THE TAIERI DRAINAGE CASE.

Otago Witness, Issue 2200, 30 April 1896, Page 8

THE TAIERI DRAINAGE CASE.

At the sitting of the Supreme Court in Chambers on the 21st, his Honor Mr Justice Williams delivered judgment in the case of the Solicitor-general and others v. Smith and anotber. His Honor's judgment was as follows : — Mr Fin-Hay in 1860 had, in order to protect his own land, banked out the mill creek. After that he on the othar Bide of Ms land for tho same purpose banked out the Silvorstream. This em> bankinent was completed down to section 12 before 1875, but was not completed along section 12 unt'l that year. The effect of thesfl operations' was to pi-event the flood water from these streams, which theretofore had flowed over the land b^low, including the land now belonging to Mrs Smith, from cominff there any longer. Mr Findlay was under no obligation to the proprietors of the land below to make these banks, nor is lie novr under any obligation to maintain them. As to waters coming either from the mill creek or the Silverstieim, there is now, however, no queation. If things had been loft in a state of nature, and water from them hal come on to Mrs Smith's land, the defendants could not have couipbiued. Iv a state of nature, flood water from these creeks and also the surface water arising from rainfall, as Mrs Smith's land lies lower than Eindlay's, would have passed from Findlay's land on to Mw Smith's. The water from one of these sources has been long since excluded, and the defendants, while not contesting the right of Finilay and of the Church Board to allow tbe surfaCS w.iter from their land to come pn to the laud of the defendants, object to take more than tbe surface water, and to receive the water, not as -it would have come over the whole land in a state of nature, but sent down in a concentrated form by means of a wide ditch to within a very short distance of the defendant's boundary. The question of how far, by English law, the proprietor of land is bound to receive on to his land surface water coming on to it fiom higher land doe 3 not appear to me to ba satisfactorily settled. No doubt the proprietor of the lower land has no right of action agiinst the proprietor of the land above for simply allowiDg it to come, but it does not follow that the proprietor of the land below, unless the water comes in a natural st earn flowing in a defined channel, cannot by raising the level of hu land or by barriers or otherwise prevent the surface water coming onto it. That the lower p-o-prietor can do bo appears to be recogtretsd by tlia courts of those States of the American Union which profess to follow, the common law as distinguished from the civil law. The civil law recognises the existence of a servitude which compels the lower owner to receive the surface wa^er. I have been unable to sitisfy myself that there is any corresponding eaiement at common law. No doubt there are expressions to he found in the books which seem to infer that the proprietor above hasthis right as against the lower. No case, however, cau be found in England where the proprietor above has recovered when mere surface water has been retained on bis land through the neighbour below doing something on his own land which prevents the water coming there. The observations of Lord Cairns and Lora Cranworth in the case of Rylauda v. Fletcher (L.U. 3, H L , 330) seem to me to show that the proprietor below has the right as against the proprietor above to obstruct the flour. Lord Cairns says (p. 338) that the defendants, as owners of the close, might lawfully have used it for any purpose for which it might in the ordinary course of the enjoyment of land be used, and that if in the natural user of the land there had been any accumulation of water either on the surfaco or underground, and if by the operation of the laws of nature that accumulation of water had passed off into the close occupied by the plaiutiif, the plaintiff could not ! have complained if that result had taken | place. L >rd Cairns then goes on to say : "If he had desired to guard againßt it it would have laiu upon him to have done so by leaving or by interposing some barrier between his close and the close of the defendants, in order to have prevented (hat operation of the laws of nature." So also Lord Cranworth {at p. 341), referring to a ease that bad been cited in argument, says :— "The damage sustained by the plaintiff was occasioned by the natural flow or percolation of water from tha upper strata. There was no obligation on th« defendant to protect the plaintiff against this. It was his business to erect or leave a sufficient bonier to keep out the water, or to adopt proper means for ra conducting th*

water that it should not impede him in lib wort? ings. The water in that case 1 was only left by tha defendant to flow in its natural course." Tha weight of authority certainly Beams to show that according to the Kuglieh common law, while the lower proprietor has no right of action in respedt of surface water coming upon him from the higher land, yet if he can by a barrier erected on his own land, or otherwise, keep it from coming on to Ms land, the proprietor above has no right of action to' compel the proprietor below to take it. If, however, the proprietor below in protecting himself, not from the wrongful act of the proprietor above, but from the operation of the laws of nature diverts the water on to the land of a third p»raon different considerations would apply. From the considerations which hereafter appear it will not he neciasary to decide in the present case whether the lower proprietor is or is not under an obligation to receive the surfac* water coming from ths land above him. Sometime between the years 1360 and 1863 the main road to Outram was formed. The effect of this was to .prevent the surface water from Findlay 1 ! land flowing down upon the church property, and thence on to land now owned by Mrs Smith la order to get rid of .this surface water Findlay, when the road was made, constructed a deep ditch from the road ditch up the centre of hia property. The water from thi3 dUcb. was discharged into the road ditch and down Mill creek. This 'state of things continued uutll the year 1878, wheir the culvert was made in the road, and the water from Findlay's drain was conducted by kirn in a contrary direction down the road ditch through tha oulvert and on to the church land. It is obvious that the owners of the church land could then have objected to reneive thiß water. Even if it be assumed that they were under an obligation to receive surface water flowing from the land above in the manner and ia the quantity in which it flowed down, in a state of nature it could not be contended that they were bound to receive the whole of the surface water in this coucentrated form." The Church Board, however, raised no objection, but, on the contrary, constructed a ditch about nine chains long into their section in order to receive it. InISS6 this ditch was continued by the owner or occupier of the. church section to within half a chain of Mrs Smith's boundary. There was thus constituted an effective system of drainage of the surface water of some 400 to 500 acres of land concantrated ia a single channel of about oue mile and a-quarter in length, and discharging itself within a few feet of M s Smith'n boundary. Nor is the water so discharged only surface water, because Ifiudlay's drains are gome distance below the surfaod, and the level of the culvert cro sing the road is as much an 3ft 7in below the surface. In a state of nature, the water falling on the land above, and soaking into it below the Burface, would practically have remained there, and never have come on to Mrs Smith's land at all. The necessary effect of the system of drainage is to I bring on Mrs Smith's land more water than would have come down in a state of nature, and to bring that water down more quickly than it would have come naturally and in an entirely different manner. Tho qumtity that would luve come along the whole length of the boundary —a diutancs of about 35 cbaina— is now concentrated i^to a space of sft or 6ft. The effrct of the water coming down in this form is, of courße, to accumulate water on Mra Smith's land, unless Mra Smith continues the" ditch through her section to tho boundary of the proprietor lower down. If Mrs Smith did this the effect would be to place the proprietor lower down in the same disadvantageous position as Mrs Smith is in at present. This, of course, Mrs Smith would have no right to do. Water is thus being sent down on to Mra Smith's land, and injury is being clone to her, not by the opera' ions of nature, but by works constructed by the proprietors of the hnd above, and for their conyenience. In the,' above circumstances Mm Smith is perfectly justified as ag»int-t the proprietors above in endeavouriug to protect her land from the water that is being improperly discharged upon it. What Mm Smith h« done is to build a bank, not exactly on the boundary of her own land, but wichin her land at a distance of 2ft 6in from the boundary. The effect of this bank is ho doubt to exclude not only the water that is being discharged, but also an> surface water that would come do ,vn in the ordinary course of nature. It would have beon impossible, however, for Mrs Smith to have protected herself from the nuisance in any other reasonable way, She was therefore justified in adopting this way, though the effect might be to exclude surface water which, it might be contended, she was bound to receive. The principle laid down in the case of Cawkwell v. Russell (26 L.J. Kx., 34) applies to the present cise. The plain 'iff Murdoch, there-foi-o, has uo ground of action. Nor do I think that the County Council his any ground of action. Th» County Couucilhw the control of the Outram main road nnd of the culvert passing underneath it. The soil of the road is vested in the Crown, and the council being a public body it may be that they would not be liable to an action in respect to tha structure under their control which cause a nuisance, as the structure was originally not erectsd by them, but by the Provincial Government. However that may ba, th«y hay» allowed the culvert under their control to discharge water on to the defendant's land, and to cause a nuiaancea there, witb the full knowledge that the defendant objected to this Btate of things. If the defendant, in order to protect herself against the nuisance, keeps the water off her laud, and in doing bo causes the County Council damage, the council, in my opinion, have no right to complain. Further than this, even if tho council could not be con <i<lered as a party in any way to ths bringing down the water, the principle of Brett v. Slater (U Vie. L R., 77) would apply. . If Murdoch was sending down water on Mrs Smith illegally, she was perfectly justified iv protecting her -land from being inundated by the concentration of -water so thrown up m it. If damage accrues to the County Council it accrues through the wrongful act of the upper proprietois in sending down the water, and the c unfit cannot comp'uin of the lawful act of Mrs Smith in stopping it. I think the same considerations apply to the public nuisance which it is suggested the defendant has created^ The erection of the bank was, as I bave said, perfectly justifiable. It did not in itself create a nuisance, and nothing in the nature of a nuisance arose » until more than seven months after the bank was completed. That nuisance was created by water being wrongfully discharged by the proprietors above. A point was made that the bank wan erected, not on Mrs Smith's boundary, but within it, and that the effect of its being con* struoted in that way was to store water on Mrs Smith's land and render her responsible for its escapa on to the road. If it could be reasonably suggested that the effect of the bank being thus placed was to cause any material addition to the quantity of water turned on to the road there might be something ia this argument. There is nothing, however, to lead one to suppose that i the bank had been placed on the actual mathematical boundary line the result, would have been perceptibly different. Nor is there sufficient to show that if the surface water from the land above had come down in its natural way, that the erection of the bank would have caused the nuisance on tbe road. I think, therefore, that the defendant? are entitled to judgment, with costs on the middle scale as if £300 had been claimed ; second counsel, four additional days at lOgs a day ; disbursements and witnesses' expenses to be fixed by the registrar, including necessary expanses of qualifying expert witnesses.

At a meeting of the Anokland Temperance and Christian Endeavour Society it was resolved to urge tbut at the local option elections only the top line of the local option voticg paper should be struck out-., thus casting their vote .for no license, and allowing tbe reduction vote to stand for what it is worth.