SOYSA v. WIJESEKERA

082-NLR-NLR-V-12-SOYSA-v.-WIJESEKERA.pdf


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1909.Mar oh 9.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.
SOYSA v. WIJESEKERA.C. R., Colombo, 8,240.
Newspaper subscription — Prescription — Ordinance No. 22 of 1871,ss. 8 and 9.
A claim for the price of newspapers supplied to a person on averbal agreement falls under section 9 of Ordinance No. 22 of 1871,and is prescribed in one year.
A
PPEAL by the plaintiff from a judgment dismissing his actionon the ground that it was barred by prescription.
Van Langenberg, for the plaintiff, appellant.
A. St. V. Jayetoardene, for the defendant, respondent.
Cur. adv. vult.
March 9, 1909. Hutchinson C.J.—
The plaint is dated February 22,1908, and says that the plaintiff’spredecessor in title at the request of the defendant agreed to supplythe defendant regularly with a copy of a newspaper on the defendantpaying the subscription for it, and that in accordance with theagreement he regularly supplied the defendant with a copy fromJuly 1, 1904, to March 6, 1906, for which the defendant is liable topay Rs. 42 75. It does not say that the agreement was in writing.
. The defendant in his answer denied the agreement, and also saidthat the claim was prescribed. He admitted the receipt of thepaper. The Commissioner found that the defendant had requestedthat the paper should be supplied to him and impliedly promisedto pay for it, but held that the claim was prescribed. By section 8.of the Prescriptive Ordinance, No. 22 of 1871, a claim “ for moneydue on any written contract ” is barred after three years ; and bysection 9 a claim “ for or in respect of any goods sold or delivered ”is barred after one year. Reference was made to 2N.L. R. 218 and1 Browne'8 Reports 151. In my opinion the papers delivered weregoods. The case differs in no way from a claim for the price ofboots made and delivered by the maker to the buyer on his verbalorder; it falls within section 9, and the ruling of the Commissionerwas right..
The appeal is dismissed with costs.
Appeal dismissed.
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Present: Mr. Justice Wood Renton and Mr. Justice Grenier.1909.
'November 25.
SAMUEL APPU et al. v. LORD ELPHINSTONE el al.
D. C., Kalutara, 3,799.
Natural servitude—Action by lower proprietor against upper proprietorfor damage caused by interfering with the natural drainage of the.upper land—Negligence.
An upper proprietor who alters the natural drainage of his land audconcentrates the water into specific channels and then dischargesit on to his neighbour’s land in a more forcible and destructive 'manner than it would otherwise have got there naturally is liablein damages, though he may have made the alteration for thepurpose of cultivating his land, and though he may not be guiltyof negligence.
A
PPEAL from a judgment of the District Judge of Kalutara(P, E. Pieris, Esq.).
The appellants, the proprietor and superintendent of Geekiyana-kanda estate, cleared their land for the purposes of cultivation, andaltered the natural drainage of their land by cutting drains acrossit, emptying into an ela and natural ravines coming right up tothe boundary of the lower lands belonging to the respondents,and thus caused a large quantity of silt created by the clearanceto be washed down and deposited over respondents’ fields. Therespondents brought this action for damages caused by the depositof silt, and obtained judgment against the appellants for Rs. 2,400.
Sampayo, K.C. (with him F. J. de Saram, jr.), for the appellants.—
. The appellants are not guilty of negligence. They have clearedtheir land for purposes of cultivation.’ The case of Rylands v.
Fletcher has no application. Here, there is no dangerous substancewhich the appellants have stored up on their land. Pulverizedearth cannot be said to be a dangerous substance, nor was itbrought on to the land from outside.
The upper proprietors have a right to cultivate their lands inthe ordinary course. It was impossible to prevent the silt beingwashed down to the respondents’ fields. The District Judge himselfholds that silt traps would be valueless. There was no obligationon the part of the appellants to reserve a belt of forest 4 chainsin breadth all along, nor is there proof that such a belt of forest-would have prevented the silt from being washed down.
The District Judge is wrong in thinking that the feeder drainsintensified the volume of water flowing down.
Counsel cited 1 Nathan’s Common Law of South Africa, jpp.
484-486 ; 3 Nathan, pp. 1528,1530, and 1531; Rylands v. Fletcher,
{1888) L. R. 3 H. L. 330.
MVOL. XII.11
1909.
November 25.
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H. A. Jayewardene (with him D. Obeyeselcere), for the respondents,relied on C. B., Matale, 8,247 ; 8. C. Minutes, September 2, 1909 ;Addison on 'Torts, p. 388 ; Hurdman v. The-North Eastern RailwayCoy., 3 C. P. Div. 168.
Sampayo; K.C., in reply.
Cur. adv. vult.
November 25, 1909. Wood Renton J.—
The respondents are the owners of two paddy fields, Paraowitaand Delgahakumbura, situated at Mahalla, in the District ofKalutara. The first defendant-appellant, Lord Elpbinstone, is theproprietor, the second defendant-appellant, Mr. Golledge, is thesuperintendent, of Geekiyanakanda estate, a property of about3,200 acres, adjoining Paraowita on the north and east, andseparated from Delgahakumbura by an ela leading from the estateinto and across the respondents’ fields. The estate is on a higherlevel than the fields. . In the year 1905 certain lots of Geekiyana-kanda estate, adjoining these fields, were cleared by Mr. Golledgefor rubber cultivation. For the purpose of carrying out this clear-ance, feeder drains were cut into the ela and into certain naturalravines coming right up to the boundary of- one of the fields inquestion. It is not suggested that any part of this work was doneotherwise than skilfully. But its* practical results, according tothe evidence, were to concentrate the rain water into the ela andthe ravines, by the defined channels of the feeder drains, to intensifythe volume of water passing down from the slopes of Geekiyanakandato the lower lands, including the respondents’ fields, to carry downalong with it great quantities of the silt created by the clearance,and to pour into the respondents’ fields a deposit of silt, some 3 feetdeep, which it would admittedly cost about Rs. 2,000 to remove,in order to render them once more fit for cultivation.
Under these circumstances, the question arises whether the appel-lants are liable to make good that damage. Both the pleadings andthe issues on which the case went to trial turned on the presenceor the absence of negligence on the part of the appellants, in thissense, that, while it was not alleged that the actual work of drainagehad been unskilfully done, it was contended by the respondents onthe one hand, and denied by the appellants on the other, that thedamage could have been prevented by the adoption of reasonableprecautions. On the day of trial the respondents’ counsel suggestedthe following amendment to one of the issues : “ Even if there wasno negligence, are the defendants liable ? ” The learned DistrictJudge, however, held that there was no necessity for the amendment.In my opinion, for reasons that I will give later, it ought to havebeen accepted.
The only precautions by which the respondents themselvessuggested that the damage could have been -averted were thepreparation of silt traps and the cutting of a boundary drain to
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_V
catch the whole flow of water. The District Judge held', and I 1909.think rightly held, on the evidence of Mr. Gdlledge and of Mir. Noven&er 25.Graham Clarke, that these suggested precautions were impracticable.v^ood
He himself, however, put to the witnesses for the appellants the Renton j.suggestion that the mischief could have been prevented if they hadreserved an extent of 4 chains, i.e., 88 yards, pf jungle, for thepurpose of arresting the wash- Mr. Golledge met this suggestionby replying that the land was so steep that he did not think anytrees serviceable for the purpose of making such a reservation .would grow there. Mr. Graham Clarke, however, went further.
He was examined, cross-examined, and re-examined on the point.
In his examination-in-chief he stated that where there was a biggorge, as in this case, it was impossible to prevent silting, andthat even if there were a reservation, the silt would overflow insome years. In cross-examination he said that in some estatesthere were reservations made by the Crown, but that he was notaware of any made by private owners : that he himself never leftreservations, .as they became a nuisance. In re-examination hesaid : “ I swear that in my opinion no steps could have been takento prevent the silt.” Finally, he was. questioned by the Court,^and made use of the following language, which I quote in terms,because of the importance assigned to it by the District.-Judge:
“ A reservation of about 4’ chains would Ins effective for some years-;the ela could not have been cleared, as it began to be silted; thequantity is too great.”‘
On the evidence the District Judge held (1) that the appellant^)by their process of clearing had altered the nature of the spil. andaccumulated, on the surface of the,land cleared, “ a most dangero.UBsubstance,” namely, pulverized earth, which it was their duty toprevent from so escaping as to injure the property of their heigh- "'hours, if any remedy was possible; (2). that while silt tr^ps and •
* boundary drains were valueless’^ the damage; could have beenavoided:by a reservation of 4 chains, at’least for a period of someyears, during which the new plantation effected would onoe morehave given firmness to the soil. “ If, humanly speaking,” said theDistrict Judge, “ no remedies are possible, it would appear thaithe law cannot help the plaintiffs, and that they must in themost approved Oriental fashion resign themselves to their karma.".
The method of making a reservation was, however, so simple and"so inexpensive, and would apparently have been so efficacious, thatthe appellants have been guilty of “ gross negligence ” in failing .toadopt it. On these findings the District Judge awarded to therespondents Rs^2,400 damages and costs of suit. 1 do not,thinkmat the, aCcumulation of the pulverized earth on the appellants’land ;vbrihgs ^tlie^aae within the principle of Rylands v. Fletcher j1 •which,' by the way, has been held by the Privy Council, (Eastern and.1 (1868) L. R. 3 H.^330.
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1909. South African Tdegraph Co. v. Cape Town Tramways Co.1) to beNovember 26. not inconsistent with Roman Law, or with legal systems foundedVood 01* that law. The making of a reservoir for the purpose of keepingBenton J. and storing water in one piece of land to be used about a mill uponanother is not a natural user of the former land. The clearing ofland for purposes of cultivation is a natural use of the land socleared. The appellants, therefore, in such a case as this, do notbecome insurers in any event, of the safety of their neighbours,particularly of lower proprietors, who by a servitude, loci natura,are bound to receive the ordinary waterflow from the higher landsby virtue of that servitude. Moreover, the earth in question herewas not brought on to the appellants’ land by their clearing oper-ations. It was there already, and all that the appellants did was .to loosen it for ordinary and proper purposes of cultivation. Thisvery point was raised in the case of Wilson v. Waddell.2 In thecourse of proper mineral-workings by the defender, the soil abovethe coal, which was stiff and impervious to water, so that, whilstit was undisturbed, the greater part of the rainfall, flowed awayover the surface, was cracked into open fissures, through which therainfall flowed freely down into the defender’s workings, towardsthe pursuer’s holding, out of which it had to be pumped at additionalexpense. The House of Lords held that the case was one of damnumabsque injuria, giving rise to no claim for damages.
I should not be prepared on the evidence as it stands to upholdthe findings of the District Judge that a reservation of 4 chainswould have been effectual to prevent the damage complained of inthis action, and that the appellants were guilty of gross negligencein failing to make one. As I have already pointed out, it was theCourt itself, and not the parties, who brought forward this sugges-tion, and I am not by any means satisfied on the evidence thatMr. Graham Clarke was referring, in what he said on the subject,to the possibility of making such a reservation effectively on theland here in question. If it had been necessary to decide thepoint, I should have been disposed to hold that both sides shouldbe allowed a further opportunity of giving evidence in regard to it.
I have come, however, to the conclusion that the decision of theDistrict Judge should be'affirmed on the ground involved in the issuethat he rejected, and that, under the circumstances of the present. case, the appellants aro liable for the damage done to the respondents’fields, irrespective of the question of negligence. The DistrictJudge has found that the effect of the appellants’ draining operationswas to concentrate the water in specific channels, instead of allowingit to find its own course ; that that concentration greatly increasedthe force of the flow, with the result that the loose soil washed intothe drains was hurried down into the leaders and thence into theela with a degree of force which baffled restraint, and which covered> (1902) A. C. 386.1 (1876) 2 A. C. 96.
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the respondents’ fields under 3 feet of silt. The evidence supports 1909.these findings. Mr. Golledge admits that the wash was heavier. November 25.Mr. Graham Clarke says that the damage was all caused by the silt wOQObrought down by the leading drains of about 300 acres; that the Renton J.rush of water concentrated in these drains must have been great,and that, although if there had been no drains, the silt was boundto come down to the fields in the same direction, and probably inthe same or greater quantities ultimately, it would not have beenconcentrated. Mr. Golledge corroborates Mr. Graham Clarke onthese points. I may quote the following passages from his evidence :
“ I saw the fields covered with silt; the accumulation was great.
To my knowledge, before I opened the drains, there had been no
complaint of silting The leaders are cut 6 inches deep and
feet wide. From my experience, when the drains were opened,
I knew that the silt was bound to be carried down. I expectedthe silt to accumulate on the paddy fields at the bottom, and thatthe quantity of silt would be very large.” Mr. Golledge adds thatthe object of cutting the drains was to save the top soil for theestate, and that if such drains had not been cut, the accumulationwould have been greater. He does not, however, dispute theallegation that it would have been more gradual, and, therefore,in all probability, more capable of being guarded against. Itbecomes necessary, therefore, to ascertain the law applicable tothese facts. I do not think that there is any substantial differencebetween English law and Roman-Dutch law on the point. Bothrecognize the servitude loci natura, which lower proprietors oweto upper proprietors in such cases as this. Both adopt the maximsic utere tuo ui alienum non Icedas, and in my opinion, under both,the appellants are- liable in damages to the respondents on theevidence before us. The Roman-Dutch Law is defined by Maasdorp(Institute» of Cape Law, vol. II., pp. 123 and 124) in the followingterms :—
“ No action will lie either against an upper or lower proprietorfor damage due to an alteration in the natural drainage, if suchalteration is due not to any work expressly constructed with thatobject, but merely in consequence of the enjoyment of his propertyand the cultivation of his land in a fair and reasonable mannerin the ordinary way, e.g., by making irrigation furrows where therecan be no cultivation without them, or by cutting ditches for thedrainage of his land, provided he does not collect the water intoone united stream and then discharge it on to his neighbour’s landin a more forcible and destructive manner than it would otherwisehave got there naturally, for every one ought to improve his ownland in such a way that he- does not thereby deteriorate the landof his neighbour. But where an upper proprietor is entitled to usea particular channel for the discharge of his surplus or rain water,he mil be entitled also to increase the ordinary flow into such
1909.'
November 96.
WoodRkntoj* J.
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channel, even to the prejudice of the lower proprietor, if suchincrease be occasioned in the ordinary course, of draining, ploughing,or irrigating his lands, and be not greater than is reasonable undertire circumstances.”
/I have carefully examined the texts of the Digest (39, 3) and ofVoet (39, .3) on which this passage is founded, and they clearly/Support the language that Chief 'Justice Maasdorp has used. Un-fortunately we have not access, in Ceylon, to the actual text of.South African decisiohs oh this point, but I see no reason to doubtthat the distinguished' Judge,' Whose words I have just quoted,Ighfe stated the, effect, of tlftem correctly. The law of England onthe subject is,prsotically idehtioall In the leading Case of Baird v.Williamson.1 it wks held , by Erie C.J., and Williams, Byles, andKeating JJ., that the fowtjer of J.he upper of two adjoining minesis not liable for injury ..by water flowing by gravitation intothe lower mini from wort^ constructed by him in the usual andproper manner for, the purpose of getting mineral from any part ofbis mine,: but that he must not interfere with such gravitation sods to mfrke it more injurious to the lower mine or advantageousti> .himself. “ The^plaintiffs,” said' Erie C.J., “ as occupiers of thelower mine, art subjectify) ho*servitude Of receiving Water conductedby ipah from the higher mine.” I find the same principle runningthrough all the English decisions'. t In particular, the Case oi Baird v.WiUiarheon was .expressly fldopted by the House of Lords in Young.rt Co.v, Bankper Distiller^ Co? fs a correct exposition of the law' both pi England, anfl. of Scotland). In the present case the damageWas caused by artificial drainage, and I am not prepared on theevidence before me, whatever impressions I might have apart from(jhAt evidence, to differ from the learned District Judge/in holding, tyiat the ; effect qf that artificial drainage was to increase thetransport. of .silt into the respondents’ fields to an unreasonableextent.;^ Although;the issde on. which I propose.that we shoulddecide tiie presents case whsinot accepted by the District Judge, itisjan issue of law,.ai|d we have before us all the materials necessaryfor its decision.. I may add that the law'of Ceylon lias recently been,defined In the same sense by Sir Joseph Hutchinson C.J. in S. C. 185,c! R., Matale, 8,247.3
1 would dismiss this appeal with costs.
'«t j
UhBNijm J.-
• t •.• ;
The filets are fully set but in the judgment of my brother, whichI have had the advantage of reading. I shall therefore address,myself'solely-to the law which should govern the case. ., .
.. The plaintiffs’’ action, as.I understand it, is the action knownboth to the Roman Law^and the. Roman-Dutch LaW as the action
i (1863) 33 /- J. C. P. 101.•* (1893) A. 0^,691.■r '
:l * a 'AfiMiiie*. Sevtc/inkcr 2. 1909.. ..'
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agues pluvice arcendae. In the Law of the Twelve Tables there is 1909. .special provision made for it in Table VH.: Si per publicum locum November 'is.rivus acqueductus private nocebit, eritactio privato ex lege XII. Tabu-j
larum, ut noxa domino caveatur—Digest 43, 8, Nf quid in loc. pub.
S. F. Paul. A suit of this nature was decided by an arbitrator(arbiter acquce pluvice arcendce).—Digest 39, 3 ; De aq. et aq. pluv.arc. 23 S. 2. f. Paid ; and 24 f. Alfen. (See note and references inOrtolan’s History of Roman Law, p. 91, to Table Vll.)
An upper proprietor of land has under the Roman-Dutch Lawa right similar to that obtained under the urban servitus cloacae, towhich I shall presently refer. There was a servitude known tothe Roman-Dutch authorities as the goot-recht, and which Grotius(2, 34, 24; Maasdorp, p. 149) defines as the right to have a gutter orspout lying upon or discharging itself into the property of another.
Van Leeuwen (Gens. For. 1, 2,14, 22; R. D. L. 2, 20 10; 1 Rotze,p. 290) treats of it more fully. He says that this servitude of goot-recht, or water-course, is the right to let one’s clean water producedby rainfall or some other natural cause run over the ground ofanother, who is bound to lead it off over his own lAndor in a gutter,but the duty was cast on the dominant owner to place at the outletfrom his property a grating to prevent stones or fubbish frompassing into the servient tenement. The servitude was an urbanone, but it appears that the underlying principle W4s that althoughthe dominant tenement was entitled to let water pass’through agutter or spout into the servient tenement, the right was to beexercised in such a way as to prevent any damage being doneto the latter, or any substantial inconvenience CauAd to the ownerof it, by the passing of stones and rubbish with the water. Theservitude cloacae was the right of driving a drain through another .man’s property, or, in other words, a right of sewer runningthrough or discharging itself into another’s ground (1 Grotius,bk. II., ch. 34, sec. 24). . The interest of the servient tenementwas safeguarded by the obligation being imposed on the dominanttenement to keep the sewer clean and under repAir. j Both theseservitudes- are urban, but I have referred to them because therights and liabilities arising under either are not dissimilar to thosewhich attach to the rural servitude known to the’ Roman-DutchLaw as the right of drainage or water-loozing (Grotiusj bk. II., ch.
35, sec. 18). Grotius defines it as “ the right of permitting the waterto escape, independently of its natural order.” This brings me toan explanation of the real scope and object of the action aquaepluvice arcendas. The foundation of the action, according to theauthorities I have consulted, is the rule that no One can, without aservitude, let Ids water fall upon the property of another, and if noright to pass such water to the lower property has been established,a person who lets his water flow in such manner, whether by erectingmechanical works, or by plantations of trees, or who when the
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1909. water flows down naturally increases the volume or speed of theNovember 26. flow, or alters it in any way so as to damage the lower proprietor,Oaramt J™ damages. It is also stated by the text writers that the
action only lies where the water does harm to the lower property,hut not where it is of advantage to it. It was held in the case ofMeyer v. Johannesberg Waterworks Go-1 that where a person turnsoff the water which, after heavy rainfall, is wont to overflow hispond or reservoir and injure his own property, in such a manner as todivert it to the neighbour’s property and cause injury thereto, he willbe liable, in an action. In Luddlph and others v. Wagner and others,2it was held as follows : “ The action aquae pluvioe arcendae is as oldas the law of the Twelve Tables, and rests upon the broad principlethat no one has a right to do any acts for the improvement or benefitof his own land, unless there is an obligation in the nature of aservitude to submit to such acts. There are three modes, accordingto Paulus (Digest 39, 3, 2), in which such an Obligation may beestablished : lex, natura loci, vetustas. By lex he meant a covenantbetween the neighbouring owners giving the upper proprietor aright to discharge water upon the land of the lower proprietor, butof such a covenant there is no question in the present case. Underthis term may also be included such an obligation as the law imposesupon one tenement to submit to the discharge of water from anothertenement after thirty or more years’ uninterrupted user by theupper proprietors upon the land of the lower proprietors withoutany resistance on the part of the latter. Such a servitude is not,however, acquired without proof of acts done in assertion of rightsclaimed on the part of the upper proprietors. The second mode inwhich the obligation to receive water in a defined channel may beestablished is by proof that the situation of the locality—naturaloci—is such that rain falling from the dominant upon the servienttenement would naturally flow into the latter through such channel.If the locality is such that it is difficult to ascertain from the natureof the surface what is the natural channel, a third mode of proofcomes in, and that is vetustas, or ancient custom.”
The cardinal principles of the law relating to the action in questionhaving thus been clearly enunciated, the following rules as to theright of an upper proprietor to drain water into the property of alower proprietor were laid down by the Court, and I cannot dobetter than state them in extenso:—
“ (1) A right to discharge water upon a neighbour’s land mayexist by virtue of a duly created servitude, or by virtue of thenatural situation of the locality.
“ (2) If it be difficult from the nature of the surface to ascertainwhat is the natural channel, then the course in which the water hasimmemorially flowed'will be considered as having had a natural and
legitimate origin.
1Hertzog 17.
>6 S.C. 0. 197.
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“ (3) Where water has flowed in an artificial channel for thirty 1909.years or more, it may be presumed, in the absence of evidence to November 25.the contrary, to have flowed thus immemorially.j.
“ (4) When once the right to discharge water into such a channelhas been established, the person entitled to the right may increasethe ordinary flow to the prejudice of the lower proprietor, if suchincrease be occasioned in the ordinary course of draining, ploughing,or irrigating the upper land, and be not greater than is reasonableunder the circumstances. If the channel becomes choked throughneglect, he may compel the lower proprietor to clean it himself orto allow him—the upper proprietor—to do so.” Nathan's CommonLaw of South Africa, vol. /., p. 484 et seq.
We have here in a crystallized form the whole of the Roman-Dutch Law relating to the right in question. There was no pretencein this case that the defendants were entitled to claim this right byconvention (lex) or by immemorial custom (vetustas). They couldonly rely on the third mode by which the obligation could be estab-lished : natura loci. Admittedly, the defendants’ land is higherthan plaintiffs’ fields, and if rain water naturally found its wayor along a recognized channel, whether in large or small quantities,into the latter and flooded them so as to prevent the plaintiffsfrom temporarily engaging in the ordinary productive cultivation ofthem, the law would, in my opinion, have been on the side of thedefendants. But here the evidence conclusively shows that thedefendants were not entitled to the use of any particular channel,but had constructed only quite recently several channels or drainswhich served to carry the water, charged with large quantities of silt,with great force and volume into plaintiffs’ fields, rendering them inthe result totally unfit for cultivation until the removal of the silt.
Two of these drains actually emptied themselves into plaintiffs’ fields.
I think the maxim sic utere tuo ut alienum non Icedas
clearly applies, and the defendants were liable in damages, even ifno negligence had been proved. There is no difference that I knowof between the English Law and the Roman-Dutch Law on the ques-tion before us, but certainly there is overwhelming authority in thelatter to support the judgment of the District Judge, independentlyof the reasons given by liim.
I agree to dismiss this appeal with costs.
Appeal dismissed.
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