1923 Present: Bertram C.J. and Garvin J.

 APPUHAMY et al v. SINGHO et al.

326-D. C. Chilaw, 6,582.

Riparian owners-Right to dam up stream-Damage to owner of land higher up.

A proprietor of a land adjoining a stream or watercourse is not justified in doing anything to dam up the stream in such a way M to cause an accumulation of water injurious to the land of a proprietor higher up the stream.

IN this case the plaintiffs-appellants, as owners and cultivators of the field described as lot No. 3,347 in plan No. 184,989, alleged that the defendants-respondents wrongfully obstructed the flow of surplus water running along a water-course through the appellants' land and caused it to be inundated, whereby the paddy crop was destroyed, and claimed a sum of Rs. 207.50 as damages, in the Court of Requests.

The respondents pleaded that the said field was a portion of a tank, and that they had no right to cultivate it or let out the surplus water, and claimed a sum of Rs. 1,000 alleged to have been sustained by them by reason of the appellants allowing the water to escape from the appellants' field.

On an application to the Supreme Court the case was transferred to the District Court for trial.

The following eleven issues were framed at the trial:-

1. Was lot No. 3,347 part of the tank in 1877 ?

2. Have the plaintiffs' predecessors acquired title to lot No. 3,347 by Crown grant No. 4,585 dated June 9, 1877 ?

3. Have the plaintiffs or their predecessors acquired title to the said lot by prescription ?

4. Whether the tank as shown in the plan was necessary for cultivation of defendants' land ?

5. Had the plaintiffs the right to cultivate lot 3,347 in July, 1919 ?

6. Were the plaintiffs entitled to keep the bund open in September,1919 ?

7. Did such opening of the bund empty the tank ?

8. Were the defendants entitled to conserve water in the said tank for the cultivation of these fields by maintaining the bund for both or either of the cultivations maha and yala ?

9. Was plaintiffs' cultivation destroyed as a result of the alleged obstruction by the defendants ?

10. If go, are plaintiffs entitled to claim damages; and, if so, how much ?

11. Did plaintiffs cut the bund in October, 1918; and, .if so, what damage have defendants

The District Judge delivered the following judgment:-

In this case, though a large volume of evidence has been recorded, the chief question to be decided is simple. The first and second plaintiffs are the owners of a piece of land, bearing lot No. 3,347. It is o low-lying land lying on the north of a tank (vide plan P 5). The defendants are the owners of the land on the south of the tank. There is a bund between the tank and the defendants' land. The difficulty arises in the cultivation of the two land. The defendants land is of a higher level than the plaintiffs' land. There is a water-course by the aide of the plaintiffs' land which feeds the tank in question.

The-plaintiffs cannot cultivate the land during the wet season, unless the bond is kept open and the water allowed to flow away. The defendants, on the other hand, say that the plaintiffs' land form part of the tank which was meant for the cultivation of the lands belonging to defendant and others. Therefore, the defendants say, they are entitled to keep the bond closed or open according to the requirements. There is not a scrap of documentary evidence in support of the defendants' contention. On the other hand, there is ample evidence to show that that the plaintiffs' land and the tank in question were originally the property of the Crown. There is also reason to think that the defendants' land also belonged to Crown, and was asweddumized long after the Crown sold away the plaintiffs' land. There can be no doubt whatever that in 1877 the plaintiffs' land did not form part of the tank. The Crown grant (P 1) in favour of Don Alexander Weerasinghe has annexed to it a plan.

The survey