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THE BAPTIST MISSIONARY SOCIETY v. WIJEKOON
NLR19V401
1917 Present: De Sampayo
J.
THE BAPTIST MISSIONARY SOCIETY v. WIJEKOON.
3-C. R. Matale, 11,075.
Servitude-Jus cloacae-Sewage
flowing into neighbour's premises.
The defendant had water service laid to his house and property, built and partly
extended his old drains, with the result that a greater volume of water and
filth was brought down the drains, and a larger quantity of it escaped into
plaintiff's premises.
Held, that the defendant could not increase the volume of such matter or
discharge it in a concentrated form to the prejudice of the plaintiff,
IN
this case the plaintiff complained that
the defendant, who is a neighbouring and upper proprietor, had by means of
artificial drains concentrated the rain water that fell on to his premises and
diverted it on to the plaintiff's premises; and, further, that by means of the
said drains he wrongfully discharged sewage on to the plaintiff's compound. The
learned Commissioner (W. J. L, Rogerson, Esq.) held as follows: -
" Now, the real trouble in this case started when a water service was laid on in
defendant's premises; until then bathing was apparently unpopular, and such
water as was used by defendant's tenants for bathing was not sufficient in
volume to find its way into the servient tenement. When there was heavy rain,
clean rain water, of course, flowed into the tenement, and plaintiff could not
object. But once the water service was laid on, every one, including Mr.
Benjamin, made use of the bathroom, the tap was undoubtedly left running,
washing operations of all kinds took place, and volumes of dirty water entered
plaintiff's premises. It is quite clear that he objected to this immediately
(vide Mr. Pearce's letter and Mr. Benjamin's evidence).
It was the extension of drain Y to the fence that first caused trouble, as
previous to this the small quantity of water used was absorbed in defendant's
compound and did not reach plaintiff, certainly not in sufficient quantity
to be noticeable.
Defendant. quotes to me a case in 14 N. L. R. 340, arguing that it was only the
extension of Y to the fence that caused plaintiff to complain; that this is a
small alteration, and de minimis not curat lex Would apply A perusal of the
judgment in that case shows that it does not apply. That was a case where the
servient owner acted in such a way as to affect the dominant owner's right, and
the dominant owner took counter steps to secure the enjoyment of his servitude.
in this case, on the contrary, it was the extension of Y to the fence that
first caused the defendant's
filthy water to reach plaintiff's land at all, and then it only came in
moderately small quantity, sufficient, however. to cause a nuisance. After the
water service was laid on, the flow was much greater, and the nuisance became
acute. It was then that plaintiff took steps which culminated in this action
being brought. I have no doubt whatever as to the accuracy of these statements,
for they clearly represent what must actually have occurred.
I find these that, even if defendant had acquired a prescriptive right to carry
his water on to plaintiff's premises, ho would have been bound to carry it
through those premises by a locus cavus. I find that he has acquired no such
right, that the only right he possesses is the jus fluminis, i.e., the right to
discharge clean water on to plaintiff's premises, I answer issue No. 2 in the
negative.
No. is in the affirmative, subject to the proviso relating to the ,locus cavus.
Plaintiff has waived damages. I declare plaintiff free from the burden of
receiving filthy water from defendant's premises, and I order defendant to pay
to plaintiff the costs of this action.
Wadsworth, for defendant, appellant. J. W. de Silva. for plaintiff, respondent.
Cur. adv. vult.
March 2, 1917. DE SAMPAYO J.-
This action is brought by the Baptist Missionary Society Corporation for the
purpose of abating
