063-NLR-NLR-V-29-SUBAIDA-UMMA-et-al.-v.-WADOOD.pdf
( 330 1
1927*
Present: Dalton and Garvin JJ.
SUB AID A UMMA et aL v. WADOOD.
277—D. G. Colombo, 21,200.
Nuisance—Discharge of foul water—Absolute duty—Adjoining owners—
Damages.
Plaintiff was the owner of premises No. 35 and defendantthe owner of premises No. 99, which abutted on each other atthe back. There was a right of drainage for No. 99 throughNo. 36. Owing to anobstruction placed bythe tenant of No. 36,
the foul water fromdefendant’spremisesdrained intoplaintiff's
and caused a nuisance.
Held, that the defendant owed an absolute duty towardsadjoining owners in respect of foul water collected in his premisesand that he was liable in damages.
A
PPEAL from a judgment of the District Judge of Colombo.The facts are set out in the argument and the judgment.
Ti88evera8inghe (with H. E. Garvin), for plaintiff, appellants.—The facts admitted or proved in this case are that the foul waterandsewage in questionoriginatedand accumulatedin 2nd
defendant’s premises, that the 2nd defendant had a right of drainagefor them through premises No. 36, that the foul water found itswaythrough the partitionwall intoplaintiffs premisesNo. 35
and damage was caused to the plaintiff. The case therefore comeswithin the ruling of Fletcher v. Rylands,1 as the 2nd defendant isresponsible for the damage unless he can bring himself within
1 (1868) L. iJ. 3, H. L. 330.
( 331 )
the exceptions set out in that case. One of them material tothis case is “ the act of a stranger which there was no duty on thepart of the defendant to foresee and guard against.” If the ownerof the servient tenement was the offender and the £ct was his, thenhe was not a stranger and it was the duty of the defendant toforesee or guard against his acts. If he failed in his duty he wouldbe guilty of negligence.
Apart from the question of negligence the facts constitute anuisance in the eye of the law. In a case of nuisance the questionof negligence or even knowledge is immaterial. Every occupieris bound to prevent filth from his drain frojn filtering throughthe ground into the neighbour's land. (Addison on Torts, c-s. 1, Nuisance, pp. 156 and 333; 21 Hals., $. 894, p. 528.)
Every man should keep his own filth on his own ground(Tenant v. Goldwin 1). He is liable even when leaking drains werenot known to be so (Humphries v. Cousins2); where moistureescapes (Alston v. Grant2; Billard v. Totdvson*); escape of waterfrom a cellar (Snow v. Whiteheal5).
On the question of nuisance our law is the same as the English law(The Colombo Electric Tramways Co. v. The Colombo• Gas and WaterCo. Ltd.6).
H. V. Pcrera, for 2nd defendant, respondent.—Negligence on thepart of the defendant has been negatived by the Judge in the Courtbelow and the evidence justifies his finding. The damage, if any,was caused by the occupier of No. 36. If there is no negligence,there is no liability. The question of nuisance was not raised inthe Court below. The respondent, the evidence shows, had doneeverything in his power to abate the nuisance as soon as he hadknowledge of it. The occupier, not the owner, should have beensued.
Tisseverasinghe, in reply.—Therespondent hadaccepted
responsibility and it is too late to raise the question.
December 8, 1927. Dalton J.—
Plaintiff is the owner of No. 85, Old Moor street, Colombo.Defendant is the owner of No. 99, New Moor street. The backsof these premises abut on each other, being separated by a wallwhich plaintiff states is his property, No. 99 being considerablyhigher, the premises in' New Moor street draining down throughthe premises in Old Moor street. There is a right of drainage forNo. 99 through No. 36, New Moor street. That way appears tohave been blocked by the owner or tenant of No. 36, with the
• 11 Salk 21, 360..
. 2 (1877) 2 C. P. D. 239,
3 (154) 3 E, d> B. 128.
1987.
• '
SubaidaUtntrid tvWadood
1 (1885) 29 Oh. D. 115 C. A.3 (1884) 27 Ch. D. 588.
6 (1915) 18) N. L. B. 385.
( 332 )
1027.
DaIiTok J.
SubaidaUtnma v.Wadood
result that damage has been caused to No. 35 by dirty drainagewater coming from No. 09 through the partition wall into plaintiff'scompound, kitchen, and bath room. Plaintiff, as the owner ofNo. 35, therefore claimw damages from the owner of No. 99.No. 99 is occupied by a tenant, and not by the owner himself.
Upon the evidence the trial Judge finds that there has beenno negligence on the part of the defendant, who seems to havedone all he possibly could to remedy the stale of affairs causedbv the blocking of the drain on No. 36. With that finding it is,it seems to me, impossible to disagree. It is urged however that,inasmuch as a nuisance has been caused and damage thereforehas resulted to the plaintiff by the accumulation of foul drainagewater upon the premises of the defendant, there is an absoluteliability upon the defendant, whatever remedy he may have againstany other person, to see that no dirty water is discharged from hispremises on to other property. The trial Judge finds that thewater did flow on to plaintiff’s premises from defendant’s lot as aresult of some obstruction on the adjoining premises No. 36, butthat, inasmuch as the nuisance was not caused by him nor byone for whose action he was responsible, plaintiff could not succeed.He accordingly dismissed plaintiff’s action. The question ofabsolute liability does not appear to have been raised in the issuesframed, and the trial Judge does not deal with that aspect of thecase. It may be noted here that defendant has commenced anaction (exhibit D 2) against the owner of No. 36 in respect of thealleged obstruction which is said to be responsible for all the damage,claiming the sum of Bs. 300 as damages.
Upon the facts it is in my opinion impossible to contend thatthe injury caused to plaintiff did not amount to a nuisance. Theonly questionarising now for decision is this, * namely,Isthe
defendant responsible?
Mr. Tisseverasinghe, for the appellant, referred to the law aslaid down inVolXXI., Halsbury’s Laws, paragraph 894.He
argued that inasmuch as the dirty water was collected on defendant’sproperty, escaped from that property, and damaged the plaintiff,defendant was liable to the plaintiff in damages. It was immaterialwhether therewasany negligence on defendant’s partornot,
and it was equally immaterial whether or not defendant had anyknowledge ofthewater so collected and escaping. Itislaid
down, however, that defendant can excuse himself in certain cir-cumstances; one of those circumstances is, if the act complainedof is the act of a stranger which there was no duty on the part ofthe defendant to foresee or guard against.
Can it however here be said that the act complained of wasthe act of the owner or occupier of No. 36? The foul and dirtywater on No. 99 was brought there by the tenant. The owner of
( 388 )
No. 36 played no part in its presence there in the first case. It isstated however that, inasmuch as he prevented its flow throughthe drain on his premises, it collected on No. 99 and soaked throughon to No. 35. It seems to me that the plaintiff had a right toenjoy his premises free from all invasion of foul and dirty drainagewater coming through the wall from defendant’s premises aboveand adjoining him. This right, as pointed out in the case ofHumphries v. Cousins/ which was cited in the course of the argu-ment, was an incident of his possession and did not depend uponthe acts and omissions of other persons. The plaintiff’s rightstherefore have been infringed. It seems to me that it is no answerto the plaintiff’s claim for the defendant to say, ” the foul anddirty water did accumulate upon my land, but it would not haveso accumulated if some third party had not wrongfully blockedup a drain.” It is not a case of surface or sub-soil water comingnaturally from defendant’s land, but of water taken there fordomestic purposes coming from bath room, kitchen, or closet,and allowed to flow and overflow in his compound or in surfacedrains upon his premises.
This case, it seems to me, comes within the principle laid downin Fletcher v. Rylands.2 The defendant, or the person for whomhe accepts responsibility, has caused to come into existence on hispremises the foul and dirty water which has caused the nuisance,percolating and draining through into No. 35 below him. Theescape was not the consequence of vis major or the act of God.The act of the owner of No. 36 has nothing to do with the creationor with the bringing of that water upon No. 99, although it maybe that it would not have drained through into No. 35 had no obstruc-tion been made to the drainage on No. 36. Defendant may havehis remedy against the owner of No. 36, but in my opinion, onthe facts here, inasmuch as he owned an absolute duty to adjoiningowners in respect of that “unusual matter,” foul and dirty water,upon his premises, he is liable to the plaintiff as a result of his default.It has been held that the doctrine of Fletcher v. Rylands (supra) isnot inconsistent with the principle of the Boman law upon whichour Common law is based (Eastern and South African Telegraph Co.v. Cape Town Tramways 2) although it has also been held (Samed v.Segutamby 4), in the case of fire brought on to one’s land for anagricultural operation common to this country, having regardto the fact that the law in England as to the use of fire for agri-cultural operations had an independent development, the doctrineof Fletcher v. Rylands (supra) does not apply. The foundation of thatdoctrine is derived, as pointed out by Mellor J. in Wilson v. New-berry,5 from the old case of Tenant v. Goldwin* in which it was
1 2 C. P. D. 239.4 25 N. L. R. 481.
*L.R. 3 H. L. 330.8 L. R. 7 Q. B. 31.
3 {1902) A. C. 381.61 Salk 360.
1927.
Dai/ton J.
SubaidaUmma v.Wadood
( 334 )
1927.
Dalton J.
•SubaidaUmma v.Wadood
determined that it was the duty of a man “ to keep his own filthon his own ground." On the facts of this case I am of opinionthat defendant i6 liable for the damage caused, having failed tobring himself within any of the three exceptions set out above.The facts here are clearly distinguishable from those in Boa v.Jubb1 referred to in the course of the argument, for there the waterhad not been accumulated by the defendants but had come froma point considerably above the defendants' premises.
At the end of this argument, Mr. Perera, for the defendant,raised a question as to the liability of the defendant, as he statedthe defendant was not in occupation of No. 99, which was leasedto a tenant. He urged that the tenant was responsible for thenuisance, if there was any, and that no liability could be attachedto the defendant. This was not raised either in the pleadingsor in the issues framed in the lower Court. Throughout theproceedings defendant acted as if he was responsible for whateverwas done on No. 99. From the evidence it is clear that the plaintiffdealt with the defendant throughout the proceedings which led upto the action being brought, and it is equally clear that the defend-ant himself took all the steps he could to abate the nuisance whenit was brought to his notice after the damage was done. He neversuggested and has never suggested that anyone else was responsible.He admitted his responsibility, and must be taken to have adoptedthe act of his tenant. There is nothing to show the nature of thetenancy, but one may gather from the facts proved that, as betweenhimself and the tenant, lie accepted responsibility for the presenceof the water on his premises, although for other reasons he denieshis legal liability for the damage.
Although the learned trial Judge has come to the conclusionthat the defendant was not liable to the plaintiff, in the event ofthis conclusion being reversed on appeal, he has gone on to considerthe damages suffered, which he assesses in the sum of Es. 150.I see no. reason to differ from his conclusions on this point. Inthe result therefore the plaintiff is entitled to succeed. The decreedismissing bis action will therefore be set aside and judgment willbe entered in bis favour in the sum of Es. 150 and costs. Noquestion of issuing an injunction arises. He is also entitled to thecosts of this appeal.
Garvin J.—I agree.
i 4 Hx. Div. 70.
•Appeal allowed-