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Present : Porter and Schneider JJ.STADORIS v. SILVA.
250—D. C. Oalle, 17,584.
Sill carried along drains in defendant's land into a water channel inplaintiff's field—Blocking of channel—Overflowing of silt renderingfield useless—Action for damages—Was it plaintiff's duty to keepchannel elear!
A large quantity of silt was carried along the drains in thedefendant’s land which be had cleared and planted with rubberinto a water channel in the plaintiff’s field; the channel was blockedand eventually breached, and the silt overflowed into the fieldand rendered it unfit for cultivation as a field. Plaintiff sueddefendant for damages. The District Judge held that the plaintiffshould have kept the channel dear as it was in 'his field, and thatas he had failed to do so, he was not entitled to damages.
Held, that defendant was liable in damages.
T HE plaintiff brought this action alleging that as a result of thedefendant’s clearing his lands and opening ditches on themabout one-half part of the plaintiff’s paddy field had been com-pletely covered with silt and rendered altogether useless ; theplaintiff claimed Rs. 900 as damages sustained by him at the date ofthe action, and also claimed to have the field cleared of the silt bythe defendant, and to have it restored to its original state.
The defendant-respondent filed answer stating that only tenkurunies extent of the field had got silted, and that silting has beengradual and the result of natural cause. He also alleged that thesilting was due to the negligence of the plaintiff-appellant in notclearing out the pitawana. The defendant denies liability, andprayed that plaintiff’s action be dismissed.
The learned District Judge (W. L. Muiphy, Esq.) delivered thefollowing judgment : —
The defendant in this case is sued for damages for a silted paddyfield. The defence ha6. further evidence to call, but I- atn not satisfiedthat the plaintiff has a legitimate claim, and accordingly dismiss theCase at this stage.
I have inspected the land. The high lands oh both sides, north andsouth, are owned by the defendant. Silt appears to have entered thefield from one side only, viz., that on which defendant states he did sotdig silt-traps, as there was a pitawana or drainage channel running alongplaintiff’s land which carried the ■' silt away. This pitawana waspointed out to me at the inspection. All the silt now on. the land hasclearly come down this pitawana up to a oint where the cannel isblocked, at this point the cannel has breached and the silt has spreadover the field. The channel has obviously been neglected for years, and
this neglect caused the channel to be blocked and eventually to breach,Siadoristhus spreading the present silt over plaintiff's land. The channel was
v. Silvathe plaintiff's, and he should have kept it in order.
As regards damages the claim is exorbitant. At Ha. 20 per knnrniwhich defendant’s counsel accept as^ reasonable, and which fromMr. Goonesekere’s evidence I accept as reasonable value of the land—the plaintiff might, if successful, be awarded Rs. 250 for the value of tholand and Rs. 100 for loss of crop.
This, I consider, would be a reasonable amount to award if plaintiffsucceeded.
On my finding on the second issue, I. dismiss the action, with costs.
Elliott, K.C. (with him Weeraauriya), for plaintiff, appellant.
H, J. C- Pereira, K.C. (with him M. W. H. de Silva), for defendant,respondent.
February 15, 1922. Schneider J.—
This appeal raises two questions : First, is the defendant liablein damages; and next, if he is, what is the measure of the damages?It is well established by the evidence in the case that a large quantityof silt had been carried along the drains in the defendant’s land whichhe had cleaved and planted with rubber into a water chaimel in theplaintiff’s field ; the channel was blocked and eventually breached,and the silt overflowed into the field and rendered it unfit forcultivation as a field. The plaintiff claimed Rs. 900 as damages,and also an order that the defendant should remove the silt. Hielearned District Judge held that the silting was in consequenceof the operations on the defendant’s land, but he thought that theplaintiff should have kept the channel clear as it was in his field,and that as be had failed to do so, he was not entitled to any damages.If the ,plaintiff were entitled to damages he thought he should beawarded Rs. 250, “ the value of the land,’’ and Rs. 100, the valueof the loss of the crop. He dismissed the plaintiff’s action. Theappeal is by the plaintiff.
The learned Judge’s attention does. not appear to have beendirected to the case of Samuel Appu v. Lord Elphinstone 1 which isentirely in point. Upon the facts proved the defendant is clearlyliable in damages, as held in that case upon the principle “ Sic uteretuo ut alienum non hzdas.” I would, therefore, hold accordingly.
Clearly the District Judge has assessed the damage upon a wrongprinciple. The damages should be (1) the loss of crop—that is, notthe value of the whole crop, but only of the landlord’s share of it ;if the plaintiff has had' the field cultivated upon the agreement thathe should receive a share of the produce. If the plaintiff had culti-vated the field himself, it should be the value of the crop, less thecost of cultivation.
1(1900) ltN.L. R. Sit.
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The cost of the restoration of the field to that state in which itwas prior to the tort complained of, or, in other words, the cost ofthe removal of the silt.
The learned District Judge stopped evidence which the defendantmight have called. I am not satisfied with the plaintiff's proof ofdamages. I would, therefore, set aside the decree appealed from,hold that the plaintiff is entitled to recover damages, and remit thecase for the a~ cessment of damages upon the measure indicated byme. Each party will be entitled to lead evidence upon the issue ofdamages. The plaintiff will have his costs of this appeal. Othercosts will abide the order of the District Judge.
Porter J.—I agree.
SIADORIS v. SILVA