101-NLR-NLR-V-19-THE-BAPTIST-MISSIONARY-SOCIETY–v.-WIJEKOON.pdf
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Present: De Sampayo J. *
THE BAPTIST MISSIONARY SOCIETY v. WIJEKOON.3—C. B. Matale, 11,075.
Servitude—Jus cloacse—Sewage flowing into neighbour's premises.
The defendant had water service laid to his house and property,built and partly extended his old drains, with the result that agreater volume of water and filth was brought ' down the drains,and1 a larger quantity of it escaped into plaintiff's premises.
Held, that the defendant could not increase the volume of snobmatter or discharge it in a ooncentrated form to the prejudice ofthe plaintiff.
I
N this case the plaintiff complained that the defendant, who isa' neighbouring and upper proprietor, had by means of arti-
ficial drains ooncentrated the rain water that fell on to his premisesand diverted it on to the plaintiff's premises; and, further, that bymeans of the said drains he wrongfully discharged sewage on tothe plaintiff's compound. The learned Commissioner (W. J. Ii.Rogerson, Esq.) held as follows :—
“How,the real trouble inthis cuestarted when a water
service was laid on in defendant's premises; until then bathing wasapparentlyunpopular,andsuchwater as was usedbydefendant’s
tenants forbathingwasnot sufficientin volumeto find its way into .
the servient tenement. When there was heavy rain, dean rain water,of course, flowed into the tenement, and plaintiff could not object.Kit once the water service was laid on, every one, including Mr. Benja*min, made use of the bathroom,thetapwasundoubtedlyleft running,
washing operations, of all kinds took place, and volumes of dirtywater entered plaintiff’s premises.Itisquiteclearthathe objected
to thisimmediately(vide Mr.Pearce’sletter andMr.Benjamin's
evidence).
It wasthe extensionof drain Yto thefence that first caused trouble,
as previousto thisthesmall quantityof waternsed was absorbed in
defendant’s compound and did not reach plaintiff, certainly not in■ sufficient quantity to be noticeable.
1 Defendant quotes to me a casein14N. L. B.340,arguing that
i it was only the extension of Ytothefencethatcaused plaintiff to
icomplain; that, thisis asmall alteration, and deminimis not ourat ten
should apply- .A perusal of the judgment in that case shows that itdoes notapply. Thatwasa ease wherethe servientowneracted in
Such a way as to affect the dominant owner’s right, and the dominantowner took counter steps to secure the enjoyment of his servitude.
In this case, on the contrary, it was the extension of Y to the fence that
1917..
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1917.
The BaptistMissionarySociety v.Wijektmn
first caused the defendant's filthy water to reach plaintiff's land al all,and then it only came in moderately small quantity, sufficient, however -to cause anuisance. After thewater service was laidon, the flowwas
much greater, and the nuisance became acute. It was then that plaintifftook stepswhich culminatedin this action beingbrought. 1have
no doubt whateveras totheaccuracyof these statements,forthey
clearly represent whal must actually have occurred.
I find th?’; that,even ifdefendant hadacquired aprescriptiveright to
carry his -.irty water on toplaintiff’s premises, howould havebeen
bound to carry it throughthosepremisesby a locus cavus. 1findthat
he has acquired nosuch right,that theonly righthe possesses is. the
jus flumirtis, t.e., the right to discharge clean water on to plaintiff’spremises. 1 answer issue No. 2 in the negative.
No. 8 in the affirmative, subject to the proviso relating to the locuscavus.Plain tillhas waived damages. I declare plaintiff free from
the burdenof receiving filthywater from defendant’spremises,- and I
order defendant to pay to plaintiff the costs of this action.
Wadsworth, for defendant, appellant.
J. IP. de. Silva, for plaintiff, respondent.
Cur. adv. vult.
March 2, 1917. De Sampayo J.—
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This acsio • is brought by the Baptist Missionary Society Cor-poration for the purpose of abating a nuisance. The defendantthe owne or two houses situated in Trincomalee street, Matale/and known os the Matale Hotel and Guard's Quarters. At the'back of these houses are premises belonging to the Baptist MissionarySociety, and occupied by the Pastor of the Baptist Chapel. It maybe taken as established that the washings and sewage from thedefendant's bouse used to flow down the back compound along somepartly built drains. Most of the stuff got absorbed within- thecompound, but some of it no doubt found its way into the Missionpremises. But the nuisance which is complained of has beencaused recently. The defendant appears to have had a waterservice laid on, and to have properly built and partly extended theold drains, the consequence of which was that a greater volume of]water and filth was brought down the drains, and a larger quantityof it escaped into the Mission premises. The defendant set uj>'what is known as jus cloaccs by prescription, and depended on the.. decision in Samahin v. Saravanamuttu.1 It is not necessary toconsider in this case whether in the exercise of such a right * theowner of the dominant tenement ought not at his own expense makeartificial passages in the servient tenement in order that sewagemay flow in the least objectionable manner. For it is quite dearthat he, at all events, cannot increase the volume of such matter or
I 3 Bal. 104.
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discharge it in a concentrated form to the prejudice of the owner 1917.of the servient tenement. This is what has happened in the present de Sampayotfase, and the action is therefore well founded. I postponed the J-delivery of this judgment in the hope that some settlement would The Baptistbe arrived at between the parties, but there having been no such^fettlement, I have no alternative but to dismiss the appeal, with Wijektxmcosts.
Appeal dismissed.