123-NLR-NLR-V-47-SINNATHAMBY-et-al-Appellants-and-KATHIRGAMU-Respondent.pdf
364
Sinnathamby v. Kathirgamu.
1946
Present: Cannon and Jayetileke JJ.
SINNATHAMBY el al., Appellants, and KATHIRGAMU,
Respondent.
34—D. C. Point Pedro, 1,710.
Pervitvde—Right to discharge, surplus rain water along defined channel—Substitution of new channel by agreement—Validity of the agreement—Prescription.
When a right to discharge surplus rain water along a defined channelacross another’s land has been acquired by proscription and a newchannel has been substituted Tor the old one by agreement, the benefit ofpossession of the old channel would attach to the new one.
PPEAL from a judgment of the District Judge of Point Pedro.
1 (,1826) 3 Bing. .580.
JAYETIL.EKK J.—Sinnathamby v. Kafhirgamu.
355
H. V. Perera, K.C. (with him P. Navaralruirajah), for the first andsecond defendants, appellants.
N. Nadarajah, K.C. (with him H. W. Thambiah), for the plaintiff,respondent.
Cur. adv. vult.
May 24, 1946. Jayetlleke J.—-
One Muttupillai and three others instituted action No. 24,539 of theCourt of Requests of Point Pedro against the first, third, fourth, fifthand sixth defendants and another, to be declared entitled to dischargethe surplus rain water from lot 6 in plan Z along the channel markedRST by me in red. They alleged that the surplus rain water had beendischarged along the channel “ from time immemorial ” and that thefirst defendant obstructed the said channel by erecting a stone wall atU on the Southern boundary of his field (lot 2). The other defendantswere made parties to the action as they were the owners of lots 3, 4 and5. The first defendant alone contested the plaintiff’s claim. The casewas settled on October 17, 1935, on the following terms :—
“ We the above-named plaintiffs and defendants do hereby agreeto settle the case, that the new water channel which is marked on theeastern side of the wall in plan No. 1,030 of December 8,1930, preparedby Surveyor Mr. K. ValeMuruku will be cut and used by us in future ”.The parties are agreed that the settlement was that the channel RSTshould be deviated and that the plaintiff should have the right to dis-charge the surplus rain water along the channel shaded blue in the plan Z.It must be noted that a section of the channel is on the property ofKathiran Alvan, who was not a party to the action. At the same timeit must be noted that the plaintiffs alleged in their plaint that the surplusrain water used to flow through Kathiran Alvan’s field along the channelRST. In settling the case the first defendant has accepted the positionthat the plaintiffs have acquired by prescription the right to dischargetheir surplus rain water from lot 6 along the channel RST. The evidenceshows that lot 6 is higher than lots 2, 3, 4, and 5. It is well settled lawthat lower grounds must serve upper grounds by receiving the waterwhich comes naturally from them. The first defendant did not in hisanswer allege that Kathiran Alvan raised any objection to the waterrunning dowm his field to the pond on the north. The plaintiff in thisaction, who is the successor in title of Muttupillai, alleged that in the years1940 and 1941 the first defendant and his son, the second defendant,obstructed the new channel by erecting a dam along the eastern boundaryof lot 2. He claimed the right to discharge the surplus rain water fromlot 6 to the pond along the channel shaded blue in the plan Z.
The main point taken by the first and second defendants was that anew channel was not, in fact, constructed in terms of that settlement.At the trial the following issues were framed :—
Was the water channel marked BCE in the plan used as an outletby the plaintiff to lead surplus rain water from his field lot 6after the settlement in case No. 24,539 C. R., Point Pedro ;
356
JAYT5TTLEKE J.—SinncUhamby v. Kathirgamu.
Did the defendants, first and second, in or about October, 1940,
obstruct the flow of surplus rain water from lot 6 along the
portion of the channel within lot 2 shown in plan 1,030 ;
If so, what damages is the plaintiff entitled to ;
Did the defendant or his predecessor in title construct the entire
water channel BCE as depicted in plan 1,030 ;
If not, are the defendants liable in damages to the plaintiff for any
obstruction ;
Is there, in fact, a water channel leading from lot 6 to the pond
known as Kavodikirai tank shown in the plan ;
If not, can the plaintiff maintain this action ;
Did the plaintiff cut and remove a portion of the eastern dam
in lot 2 wrongfully, in November, 1940 ;
If so, what damages are the defendants first and second entitled
to from the plaintiff.
After a careful consideration of the evidence the trial Judge found againstthe first and second defendants on issues 1, 2, 4, 6, 11 and 12. On thematerials before us, we are unable to say that the findings are wrong.
Mr. Perera urged that the consent decree did not become effectiveas Kathiran Alvan, who was not bound by it, objected to a channel beingcut on his land. The evidence of Mr. Sivagnanasunderam, which hasbeen accepted by the trial Judge, shows that the channel shaded inblue in plan Z has been in existence from the year 1936. The inferenceto be drawn from that evidence is that Kathiran Alvan consented to thechannel being deviated from its old course. The following passage in thesecond defendant’s evidence shows indubitably that the old courseexisted—
“ To Court.—From 1927 till now the surplus rain water from plaintiff’s
land did not discharge itself into my land.
Q.Did the surplus rain water from plaintiff’s land empty itself
into the pond without going over your land ?
A. It flowed through my land as well as the adjoining land and
emptied itself into the pond. ”
It has been held in the case of Costa v. Liver a 1 that when a right of wayhas been acquired by prescription and a new route has been substitutedby agreement for the old route the benefit of the old possession wouldattach to the new route. This decision has the support of the judgmentof the Privy Council in Young v. Kinloch 2.
The substitution of the new channel for the old one seems to havebeen made under such circumstances that it is reasonable to infer thatthere was an intention to abandon the old channel. Moreover, thenew channel has been in use for a period of over five years.
The judgment of the trial Judge is, in our opinion, correct, and wewould, accordingly, dismiss the appeal with costs.
Cannon J.—I agree.
1 (1912) 1C N.L.R. 26 ; 2 C.A.C. 28.
Appeal dismissed.(1910) A.C. 169.