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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Green v Lord Somerleyton & Ors [2003] EWCA Civ 198 (28 February 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/198.html Cite as: [2003] EWCA Civ 198 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
CHANCERY DIVISION
(His Honour Judge Rich QC sitting as a High Court Judge)
Strand, London, WC2A 2LL | ||
B e f o r e :
JUSTICE SCHIEMANN
LORD
JUSTICE JONATHAN PARKER
and
SIR CHRISTOPHER STAUGHTON
____________________
John ![]() ![]() | Claimant/ Appellant | |
- and - | ||
The Right Honourable ![]() ![]() | Defendants/Respondents |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Nicholas Caddick and Mr Alexander Learmonth (instructed by Messrs Nicholsons) for the Defendants/Respondents
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord
INTRODUCTION
"A declaration that the Defendants and each of them have no right to discharge water from Fritton Lake and/or [Scale Marshes] onto [Priory Marshes]".
THE PHYSICAL FEATURES IN MORE DETAIL
"Fritton Lake, also known as Fritton Decoy, is one of the 'broads' which form so distinctive a feature of the landscape of eastern Norfolk and north east Suffolk. These areas of water are all man-made features, mainly the consequence of medieval peat-digging. .... Fritton [Lake] reach[es] a depth of nearly six metres in places. In appearance it is different from most other broads, in that it is surrounded by well-wooded and steeply-rising land.... By the nineteenth century ... the lake had acquired other functions. It was already used for pleasure-boats and was exploited as a water source by the Lowestoft Gas and Water Company. .... In or around the 1950's a number of weirs were constructed across the three main outfalls at the lake's western end. These are very simple structures – no more than several wooden planks laid one above the other – which serve to maintain the water at around 0.6 metres above natural maximum level. In times of heavy rain the water runs over and around these obstacles. .... [T]he installation of these simple weirs did not impound the water to any very significant extent: they are not associated with any form of artificial dam of embankment. Their erection did not materially change the size of shape of the lake ...."
"Fritton Lake is artificial, in the sense that it is man-made. But it is not in any meaningful sense a 'reservoir' because it was not created to hold water but was instead, like a flooded gravel pit, an unintended side-effect of extraction. It is true that water has been regularly taken from the lake by the water company [a matter to which further reference is made below], and is still being extracted. It is also true that in the 1950s the level of water within the lake was artificially raised by c. 0.6 of a metre by the construction of weirs at the main western outfalls. But no artificial dams or embankments were created and the weirs simply maintain water within the lake at times of reduced inward flow, rather than control outflow at times of spate. .... I would emphasise that neither the creation of Fritton Lake in medieval times, nor the construction of weirs at its western end in the twentieth century, made any material difference to the line of natural drainage from the valley in which the lake lies, although these changes will certainly have reduced the amount of water flowing along the line of natural drainage at certain times of the year."
"This [i.e. the Blocka Run] was always more than a mere drainage ditch. It was a significant watercourse, carrying water from Fritton Lake to the river Waveney. .... Streams draining off the uplands, and across the marshes, always had sluices where they met the principal rivers, simple 'flap sluices' which enabled them to discharge at low tide, but which were held shut by the pressure of water at high tide. .... There is no real doubt that there had [sic] been a sluice here [i.e. where the Blocka Run met the river Waveney] since medieval times, preventing the penetration of tidal water up the [Blocka Run]. .... There is no doubt that the line of this watercourse has remained largely unchanged since early medieval times, for it is followed for its entire length by the parish boundary between Herringfleet and Fritton. .... The origins of the [Blocka Run] are not entirely clear. It is possible that it represents an entirely artificial channel, constructed when the marshes were drained as a replacement for this natural watercourse. On analogy with the situation elsewhere in the local marshes, however, it is more likely that it follows, more or less, the line of the natural watercourse, and in effect represents that watercourse, altered and improved to some extent at the time of reclamation. .... The [Blocka Run] thus represents either the original line of natural drainage from the valley in which Fritton Lake is situated; or an artificial watercourse of extreme antiquity..."
THE RELEVANT DEEDS
".... subjected [sic] to and with the benefit of the provisions contained in a certain Deed of Covenant as to draining marshes of even date herewith executed by the parties hereto."
"... work the same whenever requisite for the purpose of draining the said lands and effectually drain the same PROVIDED ALWAYS that the saidLord Somerleyton
his heirs and assigns owner or owners for the time being of the said [pump] shall not be liable for any flooding of the said hereditaments or any damage thereto caused or necessitated by extraordinary floods or by the stoppage of the [pump] unless such stoppage shall occur by reason of his or their wilful neglect or default."
".... at his or their own cost [to] stop up rat and mole holes and other holes in the river and marsh walls [i.e. the embankment] and banks upon [Priory Marshes] and also keep the said walls and banks in good and substantial repair and also cleanse and scour and keep cleansed and open and in proper order the [Blocka Run] the Mill Dyke and the Land Spring Dyke ...."
".... whenever necessary for the purpose of drawing water from the marsh dykes and draining [Priory Marshes] and [Scale Marshes]",
and to pay for the electricity used by the pump. He also covenanted to be responsible for all repairs to the pump other than capital replacements. Covenant (d) by Mr Henry is in the following terms:
"Draw and keep clean the Main Drains [an undefined expression] running through the said Marshes .... so that the water level can if necessary be reduced to within six inches from the lowest level of the culvert under the [A143] and also that he will draw and keep clean and clear his half of the [Blocka Run] so as to prevent flooding of [Priory Marshes or Scale Marshes] Provided Always that Mr Henry shall not be held liable if such flooding is caused by the other part of the [Blocka Run] not having been kept clean and clear."
"PROVIDED ALWAYS and it is hereby agreed that neither party shall be liable to the other party in respect of flooding arising from abnormal circumstances such as a breach in the River Wall or extraordinary rainfalls or the stoppage of the working of the [pump] caused otherwise than by the neglect or fault of the parties hereto .... PROVIDED ALSO that should either party consider that owing to factors arising during the passage of time the terms of this Deed are unfair and should be varied then in default of any agreement thereon between the parties hereto or in the case of any dispute arising out of the terms of this Deed or the performance thereof or as to the rights liabilities or duties of the parties hereto or otherwise .... touching the subject matter hereof such dispute shall be referred to a single arbitrator to be agreed upon by the parties hereto and in accordance and subject to the provisions of the Arbitration Acts 1889-1934 or any statutory modification thereof for the time being in force and in making his award by way of fixing new terms hereof or upon any such dispute such arbitrator shall consider among other things both the terms of this Deed and any measures necessary to ensure the proper and adequate drainage of both [Priory Marshes] and [Scale Marshes]."
THE CONDITION OF THE BLOCKA RUN
"Up until this time, it is thought that [the] Blocka Run was, in the main, self-cleansing under the natural flow of water through it but since the 1950s and the erection of the dams at Fritton Lake, the flow has decreased and this has had the effect of reducing the velocity of water passing through the dyke which has slowly silted up. The principle of the self-cleansing effects of [the] Blocka Run led to a situation where maintenance of the dyke was believed byLord Somerleyton
not to be required and the Blocka Run fell slowly into disrepair.
The flow of water into the River Waveney from the Blocka Run was previously controlled by a tidal flap valve maintained by a marshman, but this has silted up and is no longer usable without substantial repair/replacement, for which working in tidal waters would be necessary. Gales over the last 40 years have resulted in trees, bushes, etc. falling into and obstructing the dyke, which now merely serves to act as a storage channel. It holds water at a high level, flooding the [Carr Land] and the boggy peatland surrounding the dams at the western end of Fritton Lake ....
[The] Blocka Run and its sluice are effectively irrecoverable without considerable repairs and expense. .... repairs would include substantial tree clearance, regrading and desilting and replacement of the outfall in tidal waters. [The] Blocka Run no longer forms an integral part of the drainage system and merely serves as an amenity to the land immediately to the north."
THE ACTIVITIES OF THE LOCAL WATER COMPANY
THE JUDGE'S JUDGMENT
Findings of fact
- "The landscape, as most English landscape, is man-made. The lake [i.e. Fritton Lake] although probably natural in origin, had its present extent and contours determined by peat extraction in the Middle Ages or earlier" (judgment p.2C-D).
- "In the winter of 1993 to 1994 the claimant's land was flooded by water flowing from the lake over Scale Marsh under the A143 and onto his land. It appears that this followed a combination of rainfalls together representing an event more remote than 1 in 25 years" (judgment p.3G-H).
- "The flood was not cleared because the pump broke down. It was blocked by eels swept down by the water. So the breakdown may itself be said to have been caused by the exceptional weather. .... No fault has been proved in the breakdown" (judgment p.3H-4C).
- The abstraction of water from Fritton Lake by the water company from the 1960s onwards had the effect of reducing any flow out of the lake. "At the end of the 1980s, however, and in the period immediately before the 1993 flood, abstraction had declined and the lake was already full at the time of the exceptional rains to which I have referred." (Judgment p.4F-G.)
- The Blocka Run follows – approximately – the natural line of drainage down the valley (judgment p.8C). "It is an artificial watercourse of great antiquity. It is a dyke whose bed has been dug out and it has ..... been embanked over the years in the course of which the course has almost certainly been altered. It is protected from incursion by the tide by a tidal flap. Before such embankment and protection, [water] would have run to the river by various creeks through the marshes. Before the war, however, it ran through its banks as a free-flowing stream. As such, with modest maintenance it was self-cleansing. .... Certainly by the time at which the water company raised the weir on the lake in 1954 the [Blocka] Run was already described as "congested". Nonetheless, at the time of the [1958 Drainage Deed] it still operated as a watercourse" (judgment p.8B-F).
- The Blocka Run is ".... within the ownership of the riparian owners which extended to the middle of the stream at those points where the stream divided the ownership of the adjoining land. Thus, [in 1958], half the width of [the] Blocka Run below the A143 down to the River Waveney was in the ownership of Mr Henry .... It is that part which the [1958 Drainage Deed] required him to keep clear. Above the A143, at least half the width was owned by the
Somerleyton
estate" (judgment p.8G-9B).
- ".... by the mid-1960's the tidal sluice on the claimant's section of the [Blocka] Run was blocked so that the Run no longer operated as a drainage channel from the lake" (judgment p.9B-C).
- ".... the first complete impediment to the functioning of the [Blocka] Run as a drainage channel, namely the silting up of the tidal sluice, occurred .... within the length which the claimant's predecessors had undertaken to maintain" (judgment p.12B-C).
- Water flowing from the lake and over the Carr Land would, when the Blocka Run was operating, enter the Blocka Run. "Water crossing Blocka Lane would be intercepted by the [Blocka] Run .... and would be prevented from entering the lower drainage system in the marshes which feeds into Mill Dyke by the artificially raised ground level which protects the marshes from the Blocka Run [a reference to the embankment described earlier]." (Judgment p.9D-F.)
- "... the consequence of the silting up of the Blocka Run [was] that any water from the catchment area of the valley, including the lake, which is not abstracted by the water company, finds its way onto [Scale Marshes] and thus onto .... Priory Marshes" (judgment p.10H-11A).
- ".... these areas [i.e. Scale Marshes and Priory Marshes] must, by reason of their level, at all times have been the natural receptor of such water as was not captured and retained by the embanked Blocka Run. Even when the [Blocka] Run was operative, there must have been some such water, whether because it made its way [along what] Mr Wright has described as its present route or because the [Blocka] Run had backed up when its tidal flap was closed or because it escaped to the marshes by seepage or leakage from the [Blocka] Run. It is .... for this reason that .... the marshes are marked on old maps as 'liable to flood' – not adjacent to the river but at their eastern end nearest to the lake. I accept that when the Blocka Run was operative these flows were small and the marshes played little part in the drainage of the catchment of the valley above Blocka Lane, which I will refer to as 'the upper catchment'. " (judgment p.11A-E).
- "The reason .... why the marshes played so little part in the drainage of the upper catchment was the artificial embankment of the [Blocka] Run .... This itself became over the centuries more essential to the continuation of the drainage pattern because that pattern itself led to the drying out of the marshes and their consequent compaction and resulting reduction in level" (judgment p.11E-G).
- Maintenance of the Blocka Run was "neglected by the owners of both marshes as the water company's level of water abstraction appeared to make the continued function of the [Blocka] Run unnecessary" (judgment p.12 A-B).
- The overflow from Fritton Lake onto Scale Marshes which resulted in the flooding of Priory Marshes did not constitute an artificial watercourse or a diversion of the artificial course of the Blocka Run (judgment p.19B-C).
- ".... the damage to the claimant's land .... has at most been caused by the blocking of the artificial channel which enabled the lake water to escape without entering the claimant's land. The damage which the claimant's land has suffered is due to its own natural deficiency of being below the level of the catchment of the Fritton valley and of course also below the River Waveney so it is dependent upon pumping to relieve it of flooding from natural drainage" (judgment p.24A-C).
The 1958 Drainage Deed
The Trustees' claim to an easement
"By way of implied reservation under the provision in the 1921 Conveyance which referred to the 1921 [Drainage] Deed there was reserved to the owner of the [wind-operated pump] an easement to draw water by pumping operations from the blue land to the site of the [pump] through [Priory Marshes], and thereby to drain [Scale Marshes]. The easement reserved was not a general and unrestricted one to discharge water from the [Scale Marshes] onto [Priory Marshes]. Further and in any event, neither the 1921 Conveyance nor the 1921 [Drainage] Deed nor both of them together created any easement to drain Fritton Lake through [Priory Marshes]." (My emphasis.)
".... if, which is denied, the defendants and their predecessors in title have acquired any easement of drainage by prescription, it is an easement to draw water by pumping operations from [Scale Marshes] to the site of the [pump] through [Priory Marshes], and thereby to drain [Scale Marshes]. It is not a general and unrestricted easement to discharge water from [Scale Marshes] onto [Priory Marshes]. Further and in any event, it is not an easement to drain Fritton Lake through [Priory Marshes]." (My emphasis.)
"How else could they be drained? How can the working of the [pump] not be "requisite" to draining the area of such water as is naturally on it, irrespective of any potential diversion if, as a matter of fact, that potential is not realised [a reference to the unusable Blocka Run]? My analysis of the evidence as to the drainage system shows that but for the artificial embankment of the [Blocka] Run the water naturally in the marshes would include water draining from the upper catchment.
[Priory Marshes] is in exactly the same position as regards water from the River Waveney which but for the river walls would likewise naturally be found on the marsh as a result of incursions from the River Waveney. The [1921 Drainage Deed] therefore contains a covenant by Mr Mallett to maintain the river walls. He also obliged himself to in terms similar to those repeated in the 1958 Drainage Deed to keep the [Blocka Run] cleansed and in proper order. No such obligation, however, was imposed on the vendor or the owner of [Scale Marshes] although works on [Scale Marshes] could maintain the embankments which separated the drainage systems. I accept that the owner of [Scale Marshes] would not be entitled to introduce water into the marsh dykes, for example, by diverting either its natural flow or an artificial watercourse. However, in the absence of any obligation, express or implied, to maintain the artificial watercourse [i.e. the Blocka Run] I see no reason why the implied easement of drainage, which it is agreed must necessarily be implied, should not apply to whatever water arrived naturally upon [Scale Marshes]. For these reasons, I conclude that the effect of the 1921 Conveyance is that [Scale Marshes] does have attached to it an easement of drainage into the dykes on the claimant's land including the Mill Dyke of such water as arrives on [Scale Marshes] naturally, including any outflow from the lake."
"The natural flow is not, I think, therefore, to be regarded as a hazard which would bring into play the duty of care held to arise in Leakey's case."
"Although in 1958 the parties no doubt expected the upper catchment to continue to drain at least predominantly through the artificial channel of the [Blocka] Run, they were clearly aware of the propensity of the marshes to flood and the necessity to drain [Scale Marshes] into [Priory Marshes] and thus to pump water into the river. They made what seemed to the then parties a reasonable apportionment of responsibility. The owner of [Scale Marshes] was to provide the pump and replace it if need be. The owner of [Priory Marshes] was to operate the pump. If circumstances changed, then the procedure for reconsidering responsibility was set out. In my judgment, the owners of [Scale Marshes] are entitled to rely on this agreement [i.e. the 1958 Drainage Deed] as a discharge of their duty of care if it arose, notwithstanding the easement of drainage which I have held to exist."
"The terms and timing of such offer were vague in the extreme. There may be terms which if formally and clearly proposed would be unreasonable for the defendant[s] to refuse. Any such proposal is, however, in my judgment, best considered in the course of an application to vary the terms of the 1958 Drainage Deed on the ground that 'owing to factors arising during the passage of time it has become unfair'."
THE GROUNDS OF APPEAL
THE RESPONDENT'S NOTICE
THE ARGUMENTS ON THE APPEAL
The arguments for Mr Green
"…. from on or about 26 December 1993 water from Fritton Lake has continued to escape therefrom onto [Scale Marshes] from where it has continued to escape onto [Priory Marshes] damaging the same". (Emphasis supplied.)
The arguments for the Trustees
- that the principal reason why the Blocka Run fell into disuse was the abstraction of water from Fritton Lake by the water company in exercise of its statutory powers;
- that the Trustees might reasonably rely on the water company to deal with potential problems;
- that Mr
Green
had not maintained his part of the Blocka Run (nor, for that matter, had the other riparian owners);
- that the Blocka Run, when in use, intercepted what the judge found to be the natural flow of water;
- that the Trustees had no reason to apprehend that the pump was going to fail;
- that the clearing of the Blocka Run would be disproportionate in terms of cost to the damage likely to be caused to Priory Marshes by intermittent flooding;
- that the person primarily responsible for protection Priory Marsh from flooding was and is Mr
Green
himself;
- that Priory Marsh is, as the judge found, inherently liable to flooding; and
- that as Mr
Green
's interest in Priory Marshes is a commercial one, it is the less reasonable to expect the Trustees to expend money on preserving that interest.
CONCLUSIONS
Liability in nuisance (absent any easement)
".... the nature and extent of the duty is explained in the judgment in Goldmanv
. Hargrave [[1967] 1 AC 645] at pp.663, 664. The duty is a duty to do that which is reasonable in all the circumstances."
"If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree."
"In my view, the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather, it is that, by virtue of his occupation, an occupier usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard which constitutes the nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to exercise that control so as to remove the hazard."
".... [T]he case can be conveniently considered by taking, first of all, the position as it would have been if the demolition of the wall had been carried out by the freeholder, he being, for the purposes of this consideration, in occupation of the premises. The wall had been constructed upon his land under an agreement with the local Board, under which they were entitled to object to his removing it. He agrees with the local Board that for certain purposes he shall be entitled to remove it, and he does remove it. What right can that possibly give the respondents? They had no right to call upon Mr Idris Williams [the freeholder] or anybody else to erect a wall upon this land for the purpose of protecting their property. If Mr Idris Williams, for his own purposes, with or without the assistance and co-operation of the local Board, chooses to erect such a wall, on no principle of law known to me would a third person be entitled to insist on its continued existence. If this wall had been erected by the freeholder and taken down by the freeholder the next day, or a week, or a year afterwards, with the result that the floodwater took the course which it would have taken if the wall had never been there, I cannot see, on any principle known to me, that the respondents would have been entitled to complain. If it were not so, a person, in putting up a defensive work on his own land, would act at his peril, because by the mere fact of erecting it he would be conferring upon his neighbours, or persons in the neighbourhood, rights to insist that he should never remove the wall or building that he had put up. Such a doctrine, in my opinion, finds no support in any principle of our law. If the learned county court judge had considered the implications of his decision and had approached the matter from the angle of the rights of the respondents, rather than from the angle of the alleged carelessness of the appellants, I cannot help thinking that his decision would have been different from what it was." (My emphasis.)
"In the argument based on nuisance Mr Sandlands [for the respondents] submitted that the appellants, in pulling down this wall without proper excuse, caused water to flow on to their own premises, which ought not to have been there, whence it escaped to the damage of the plaintiffs. He said that the presence of the gap was an artificial work, and by means of that artificial work water was allowed to escape in the way that it did. I am afraid that the conception of these gaps as artificial works is one which my mind is unable to grasp. The assertion that the appellants pulled down the wall unlawfully, that is to say in its broader meaning, without proper excuse, really begs the whole question. Mr Sandlands also used the word "unlawfully" in a narrower sense, that is to say as meaning that the appellants exceeded the terms of their licence and therefore committed a trespass, which is what he contended in his argument on the question of negligence. I have already dealt with that and I do not propose to add anything to what I have already said, but why the pulling down of the wall was in the broader meaning of the term unlawful, I am afraid I am unable to appreciate. Mr Sandland endeavoured to suggest that the existence of these gaps, or the existence of what was left of the wall, coupled with the gaps, had in some way caused the flood water to flow in a direction, or volume, in which it would not have otherwise have flown. He suggested that the real complaint might be that the appellants had placed an artificial obstruction or maintained an artificial obstruction, on the banks of the river consisting of the front of their new buildings which, when taken in conjunction with the gaps, caused water to flow in a way in which it would not otherwise have flown. If any such case could have been made, it would have been a case on which evidence would have been required. It was not suggested that there was a particle of evidence in support of it, and it would be impossible for this Court, or any other court, to decide a matter which is fundamentally a matter of fact without having the necessary evidence before it. I accordingly dismiss that point.
Mr Sandlands, in the course of his argument, referred to a range of authorities from St.Helens Smelting Co.v
. Tipping (I) to Donoghue
v
. Stevenson (2), and from Rylands
v
. Fletcher (3) to Sedleigh-Denfield
v
. O'Callaghan (4). I do not find in the general observations which he culled from some of the judgments and opinions in those cases anything which assists me to accept any of his arguments. The general observations in question must, of course, be read in the light of the facts of the cases to which they related. As it seems to me, the simple ground for deciding this case is that the respondents had no right to have the wall erected, they had no right to insist on its continuance, they had no ground of complaint whatsoever against anybody who rightfully took it down, and the appellants in this case rightfully took it down under their licence from the freeholder." (My emphasis.)
"... for the proposition that where the riparian owner of land on a non-tidal river erects a wall for his own purposes, for the protection of his own land, a person owning land behind him is entitled to require that he shall never thereafter remove it, or any part of it."
"The decision of this court in Thomas .... is not to be explained on the basis of some special principle of "naturalness" applicable to the digging of minerals on one's own land. That was a case of flooding from a river. But the decision itself, it appears to me, can be justified without any inconsistency with the Goldmanv
. Hargrave .... development of the law. There was nothing whatever which could be described as unreasonable, bearing in mind that an occasional flood in the river was foreseeable, in the defendants taking down an old protective wall on their own land in order to rebuild it. The fact that a flood happened to come before the wall was completely rebuilt could not, on any view, of itself give rise to liability on the defendants. But the potential liability of an owner or occupier to his neighbours for the overflow of a stream from his land on to their land does, indeed, give rise to possible injustice. To this I shall return later."
"Take, by way of example, the hypothetical instance which I gave earlier: the landowner through whose land a stream flows. In rainy weather, it is known, the stream may flood and the flood may spread to the land of neighbours. If the risk is one which can readily be overcome or lessened – for example by reasonable steps on the part of the landowner to keep the stream free from blockage by flotsam or silt carried down, he will be in breach of duty if he does nothing or does too little. But if the only remedy is substantial and expensive works, then it might well be that the landowner would have discharged his duty by saying to his neighbours, who also know of the risk and who have asked him to do something about it, "You have my permission to come on to my land and do agreed works at your expense"; or, it may be, "on the basis of a fair sharing of expense". In deciding whether the landowner has discharged his duty of care – if the question were thereafter to come before the courts – I do not think that, except perhaps in a most unusual case, there would be any question of discovery as to means of the plaintiff or the defendant, or evidence as to their respective resources. It may be that in some cases the introduction of this factor may give rise to difficulties to litigants and to their advisers and to the courts. But I believe that the difficulties are likely to turn out to be more theoretical than practical."
"In the present case, as we have said, the natural flow of surface water was not obstructed by the filling in of the long drain, for the natural flow was in the opposite direction. In such a case, it is difficult to see why the respondent should not have been free to block the artificial drain on his own land, even if to do that was not necessary for the enjoyment of his own land. Another decision which throws some light on the present case is that of the Court of Appeal in [Thomas]. In that case the appellants had built a wall along the side of a river to protect their own lands and an adjacent highway from flooding. In the course of building alterations they pulled down the wall, leaving gaps which they intended to fill by a new building, but the river suddenly rose and the respondents' land was flooded. It was held that the appellants were not liable either in nuisance or negligence. Sir Wilfred Greene MR who delivered the judgment of the Court of Appeal, said at p 389: "If this wall had been erected by the freeholder and taken down by the freeholder the next day, or a week, or a year afterwards, with the result that the floodwater took the course which it would have taken if the wall had never been there, I cannot see, on any principle known to me, that the respondents would have been entitled to complain. If it were not, so a person in putting up a defensive wall on his own land, would act at his peril, because by the mere fact of erecting it he would be conferring on his neighbours, or persons in the neighbourhood, rights to insist that he should never remove the wall or building he had put up." He went on to say (at p393) that "the respondents had no right to have the wall erected, they had no right to insist on its continuance, they had no ground of complaint whatsoever against anybody who rightfully took it down." The decision in that case was explained in [Leakey] on the grounds that there was nothing unreasonable in the action of the appellants in taking down the old protective wall on their own land in order to rebuild it. However, it seems to us, with all respect, that the judgment of Sir William Greene MR proceeded on the basis that the appellants had no duty to act reasonably. If there was such a duty, it must, in our opinion, have been created by the fact that the removal of the wall caused the flood water to flow onto the respondent's land. Where a person, by doing something on his own land, causes actual and material damage to another's land, the act of the first-mentioned person, although otherwise lawful, may be actionable if it was unreasonable having regard to all the circumstances, including the effect it was likely to have on the other land. For example, the neighbour of a railway company may have no right to require the company to maintain an embankment, and the company may lawfully cut trenches in the embankment, but if it does so when the consequence is to cast flood waters on to the neighbour's land, the company may be liable: see Whalleyv
Lancashire and Yorkshire Railway Co (1884) 13 QBD 131. A landowner may lawfully build a paved driveway on his land, but he may be liable in nuisance if he does so in such a way as to divert storm waters onto his neighbour's land: Bennetts
v
Honroth [1959] SASR 170.
If the respondent, by filling in the long drain, had diverted water on to the appellants' lands, it would have been necessary to decide whether his action in blocking the drain was a reasonable use of his own land in all the circumstances. But that was not the case. The filling in of the drain has not caused water to flow onto the appellants' lands; it has had the effect that the waters already on those lands, whether surface waters resulting from heavy rain or waters from flooded rivers or creeks, now cannot flow from those lands by the artificial drainage system that was made available by the cutting of the drain. Before the drain was cut the waters did not flow from the appellants' land to the respondent's land. The closure of the drain has not penned back water on the appellants' land, but has blocked the artificial channel which enabled the water to escape from those lands. The respondent's action has not caused the appellants' lands to be damaged, invaded or interfered with. The damage which the appellants have suffered is due to the natural deficiency of their lands, and to the fact that the occupiers of land other than the respondent have impaired the natural drainage system provided by Orchard Creek, and to the fact that the respondent would no longer provide an artificial means of drainage to carry from the appellants' lands water that would not naturally flow onto the respondent's land. The respondent had no duty to help the appellants in this way."
The Trustees' claim to an easement of drainage
"The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. .... But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use." (My emphasis.)
"And that this Conveyance is subjected [sic] to and with the benefit of the provisions contained in a certain Deed of Covenant as to draining marshes of even date herewith executed by the parties hereto ...."
".... whenever requisite for the purpose of draining the said lands [i.e. Scale Marshes and Priory Marshes] and effectually drain the same."
RESULT
Sir Christopher Staughton :
Lord
Justice Schiemann :
Order: