MAUNG BYA vs MAUNG KYI NYO (DEFENDANTS)

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1925 Supreme(SC) 39

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKINSON, LORD SHAW, AND LORD DARLING.
MAUNG BYA - Appellant
Versus
MAUNG KYI NYO (DEFENDANTS) - Respondents
On appeal from the Chief Court of Lower Burma.
Decided On : June. 30. 1925.

Important Points

A lower riparian owner is liable for damages caused to a higher riparian owner by obstructing the flow of a watercourse, whether natural or artificial (if used as a natural stream), as all riparian owners have a right to the unrestricted flow of water.

Subject

Property Law - Riparian Rights

Headnote

(A) Riparian Rights - Flow of Watercourses - Obstruction of Natural or Artificial Streams - Lower riparian owner liable for damages caused to higher riparian owner by obstructing the flow of water - Riparian proprietors have a common interest in the unrestricted flow of water; any interference with the bed of a stream that directs the current in a way that causes damage to another proprietor is prohibited - A watercourse originally artificial may, through use and circumstances, grant the owner of land on its bank the same rights as a riparian owner of a natural stream.

(B) Protection of Land - Inroads of the Sea vs. Tidal Flow - Right of a landowner to protect land from the sea does not extend to closing the outfall of a fresh-water tributary to prevent the entry of salt water during flood tide, especially where such action causes flooding of lands higher up the stream.

(C) Liability for Obstruction - The identity of the party that originally created the watercourse is irrelevant to the liability of a subsequent owner who obstructs its flow to the detriment of others.

Facts of the case:
Appellants sought damages for flooding of paddy lands caused by respondents, who were lower riparian owners. The respondents had erected a bund and closed the outfall of a watercourse, which prevented the drainage of rain water from the appellants' higher lands, leading to significant crop loss. The lower court had awarded damages, but the decision was reversed by the appellate court.

Findings of Court:
The watercourse was an existing natural watercourse that had been slightly widened and deepened. The respondents obstructed the flow by filling the eye of a bridge and the channel, effectively creating a dam. This action caused the water to back up and flood the appellants' land. The court found that the access of salt water during flood tide did not justify the total obstruction of the watercourse.

Issues: Whether a lower riparian owner is liable for damages caused to a higher riparian owner by obstructing a watercourse; whether the right to protect land from the sea justifies blocking a tidal outfall; and whether the artificial nature of a watercourse precludes riparian rights.

Ratio Decidendi: Riparian owners are entitled to the unimpeded flow of water in its natural course. Even if a watercourse was originally artificial, it can acquire the status of a natural stream if used in such a way. The act of blocking a watercourse to prevent salt water entry is not equivalent to protecting land from the sea and constitutes a legal wrong if it causes flooding to other riparian owners. The identity of the entity that formed the canal is irrelevant to the cause of action for its obstruction.

Result: Appeal allowed; decree of the District Judge restored.

Legal Category Hierarchy

Advocates:
Solicitors for appellants:Light & Fulton. Solicitors for respondents: Hilbery & Son.

Judgement

Consolidated Appeal (No. 106 of 1924) from a decree of the Chief Court (May 31, 1921) reversing a decree of the District Judge of Pyapoon.

The suit was brought by the appellants to recover damages caused to their paddy land by flooding which they alleged was due to the respondents, lower riparian owners on a channel or canal, obstructing the flow of the water therein.

The facts appear from the judgment of the Judicial Committee.

The District Judge awarded the plaintiffs damages, but upon appeal to the Chief Court the decree was set aside and the suit dismissed.

1925. May 8, 11, 22. Hon. Geoffrey Lawrence K.C., and Beesley for the appellants. Harney K.C. and Leach for the respondents.

In addition to cases referred to in the judgment reference was made, for the appellants, to Greenock Corporation v. Caledonian Ry. ([ 1917] A. C. 556.); Abdul Hakim v. Ganesh Dutt (( 1885) I. L. R. 12

C. 326.); and Ramaswamy v. Rasi . (( 1913) I. L. R. 38 M. 149.)

June 30. The judgment of their Lordships was delivered by

LORD ATKINSON. This is an appeal from a judgment of the Chief Court of Lower Burma (Maung Kin and Duckworth JJ.) dated May 31, 1921, allowing the appeal of the respondents against a decree of the District Court of Pyapoon (Po Bye District Judge) dated September 27, 1919, by which the said District Judge ordered the respondents to pay the appellants the sum of Rs.8.821 by way of damages.

The appellants in the second paragraph of their case allege that the question raised is whether in Burma a lower agricultural owner is liable to compensate a higher agricultural owner for damage to crops by inundation caused by the blocking of a canal running through the lands of the lower owner by which the water would otherwise have been drained from the land of the higher owner.

In a sense, but only in a limited sense, is that statement accurate. Save in the second and third of the reasons for their appeal it is put forward that the law applicable in Lower Burma to the flow of and flooding by fresh-water rivers or watercourses, whether they be natural or artificial, or trespasses on the bed and soil of such rivers and streams, is different from the law as applied to similar subjects in England. A little consideration of the two cases cited will show that there is no conflict between the two systems of law, and it was not contended in argument on the hearing of the appeal that the general principles of the laws of England touching the matters above mentioned did not apply to Lower Burma. The action out of which the appeal has arisen was brought by the two appellants (who are husband and wife) in the District Court of Pyapoon, Lower Burma, to recover damages amounting to Rs. 13.448 for the wrongful flooding by the acts and procurement of the respondents of a large tract of paddy lands 68,541 acres in extent, belonging to the appellants, whereby the productivity of these lands was, in the season in which the acts were done, so reduced that they only yielded 3867 baskets of paddy instead of their normal yield of about 17,300. The District Judge decided in favour of the appellants and awarded them Rs.8.821 damages. The Chief Court on appeal reversed the decree of the District Judge, and on grounds which appear to the Board strange, and are indeed unsound, decided in the respondents favour.

Several maps of the locality were given in evidence; the two most intelligible and useful were the first, a map marked exhibit A, and the second, dated in the year 1906-7, described as exhibit 2A. With almost perverted ingenuity the draftsman of these and, indeed, of many other maps, has omitted to place upon the face of them any indication of the points of the compass, so that in dealing with them one is obliged to use the words left and right, and top and bottom of the maps in order to endeavour to fix any point or object. A study of these two maps, however, enables one to get an idea of the terrain, especially as the map of 1906 represents what was