The owner of higher land has a right to drain flood water onto lower land, even if the flood is a usual or periodic occurrence in the locality, provided that the right has been established by immemorial user.

Headnote:
EASEMENTS - RIGHT TO DRAINAGE - FLOOD WATER - IMMEMORIAL USER - RIGHT TO PROTECT AGAINST FLOOD WATER - COMMON ENEMY DOCTRINE - CIVIL LAW RULE - DISTINCTION BETWEEN RIPARIAN LANDS AND NON-RIPARIAN LANDS.
Fact of the Case:

The plaintiff, owner of a field, claimed a right of drainage of flood water over the defendants' adjoining field on the basis of immemorial user. The defendants constructed a bund and dug trenches to protect their land from flood water, causing damage to the plaintiff's crops and eroding the topsoil.
Finding of the Court:

The lower appellate court found that the plaintiff had established immemorial user of the right to drain flood water over the defendants' land, and that the floods were a usual occurrence in the locality. The High Court, however, reversed this decision, holding that the flooding was an unusual phenomenon and that the defendants were entitled to protect themselves from it.
Issues: 1. Whether the plaintiff had established immemorial user of the right to drain flood water over the defendants' land. 2. Whether the defendants were entitled to construct a bund and dig trenches to protect their land from flood water.
Ratio Decidendi: 1. The court held that the plaintiff had established immemorial user of the right to drain flood water over the defendants' land, based on the findings of the lower appellate court. 2. The court distinguished between riparian lands and non-riparian lands, holding that the common enemy doctrine, which allows landowners to protect themselves from flood water, does not apply to non-riparian lands. 3. The court held that the defendants were not entitled to impede the natural flow of water by constructing a bund and digging trenches, as this constituted a wrongful act.
Final Decision: The appeal was allowed, the judgment of the High Court was set aside, and the judgment of the subordinate judge was restored. The defendants were ordered to bear the costs throughout.

Judgment

MUDHOLKAR, J. : This is an appeal by special leave from the judgment of the Madras High Court in a second appeal reversing the decrees of the two courts below.

2. The plaintiff who is the appellant before us is the owner of survey No. 159 of the village Vemulavada while defendants 1. and 2 are owners of survey No. 158 lying to the north of survey No. 159 and adjoining. The defendant No. 3 is the owner of a field lying to the north of survey No.158. To the south of survey No. 159 is survey No. 160 belonging to the brother of the plaintiff. Immediately beyond this field and to the south are a "parallel drain", into which flow the waters of the Vakada drain, and Tulyabhaga drain both running west to east. It would appear that the parallel drain is an artificial drain while the Tulyabhaga is a natural drain. The parallel drain ends abruptly at the eastern end of survey No. 150 (sic) at a distance of about two furlongs or so to the east of survey No. 160.

3. According to the plaintiff rain water falling on survey Nos. 160 and 159 flows in the northern direction over survey No. 158 and then enters into a drain shown in the map and indicated by the letters EE. In normal times the water in this drain flows towards the south and empties itself in the Tulyabhaga drain. Sometime before the institution of the suit the defendants 1 and 2 constructed a bund running approximately east-west on their own land. Its height, according to the Commissioner, varies between 3 and 8 and its width is about 16 . Its length is reported by the Commissioner to be 1580 . Apparently the bund is not a continuous one and there are a few gaps in it. About 5 to the south of the bund the defendants had dug several trenches 15 in width and between 2 and 4 in depth. These trenches run along a foot-path which separates the fields of the parties. The plaintiff s grievance is that as a result of what the defendants 1 and 2 have done flood water flowing from his field in the northerly direction cannot find an outlet and stagnates on his land thus doing damage to his crops. Further, according to him as a result of the digging of the pits the level of his land adjoining the footpath is gradually decreasing with the result that the top soil of his field is being washed away. He, therefore, sought a mandatory injunction directing the defendants to fill up the trenches and demolish the bunds raised by them. The plaintiff claims the right of drainage of all water falling on or invading his land including flood water on the basis of immemorial user.

4. The defence of the first two defendants was that the land actually slopes from north to south, that rain water and flood water naturally flow from the north to the south and that the plaintiff s grievance is wholly imaginary. They deny the existence of immemorial user upon which the plaintiff rested his case. They admitted that flood waters do stagnate on the plaintiff s land. This, according to them, was a result of the closing of some vents in the Vakada drain by the ryots of that village as a result of which the water collected in that drain during heavy rains cannot find its natural outlet and floods the lands of a number of people including the plaintiff s. The bund erected by the defendants was, according to them to protect their lands from being inundated by the flood waters of the Vakada drain and that it was open to the plaintiff to do likewise by constructing dams at appropriate places in his field and thus keep back the flood waters of the Vakada drain.

5. Both the Courts below arrived at the following findings of fact :

1. The land dips in the northerly direction.

2. That a number of fields including fields Nos. 158, 159 and 160 lie in a sort of a basin with elevations along the eastern and western boundaries into which drainage and rain water from all sides tends to accumulate.

3. Ordinarily the surplus water from lands adjacent to the basin as well as rain water falling on the land in the basin is drained o

Click Here to Read the rest of this document