THE STORM WATER QUESTION.

MOUNT HUTT ROAD BOARD V. ABTHUI IHGRAHAM DENT.

MR JUSTICE DECISION'S JUDGMENT.

THE FULL TEXT

The following is the full text of Mr Justice Denniston's judgment in the storm water case, recently heard at Ohristchurch. After a very lengthy aid exhaustive hearing, His Honor gave his judgment as bolow on June 8 last: —

This action is brought by the plain tiffs, theinhabitants of the Mount Hutt Eoad District, a body corporate under the provisions of the Road Boards Act, 1882, to have the defendant restrained from constructing an obstruction which the plaintiffs allege has interfered with their rigljt to the flow of certain storm water from a road under their control over the land of the defendant, and for damages for injury to the road in con iequence of such obstruction. The water in question comes from a water course known as the Dry Greek. This is an ordinary mountain torrent, serving to carry the water from rain and melting snows from the mountain ous country in which it rises. It has cut a deep and well defined channel up fco the point where it reaches the plains. There it has excavated a large basin in the shingle. In floods the water pours over the lip of the excava tion. In very high floods, in the natural state of the country, the water spread ail over the plain. In smaller floods it found its way by various channels cut through the lip of the excavation into a number of storm water courses formed by a series of lines of depressions in the plain, of very old formation. These were not in each instance absolutely continuous, and between them the course of the flood water may have varied, any obstruction causing, perhaps, a new channel to be cut. But the water ultimately found its way into these lines of depressions, and they afford a definite and recog nised course for the storm-water from the creek, although the amount carried by each respectively may have varied according to the action of the water Jiear the point of exit. This is, in my Opinion, the effect of the evidence of almost all the witnesses, which con firmed the result of my own impressions after an examination of the country. It was admitted by Mr Joynt that some water used to flow through Dent's land from Dry Greek Ihese depressions and their respective directions are best Bhown on the map prepared by Mr Murray-Aynsley, which has the advan tage of having been made before this action was contemplated, and with a view to arrange a satisfactory method of disposing of the storm water. Of these lines of depressions the most gouthernly ran near to a steep terrace, which stopped any flow of water in that direction, and through the land o£ defendant. In the defendant's land, and before and after leaving it, there exists a distinct dfpresaion, through which I am satisfied a large part of the storm water in ordinary floods ran in the natural state of tfo« country. That this was so is, to my mind, proved by the fact that when thft land was fenced, in 1878, immediately after the purchase from the Crown, when the country was largely in its natural stale, the owner left gap* in the sod wall which con stituted the fencp, at the points where the depression begins and ends in the land. Ab he siys, it seemed to him the course the water took. Indeed, throughout the district the most effectual evidence of the course of the water is to !>e found in the gaps left in the sod fences to allow the water to find its way. Und-r these circumstances it seems to me impossible to contend that these lines of depres sions are not storm-water channels, or that the lands through which they run are not under the obligation to receive and carry the water which naturally runs in such channels. Whether as the result of cultivation, of the course taken by the flood water at the mouth of the excavation, of the construction of water races or other legitimate causes, or, as the defendant alleges, from improper interference with the natural course of the water on lands above him, it is admitted that the whole of the water from the Dry Greek now runs down the most southerly line of depressions through the Ohertsey Road, and that thence, until the obstruction by the defendant, the greater part of it run through his land by the gap? before-mentioned. It is admitted that notwithstanding the concentration of the water in one stream, no more water now flows on to and through the defendant's land than used to flow when the country was in its natural state.

In May of iast year the defendant, to test the rights of the plaintiffs, erected an erabankmeut across the gap in his laod along the Chertsey Eoad, which effectually prevented any water running from the road on to his land. In June and August there were heavy j floods, and the road, as a result, the plaintiffs allege, of the action of defen dant, was seriously injured. In the view I have just expressed as to the defendant's obligation as to the water, it He 3on him to justify his action. He -does so in his statement of defence, after a general denial, by alleging that by reason of certain dams, embank ments, and fences, which have from time to time been erected and made by owners and occupiers of land at higher levels than, his (defendant*) land, water (which he alleges to be surface water) lias been collected, concentrated, and dheried and brought down in a concentrated body, to the Chertsey Road, and along the said road and along the frontage of his (the defen dant's)land, and • hat in consequence he erected the enbankment. He further alleged that the plaintiffs had, by an embankment on such road, diverted the water on to his land. At the hearing the defer dant was allowed to amend his defence by adding that the water &o collected, concentrated, and diverted on the said higher levels wa*, by the permission of the plaintiffs, thrown in a concentrated body and in Increased volume on the Chertsey Road, above the defendant's land ; and by aw-rring that th'i plaintiffs, in and prior to the month tf M»y, 1891, wrongfully p4rH)iltfc4, #Q^ c*^e(* fc9 be brought I *

down to, and diach rged from, the said I Chertsey Road, into and upon the J defendant's land, the said water, in j greater quantity and volume than, but for its being so collected, concentrated, and diverted, would have flowed or come upon his said land. I have j already said that, in my opinion, the I defendant is bound to receive the water natural'y flowing in the storm channel through his land. The defendant's special defences, put shortly, are that \ the plaintiff's have themselves wrong i fully caused a larger quantity of water to flow into his land than would natur ally so flow ; that they have permitted owners higher up wrongfully to throw into their roid, and so into defendant's land, a larger quantity of water than would naturally so flow \ and that owners higher up have wrongfully thrown such water on to the road, and so into defendant's land. Sir Robert Stout has argued that even if the grounds on which the first defence is based are correct, ifc would not justify defendant's action. I cannot assent to this. If a man wrongfully brings on his land water which his immediate neighbour was not bound to receive, and mixes it with water which such neighbour is bound to receive, it is, I think, clear that the latter is entitled as pgainst the wrongdoer, if ha cannot otherwise prevent the added water coming on his land, to stop the entry of any water. That is clearly laid down in Oawkwell v. Russell, 26 L.J., Ex. 85, in these terms :— " Where a party has a limited right of this kind " (to bring down surface water) "and exercises that limited right in excess, so as to produce a nuisance, the only remedy and the only way whereby the party can protect himself is by stopping the whole." That case was approved of in Charles v. Finchley Road Board, 23 Ch. D., 767. In these cases, in order to prevent the nuisance all the water had to be excluded, because the clean and filthy were mixed. But no more could the added water in the case alleged here be separated from that which wad permissible; and it would be absurd to say that the person injured must guage the extra water, and erect dams or obstructions exactly calculated to exclude it only. Such a thing in case of heavy flood would be imprac ticable. It certainly would be so in the present case* I think the same view of the law is suggested by the judgment of Williams, J., in Ross v Mackey, 3 N.Z. R., S.O. 69. I should say with the Judge in Cawkwell v. Russell that "it is hardly necessary to cite a decision on the point; it is so very clear and plain on the good sense of the matter that it hardly wants an authority." I am, however, satisfied that the defendant has failed to estab this part of his case on the facts. In his statement ot defence the only active wrong alleged to be committed by the plaintiff is the construction of an em bankment across the road below the gap stopped by him. This obstruction was, however, removed by the plaintiffs upon complaint, before the obstruction by the defendant. The amended state ment of claim alleges generally that the plaintiffs wrongfully permitted and caused to be brought down and dis charged the water complained of. This is, of course, much too general in its terms. The defendant was, however, allowed to give evidence at the hearing of the. only additional active interfer ance he relied on, that is the formation of tha Chertsey Eoad in 1894 in such a way as to throw the water to the lower s:d^ of the road, and so, it was alleged, to bring more of it through the gap in the defendant's land. In my opinion the defendant has failed to establish that this construction of the road has thrown any more water on the , defendant's 1 md than if the road had been lt-'ft in its original condition.

I I have therefore to consider th^ further ground of defence alleged— that the plaintiff's permitted owners higher up to wrongfully bring addi tional water on the defendant's land Of actual permission there is no pre tence of evidence. The permission re lied on by the defendant is the fact of the plaintiffs having refrained from either physically abating this alleged nuisance, or from having recourse to law to compel its abatement. I have from the beginning of this case, in vain asked for any authority in sup port of the proposition that so refrain ing was any wrong to defendant, or gave him any rights against the p'aintiff. In Charles v. Finchlay Local Board an injunction was granted against a local board, restraining them from allowing sewage to flow over their land into a brook on the plain tiff's land. But the grounds of that decision were that the pipe through which the sewage complained of en tered, had been brought on the de fendants' land by their permission, and that they could have physically pre vented the nuisance by stopping up the pipe. I have not here to decide whether the mere fact that the ab stention from exercising or power to physically prevent an alleged nuisance gives a ground of action. I should certainly hositate to use such general terms A man who takes on himself to decide that an act of another is a nuisance, and to abate it accordingly, tikes a great risk. The facts in Charles v The Finchley Road Board were special and peculiar. I gather that the nuisance could have been stopped in the defendants' own land ; and as I have said, they had per- ' j mitted and continued to permit tin I act which made it possible. Here, as 1 have said, the plaintiffs could not physically do any act which would definitely and distinctly abate the | alleged nuisance, even assuming that its existence was undisputed instead' of being strenuously denied. If the plaintiffs here had permitted the' wrongful flow of water, defendant might have a right of action against them for so doing. Bub that the mere abstention from suing the persons who create a nuisance on another man's land is not permission is, apart from the common sense of the matter, cleat from the case of Attorney-General v, Guardians of the Poor of Dorking—2o Ch.D. 595. The head note to that case is " although, perhaps the sanitary authority might obtain an injunction to restrain persons from using the sewers who had no right to do so, a landowner complaining of the nuisance cannot bring an action against them for nob doing so, because an action cannot bo maintained either at law or in equity to compel a person to bring an action, for the purpose of restrain

ing a nuisance which he cannot him self prevent." The observations of the Master of the Rolls, which T mcd not cite at length, show very strongly the absurd results of ths contention that a man can be sued for not bringing an am ion to abate a nuisance. As Cot ton LJ. sayj in the same case the party complaining can bring an action himself, and it may be noticed that in that case, as in this, the party against whom the contention was made was a j public body with statutory powers in connection with the subject matter respectively under their control. A decision of Mr Justice Williams in Mayor of Naspby v Johnstone, 2, N.Z.R.S.C. 227, that where a corpora tion which had power by putting the law in motion to compel the removal from a street of a telegraph pole which, though originally legally erected had become a nuisance, did not use such powe»*, the Corporation were liable as having permitted the nuisance to re main on their property, has been cited in support of defendant's position. The learned Judge had already decided the case on another ground, and the obstruction and the fact of its being a nuisance were indisputable. In the present case the fact that there was a nuisance to which the higher owners were responsible had always been strenuously denied, and indeed that question formed the main subject of

controversey at the hearing. The cases I have just mentioned were not cited to the Court. In Eliott v, Branchley,

3, F.Z.J.O.A. 9, the defendant had

permitted a deposit in his land of filth which caused the nuisance. In Evans v Manchester, etc. Railway Company, 36 Ch.D. 626, the plaintiff owed no duty to the defendants who were guilty of negligence in allowing water to get in plaintiffs land which they couid have prevented. I come then to the last defence raised by the defendant. By it he asserts, in effect, a right on the part of an owner of land, subject to the obli gation of receiving the water naturally flowing from the land of a neighbour to refuse to receive from such neigh bour water improperly coming on such neighbour's land, although such neigh bour had done nothing to bring such water on his land : and further, a right, if it is otherwise impossible to exclude such water, to exclude aLo the water naturally flowing from such land. This is the contention on which the defence has been mainly based, and it has been strenuously maintained at the trial and subsequent argument. At the trial I expressed my regret that the point had not been definitely

raised on the pleadings, and decided ai

a matter of law. In that case a deci sion adverse to the defendant would have prevented the long and costly in vestigation as to the facts. I early

intimated my opinion that the con-

tendon could not be maintained, and the subsequent argument on the point has not"altered my opinion. A man has no right to protect himself at the expense of his neighbour from water coining on his land in its natural

course,

In. Whalley v. Lancashire

and Yorkshire Railway Company, 8.Q.8.D. 131, it was held that a land owner in whose land there was a sudden accretion of water brought there without any act or fault of his, is not at liberty actively to let it off into the land of his neighbour merely to save his own property from injury. The same reasoning would prevent him from embanking it from his own land, so as to send it in to a neighbour

who would not but for such embanking

have received it; and I think it fairly follows that you cannot embank it off as against a neighbour on whose land it has come without his fault. It is

true that in the cisc I have just cited Lindley L J. says it is established that "if an extraordinary flood is seen to be coming upon land, the owner of such land may fence oft' and protect his land from it, and so turn it away, without being responsible for the con sequences although his neighbour may be injured by it." He says this is established by Menzies v Earl of Bredalbaue 3 81. N.Z. 414 and Neild v London and North Western. Railway Company L.B. 10 Ex. 4. In Menzies

v Earl of

Breadalbaue the Lord

Chancellor had laid down the doctrine that you cannot protect your property at the expense of your neighbour, and after quoting passages from the Roman and Scotch law in support of this, he adds, " It is true that passages may be found in the Digest appearing to have a contrary tendency, but I think that

they may be all idconciled j or, con sider the subject in this light, that

these passages to which I am now alluding, have reference to accidental and extraordinary casualties from the flood suddenly bursting forth, and they go to this, that, in such a case, the parties may even, to the prejudice of their neighbours, for the sake of self preservation, guard themselves against the consequences—perhaps in that way the different passages in the Digest may be reconciled." The present case is not one of guarding against an ex traordinary and unexpected flood, which is to be treated as a common enemy. All the water from the stream is floodwater, and the objection is to receive floodwater. It will be seen that in the passages from the I>igest cited by the Lord Chancellor, oc in his comment upon them, there is no necessary reference to the case of an o-vner under obligation to receive water, and the may be said of the observation of Lord Justice Lind ley. \ have cited from Whalley v The Lancashire, etc. s Railway Com pany, But in Nie?d v The Lon don and North Western Railway Company L.R. 10 Ex. 4 this distinc ton is carefully made. In that case a I Canai Company had fenced out water from the water of its canal which had been caused by floodwater from a neighbouring river to protect its own buildings and in doing so had injured the lands of a neighbour. The head note states, " Held, that the defend ants were not liable, on the ground tliat the water which did the mischief was not brought there by them, and that there is no duty on the owners of a canal analogous to that on the owners of a natural watercourse not to impede the flow of water down it." Baron. Frimwe'l after referring to Monzies v Earl of Breadalbane says, " Where indeed there is a natural out let for natural water, no one has a right for his own purposes to diminish it, and if he does so he is s with some qiinlltioations perhaps liable to

anyone who is injured by his act, no matter where the water which does the mischief came into the water course. I say with some qualifications because it may be that, even in the case of a natural watercourse, the riparian owner is entitled to protect himself against extraordinary floods by keeping off'extraordinary water." And Baron Amphrell expresses the same view without qualification. He says " I think the analogy between a canal and a natural stream a false one. You cannot obstruct a natural stream, be cause the riparian proprietors above and below have a riyht to the use ; of the water-course, and no one has a right to build across or upon the bed of the stream for any purpose." I think these authorities show that what ever may be said as to the broader proposition, I have stated, it is clear that there is no right to embank out as against the dominant tenement water entitled to flow through the servient tenement because such water has been wrongfully added to without any act or default of the owners of the dominant tenement. A man's legal rights cannot be derogated from by an act for which he is not responsible.

In this view of the case it is not necessary for me to determine what unfortunately has been the main sub ject of controversy during the many days which this case has occupied, that is whether the fencing and other works of Messrs Holmes and Macmillan j have had the effect of improperly \ diverting flood water from the Dry, Creek into the storm channel which leads through defendant's land.. Had the defendant instead of adopting the strong, and as a rule, dangerous course of taking the law into his own hands and blocking up the inlet into his land, sued those whom including the plaintiffs he considered responsible for the injury, he might have obtained without additional expense a binding judicial opinion on the question. As it is, as any expresion of my opinion on the subject will not bind any of the parties interested, I do not think it advisable that I should pronounce an opinion on a question which may be the subject of future litigation. For the same reason I do not wish to give a definite opinion on the point insisted on by Sir Robert Stout—that, seeing the defendant now receives admittedly no more water than he received when the land was in a state of aature, he has no legal grievance. It will, how bver, require some argument to satisfy me that upper proprietors can prevent to their own advantage a lower pro prietor having the benefit of any such natural diminution of a nuisance as may be caused by the operation of natural causes. For the reasons stated I think the defendant has failed to show a right to erect the obstruction he has mad?, and the plaiatiffs are entitled to the injunction asked for.

It follows that the defendant is liable for the damages caused by such obstruction. lam not satisfied that all the injury to the road was caused by the defendant's acts. I think £50 will be a fair sum for damages.

THJB ASHBURTON GtURMAN i THURSDAY, JULY 25, 1895.

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POLICIES IN FORGE „» 119,333 dum Assured «39,833,07] Gash Bonuses Divided .. .. £5,883,412 BONUSES BONUS for ONE year, 1898, £448,790, yielding CASH Reversionary Bonuses amounting to £910,001 after making SPECIAL RESERVES. CASH BONUSES declared tor last FIVE years, over TWO MILLIONS, yielding Reversionary Bonuses exceeding FOUR MILLIONS ASSURE YOUR LIFE IN THE A- M« P- SOCIETY And becnre a JiONUS EVERY ?EAR I Expenses of Management 8| per cent on the total income EDWARD W. LOWE, .Resident Secretary Branca Office- Custom House Quay, Wellington Christchurch District Office- Cathedral Square. JAMES HAIR, District Secretary H ZANDER, L cal Broker, Aahtrartoo



JOiiA OHli <& CO QAVE NOW ON VIEW A LA ROB AND COMPLETE ASSORTMENT OF REGISTER GRATES, HEATING AND COOKING S'OVES, ENAMELLED MANTELPIECES, ETC., which are being sold at prices that will tfftcfc a speedy Clearance. AGENTS for SOOTT BROS, oelebratad Ranges, which are without dtabfe 018 best colonial made ranges in the market. JOHN bWd CO., IROMIONGEBS AND GENERAL MERCHANTS, ASHBTTRTON.



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•asnoH flfna am ?b ao m.os ei^g 4Hf) ee<y; m^io hhim "siaio aaHii Reductions! Red uctioES !! TO MBBT TH|B TIMES. GOAL Westport Coalbrookdalo COAL COAL Westport Cardiff COAL COAL Black Ball C G --A L COAL Newcastle COAL COAL Malvem C 0 A L COAL Mt. Somers COAL 5 owt coal for 5s W. H. COLLINS & CO. TIMBER AND COAL MERCHANTS, IRONMONGERS AND PAINTERS.