Judgement

APPEAL from a decree of the High Court (July 4, 1875), reversing on special appeal the decisions of the Moonsiff and Judge of the Twenty-four Pergunnahs, dated respectively the 24th of July, 1872, and June 28, 1873, which dismissed the Respondents suit.

The facts of the case are stated in the judgment of their Lordships. The question was as to the right of the Respondent to have a certain portion of a retaining wall built by the Appellant on the side of a khal, or tidal drain, which separates their respective lands, pulled down and removed, on the ground that it encroached on the khal in question, and might cause danger to the Respondents premises.

The two first Courts held in effect that, though there appeared to have been some encroachment at one point on the channel of the khal, by the retaining wall in question, which did not exactly follow the course of the old retaining wall that had fallen down, but in one place advanced beyond that wall, and in another did not go so far as the latter had done into the bed of the khal, yet that the Plaintiff had failed to shew that any damage necessarily resulted to his property from such deviations.

The High Court in their first judgment, on the authority of the case of Bickett v. Morris (1), held that in the case of any encroachment on such a watercourse as the khal in question "the probability of future damage was a matter not necessary to be con sidered," and that the Plaintiff had a right without such proof to have the encroachment removed, and accordingly remanded the case to the Lower Appellate Court to have the extent of the encroachment ascertained.

The Judge of the Lower Court found and reported as to the extent of the alleged encroachment. The Divisional Bench of the High Court, differing therefrom and arriving at another conclusion as to the extent, directed the encroachment so found to be removed.

Leith, Q.C., and Boyne, for the Appellant, contended that the circumstances of the case differed from those of Bickett v. Morris ((1) Law Rep. H. L., Sc. 47.). The Courts had found that there was no immediate or prospective damage to the Respondent; and that he had no title to the bed of the khal or to the solum on which the Appellants wall had been constructed. The decided cases go so far as to reduce flowing streams to inutility. If no riparian proprietor may diminish the water of the adjacent stream at all, notwithstanding that he causes do damage to others, it follows that he is deprived of all rights with regard to the water; e.g., to give drink to his cattle or to water his garden. It must depend on the circumstances of each case what use is a reasonable use Orr Ewing v. Colquhoun ((2) 2 App. Cas. 839). There must at least be an injuria, something which entitles the Plaintiff to nominal damages as an infringement of a right, in this case of au incorporeal private right. Reference was made to Miner v. Gilmour ((1) 12 Moo. P. C. 156.), cited in the last case Williams y. Morland ((2) 2B.&C. 910) Gale on Easements, p. 193. Bickett v. Morris ((3) Law Rep. 1 H. L., Sc. 47.) does not apply; first,

it is not an authority in an Indian case which must be governed by equity and good conscience; second, if it expresses a general principle the case in 2 App. Cas. shews that a sensible injury must be the foundation of the suit and then a remedy would be applied in equity. The evidence here clearly shews that there was no injury, that the encroachment did not produce any bad effect on the rights of the riparian proprietors. The judgment of the High Court proceeds entirely on the ground that this is an encroachment and therefore illegal, and consequently that the Respondent was entitled to its removal. [Sm. Barnes Peacock —It is not found to be an encroachment on the easement but on the land. It is not found that there was an easement.] Counsel were stopped by their Lordships.

The Respondent did not appear,

The judgment of their Lordships was delivered by Sir Robert P. Collier —

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