Case: Patneedi Rudrayya Vs. Velugubantla Venkayya &amp; Others

common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court has relied deal with the rights of riparian owners and are thus not strictly appropriate.13. The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usual occurrence. Where a right is based upon the illustration (i) to S. 7 of the Indian Easements Act, 1882 (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and Forbes on Waters and Land Drainage, 6th Ed., p. 191 and a passage from the judgment in Nield v. London and North Western Railway, (1874) 10 Ex 4 in support of its conclusions. In the passage in Coulson and Forbes it is stated that the owner of land must not take active steps to turn the floods water on to his neighbours property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiffs land down to the defendants land and so the passage does not support the conclusion of the High Court. The decision in Nields case, (1874) 10 Ex 4 is further based on the "common enemy" doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court. For instance :"Where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to anyone who is injured by his act, no matter where the water which does the mischief came into the water course."Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create an impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically.14. In England the early extension of the common drains all over the country under the supervision of the Commissioners of Sewers has rendered a discussion on the rights of flow of surface water needless and, therefore, there are no modern decisions upon the question. But old precedents show that the common law rule appears to be the same as that under civil law. In a case arising in Guernsey, Gibbons v. Lenfestey, AIR 1915 P. C. 165 the Privy Council has applied the rule of civil law to that island. That this is adopted by the common law would appear from the decision in Nelson v. Walker, (1910) 10 C L R 560.15. The rule of civil law according to Domat is quoted thus at p. 2586 of Waters and Water Rights, Vol. III, by Farnham"If waters have their course regulated from one ground to another, whether it be the nature of the place, or by some regulation, or by a title, or by an ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds........."The learned author, after a discussion of old English cases on the point, has stated that the common law regarded the flow of rain water along natural courses as one of its doctrines and that there is no general right thereunder to fight surface water as a common enemy. The author has then observed :"All rightful acts with regard to it are confined within very narrow limits which have not yet been fully defined. And to state generally that such water is a common enemy, or that there is a right to fight it at common law, cannot be otherwise than misleading." (P. 2590).After discussing a number of precedents from the American State Courts he has pointed out that the common enemy doctrine is of very recent origin; he has observed at p. 2591"That surface water is not a common enemy, and that there is no right to fight it according to the pleasure of the landowner, clearly appear from the principles which have already been stated."16. We must, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Nields case, (1874) 10 EX 4 the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course. Menzies v. Breadalbane, (1828) 3 Bli. (N.S.) 414. We may repeat that the finding here is that the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type.In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. We may mention here that the High Court had actually called for certain additional findings from the appellate Court and one of the questions raised was whether there was an immemorial user as contended by the plaintiff to let out Vakada drainage water beyond certain points. In coming to the conclusion that the plaintiff has not been able to establish immemorial user in respect of the right claimed by him of draining of flood waters from his field on to the defendants the High Court has ignored the clear finding of the lower appellate court on this point. We find that there is no justification for the course adopted by the High Court.It would thus be clear that even in the revised finding the appellate court has not been able to fix the precise year of commencement of the phenomenon. It would therefore, follow that upon the evidence available in this case the proper inference to be drawn would be that this phenomenon has been known from time immemorial. A phenomenon is said to be happening from time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity.No doubt the lower appellate court has referred to the years 1920 and 1924 in its finding but it has not said that the phenomenon was observed for the first time in 1924 or even in 1920. It has made it quite clear that the phenomenon was known to be happening in these years and that it must have been happening for many years prior to that.11. The basis of the plaintiffs claim is not the natural right of the owner of higher land to drain off water falling on his land on to lower lands but the basis is that this right was being exercised with respect to the land of the defendants 1 and 2 from time immemorial. The finding of fact of the lower appellate court being in his favour on this point his suit must succeed.12. The High Court, following certain English decisions, came to the conclusion that water being the common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court has relied deal with the rights of riparian owners and are thus not strictly appropriate.13. The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usualmust, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Nields case, (1874) 10 EX 4 the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course. Menziesv. Breadalbane, (1828) 3 Bli. (N.S.)414. We may repeat that the finding here is that the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type.In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him.