The Attorney General V. Silva

1914 Present: Wood Renton C.J. and De Sampayo A.J.

THE ATTORNEY-GENERAL v. SILVA.

386-D. C. Badulla, 2,774.

Opening up land adjoining public road-Damage caused to road by flow of water-Action by Crown for damages-Thoroughfares Ordinance, No. 10 of 1861, s. 91. (5).

The defendant purchased a land from the Crown adjoining a public road (with a strip of Crown land said to be a road reservation intervening between the two) and opened up the land and planted it with tea. Water and silt with stones flowed down to the road, whereby the road was damaged.

The Attorney-General claimed damages from the defendant.

Held, that, as the acts of the defendant amounted to no more than what might be lawfully allowed to an owner in the ordinary course of cultivation, he was free from liability for damage caused to the road.

The principles expounded in Samuel Appu v. Lord Elphinstone 1 were not confined to a natural servitude which one landowner had over another, but applied to the case of a public road as well.

In regard to obligations attaching to the ownership of land, the Grown is in no better position than a private individual.

Section 91 (5) of the Thoroughfares Ordinance, No. 10 of 1861, contemplates nuisances such as those provided against in the numerous other sub-sections of the same section. It penalizes both the owner and occupier of the land or house, and seems to me to have in view personal acts or omissions, and the flowing of water, filth, &c,, through preventable causes.

De Sampayo A.J.-" I confess I feel some doubt as to whether a civil action for damages is the proper remedy for injury caused to a public road."

THE facts are set out in the judgment.

Bawa, K.C. (with him Dias), for defendant, appellant.

van Langenberg, S.-G., K.C. (with him V. M. Fernando, CC.), for the Attorney-General, respondent.

Cur. adv. vult.

November 20, 1914. De Sampayo A.J.-

The defendant is the owner by purchase from the Crown of a piece of land at Koslanda. The land is near the Koslanda-Possagala road, with only a portion of Crown land, said to be a reservation, intervening between the two. In 1912 the defendant opened up

1 (1909) 12 N. L. R. 321.

the land and planted it with tea. The plaint alleges that in the months of January and April, 1913, the defendant suffered water, silt, and stones to flow and run from his land on to the road, whereby the side drains and culverts of the said road were choked and the road damaged, and the Attorney-General on behalf of the Crown claims as damages the sum of Re. 1,515.02. which was expended by the Crown in repairing and restoring the road. The District Judge has given judgment as claimed, and the defendant appeals.

The evidence shows that the defendant's land is hilly and slopes down towards the road, with a ravine which constitutes the main passage for rain water. The defendant in opening up and planting the land does not seem to have done anything more than is required in the ordinary course of agricultural operations, and in view of the evidence for the plaintiff, the only thing that need be specially mentioned is a drain which the defendant cut along the lower boundary of his land above the reservation and leading into the ravine. I may say that the evidence is very1 meagre and vague in respect of any other act on the defendant's part, which may be depended on as contributing to the damage, except that it is said that the defendant allowed his drains to be filled with silt at the time of the rains and did not clear them. So far as I can see, the cutting of the drains is made no ground of complaint, nor is there any thing said as to the defendant having directed the water in an improper manner. On the contrary, the plaintiff's case appears to be that, while the defendant rightly led the water into the ravine, he did not do so more effectually. The complaint appears practically to be that he opened up the land at all. The following are t

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