Subaida Umma Et Al. V. Wadood

1927 Present: Dalton and Garvin JJ.

SUBAIDA UMMA et al. v. WADOOD.

277-D. C. Colombo, 21,200.

Nuisance-Discharge of foul water-Absolute duty-Adjoining owners-Damages.

Plaintiff was the owner of premises No. 35 and defendant the owner of premises No. 99, which abutted on each other at the back. There was a right of drainage for No. 99 through No. 86. Owing to an obstruction placed by the tenant o£ No. 36, the foul water from defendant's premises drained into plaintiff's and caused a nuisance.

Held, that the defendant owed an absolute duty towards adjoining owners in respect of foul water collected in his premises and that he was liable in damages.

APPEAL from a judgment of the District Judge of Colombo. The facts are set out in the argument and the judgment.

Tisseverasinghe (with H. E. Garvin), for plaintiff, appellants.- The facts admitted or proved in this case are that the foul water and sewage in question originated and accumulated in 2nd defendant's premises, that the 2nd defendant had a right of drainage for them through premises No. 36, that the foul water found its way through the partition wall into plaintiff's premises No. 35 and damage was caused to the plaintiff. The case therefore comes within the ruling of Fletcher v. Rylands,1 [(1868) L. R. 3, H. L. 330.] as the 2nd defendant is responsible for the damage unless he can bring himself within

the exceptions set out in that case. One of them material to this case is " the act of a stranger which there was no duty on the part of the defendant to foresee and guard against." If the owner of the servant tenement was the offender and the act was his, then he was not a stranger and it was the duty of the defendant to foresee or guard against his acts. If he failed in his duty he would be guilty of negligence.

Apart from the question of negligence the facts constitute a nuisance in the eye of the law. In a case of nuisance the question of negligence or even knowledge is immaterial. Every occupier is bound to prevent filth from his drain from filtering through the ground into the neighbor's land. (Addison on Torts, c. IV., s. 1, Nuisance, pp. 156 and 333; 21 Hals., s. 894, p. 528.)

Every man should keep his own filth on his own ground (Tenant v. Goldwin 1). He is liable even when leaking drains were not known to be so (Humphries v. Cousins 2); where moisture escapes (Alston v. Grant 3; Billard v. Toulvson 4); escape of water from a cellar (Snow v. Whitehead 5).

On the question of nuisance our law is the same as the English law (The Colombo Electric Tramways Co. v. The Colombo Gas and Water Co. Ltd.6).

H. V. Perera, for 2nd defendant, respondent.-Negligence on the part of the defendant has been negative by the Judge in the Court below and the evidence justifies his finding. The damage, if any, was caused by the occupier of No. 36. If there is no negligence, there is no liability. The question of nuisance was not raised in the Court below. The respondent, the evidence shows, had done everything in his power to abate the nuisance as soon as he had knowledge of it. The occupier, not the owner, should have been sued.

Tisseverasinghe, in reply.-The respondent had accepted responsibility and it is too late to raise the question.

December 8, 1927. DALTON J.-

Plaintiff is the owner of No. 35, Old Moor street, Colombo. Defendant is the owner of No. 99, New Moor street. The backs of these premises abut on each other, being separated by a wall which plaintiff states is his property, No. 99 being considerably higher, the premises in New Moor street draining down through the premises in Old Moor street. There is a right of drainage for No. 99 through No. 36, New Moor street. That way appears to have been blocked by the owner or tenant of No. 36, with the
 
1 1 Salk 21, 360.
2 (1877) 2 C. P. D. 239.
3 (154) 3 E. &  B. 128.
4 (1885) 29 Ch. D. 115 C. A.
5 (1884) 27 Ch. D. 588.
6 (1915

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