 Q. B. 503.’4 (1901) 2 Br. 196.
3 (1905) 8 N. L. R. 292.
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up a culvert across the road whereby large quantities of rain and $it i$o
other water ” arising and proceeding from the plaintiffs’ premises
‘were prevented and hindered from running, flowing, and passing a.J.
off in their usual course through and out of the said culvert. ”„
•,,, ,,,_. • , Ndsonv.Tht-
The only issue that appears to have been decided by the District Municipal
Judge is whether the plaintiffs’ claim is prescribed under section 278of the Municipal Councils’ Ordinance, which provides, inter alia,that no action shall be instituted against the Municipal Council foranything done or intended to be done under the provisions of theOrdinance except within three months next after the accrual of thecause of action. The cause of action pleaded in the plaint is clearlythe blocking up of the culvert, and that that was the cause of actionrelied on by the plaintiffs is clear from the issues also agreed on bythe parties. The first issue was as to when the culvert was blockedup; and the second, whether the plaintiffs’ action was prescribed.Immediately before the trial, the plaintiffs admitted that the culverthad been blocked up some time before June 29, and the defendants’counsel accepted the date ** for the purposes of issue No. 2 ”; andit is clear from the evidence led that the plaintiffs’ contention in theCourt below was that the claim was not prescribed, because, untilsome day within the three months immediately preceding theinstitution of the’action, the defendants. had held out hopes ‘to theplaintiffs that the obstruction would be removed. That could not,of course, help the plaintiffs, and judgment was entered againstthem. At the argument of the appeal, however, the plaintiffs’*counsel pressed that the real cause of action intended to be. reliedon was the accrual of damage as a consequence of the blocking upof the culvert. If that is so I can only say that the plaint concealsrather than discloses the real cause of action, and also that theissues have been framed on a different basis. Clearly, the plaintiffscannot succeed on the issues framed; but I shall examine thepresent contention with a view to considering whether the plaintiffsshould, as an indulgence, be allowed to proceed thereon on properterms.
The argument is that when an act such as the blocking up of aculvert is wrongfully committed, a separate cause of action accruesto the aggrieved party on each occasion he suffers loss or damages asa consequence of the act. Now, the blocking up of the culvert inquestion must have been done under the provisions of the Ordinance,because section 191 of the Ordinance authorizes Municipal Councilsto do such acts; but, inasmuch as by that section a “discretion isvested in Municipal Councils as to discontinuing culverts, no actionwould lie against them, unless, the work was done so negligently,carelessly, or unskilfully as’to cause damage to somebody- Thereis no pretence of any negligence, carelessness, or unskilfulness hereon the part of the defendant Council in .the mere act of discontinuingthe culvert. The section of the Ordinance, however, provides that
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X>eo. 31,1909 the discontinuance should be subject to certain conditions, namely,that it should not “ create a nuisance, ** and that if by reason thereofAJ. any person is deprived of the lawful use of the culvert, the CouncilNelaonv The should with due diligence provide some other as effectual as the oneMurricjf^ of which he i6 deprived.
Colombo In this case what the plaintiffs say is that the act complained ofwas not so done as not to create a nuisance; and the question iswhether, on each occasion the plaintiffs suffered damage by reasonof the nuisance so created, a fresh cause of action accrued to themfor the recovery of the loss sustained. . The case of Crumble v.WalUend Local Board 1 cited by Mr. Bawa. appears to be quite inpoint. ‘That case followed the decision of the House of Lords inDarley Main Colliery Co. v. Mitchell2; and applying the decision tothis case, it appears to me that, in the case of an act such as thatcomplained of here, there is no cause of action until damage hasactually occurred, and that when a certain amount of damage hasoccurred there is.only a cause of action for that amount, and thata fresh cause of action arose in respect of each successive damage.
Considering all the circumstances of this case, I think that theplaintiffs should be allowed the indulgence of correctly stating theircause of action and proceeding to trial thereon..
I would set aside pro forma the judgment dismissing the plaintiffs’claim as against the first defendant, and remit the case to the Courtbelow with liberty to the plaintiffs to amend their plaint by settingforth the particulars of damage sustained by them in the courseof the three months immediately preceding the institution of theaction, and claiming, as relief, judgment for such damage only.The case should thereafter be proceeded with to trial upon properissues.
The plaintiffs, in my opinion, should pay the defendants* costsincurred so far in. the Court below, and bear their own costs of thisappeal. The defendants* costs of this appeal and all other costsof both parties should, I. think, abide the final result of the action.I would affirm the order dismissing with costs the plaintiffs* claimas against the second defendant.
I agree to the order proposed.
%M6) 11 A.C.127.
1 (1391) 1 Q. B. 603.
NELSON et al v. THE MUNICIPAL COUNCIL, COLOMBO, et al
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