HUNTER & CO. LTD VS. DELMAGE FORSYTH & CO. LTD.

HUNTER & CO. LTD
VS.
DELMAGE FORSYTH & CO. LTD.

COURT OF APPEAL
A.H.M.D. NAWAZ, J.
CA 411/97(F)
DC COLOMBO 14792/MR
MARCH 20, 2015
JULY 22, 2015.

Servitude - Right of an upper tenement to discharge water into a lower tenement - Rain water- Waste water- Jus fluminis/Servitus fluminis reepiendi - Roman Dutch Law Principle? - Actio acquae pluviae arcendae - Natural Loci - Lex - Vetustas - Natural flow of water - Sic utere tuo ut alienum non laedos.

The Plaintiff sought an injunction restraining the Defendant from discharging sewage of other noxious matter or water in excess of the water flow of the Defendant's upper land to the Plaintiffs land.

The Defendant denying the position taken up by the Plaintiff, contended that, due to the situation of the land and the gradient thereof, the natural flow of the rainwater of the Defendant's land is the through the Plaintiff's land and the Defendant has the right to discharge the rainwater through the Plaintiff's land - and the Defendant has been discharging rainwater as far back as 1906 - and in any event the Defendant has acquired by prescription the right by reason of long use without protest to discharge rainwater to the Plaintiffs land.

The trial Judge dismissed the Plainliff's action.

On appeal,

Held:

[1] The common law - Roman Dutch Law - posits that, the upper tenement has a right to discharge his ordinary rainwater on to the lower tenement which abuts the upper tenement, subject to certain limitations.

[2] A right to discharge water upon a neighbour's land may exist by virtue of a duly created servitude, or by virtue of the natural situation of the locality.

[3] Liability of a lower-lying land to receive water draining from the property above it, can originate in three different ways -

(i) Natural loci (ii) Lex (iii) Vetustas

Per Nawaz, J,

"I hold the view that the trial Court a quo was in error when it held that the presumption of vetustas applied having regard to the exercise of this right since 1906"

[4] The Defendant has not adduced any evidence to establish that it acquired a prescriptive right to discharge water since 1906.

[5] If the commencement of the servitutal right is referable to a consensual agreement - like in the instant case - it is founded on sufferance -Such user cannot be construed as adverse to the interest of the owner of the servient tenement - the Plaintiff.

[6] Though the Roman Dutch Law recognizes the natural flow of clean rainwater from upper tenement to the lower tenement, it does not recognize letting of water with stones and rubbish - The sewer must be kept clean and under repair.

[7] A natural servitude of this nature - the lower proprietor is obliged only such water as flows in the ordinary course of nature from the upper tenement. He is not bound to receive water which the upper proprietor has discharged into his premises by any artificial means which alters the natural drainage of the land, such as a ditch or channel.

[8] The claim of the Plaintiff is not based on Actio acquae pluviae arcendae. There is no positive proof of a construction of a structure on the part of the Defendant and abatement thereof.

Per A.H.M.D Nawaz, J

"The owner of the land upon which some work has been done, the effect of which was to divert rainwater from its natural course and to discharge it onto the property of a third person, was liable under the Actio acquae pluviae arcendae at most to abate the mischief and to make good any damage sustained after litis contestatio, and further that the person who had actually done the work, whether he was the owner himself or a tenant or other person was liable for the damage suffered before litis contestatio under an entirely different form of action".

[9] The Defendant has no right to let his excess water other than the natural rainwater on to the Plaintiff's land without Plaintiff's conse

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