Lord Dunedin.:-

The consolidated appeals are against two judgments of the Royal Court of Guernsey, which dismissed an action for an injunction and an action of damages at the instance of the appellant, Gibbons, against the respondents, Lenfestey and another. The judgment in both actions is the same and dismisses the action as irrelevant. It is not a very convenient position that when an action has been dismissed on pleading alone the actual pleadings are not before their Lordships. They are, however, practically recited — whether textually or not — in the judgment, and there is sufficient to shew that it is not in accordance with justice that the case should have been disposed of without any enquiry into the facts. There were several amendments made, but the pleadings as they finally stand are as follows :-

The appellant and respondents are co-terminous proprietors, the appellant's land being bounded on one side by the high road of Grandes Rocques. The appellant avers that his close of land is situated at a lower level than the high road, but at a higher level than the close of the respondents-

"Lesquelles premisses (the respondents') ont etc., tenues de temps immemorial de recevoir les eaux de pluie et de source des dites premisses du dit Gibbons y compris celles qui venant des premisses superieures a celles du dit Gibbons et de la dite Grande Route s'ecoulaient pardessus les dites premisses du dit Gibbons."

He then says that in 1872 a verbal agreement was made between all the proprietors concerned by which a regular channel was made by means of drains, gutters, and pipes which took the water from the lands of the respondents, including the water coming from the high road across the lands of the respondents and other proprietors down to the Bay of Port Soif. The course of the waters thereafter was by a drain on the appellant's land which passed along the old dyke, which was the boundary between the properties, and then coming through the dyke entered a pipe and gutter in the lands of the respondents. He then states that in 1905 he pulled down the old dyke and built a greenhouse wall in approximately the same line as the old dyke, but two feet distant from his boundary, in which wall he made a hole at a spot — subsequently altering this at the request of the respondents to another spot so as to be exactly opposite the place where the waters had entered into the pipe and gutter on the respondents' land in the past, and that the water then ran over the strip of land intervening and into the pipe and gutter as in times past till 1910, when the respondents at their own hand blocked up the hole in the wall, with the result that the waters regurgitated and the appellant's premises were flooded; and he craved injunction against the respondents blocking the hole and damages for the damage suffered by flooding.

The action was disposed of without any enquiry into the alleged facts by the Court sustaining the following exceptions stated by the respondents :-

'(1) Que la dite cause ne precise pas suffisamment juels ci-devant proprietaires ont fait l'accord verbal mentionne dans la dite cause nisile dit accord verbal etait temporaire ou permanent ni les conditions que enfaisaient partie.

'(2) Qu'attendu que le dit acteur admet dans la presente cause qu'il a change la nature de ses premisses en batissant et faisant d'autres changements, il n'est pas allegue qu'il avail le droit de ce faire en vertue du dit accord verbal et d'ainsi changer el aggraver la servitude qui existait s'il y en existait une.

'(3) Qu'un accord verbal fait entre des ci-devant proprietaires ne peut etre obligatoire envers les presents proprietaires qui n'y etaient pas parties attendu que tout accord ou fait d'heritage doit etre par ecrit et enregistre au Greffe.'

To dispose of the case on these grounds involves a thorough misconception of the true ground of action. By the law of Guernsey a contract which is to have a binding effect as regards land in the hands of a successor i