151-NLR-NLR-V-17-THE-ATTORNEY-GENERAL-v.-SILVA.pdf
( 490 )
1M.Present : Wood Benton C.'J. and De Sampayo A.-J.
THE ATTORNEY-GENERAL, v. SILVA.386—D. O'. BadvUa, 2,774.
Opening up land adjoining public toad—Damage caused to road by flow of
water—Action by Crown for damages—Thoroughfares Ordinance,
No, 10 of 2062, s. 92 (5).
The defendant purchased a land from the Crown adjoining apublic road (with a strip of Crown land said to be a road reservationintervening between the two) and opened up the land and plantedit with tea. Water and silt with stones flowed down to the road,whereby the road was damaged.,
The Attorney-General claimed damages from the defendant.
Held, that, as the acts of the defendant amounted to no morethan what might be lawfully allowed to an owner in the ordinarycoarse of cultivation, he was free from liability for damage causedto the road.
The principles expounded in Samuel Appu v. Lord Elphinstone1were not confined to a natural servitude which one landowner hadover another, but applied to the case of a public road as well.
Xa regard to obligations attaching to the ownership of land, theCrown is in ho better position than a private individual.
Section 91 (6) of the Thoroughfares Ordinance, No. 10 of 1861Ncontemplates nuisances such as those provided against in thenumerous other sub-sections of the same section. It penalizesboth the owner and occnpier of the land or house, and seems to meto have in view personal acts or omissions, and the flowing of water,filth, &c., through preventable causes.
Db Sampayo A.J.—“ I confess I feel some doubt as to whethera cjvil action for damages is the proper remedy for injury causedto a public road.*'
HE facts are set out in the judgment.
Bawa, K.C. (with him Dias), for defendant, appellant.
van Langenberg,K.C. (with him V. U. Fernando, C.G.),
for the Attorney-General, respondent.
Cur, adv. twit.
November 20, 1914. De Sampayo A.J.—
The defendant is the owner by purchase from the Crown of apiece of land at Koslanda. The land is near the Koslanda-Possagalaroad, witl opjy a portion of Crown land, said to be a reservation,intervening between the two. In 1912 the defendant opened up
i (2999). 12 N. L. B. 322.
( 491 )
the land and planted it with tea. The plaint alleges that in* themonths of January and April, 1918, the defendant suffered water,silt, and stones to flow and run from hisland on to the road, wherebythe side drains and culverts of the said road were ohoked and theroad damaged, and the Attorney-General on behalf of the Crownclaims as damages the sum of Bs. 1,515.02. which was expended bythe Crown in repairing and restoring the road. The District Judgehas given judgment as olaimed, and the defendant appeals.
The evidence shows that the defendant's land is hilly and slopesdown towards the road, with a ravine which constitutes the mainpassage for nun water. The defendant in opening up mid plantingthe land does not seem to have done anything more than is requiredin the ordinary course of agricultural operations, and in view of theevidence for the plaintiff, the only thing that need be speciallymentioned is a drain which the defendant out along the lowerboundary of his land above the reservation and leading into the ravine.I may say that the evidence is very meagre mid vague in respect ofany other act on the defendant's part, which may be depended on ascontributing to the damage, except that it is said that the defendantallowed his drains to be filled with silt at the time of the rains anddid not clear them. So far as I can see, the cutting of the drains ismade no ground of complaint, nor is there any thing said as to thedefendant having directed the water in an improper manner. Onthe contrary, the plaintiff’s case appears to be that, while thedefendant rightly led the water into the ravine, he did not doso more effectually. The complaint appears practically to be that heopened up the land at all. The following are the relevant passagesin the evidence of the witnesses for the Crown:“ The defendant’s
drain along the top of the reservation was fully silted up, with theresult that water Was flowing down all along instead of runningalong the drain to the natural ravine.” “ The clearing of jungle,opening drains, and planting turned all the soil up and removedstones and earth from tbe drain. The whole surface was therebyloosened, and every shower caused this loose soil to All up the drainson defendant’s land, so that they overflowed and stones – and earthwere washed down to the road. This could have been preventedif the drains had been kept open and the water led to the naturalravine.” “ The natural flow of water could not have caused thedamage without the clearing.” “ The clearing would necessarilybring the water down faster. Till the clearing there was no needfor drains. These drains were not properly connected with theravine.” The defendant, on the other hand, in effect, says that heopened up the land in the ordinary manner, and.that owing to theheavy and continual rains at the time the silting of the drains wasunavoidable.
In this state of facts, what are the rights of therCxewn and theliabilities of the defendant ? At the argument of this’ appeal some
IMA
SlSlVATO
AJ.
ante
Attorney-Generai v.Silva
( 492 )
1914.
DBSABfPA.ro
A.J.
The
Attorney•General e
SUva
question was raised as to the fight of the Attorney-General to
maintain this action. I confess I 'feel some doubt as to whether acivil action for damages is the proper remedy for injury caused toa public road. But as the case was fought out on other groundsin the District Court, I do not think that we need decide thispoint.v
The defence is that the acts of the defendant amount to no morethan what may be lawfully allowed to an owner of land in theordinary course of cultivation. As I have already indicated, thisconclusion of fact appears to be justified by the evidence. ■ Bycutting a drain or drains on his land the defendant may in a sensebe said to have altered the natural drainage, but the evidencenegatives the idea of the water being thereby concentrated anddischarged in a more forcible and destructive manner. On thecontrary, what is said is that the drains did not more effectuallycarry the water into the ravine, with the result that the water flowedall along the slope of the land. The latter course of water wouldhave been the natural drainage, and, if the drains were not deep orlarge enough or were filled up with silt, that circumstance can atmost only have had the effect of restoring the natural drainage.As to the earth which was loosened by the agricultural operationsand carried down by the rain water, the evidence does not show thatthe defendant did not do what might be reasonably expected inorder1 to retain the same within his land. The drains have thatobject in view, and, I should say, must have answered the purposeat least in some measure. At the end of the argument for thedefendant-appellant I was inclined to the opinion that, in the abovecircumstances, the defendant was free from legal liability for thedamage caused to the road, in view of the principles of law whichare fully expounded in Samuel Appw v. Lord Elphiwtdne.1 Thelearned Solicitor-General for the respondent could not on thematerials' in the case successfully combat the conclusion of factabove mentioned, nor did he question the authority of the decisionjust referred to. But he argued that that decision did not apply tothe present case, because he said that the law there laid down hadreference to a natural servitude which one landowner had overanother, and did not apply to the case of a public road. It seemsto me that this argument either goes too for or does not go farenough. In the first pilace, the learned Solicitor-General was notable to cite any authority for the distinction he sought to make.Moreover, the very basis of this claim for damages is that the Crownis the proprietor of the road, that is to say, the owner of the landover which the road passes and of the surface of the road itself,and in regard to obligations attaching to the ownership of land, Ithink the Crown is in no better position than a private individual.The side drains along .the .road and the culverts are intended to
1 {1909)12 N. L. B. 321.
( 498 )
receive the water which flows from the upper lands, and are, I take 1914.it, an acknowledgment of the right of the owners or owner of those g^j^AT0lands to allow the water to flow according to natural drainage intoA. J.
and through such side drains and culverts. Indeed, I cannotconceive of a more important duty on the part of any road authority Attorneythan to provide for contingencies that may arise from the operationof the laws of nature or from the lawful user of private lands in theneighbourhood. If the argument is pushed to its logical conclusion,it would mean that, even if the defendant had not cleared and plantedhis land, but allowed it to remain as he had bought it from the Crown,he would still be liable if the water flowed from the land in its naturalstate and damaged the road. In this connection we were referredto the provision of section 91 (5) of the Thoroughfares Ordinance,
No. 10 of 1861. That provision makes it an offence for the owner•or occupier of any land or house adjoining a road to “ suffer anywater, filth, or other substance or thing to flow or run from suchland or house into or upon any such road, ” and the argument is that,such an act being penalized, a civil action may also be brought fordamage done thereby. I do not think that that provision appliesto such a case as this. It obviously contemplates nuisances suchas those provided against in the numerous other sub-sections of thesame section. It penalizes both the owner and occupier of the landor house, and seems to me to have in view personal acts or omissions,and the flowing of water, filth, &c., through preventable causes.
Moreover, the defendant’s land cannot well be said to adjoin theroad. There intervenes between them a stretch of Crown land,which, however, the Solicitor-General says is a reservation for theprotection of the road, and is therefore a part of the road as definedin section 4 of the Ordinance. On looking into the plans filed inthis case, however, I find that this intervening land is not of anydefined character : a part of it is a large block of land consisting ofseveral acres, and other parts of it have been sold by the Crown. Ican hardly consider it as a road reservation in the ordinary sense.
Be that as it may, the provision in question does not, as I have said,apply to the circumstances of this case, nor do I think, even if it did,it necessarily follows that the defendant is precluded in this actionfrom setting up in defence a right which is otherwise given him bylaw. The argument on this head may be put in the words of theCrown Counsel at the trial: 1 ‘ The exercise of the right of the.servitude claimed is a criminal offence, ” and in .that form it does notin my view bear examination.
For these reasons I would set aside the decree appealed against,snd dismiss the action with costs in both Courts.
Wood Benton C.J.—I agree.
Set aside.