Gartner v Kidman

On 24th September 1958 Kidman issued a writ out of the Supreme Court of South Australia, in which he claimed an injunction against Gartner requiring him to remove the sandbanks and restraining him from obstructing the free passage of water along the channel. On 15th March 1961 Chamberlain J. gave judgment for Kidman, granting him the injunctions which he sought. From this decision, Gartner appeals to this Court.

The first question which fell to be decided by the trial judge was whether the course in which the water flowed from the swamp to the "runaway" hole was a natural watercourse. Unlike the court of first instance in Maung Bya v. Maung Kyi Nyo [1] , he was not assisted by maps which showed a watercourse in the path of the channel at a date prior to the construction of the channel. Two witnesses, Malcolm and McElroy, gave evidence that in about 1909, a prior proprietor of Kidman's land had done something to facilitate the flow of water to the sandy basin, but Mr. Alderman submits that the evidence shows that prior to this work, the water did not follow a natural watercourse but merely flowed along a depression in the ground. This distinction between a watercourse and a depression follows the language of Hood J. in Lyons v. Winter [2] , who, in that case, held that a depression which took rain water for about three months of a year fell short of the legal definition of a natural watercourse: "to constitute such a watercourse, as a matter of law, there must be a stream of water flowing in a defined channel or between something in the nature of banks. The stream may be very small, and need not always run, nor need the banks be clearly or sharply defined. But there must be a course, marked on earth by visible signs, along which water usually flows, in order to constitute a watercourse such as creates riparian rights" [3] .

1. (1925) L.R. 52 Ind. App. 385. 2. (1899) 25 V.L.R. 464. 3. (1899) 25 V.L.R., at p. 465.

The only witness who remembered the locus in quo before 1909 was Malcolm, who asserted that prior to any work being done, there was already a natural watercourse connecting the swamp and the runaway hole. He stated that in assisting Buchan, the owner of Kidman's land in 1909, to drain the swamp, "we followed the older watercourse and deepened it", and "we followed the course which the water had followed on its normal channel from the swamp into the sandy basin". Malcolm also assisted the Court by giving evidence of the peculiar topography of the Comaum district. It appears that the area is drained, not by rivers, but by a series of runaway holes, which apparently conduct water underground, where it disappears. A natural watercourse in this district would serve the purpose of conducting water into these runaway holes, and Malcolm's evidence in this respect was supported by Kidman, McElroy and Hetherington.

It seems clear that on the only evidence before the Court as to the nature of the land between the swamp and the runaway hole the learned trial judge, who had the benefit of a view, was entitled to conclude that there was originally a natural watercourse thereon, rather than a mere contour depression. This was not a case, like Lyons v. Winter [1] , where a depression had no other claim to be a watercourse than that it received rainwater in wet seasons: on the evidence, it is clear that some water from the swamp periodically drained into the runaway hole through this natural channel. It would appear that the length of this channel was some twenty chains.

The next question to be considered was the effect of the enlargement of the natural watercourse upon the riparian rights of Gartner and Kidman. The evidence shows, as mentioned above, that Buchan deepened the natural channel in 1909, but it appears also that further excavations were made in about 1938 by a successor in title to Buchan and a predecessor of Kidman, one Lamb. The effect of this evidence is to bring into operation those principles of law which relate to the characteristics of natural watercourses enlarged by artificial means, and, before attempting to examine the evidence, it would be prudent to consider the principles involved.

At one time, it was thought that an artificial stream could never be assimilated in law to the position of a natural waterway, but in Sutcliffe v. Booth [2] it was held that "although it may have been an artificial watercourse, it may still have been originally made under such circumstances, and have been so used, as to give all the rights that the riparian proprietors would have had had it been a natural stream" (per Wightman J. [3] ). In this case, there is no discussion of the circumstances which would produce this result. In Baily & Co. v. Clark, Son & Morland [4] , it appears that this effect occurs when an artificial watercourse has been in existence for many years and has come to be treated as a natural watercourse. In that case, the Court of Appeal felt that the rights of the parties were governed solely by the law relating to easements. Vaughan Williams L.J. said: "If, on the other hand, this is an artificial watercourse, any right to the flow of water must be based on some grant, whether in the nature of an easement or otherwise. The basis of every right to the flow of water must be an agreement, expressed or presumed from the user, with the owners of the land through which the stream runs" [5] . Similar remarks were expressed by Stirling and Cozens-Hardy L.JJ. However, in an earlier case, Rameshur Pershad Narain Singh v. Koonj Behari Pattuk [6] , Sir Montague Smith, delivering the judgment of the Privy Council, expressed a broader view: "any right to the flow of water must rest on some grant or arrangement, either proved or presumed, from or with the owners of the lands from which the water is artificially brought, or on some other legal origin " [1] . This broader view was developed more explicitly by the Privy Council in Maung Bya v. Maung Kyi Nyo [2] , and the relevant passage is set out in the judgment of Chamberlain J. It is important, however, to realize that in that case, the facts related to the enlarging of an existing watercourse: "What was done in 1913-1914 was, in their Lordship's view, the widening a little, and deepening a little, possibly trimming the banks a little, of an existing ancient fresh-water natural watercourse, not in their view the making by excavation and such work of a watercourse, styled a canal, where none such theretofore existed", per Lord Atkinson [3] .

1. (1863) 32 L.J. (Q.B.) 136. 2. (1863) 32 L.J. (Q.B.), at p. 139. 3. [1902] 1 Ch. 649. 4. [1902] 1 Ch., at pp. 663, 664. 5. (1878) L.R. 4 A.C. 121. 6. (1878) L.R. 4 A.C., at p. 126. 7. (1925) L.R. 52 Ind. App. 385. 8. (1925) L.R. 52 Ind. App., at p. 388.

It would appear that the plaintiff could claim the character of a natural watercourse for his channel if he can bring it into the category of a watercourse in respect of which riparian rights exist by virtue of a grant or easement. In this case, he does not assert that any such rights have arisen. Secondly, he can do so if he can show that the work of extension consisted of "widening a little, and deepening a little, possibly trimming the banks a little, of an existing ancient fresh-water natural water course"; it is on the evidence relating to this that the plaintiff's case rests.

Kelly C.B. in Holker v. Poritt [4] expressed a doubt whether the right to have water flowing through one's property is established by the effluxion of time, apart from the matter of easement. In the present case, Chamberlain J. felt that Maung's Case [2] made it clear that the circumstances which gave rise to riparian rights in the case of an artificial channel included, inter alia, "the length of time that the channel has been in use without adverse effect and the reasonableness of the purpose for which it was made and used". No authority was cited in support of this proposition by the learned trial judge, nor by counsel for the respondent Kidman. I think that the cases which I have cited show that the length of time during which the artificial channel has been used without adverse effect only creates rights of the character of easements. In the case of an artificial stream created by work done on a natural watercourse, in my opinion the circumstances which confer rights of riparian ownership, apart from rights of easement, are limited to cases where the work done is of a minor nature and has the effect of cleaning out the natural watercourse. I do not think Maung's Case [1] will support these rights if the nature of the work done is tantamount to excavation, the construction of a canal, or the like.

1. (1873) L.R. 8 Ex. 107. 2. (1925) L.R. 52 Ind. App. 385. 3. (1925) L.R. 52 Ind. 385.

I turn now to the evidence relating to the work actually done on the natural watercourse, commencing with the extensions carried out in 1909. As previously mentioned, the principal witness was Malcolm, and his evidence is that the deepening of the watercourse had the effect of reclaiming fifty to seventy acres of the swamp, but that, even after the channel was constructed, during wet seasons it was frequently banked up to more than forty acres, because the channel was not big enough to empty the swamp as fast as it filled. Unfortunately, Malcolm did not give an estimate of the size of the swamp before it was drained, but, taking the evidence of the other witnesses as to the present flood level of the swamp, an outlet which had the effect of allowing fifty acres to be reclaimed would have been in the nature of a major excavation. This seems also a reasonable inference from his evidence, which, expressed in colloquial idiom, is not easy to understand fully: "We ploughed three furrows with the plough, then used the old fork and stick tree as a sledge - wide mouth ploughing and after we done several trips with that, we used a scoop to open the end next to where the water was". The effect of the work was not to prevent the swamp from flooding, but rather to facilitate the draining of the swamp as the dry season approached: "Remember after the cleaning out operation, what was the condition of the swamp next year?" "It filled, very nearly to its top and by Christmas she was down lower than she is now".

Malcolm's evidence on this point is not, however, supported by Hetherington, who was on the property for some years after 1912. In his opinion, the drain was very shallow, "no more than a foot deep". However, Hetherington's evidence in general is unsatisfactory, since he is the only witness who was convinced that the normal outlet of the swamp was to the north, away from the sandy basin. Malcolm's evidence is supported by that of McElroy in relation to the behaviour of the swamp after construction of Buchan's channel. He stated that from 1916 to 1938 the swamp would never have covered an area greater than forty acres, because the surplus water would flow through the channel, but the normal area covered by the swamp was thirty acres, drying back to about eight acres in summer. The Court is handicapped by a lack of evidence relating to the normal rate of efflow of water in the watercourse, and also to the normal depth of the swamp prior to the construction of Buchan's channel: McElroy seems to estimate the swamp basin area as about seventy acres. But in any event, the overflow was in his opinion sufficiently rapid to prevent more than ten acres of inundation occurring even in the wet season, which, taken in conjunction with the evidence of Kidman and Malcolm as regards the capacity of the swamp when full, indicates that the channel had the effect of a substantial reduction of the normal capacity of the swamp. These considerations lead me to the conclusion that Buchan's channel was of a major character having regard to the principles discussed previously, and that therefore riparian rights will not attach to it as though it were a natural watercourse. In this respect, I differ from the learned trial judge.

The evidence relating to the further extensions of the channel carried out by Lamb in 1938 is far more satisfactory. Kidman and Lamb testified that there was seldom if ever more than seven acres of residual water and on occasions even this would dry out. McElroy stated that, after Lambs extensions, the water level was permanently considerably less than at his time. Hetherington was of the opinion that the work done by Lamb was of a substantial character. Evidence to the contrary was given by the defendant and his father: the former alleging that normally the area covered by the swamp was about twenty-five acres, the latter more than thirty acres. The trial judge formed the impression that the Gartners tended to exaggerate and that Lamb's drain was successful in virtually emptying the swamp, apart from a residual seven acres.

With regard to the effect of the sandbanks in the channel, it is clear that they are effective in preventing the draining of the swamp. The defendant Gartner first tried to show that the banks made no real difference to the swamp; later he admitted that they might have maintained a flood level of seventy acres. Kidman's estimate was that eighty to one hundred acres would flood, but that thirty acres would be the normal level. This represents the figure at which the swamp remained before Lamb's channel was dug, with this difference, that at present the surplus of water over thirty acres remains on Kidman's land instead of running out to Gartner's.

Under the circumstances, I cannot agree with Chamberlain J. that Kidman is entitled to drain his swamp into the runaway hole on Gartner's land through the channel as made by Buchan and extended by Lamb. In my view, the proper position is that Kidman is relegated to such rights as attach naturally to the land in 1909. Kidman's counsel did suggest that the present flow of water represents the position which the natural watercourse would have reached had nature been left alone, since the water would have tended to enlarge the channel. There is, however, no evidence to support this, nor to rebut the contrary proposition that the watercourse would have tended to silt up.

For these reasons, it seems that the order of the learned primary judge cannot stand.

At the hearing before this Court, both counsel stated that a solution of the case would be provided if the situation as it was in 1909 was restored by the lowering of the artificial banks. Having regard particularly to the evidence of Malcolm and Hetherington, in my view, this solution could be put into effect if the height of the sandbanks were reduced so that the overflow above fifty acres of inundation would be able to pass naturally from Kidman's swamp to Gartner's runaway hole.

This is an appeal from a judgment of Chamberlain J. in an action in the Supreme Court of South Australia in which the present respondent J. D. Kidman was plaintiff and the present appellant P. J. Gartner was defendant.

The parties are the owners of adjoining properties not far from Penola in the south-east of South Australia. Gartner's land is Section 259, an area of four hundred and fifty-five acres, in the Hundred of Comaum in the County of Robe. Kidman's property adjoins it on the east, the part of his holding that is contiguous with Gartner's property being Section 258 of the same Hundred, having an area of four hundred and thirty-eight acres. Section 258 is used for grazing. Gartner's area is less developed and is largely scrub. In the south-western corner of Kidman's land, and extending a small distance across the boundary into Gartner's land, there is an area that, unless it be artificially drained, is a swamp or a lake in wet weather. But a ditch on Gartner's land drains the water from the swamp into a large sandy hollow on Gartner's land, or did until 1958 when Gartner blocked the drain. The length of the drain, that is the distance between what may be called the edge of the swamp to the sandy hollow, is about three hundred yards. In 1958 Gartner, who had found that sand from this basin had a commercial value, constructed two sand banks across the drain, thus keeping the water away from his sand pit but penning it back and flooding the swamp, thereby depriving Kidman of a considerable area of grazing land and killing his clover and grass. Gartner having refused to remove the banks, Kidman ultimately commenced proceedings seeking an injunction and damages. Chamberlain J., after hearing evidence and viewing the land, found in favour of Kidman. He made a declaration that "the plaintiff is entitled as the owner of the land comprised in Section 258 in the Hundred of Comaum to the free and unrestricted flow of water from the said land along the channel or watercourse on Section 259 in the said Hundred". And he ordered the defendant "to forthwith pull down and remove from his land the banks in or across the said channel or watercourse". He also awarded the plaintiff £550 as damages.

The plaintiff, the respondent here, by his statement of claim alleged that the banks erected by the defendant appellant "constituted a nuisance". Now a private nuisance may be described as an "unlawful interference with a person's use or enjoyment of land, or of some right over, or in connexion with it". This definition from Winfield on Tort, 6th ed. (1954) p. 536, has been adopted in several cases. It has the advantage of covering nuisances to both corporeal and incorporeal hereditaments. It comprehends unlawful interferences with a man's enjoyment of his own land and unlawful interferences with his rights in or over another man's land, that is to say easements and profits à prendre. That from the time of Bracton the remedy of nuisance was available in both cases is said to have caused some confusion in the law, or at least in its terminology, because rights that are the natural incidents of the possession or proprietorship of land, including the rights of riparian owners to the flow of water in a stream, were sometimes called natural servitudes and thus became confused with servitudes (easements and profits) in the strict sense: see Holdsworth, History of English Law vol. VII (1925) pp. 328-331; Winfield on Tort 6th ed. (1954) p. 536; Salmond on Torts 13th ed. (1961) p. 182; Professor Newark, The Boundaries of Nuisance (1949) 65 L.Q.R., at p. 482 . In this case the damage of which the plaintiff complained was the harm done to his land. But this he said was the consequence of an interference with his rights in or over the defendant's land. That was the injury alleged. He did not say to the defendant "you must not use your land so as to injure mine". He said "you must not block my drain: I have a right of drainage over part of your land". This right or interest he claimed was appurtenant to Section 258. As will appear, there seems to have been some confusion as to what exactly was claimed to be its nature and origin. But at the trial it was sought to derive it from the common law rights of riparian owners in respect of natural watercourses.

Both parties hold their lands by registered title under the Real Property Act, 1886-1936 S.A.; and there is no reference on the titles to any easement over Section 259 in favour of Section 258. Yet his Honour's judgment in effect declares that there is such an easement, one which presumably could be registered. The possibly serious effect of such an easement on the value in the future of the servient tenement led us to deal with this appeal notwithstanding a suggestion that an appeal of right did not lie.

We were told that in South Australia the law concerning water and watercourses has not been modified by statute as in some other States. The Control of Waters Act, 1919-1925 S.A. does not apply to the lands in question here. So that questions such as arose in Grant Pastoral Co. Pty. Ltd. v. Thorpes Ltd. [1] and on appeal to this Court, Thorpes Ltd. v. Grant Pastoral Co. Pty. Ltd. [2] , do not arise here. The case is therefore governed by the common law. It was approached by his Honour and in the argument before us through common law rules concerning watercourses.

1. (1953) 54 S.R. (N.S.W.) 129; 71 W.N. 101. 2. (1955) 92 C.L.R. 317.

These rules are very old. They have been applied in England in innumerable cases to determine and define rights and obligations in relation to streams along the banks of which men have been settled for centuries, using the waters and enjoying the benefits of their flow. The conditions of settlement, of climate and of geography in which this body of customary law developed are very different from those prevailing in many parts of Australia. And this is to be borne in mind when particular decisions of English courts are brought forward as analogies. But it is beyond doubt that these rules are a part, and an important part, of the common law that Australia has inherited: e.g. Dunn v. Collins [3] .

By the common law the proprietor of land upon the banks of a natural stream of running water, is entitled to have, and is obliged to accept, the flow of water past his land. He cannot either deprive those lower down the stream of its flow nor pen it back upon the lands of his neighbour higher up. These rights and obligations do not depend on prescription or grant. They are proprietary in character, natural incidents of the ownership or lawful possession of the land abutting on the stream: Mason v. Hill [4] ; Wood v. Waud [5] ; Chasemore v. Richards [6] , per Lord Wensleydale [7] . They do not depend upon the ownership of the bed of the stream, but of its banks: Lord v. Commissioners of Sydney [8] ; Lyon v. Fishmongers Co. [9] , per Lord Selborne [1] . They are thus called riparian rights. It is unnecessary to multiply references to cases in which these rules of the common law have been enunciated and followed in Australia. It is enough to refer to H. Jones & Co. Pty. Ltd. v. Kingborough Corporation [1] , in this Court, and especially to the judgment of Fullagar J.

1. (1833) 5 B. & Ad. 1 [110 E.R. 692]. 2. (1849) 3 Exch. 748, at p. 774 [154 E.R. 1047, at p. 1058]. 3. (1859) 7 H.L.C. 349 [11 E.R. 140]. 4. (1859) 7 H.L.C., at p. 382 [11 E.R., at p. 153]. 5. (1859) 12 Moo. P.C. 473 [14 E.R. 991]. 6. (1876) 1 App. Cas. 662. 7. (1876) 1 App. Cas., at p. 683. 8. (1950) 82 C.L.R. 282.

The position of an artificial watercourse, that is a water channel constructed by man as distinct from a natural stream, is entirely different. Generally speaking the owner of land through which an artificial watercourse runs may block or divert it at his will, unless some easement over it has been acquired by grant or prescription.

The material tendered did not include any large scale map or any contoured map. But from the transcript of the oral evidence, the photographs that were tendered, and the findings of his Honour, who had viewed it, a fairly clear picture of the land in question emerges. It lies in a region of the Australian continent the physiographic features of which are peculiar. Coastal limestone combines with sand ridges and formations resulting from volcanoes now extinct to make up an unusual terrain. In the particular area with which we are concerned the general slope of the country is towards the north-west, the country to the east being higher than the land in question. But the drainage is not by regular watercourses from watersheds as ordinarily understood. There are in this area many flat shallow depressions or saucers which become swamps or lakes during the wet winter months; but these shrink or dry out in summer and carry tongue weed and other grasses and herbage suitable for stock. Much surface water, including super-abundant water in these swamps after heavy rain, drains or discharges into what are called "runaway holes", which are a peculiar feature of the region. It there rapidly disappears into the bowels of the earth. Where the swamps can be regularly drained, so that they do not remain for any length of time under water, the reclaimed land can be sown with pasture grasses to provide improved grazing for stock.

In the evidence some reference was made to a chain of swamps on or in the vicinity of the respondent's land. But, although in wet weather water from one swamp may run into another, they are not, it seems, pools in a continuous watercourse as the law under-understands a watercourse. They are rather separate depressions which in wet seasons fill up to a greater or less extent.

Turning now to the land in question and the history of this drain: Section 258 was held by one Buchan from 1893 for some fifteen years. In those days Section 259 was unoccupied Crown land. When Buchan acquired Section 258 the swamp in question was not relieved by any artificial drain. It varied in area from time to time according to the season and the rainfall. Seldom, if ever, did it dry completely. Even in summer there was a pool of water covering several acres. As delineated on a map of the Hundred of Comaum published in 1954 that was in evidence, the area shown as swamp is about seventy acres. Nearly all of it is on Section 258; but at its south-western end a portion extends for a short distance into Section 259. How much of the area so marked as swamp on the map became periodically flooded and under water before any drainage work was done is not established. It was unquestionably a considerable area, for there was then no way by which all the water that accumulated could readily escape. Where the drain now is, a sandy ridge confined it. However, if the level of the water in the swamp rose sufficiently, some of the super-abundant water could find an outlet through a saddle or col in this ridge and from there flow down a natural slope into the sandy hollow on Section 259. That is to say, if the flood in the swamp became great enough, some water would overflow and find its way to the hollow, following the direction that the drain now takes. When it reached the hollow it rapidly seeped away, suggesting that the sand bed there probably covers a runaway hole.

With a view to draining the swamp, Buchan had a shallow ditch made through the saddle in the sand ridge. How much water such a drain would take off obviously depended upon its depth in relation to the level of the swamp. A witness, Malcolm, gave evidence of helping his uncle make this drain for Buchan. He said this was in the summer of 1909; but it may be that it was somewhat earlier, as Buchan appears to have transferred the land to one Elizabeth Gleeson in May 1908. Malcolm was a boy at the time, but he remembered the work being done with a plough, a rough timber sledge and a scoop. This drain was not, it seems, very effective. Certainly it did not empty the swamp, even in summer. Malcolm, in answer to a question, agreed that what had been done was "to deepen a natural watercourse", and he also answered other questions into which the term "natural watercourse" and similar expressions had been introduced. This evidence and the inspection his Honour made led him to say that "the effect of this operation (the making of the drain) was to produce a considerable improvement to the drainage of the swamp. The fact remains, however, that there was then and had been beyond the memory of any witness, what I find to be a natural watercourse between the swamp and the sand pit". This the respondent claimed is a finding of fact with which this Court ought not to interfere. True it is that, as Lord Sumnersaid in Stollmeyer v. Trinidad Lake Petroleum Co. [1] , "when the general legal tests, which decide the question whether a watercourse is such that the water in it is the subject of riparian rights, have been applied correctly to the particular features of the watercourse in question, the conclusion is one of fact not lightly to be interfered with" [2] . But it is contended here that his Honour did not apply those legal tests correctly to the facts of this case.

1. [1918] A.C. 485. 2. [1918] A.C., at p. 491.

That the ditch made by Buchan followed the course which would naturally be adopted by anyone constructing a ditch for the purpose of draining the swamp does not show that the course that it followed was a watercourse before it was made. And that the witness Malcolm readily adopted the words "natural watercourse" really establishes nothing. He could not be expected to know what, for the purpose of the law, a watercourse is. Indeed it has been said that when that question arises in a trial at nisi prius, it should not be left by the judge to the jury without an explanation of the legal meaning of the term. Authoritatively accepted statements of its meaning are numerous. One, an often-quoted passage from Angell on Watercourses, 5th ed. (1854) p. 3, runs: "A watercourse consists of bed, banks and water; yet the water need not flow continuously; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken between a regular flowing stream of water, which, at certain seasons is dried up, and those occasional bursts of water which in times of freshet or melting of ice and snow descend from the hills and inundate the country". A few other quotations may be added: "As distinguished from water of a casual and temporary character, a watercourse is a flow of water usually flowing in a certain direction, and by a regular channel, having a bed, banks and sides, and possessing that unity of character by which the flow on one man's land can be identified with that on the land of his neighbours". This passage from Kerr on Injunctions is based mainly on Briscoe v. Drought [3] . It was adopted and applied by Madden C.J. in Vinnicombe v. MacGregor [4] . The observations of Hood J. in Lyons v. Winter [5] , are substantially to the same effect. The witness Malcolm's own description was significant: "There was a washout along there where the water had gone over previously. We followed that down". That on some occasions the swamp overflowed and water from it spilled over the sand hill and ran down into the sandy basin washing out sand in doing so may be accepted. But this does not make a watercourse. A passage in the judgment of Martin J.A., in the Saskatchewan Court of Appeal, which was approved by the Supreme Court of Canada in Scott Rural Municipality v. Edwards [1] , is illustrative. He said: "I am not prepared to hold that there was anything in the nature of a watercourse upon the lands here in question. On the contrary, I am of the opinion that there was nothing but a succession of sloughs or depressions where surface water collected and at times of excessive rains or melting snow diffused itself over considerable areas and on such occasions moved through narrows to sloughs or depressions in lower areas" [1] . An earlier application in Australia of these general principles occurred in Cooper v. The Corporation of Sydney [2] , where the Supreme Court of New South Wales distinguished between a watercourse, in the legal sense of a regular stream between banks, and the occasional overflow of a swamp. And finally, as a statement of the general principle, a sentence may be quoted from the headnote of the leading American case of Barkley v. Wilcox [3] : "Depressions in the soil to which the surface water from adjacent lands naturally finds its way and is discharged into some natural outlet are not thereby made watercourses".

1. (1859) 11 Ir. C.L. 250, at p. 271. 2. (1902) 28 V.L.R. 144. 3. (1899) 25 V.L.R. 464. 4. [1934] 3 D.L.R. 793. 5. [1934] 3 D.L.R. 793. 6. (1853) 1 Legge 765. 7. (1881) 86 N.Y. 140.

The significance of those quotations and definitions is that the terms "watercourse" and "natural watercourse" have for legal purposes, when the rights of riparian owners in the flow of water are in question, a more exact meaning and a lesser denotation than they may have for other purposes of law and in common parlance. When, for example, rights and obligations relating to occasional flooding by surface water are the subject of legal discussion the depressions which provide the natural course or outlet for such waters may be called watercourses. But the law treats such valleys and depressions very differently from watercourses that have the qualities of rivers and streams. A sentence from an American judgment, Thompson v. Andrews [4] , quoted in 81 Am. L.R. 263 is in point: "The term "watercourse" has come to have two distinct meanings; the one when referring to that watercourse in and to which riparian rights may attach, and the other when referring to that watercourse through which an upper landowner may discharge water from his land".

When the evidence is considered in the light shed by the statements quoted above, the finding of the learned trial judge that there was here a watercourse to which riparian rights could attach seems, with respect to his Honour, to be mistaken. But it is important to notice exactly how he described this watercourse. He said that "there was and had been a natural watercourse between the swamp and the sand pit". Now, if that was its full extent, it was wholly on Section 259, and the owner of Section 258 could not have had any rights in it based on riparian ownership. And the allegation made on behalf of the plaintiff, the respondent here, in the statement of claim accords with his Honour's finding and goes no further. The "natural watercourse", it is said, "leads from the plaintiff's land into a sandy basin on the defendant's land". In affidavits there are references to the so-called watercourse as " leading from the western part of Section 258". It was never said that the swamp itself formed part of one long and continuous watercourse, that it was simply a pool formed by the widening of the alveus at that point. And on the evidence such a view was really not open. The area of the swamp might perhaps be regarded as part of the natural course of flood waters, as Ostler J. regarded the swamp in question in Eaton v. Dalgleish [1] . But that is a different matter altogether, one to be dealt with later. What Alderson B. said in Broadbent v. Ramsbotham [2] , to describe the land in question there, could describe this swamp before Buchan made the drain: "A basin is formed in his land, which belongs to him, and the water from the heavens lodges there. There is here no watercourse at all. If this water exceeds a certain depth it escapes at the lowest point, and squanders itself (so to speak) over the adjoining surface" [3] .

1. [1940] N.Z.L.R. 702. 2. (1856) 11 Exch. 602 [156 E.R. 971]. 3. (1856) 11 Exch., at p. 615 [156 E.R., at p. 976].

After Buchan left, Section 258 was owned by others. One witness, McElroy, had worked there when his father owned it, from 1916 onwards for many years. He said that the drain that Buchan had made carried off a considerable volume of water, but that nevertheless in most years when he was there the swamp filled up, so that about thirty to forty acres became covered by water in winter and often remained so for eight or nine months of the year. In about 1936 another witness, Lamb, became the owner of Section 258. He had it for two or three years. Section 259 was then held by one Richardson under an agreement with the Crown. It was later, in 1941, granted to him. Lamb much improved the channel. He lengthened it by extending it for some distance into the swamp on his land, as well as widening and deepening it throughout its length. He sought Richardson's permission for this, only "as a matter of courtesy" he said, because Section 259 being then still unfenced scrub used only for timber getting no objection by Richardson would be expected. And there was none. Lamb had the work done by a contractor using horses and a scoop. The result was to drain the swamp completely except, Lamb said, "for possibly five acres which didn't quite drain and I didn't go on with the job any further as I was happy with those results".

In November 1951 the appellant's father bought Section 259 for the appellant, who was then aged sixteen. Its boundary with Section 258 was by then fenced, the fence running through the south-western corner of the swamp. There is now a sluice gate where the fence crosses the drain. Gartner Senior gave evidence that shortly after he bought the land he noticed the drain that Lamb had made. He at once blocked it on his side of the boundary fence, only a few feet from the fence, by filling in a section of it to the level of the adjacent ground. This may have for a time somewhat reduced its effectiveness as a drain; but not markedly so, because filling in the channel at that low point did not prevent water rising above and flowing over the barrier and continuing to flow along the drain. Asked why he had thus filled in the drain at this point in 1951, the witness said that it was "to preserve his rights to control the property". Asked where he had learnt this, he said "At Naracoorte where Dalgetys close their right of way every year so that it wouldn't become a public thoroughfare". The appellant gave the same explanation of what was done in 1951: "It was just a matter of establishing our rights on our own land and so that there wouldn't be any prescriptive rights against it. We didn't get legal advice. My father knew about it. He knew about prescriptive rights. He blocked up the drain for that purpose". No complaint was made by the respondent at any time about what was thus done in filling in the drain in 1951. But the event is of some importance, for it negatives the contention, if indeed such a contention were really of any avail against the Real Property Act, that right up till 1958 the proprietors of Section 258 had, by acquiescence, without any interruption and as of right, drained their swamp over Section 259.

The respondent, Kidman, became the owner of Section 258 in February 1951. At that time the drain was effective. Not more then seven acres were under water in the wet seasons. This continued to be so until 1958, when the appellant and his father constructed the sand banks now complained of. These completely block the formed channel and pen back all the water that would otherwise escape on to the appellant's land. As a result a considerable area, some seventy to eighty acres the respondent said, of his land was flooded in 1958. The water subsided in summer by evaporation and soakage, but about thirty acres of the swamp area came under water again the next winter. As a result of these inundations, which continued periodically to occur, the pastures were damaged and the sown grasses did not recover when the waters went down.

The appellant and his father, who advised him throughout, constructed the banks that have so retarded the free flow of water after they had found that the sand in the hollow to which the drain led had considerable commercial value. His Honour said that they first discovered this in 1959. But the evidence, including an affidavit of the respondent, establishes that it was in 1958 - before they put in the banks. They have a contract by which they receive royalties for the sand. They claim that the discharge of water into or near their sand pit is a nuisance and damaging. In constructing the banks to keep water away from the pit they confessedly did not concern themselves greatly, if at all, with how this would affect the respondent. They gave him no notice of their intentions. They were not on good terms with him, having fallen out about a boundary fence and other matters. They may have, as his Honour thought, exaggerated the harm that would be likely to be caused to them by water flowing along the drain. Probably they did not much regret that harm would be caused to their neighbour by their preventing its flow. It may be that they could have protected the sand workings by diverting the water on to other parts of their land instead of damming it back. His Honour thought they could have done so by placing their banks in a different position. But the appellant's case was simple: It is my land; I am not obliged to provide a drain and a sump on it; I can put in banks on my own land to protect my sand pit from the waters of the swamp.

When in September 1958 the respondent, who had been away for a time, returned to find his land flooded, he consulted his solicitor, who wrote to the appellant as follows: "I have been consulted by Mr. J. D. Kidman the owner and occupier of Section 258 in the Hundred of Comaum in reference to a drain which connects a swamp on his property to low lying ground on Section 259 of which you are the owner and occupier. This drain was constructed prior to 1908 by Archibald Buchan the then registered proprietor of the land which my client now owns. The effect of this drain was to reduce the size of a swamp which was on Section 258 from an area in wet years of 50 acres to one of approximately 8 acres. My client informs me that recently you have caused this drain to be filled in and the flow through it from my client's land stopped. I have advised him that through the passage of time he has acquired a prescriptive right to have this drain kept open and that you are exceeding your rights in filling it in "

In answer to this letter the appellant's solicitor denied that the respondent had any right to use the drain in question and stated that no such right had been acquired by prescription or otherwise and that the appellant was justified in dealing with and protecting his own property. Shortly afterwards the respondent's solicitor wrote again, putting his client's claim on a new basis. He said that inspection and inquiries appeared "to indicate that this drain was not constructed by Buchan, as my client originally supposed, but is a natural watercourse being the outlet of the swamp, which swamp naturally encroaches into your client's land". From then on the case sought to be made for the respondent as plaintiff was that he had been injured in a right because the drain was a natural watercourse. But on what precise basis the right was said to rest was still not made clear. In the statement of claim it was alleged to arise from the enjoyment by the plaintiff and his predecessors in title for forty years and more of "the free passage of water along the watercourse described for the purpose of draining off the excess water from the western portion of Section 258 preventing the flooding thereof". This was a claim for a prescriptive easement of drainage. It was not an assertion of riparian rights or of a "natural servitude". Whether an easement over land under the Real Property Act of South Australia can be established by prescription seems to be a debateable question. Presumably it turns partly on the effect of the Real Property Amendment Act, 1945 S.A., which inserted s. 80A into the Principal Act, having regard to the definition of "land" in that Act. However, we do not have to consider this, for at the trial the claim to a prescriptive easement was abandoned; and his Honour in his judgment says that the plaintiff's case as it was eventually shaped could be summarized as follows: "First, what has been obstructed is a natural watercourse along which he is entitled, as the upper riparian owner, to the free flow of water from his land. A watercourse does not cease to be a natural one merely because it has been artificially improved. Secondly, even if the drain in question is found to be an artificial watercourse it was originally made under such circumstances and has been so used as to give rise to all the rights which the plaintiff would have had if it had been a natural stream. Thirdly quite apart from the question whether there is a watercourse to which riparian rights attach, the defendant's land is subject to a "natural servitude" to receive the surplus water from the plaintiff's land without obstruction."

His Honour dealt with the first two contentions. He decided that the defendant, the appellant, had in fact "blocked the flow of a natural watercourse"; and that, he said, entitled the plaintiff to an injunction. He then went on to say that the form of the injunction "must depend upon the nature of the watercourse over which he enjoys riparian rights. Whether he is entitled to the complete removal of the banks erected in 1958 depends on the question whether the artificial channel made by Buchan in 1909 along the course of the natural "stream" had by 1958 acquired the character of a natural watercourse". He held that it had. Before considering this conclusion, it is necessary to say, with respect to his Honour, that it rests upon some assumptions which appear to be of very doubtful validity. In the first place the finding that there was a natural watercourse, in the relevant legal sense, is, for reasons given earlier, unconvincing. Secondly the description of the plaintiff, the owner of Section 258, as enjoying or capable of enjoying riparian rights in a watercourse found to flow naturally only from the edge of the swamp (which is on Section 259) to the sandy hollow (also on Section 259) seems mistaken, as I have already said, for the simple reason that this watercourse began outside his land. His Honour found that it did and that view accords with the doctrine stated in Broadbent v. Ramsbotham [1] , and Ennor v. Barwell [2] . It is in conformity too with American decisions that, when the source of supply of a watercourse is surface water collected in a pool or the overflow of a lake, the watercourse begins at the point where a channel begins and the current commences to flow in reasonably well defined banks: see Corpus Juris Secundum vol. 93, pp. 598, 601. The rights which a riparian proprietor has are derived from possession of land abutting the watercourse: Stockport Waterworks Co. v. Potter [3] . As a mere matter of the meaning of the word "riparian", a riparian proprietor must be the proprietor of a part of its banks. If any authority be needed for that, it may be found in Lyon v. Fishmongers Co. [4] . But in this case that seems to have been lost sight of; and it was apparently assumed throughout that if the ditch on Section 259 could be regarded as a natural watercourse that would be decisive.

1. (1856) 11 Exch. 602, at p. 615 [156 E.R. 971, at p. 976]. 2. (1860) 2 Giff. 410, at pp. 423-425 [66 E.R. 171, at pp. 176-178]. 3. (1864) 3 H. & C. 300, at p. 326 [159 E.R. 545, at p. 556]. 4. (1876) 1 App. Cas. 662, at p. 683.

If the respondent could be called a riparian owner in respect of this ditch it could only be because, as the result of Lamb's work, the ditch had been extended for some distance into the swamp on Section 258. Assuming then that in this somewhat factitious sense the description is appropriate, it becomes necessary to consider his Honour's conclusion that the channel as made by Lamb had acquired the character of a natural watercourse in respect of which riparian rights existed. He based this on a passage in the judgment of the Privy Council in Maung Bya v. Maung Kyi Nyo [1] . That case concerned a "large tract of paddy land intersected with rivulets of water large or small" in Lower Burma - a terrain as different as could well be imagined from that with which we are concerned. The question turned upon the rights, in one of the canals, of persons who were unquestionably riparian owners. And the canal was unquestionably a natural watercourse. Water had run there long before any work was done. "The map", said their Lordships, "absolutely refutes the contention that before the canal was made its site was a mere depression in the earth surface through which no stream ran; but in which, after heavy rain stagnant water for a time accumulated. Now what was done was the widening a little, and deepening a little, possibly trimming the banks a little of an existing ancient fresh-water natural watercourse, not the making by excavation and such work of a watercourse, styled a canal, where none such theretofore existed" [2] . These words, read in relation to the subject of which they were spoken, hardly provide an analogy here. But what was mainly relied upon was their Lordships' statement that [3] : "There is, however, a well established principle of law directly bearing upon this case and vitally affecting it - namely, that a watercourse originally artificial may have been made under such circumstances, and have been used in such a way that an owner of land situate on its bank will have all the rights over it that a riparian owner would have if it had been a natural stream: Sutcliffe v. Booth [4] ; Holker v. Poritt [5] ; Baily & Co. v. Clark, Son & Morland [6] ".

1. (1925) L.R. 52 Ind. App. 385. 2. (1925) L.R. 52 Ind. App., at p. 388. 3. (1925) L.R. 52 Ind. App., at p. 395. 4. (1863) 32 L.J. (Q.B.) 136. 5. (1873) L.R. 8 Ex 107. 6. [1902] 1 Ch. 649, at pp. 664, 669, 673.

This passage follows a reference to Rameshur Pershad Narain Singh v. Koonj Behari Pattuk [7] , an appeal from Bengal in which the Privy Council had reiterated the distinction that the law of England makes between natural and artificial watercourses, and had said of the latter that "any right to the flow of water must rest on some grant or arrangement, either proved or presumed, from or with the owners of the lands from which the water is artificially brought or on some other legal origin" [8] . Sir Montague Smith, who delivered the judgment of their Lordships in that case, was there stating, as a well-established principle, that a right to the flow of water in an artificial watercourse must be acquired by some method recognized by the law for the acquisition of proprietary rights. It may be the result of an easement created by grant, or by implication of law, or by prescription where the law allows easements to be acquired by prescription; it may depend upon statute; it may be the result of contract.

1. (1878) 4 App. Cas. 121. 2. (1878) 4 App. Cas., at p. 126.

In the case from Burma their Lordships (Lord Atkinson, Lord Shaw and Lord Darling), in saying that the proprietors of land on the banks of an artificial watercourse might be entitled to all the rights that they would have had had it been a natural stream, used the very words that Wightman J. used when delivering the judgment of himself and Mellor J. in Sutcliffe v. Booth [1] . But it is, I venture to think, a misunderstanding of what those two learned judges and the Privy Council said to suppose that riparian owners may acquire rights in an artificial channel independently of grant, prescription, implication of law or contract and in some undefined way, as the learned trial judge here thought. They were dealing with the kind of rights that might exist in a watercourse originally made artificially. They were not saying that such rights could be created otherwise than by one of the recognized ways in which proprietary rights are created. To say that the circumstances under which and the purposes for which an ancient watercourse was made and has been used are to be considered is equivalent only to saying that the question must be considered in the same way as if it had been a question of prescriptive right or of presuming a lost grant: see Burrows v. Lang [2] . The cases referred to by the Privy Council make this clear.

1. (1863) 32 L.J. (Q.B.) 136, at pp. 138, 139. 2. [1901] 2 Ch. 502, at p. 506.

The first of them, Sutcliffe v. Booth [3] , was a case in which Wilde B. on circuit in directing a jury in an action for the pollution and diversion of a watercourse said: "The plaintiff has no right whatever to complain unless the water is a natural stream; if it is a merely artificial stream made by the hand of man for the use of man, the plaintiff has no right in respect of it whatever" [4] . When the facts of the case are read it is apparent that, as the Court said, such an absolute statement could have misled the jury into thinking that this was the only question. The watercourse there, although artificially arched over, was probably originally natural, and it had been used as a sewer from before living memory. The case is one of those cited in Gale on Easements 13th ed. (1959) p. 204, for the proposition that "in the case of some artificial watercourses the origin of which is unknown the proper conclusion from the user of the water and other circumstances may be that the watercourse was originally constructed upon the condition that all riparian owners should have the same rights as they would have had if the watercourse had been a natural one". The learned author also refers to Baily & Co. v. Clark, Son & Morland [1] , another of the cases referred to by the Privy Council in the appeal from Burma. The stream there in question was an artificial watercourse but it had existed for centuries and the riparian owners had regularly used its waters. It will suffice to quote two passages from the judgment of Stirling L.J.: "This watercourse is obviously of a permanent character, and there is no question that rights and easements may be acquired in it. As to the circumstances under which it was created we know nothing. It has existed for hundreds of years, but we do not know who at the time of its construction were the owners of the properties which now belong to the plaintiffs and the defendants respectively, or indeed anything about the ownership at that time of any part of the land along the watercourse" [2] , and "What ought the conclusion to be with regard to these acts of the riparian owners? It seems to me that they ought to be taken prima facie to have been done in the exercise of a legal right rather than as having been done without any legal title. It ought therefore, I think, to be inferred that the owners of the lands abutting on this watercourse reserved to themselves at the time when the watercourse was constructed the right to a reasonable use of the water as it passed their lands" [3] .

1. (1863) 32 L.J. (Q.B.) 136. 2. (1863) 32 L.J. (Q.B.), at p. 137. 3. [1902] 1 Ch. 649. 4. (1902] 1 Ch., at p. 668. 5. [1902] 1 Ch., at p. 669.

The present case is utterly unlike that. We know exactly when and how the channel on Section 259 was made. Buchan made it, without any permission from anybody. Lamb enlarged it with the licence of Richardson, the then owner of Section 259. The evidence makes it plain that this was merely a voluntary and revocable licence. There is here no evidence of the grant of an easement or of the creation of an equitable interest. And a prescriptive right was expressly disclaimed.

The third case to which their Lordships referred, Holker v. Poritt [4] , is of a different kind. It was a case in which the waters of the branch of a stream, which had perhaps been artificially made but which was of immemorial age, ran through a man's land and reached a point where they became dispersed in a marsh there. Part of the water then percolated into a river. To drain the marsh the land-owner constructed a reservoir and a conduit from it to the river. The water flowing by this channel served a mill. Later, when the land had been subdivided, the mill-owner, to whom water rights had been conveyed, was held entitled to have the flow of water continue; for the artificial stream was a mere continuation of the natural watercourse which had theretofore expended itself in the swamp and the mill-owner was to be regarded as a riparian owner on a natural watercourse. He had been in uninterrupted enjoyment of the flow for more than twenty years.

None of these cases really supports the proposition which his Honour accepted. And in my view his decision that the respondent had acquired the rights that a riparian owner in a natural stream would have cannot be upheld. It therefore becomes necessary to consider matters that he found it unnecessary to consider. These relate to what is commonly called surface water. This is well described and the main question relating to it, as they have arisen in the United States, are stated in Farnham on the Law of Waters and Water Rights (1904) Vol. III, p. 2556, pp. 2554, 2555. As this work is not well known in Australia, two passages may be quoted at length:

It has been seen that a water course is a stream of water of such well-defined existence as to make its flow valuable to the owners of land along its course. A pond or lake is a permanent body of water located on the surface of the earth, and having no current or other characteristics of a water course. To these bodies of water riparian rights attach. But when water appears upon the surface in a diffused state, with no permanent source of supply or regular course, and then disappears by percolation or evaporation, its flow is valuable to no one, and it must be regarded as surface water, and dealt with as such.

It has been seen in a former chapter that the owners of land bordering on flowing streams and on permanent ponds and lakes have certain rights because of their location, which constitute a species of property, and which cannot be interfered with by other individuals, or the public. These rights do not attach to water known as surface water; and the primary reason for distinguishing between the two classes of water is to determine whether or not the riparian rights have attached to the particular water in question. If the water is found to be surface water, the question may arise as to the right of the person on whose property it is found to get rid of it. This raises the question of drainage, which is entirely distinct from any of the questions arising with respect to ponds and living streams. With the exception of a few states, the principal rules with respect to drainage of surface water from the land are uniform and well-settled. There is no right on the part of one landowner to drain the water from his land over that of his neighbour without the latter's consent. This rule prevents the gathering of water into a body and casting it onto the lower owner, or collecting it in artificial ditches for that purpose, or changing the course of drainage. There is one point, however, at which there is a sharp conflict between the courts of the respective states, and that is upon the question whether the natural depressions along which the water has been accustomed to flow must be kept open to permit the continued flow of the water, or any landowner may ignore and close them at his pleasure.

And that question, on which there are conflicting views in America, is the fundamental question on this aspect of the present case.

The respondent's contention is that, even if there was not a watercourse in respect of which riparian rights could exist, nevertheless the appellant's land was subject to a "natural servitude" in favour of the respondent's land. It was said that the respondent was entitled to discharge upon it any water that would naturally flow there from his land in the normal use by him of his land and that the appellant was obliged to receive that water. It was argued that a proprietor of lower land may not impede the natural flow of surface water from adjacent higher land of another proprietor.

Before examining the doctrine thus asserted it is important to consider what was meant by the natural flow, or direction of flow, of surface waters. It is not necessarily the way in which such water naturally flows in the existing condition of the land in question, for that may have been recently altered; and water naturally flows downhill. The critical question in this connexion is, does the natural course of the flow of surface water from the land of one man to that of another mean the course that it would have taken had both parcels been left wholly undisturbed by man; or, on the other hand, does it refer to the state of the whole area of land, whether natural or altered by man, immediately before its severance into separate parcels and separate ownerships? Understood in the first sense the concept is not free from difficulty. For what, one may ask, is the natural state of any part of the earth's surface? Without any aid from man's works in altering levels, gradients and contours, the forces of nature are continuously altering the conformation of land in many ways, as by floods, erosions, shifting sands, and silting streams. And furthermore, without any operations by man upon a particular piece of land, the amount and course of waters coming upon it may be drastically affected by man's operations elsewhere, by ploughing fields, felling forests, making roads and gutters, and building towns. So that, when one speaks of land as nature made it and left it, it is impossible to know in the abstract at what point of time one should take one's stand. The different views as to the meaning of the natural course of surface water disclosed by the judgments in Nelson v. Walker [1] , show how important the question can be in some cases. But, as it chances, in this case the question does not arise. The lands in question are in a country district that is somewhat sparsely settled. They are not used for agriculture but for grazing. There has been some removal of timber in places, and pastures have been planted in others. But it seems that both parcels of land, Sections 258 and 259, can be said to be in their natural state in every relevant sense - apart, that is, from the existence of the ditch which was made when they were in separate ownership.

What then is the law governing the natural flow of surface water from higher land to lower land? One would expect the answer to be well settled. But surprisingly it is not. There is not even general agreement by courts as to what are its fundamental rules in the abstract, still less as to the proper manner of their application in particular circumstances. The plaintiff respondent complained that, quite apart from denying him the use of the artificial drain, the appellant had by placing the barriers across the depression, wrongfully prevented the escape of water that would naturally have flowed out of the swamp had the land been as it naturally was. But does the right which he says exists rest at bedrock upon a duty sic utere tuo ut alienum non laedas? Or is it claimed as a right more precise and more absolute, a proprietary incident of the ownership of higher land, that is land from which super-abundant surface water naturally flows on to the neighbouring lower tenement? His argument emphasized the latter, but both ideas were invoked.

In whatever way the case be put it depends upon the law of nuisance. The complaint is of an alleged private nuisance. It is in aid of the legal rights thus arising that the equitable remedy of injunction is sought. And in considering whether there has been an actionable interference with the beneficial enjoyment of land, it is necessary, in every case, to know whether some particular right in or in relation to that land is said to have been invaded, and if so to ascertain the limits of that right. But the glib use, in some discussions of this topic, of the word "right" in the sense of liberty, and the erroneous assumption of a corresponding duty has led to the misconceptions referred to by Professor Derham in his comprehensive and helpful article Interference with Surface Waters by Lower Landholders (1958) 74 L.Q.R. 361. By way of avoidance of these, I may quote from the learned judgment of Burbury C.J. in Bell v. Pitt [1] : "If the measures taken by the plaintiff to drain his property are lawful in the sense that they do not constitute an infringement of the defendant's rights entitling the defendant to an injunction it does not follow that the defendant may not take practical measures to throw back the water on to the plaintiff's land. The failure to perceive that lawful user of his property by an upper owner causing accumulation of water upon the property of a lower owner is not a "right" vested in the upper owner to send water down to the lower owner carrying with it a correlative obligation upon the lower owner to receive it has contributed to the confused state of the law as to the relative rights of upper and lower owners in relation to surface water" [2] .

1. [1956] Tas. S.R. 161. 2. [1956] Tas. L.R., at p. 162.

The fundamental question has been assumed to be whether the positive praedial rustic servitude of Roman law, by which the owner of land is obliged to receive water naturally flowing from the surface of adjoining land, has any place in the common law. There were some early dicta that suggest that the common law originally accepted the same principle, but no clear statement before 1915. On the other hand, there were statements that by the common law a landowner may put up what embankments he chooses on his land to protect it against water coming from his neighbour's land, thus throwing the water back upon his neighbour regardless of the consequences to him. Water, it was said, is a common enemy against which each man may defend himself. The use of the term "common enemy" in this connexion seems to be derived from Lord Tenterden's judgment in R. v. Commissioners of Sewers for Pagham, Sussex [3] . He was speaking of inroads of the sea. But the expression was often repeated in cases dealing with the run off of surface waters and flood waters. In the United States the doctrine that a landowner may erect such barriers to the inflow of water upon his land as he chooses is called the "common enemy" or common law principle in contrast with the rule of the civil law. Stated in their extreme forms without any qualification the two doctrines are in sharp opposition. In the United States some jurisdictions have adopted the one, some the other as fundamental. But, by reason of qualifications commonly made to each, the antithesis is not in their practical application so great as might be expected: see the learned and interesting article Modern Status of Rules Governing Interference with Drainage of Surface Waters that appears as an annotation to the case of Armstrong v. Francis Corporation [1] .

1. (1828) 8 B. & C. 355, at p. 361 [108 E.R. 1075, at p. 1077]. 2. (1956), 59 Am.L.R. 2d., at pp. 421-445.

Some words in the judgment of the Common Pleas in Smith v. Kenrick [2] can be misunderstood as equating the common enemy rule with the civil law. Cresswell J. said: "The water is a sort of common enemy against which each man must defend himself. And this is in accordance with the civil law, by which it was considered that land on a lower level, owed a natural servitude to that on a higher, in respect of receiving, without claim to compensation, the water naturally flowing down to it" [3] . But this, properly understood, means no more than that the owner of higher land is not liable to an action simply because in the course of the ordinary and natural user of his land water runs from it to lower land; and this accords with the civil law. Yet he may defend himself against it; for that is the common law. The Privy Council explained that this was so when, referring to Smith v. Kendrick [2] , their Lordships said: " no one suggested that the plaintiff was not entitled to protect himself by barriers which would have dammed the stream of water back on the defendant's mine, where it had its origin. On the contrary, that was held to be his proper remedy": Greyvensteyn v. Hattingh [4] .

1. (1849) 7 C.B. 515 [137 E.R. 205]. 2. (1849) 7 C.B., at p. 566 [137 E.R., at p. 225]. 3. (1849) 7 C.B. 515 [137 E.R. 205]. 4. [1911] A.C. 355, at p. 359.

Turning directly to the history of the matter in Australia, and without going through all the English authorities that are collected and discussed in the Australian cases: First, in Butcher v. Borough of Woollahra [5] , the Supreme Court of New South Wales held that the owner of lower land has a right, by erecting a dam or otherwise, to pen back the surface drainage from higher land (if it be not flowing in a defined channel as a natural watercourse). Martin C.J. expressly founded his decision on statements in the judgments in Nield v. London & N. W. Railway [6] , including Baron Bramwell's observation "the flood is a common enemy against which every man has a right to defend himself. And it would be most mischievous if the law were otherwise, for a man must then stand by and see his property destroyed out of fear lest some neighbour might say "You have caused me an injury" " [7] . In Vinnicombe v. MacGregor [1] Madden C.J. reached a contrary conclusion after a most elaborate examination of the topic. He pointed out that the question in that case was not, as in cases concerning riparian rights it generally is, "to whom do the blessings of natural waters belong, but who must bear its curses". There was no defined watercourse, merely shallow depressions along which surface water flowed. The conclusion of the learned Chief Justice accorded in substance with the rule of the civil law: "The owner of land of lower level cannot obstruct natural surface water, flowing in its natural line of flow, in the course of the natural and ordinary use of land of upper level, from such land of upper level, unless he can and does so in a manner which will not injure such land" [2] . On appeal to the Full Court of the Supreme Court of Victoria the majority took much the same view, but A'Beckett J. powerfully dissented. In his opinion a lower landowner had a right to exclude all natural waters from his land, except of course those in streams to which riparian rights attached. It was ultimately held by the whole Court that if by works done by the upper owner or his predecessors the level of the lands was altered so as to increase or concentrate the flow of flood water the lower owner might dam it back. The question came again before the Supreme Court in Walker v. Nelson [3] when the Court (Madden C.J., Hodges and Cussen JJ.) held that the principle stated by the majority in Vinnicombe v. MacGregor [1] , was correct, but that it did not apply because the natural surface of the land had been altered. When that case came before this Court, Nelson v. Walker [4] , Griffith C.J. and O'Connor J. criticized the decision in Vinnicombe's Case [1] and expressed strong opinions that the civil law principle is not part of the common law; and further that, if it is, it only applies to country lands. Their statements are dicta only, for the decision of the Court turned on other matters. They are, however, strong dicta, although it may be that the distinction made between country lands and urban lands is not, as it was expressed, properly based on the civil law. Roman law distinguished between urban and rustic praedial servitudes; but the distinction does not depend on the location of the land but on the nature of the right. However that may be, and whatever be the exact principles of the civil law, the dicta in Nelson v. Walker [4] were very positive that in the common law as it existed in Australia the civil law notion of a natural servitude had no place. And this it had been decided in Solicitor-General v. Smith [5] was the position also in New Zealand. In that case Williams J. said: "The question of how far, by English law, the proprietor of land is bound to receive on to his land surface-water coming on to it from higher land does not appear to me to be satisfactorily settled. No doubt the proprietor of the lower land has no right of action against the proprietor of the land above for simply allowing it to come, but it does not follow that the proprietor of the land below, unless the water comes in a natural stream flowing in a defined channel, cannot, by raising the level of his land, or by barriers, or otherwise, prevent the surface-water coming on to it. That the lower proprietor can do so appears to be recognized by the courts of those States of the American Union which profess to follow the common law as distinguished from the civil law. The civil law recognizes the existence of a servitude which compels the lower owner to receive the surface-water. I have been unable to satisfy myself that there is any corresponding easement at common law. No doubt there are expressions to be found in the books which seem to infer that the proprietor above has this right as against the lower. No case, however, can be found in England where the proprietor above has recovered when mere surface-water has been retained on his land through the neighbour below doing something on his own land which prevents the water coming there" [1] . These observations it will be noticed were in relation to mere surface water. Whatever uncertainty there might be about that, the learned judge did not doubt that a landowner might erect a bank on his own land to protect it against flooding by surface water concentrated and discharged from higher land by a ditch. And the lower landowner's right was not, he held, lessened because the bank that he made excluded some water that might have flowed from the higher land without the aid of the ditch. In Canada too the civil law doctrine of a natural servitude had no general acceptance in Provinces other than Quebec.

1. (1876) 14 S.C.R. (N.S.W.) 474. 2. (1874) L.R. 10 Ex. 4. 3. (1874) L.R. 10 Ex., at p. 7. 4. (1902) 28 V.L.R. 144. 5. (1902) 28 V.L.R., at p. 202. 6. (1909) V.L.R. 476. 7. (1902) 28 V.L.R. 144. 8. (1910) 10 C.L.R. 560. 9. (1902) 28 V.L.R. 144. 10. (1910) 10 C.L.R. 560. 11. (1896) 14 N.Z.L.R. 681. 12. (1896) 14 N.Z.L.R., at pp. 685, 686.

In 1915 the case of Gibbons v. Lenfestey [2] , came before the Privy Council on an appeal from Guernsey. The question was whether a right of drainage existed, notwithstanding that there was no registration of an agreement from which it was said to arise. In delivering the judgment of the Board, Lord Dunedin said - and it is necessary to set out his remarks in full with the critical words italicized: "The law of Guernsey, differing in this respect from some other systems, does not allow of the constitution of ordinary servitudes or easements except by grant. But the right of the superior proprietor to throw natural water on the lower land is not an ordinary servitude to which this rule can apply. It is a natural right inherent in property; it is a question of nomenclature whether it is or is not called a servitude. Their Lordships do not doubt that the law of Guernsey in this matter is the same as that of every other country whose jurisprudence is traceable to Roman sources. Indeed, even the countries ruled by the common law have accepted the Roman rules. It is true that the Romans designated this right as servitude, but they explained the distinction by dividing servitude into three classes - natural, legal, and conventional - and it is to the first class that this belongs. The law may be stated thus: Where two contiguous fields, one of which stands upon higher ground than the other, belong to different proprietors, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water which falls from the superior. If the water, which would otherwise fall from the higher grounds insensibly, without hurting the inferior tenement, should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property" [1] .

1. (1915) 84 L.J. (P.C.) 158. 2. (1915) 84 L.J. (P.C.), at p. 160.

Later his Lordship said, "The right, however, of the superior proprietor is not quite absolute. The limits cannot be defined by definition, but each case must depend on its own circumstances" [1] .

The case concerned the law of Guernsey, where the customary law is not the common law of England and is not the civil law but is derived mainly from the Grand Coutumier of Normandy. Lord Dunedin's statement that the doctrine of the civil law was a part of the common law was plainly an obiter dictum and no more. But partly because the passage found its way into Coulson and Forbes on Waters and Land Drainage, his Lordship's words have had consequences in places which are distant from the Channel Island, places where the common law of England prevails. In some of these places the effect has been revolutionary: in others merely disturbing. In New Zealand the Supreme Court felt bound to overrule its earlier decisions and to adopt the civil law doctrine as the fundamental rule: Bailey v. Vile [2] ; Eaton v. Dalgleish [3] . But the results are somewhat confusing: see Wilsher v. Corban [4] ; Strange v. Andrews [5] . In Victoria the decision in Vinnicombe v. MacGregor [6] was treated as having been made firm after a shakiness resulting from the doubts cast on it by this Court in Nelson v. Walker [7] : see City of Oakleigh v. Brown [8] , per Sholl J., and Traian v. Ware [1] , where the question is discussed by Martin J. But in the former case, and by Smith J. in Coulter v. T. M. Burke Pty. Ltd. [2] , the civil law doctrine was said to apply only to country lands; and in Bennetts v. Honroth [3] , Ross J. said he had found "singularly little authority dealing with city or suburban lands" [4] . In Queensland, Mansfield S.P.J. in Righetti v. Wynn [5] , which was an action by a lower landowner for damage caused by the drainage of the superior landowner, quoted from Lord Dunedin's judgment and applied it. In South Australia, Napier C.J. thought that the application of what was said by Lord Dunedin was limited by the facts of the case. He said: "It seems to me that the observations in that case must be taken as referring to what is there called "the natural flow of the water" I cannot find any support for the proposition that the "superior proprietor" is entitled to collect and concentrate the water - falling on his land and coming to him from higher land - and to discharge it in a stream or spate down the hillside, without any regard for the consequences to his neighbour": Dubois v. District Council of Noarlunga [6] . And that surely is right. Lord Dunedin's remarks must be read in relation to the facts of the particular case from Guernsey. And the proposition in the last sentence of the first passage from his judgment quoted above must, it seems, be read as strictly limited by the words "in the natural use of his property". Unless that be done the statement would contradict a great body of established law. It seems appropriate to observe here that the notion of a natural use of land, and the distinction between a natural and a non-natural use seems to have come into the law at this point from Lord Cairns' judgment in Rylands v. Fletcher [7] : see the article by Professor Newark in Modern Law Review 24, 557. The concept involved is a difficult one; and in formulations of the law of nuisance it may be better to start with what Bramwell B. said in Bamford v. Turnley [8] , that "acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action" [9] . By "conveniently done" the learned Baron meant, no doubt, done in a reasonable and proper manner. He contrasted such user with a use "not unnatural nor unusual, but not the common and ordinary use of land" [1] . However, the expression "natural use" has come to be much used in discussions of this topic, and I have adopted it later in this judgment.

1. [1930] N.Z.L.R. 829. 2. [1940] N.Z.L.R. 702. 3. [1955] N.Z.L.R. 478. 4. [1956] N.Z.L.R. 948??. 5. (1902) 28 V.L.R. 144. 6. (1910) 10 C.L.R. 560. 7. [1956] V.L.R. 503. 8. [1957] V.R. 200. 9. [1960] V.R. 16. 10. [1959] S.A.S.R. 170. 11. [1959] S.A.S.R., at p. 175. 12. (1950) St. R. Qd. 231. 13. [1959] S.A.S.R. 127, at pp. 130, 131. 14. (1868) L.R. 3 H.L. 330, at pp. 337-340. 15. (1862) 3 B. & S. 66 [122 E.R. 27]. 16. (1862) 3 B. & S., at pp. 83, 84 [122 E.R., at p. 33]. 17. (1862) 3 B. & S., at p. 83 [122 E.R., at p. 33].

Reverting to the effect of Gibbons v. Lenfestey [1] in various common law jurisdictions: In Tasmania, Burbury C.J. in Bell v. Pitt [2] , after an exhaustive examination of decisions in England and elsewhere, held that the rule of the civil law as there expressed is not part of the law of Tasmania; that Vinnicombe v. MacGregor [3] and Bailey v. Vile [4] should not be followed in Tasmania; and that rather than saying that a lower owner must receive all surface water from higher lands whether concentrated or not, the true rule is that he may take reasonable measures to keep such water off his land.

1. (1915) 84 L.J. (P.C.) 158. 2. [1956] Tas. S.R. 161. 3. (1902) 28 V.L.R. 144. 4. [1930] N.Z.L.R. 829.

Thus there has not been any clear rule generally accepted and applied throughout Australia. And the position seems to be no more certain elsewhere. The Supreme Court of Canada in Scott Rural Municipality v. Edwards [5] , held that there was no natural right of drainage of surface water and that a lower proprietor might lawfully erect a dam on his property to keep it out, even if by doing so he penned it back upon the land of his neighbour. The Court expressly approved the judgment appealed from, which contained a statement that "the Courts of Ontario appear to have consistently applied the rule of the common law and have repeatedly declared that it is not the same as that of the civil" [6] . However, many courts and writers in the United States deprecate the terminology by which what they call the "common enemy" or "Massachusetts rule" is said to be the rule of the common law, thus putting the common law and the civil law in opposition. They insist that the common law properly so called and the civil law are, in respect of natural drainage, substantially the same: see 56 American Jurisprudence p. 553; Miller v. Letzerich [7] .

1. [1934] 3 D.L.R. 793. 2. [1934] 3 D.L.R., at p. 794. 3. (1932) 85 Am.L.R. 451, at pp. 457, 458.

Surrounded by so many inconsistent dicta and conflicting decisions, we have in this case necessarily to decide what in Australia the true rule now is. I say "now is" because it does not, I think, serve much purpose to trace the history of the common law on this topic, or to debate the degree of its kinship with Roman rules, as they appear in the Digest or as they have been developed in the countries of the civil law. The invitation of Mr. Farnham and other American writers to go back to Bracton and the Year Books to ascertain the common law of older times need not be accepted. For one thing, the law of nuisance has developed greatly since it began with the Assize of Nuisance. And for another, ever since the Statute of Sewers of 1531 (23 Hen. VIII c. 5) drainage has in many districts in England been regulated less by purely private common law rules than by statutory authorities, commissioners of sewers, drainage boards and the like.

After considering a great number of authorities in addition to those I have referred to, but which I do not find it necessary to discuss in detail, I have come to the conclusion that the correct view is that the so-called rule of the civil law that the owner of higher land has a right to insist upon his lower neighbour receiving surface water running off his land is not part of the common law as it exists in Australia and that so far as the dicta in the Privy Council case suggest that it is they should not be followed by this Court. I agree rather with the substantially opposite view that Burbury C.J. expressed. The field is, of course, one in which any fundamental rule may be modified by circumstances or in its application yield to circumstances. But the fundamental rule is, I think, the reverse of what Madden C.J. in Vinnicombe v. MacGregor [1] , stated it to be. He said that the lower owner cannot obstruct the natural flow of surface water unless he can and does so in a manner which will not injure the upper land. On the contrary the law is, I think, that he may block it by any works on his own land, so far as they are reasonably necessary to protect his land for his reasonable use and enjoyment; but that in doing so he must not act recklessly of his neighbour so as to cause wanton damage to him. That, in my opinion, accords with the broad principles of the law of nuisance to-day, except perhaps in relation to what have been called "spite fences". The law does, it seems, permit a man to block his neighbour's view from mere malice and not for the better enjoyment of his own land. But it is impossible to deduce from this that he may from mere malice block the natural flow of surface water from his neighbour's land so as to cause physical damage to that land. The decisions about spite fences depend on a special distinction that the common law made. This, as stated by Blackstone, was that "stopping ancient lights and corrupting the air by noisome smells" were nuisances to the occupier of a dwelling "for light and air are two indispensable requisites to every dwelling. But depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall, or the like; this, as it abridges nothing really convenient or necessary, is no injury to the sufferer and is therefore not an actionable nuisance": Commentaries , vol. III, 217.

The view expressed above is the same in substance as that which prevails in parts of the United States, and which is there referred to as the "modified common law" or "reasonable user" view, in contrast with both the civil law and the extreme form of the "common enemy" doctrines. But it is not really a modification of the common law. The idea of reasonableness, that is basic to so much of the common law, is firmly embedded in the law of nuisance to-day. Pronouncements concerning the scope of nuisance as a tort avoid stating rights and duties as absolute. In respect of both what a man may do and what his neighbour must put up with, its criteria are related to the reasonable use of the lands in question. In some recent cases there is perhaps a more explicit recognition than there was in some earlier cases that a landowner's duty to his neighbour qualifies his right to do what he likes with his own land and on his own land. But this always was the law, and such absolute statements as appear in Bradford v. Pickles [1] , are no longer, I think, taken to mean the contrary: see Hollywood Silver Fox Farm Ltd. v. Emmett [2] . A shifting of emphasis has been a characteristic of the way in which Courts administering the common law have in recent times accommodated proprietary rights and modern social interests. I may refer to what Lord Uthwatt said in a different connexion in Read v. Lyons [3] and to the recent decision of the Supreme Court of New South Wales in Bayliss v. Lea [4] .

1. [1895] A.C. 587. 2. [1936] 2 K.B. 468. 3. [1947] A.C. 156, at p. 184. 4. (1962) S.R. (N.S.W.) 521; 79 W.N. 218.

I summarize below what I take to be the law concerning the flow of surface water from the land of one man on to that of his neighbour. What I shall say is based upon the general principles set out in Maxey Drainage Board v. Great Northern Railway Co. [5] and Gerrard v. Crowe [6] and the cases there cited as well as on others collected in the Australian authorities to which I have already referred, and it is written after the advantage of discussion with the Chief Justice. The propositions are general. Their application in a particular case may be affected by circumstances. They concern only surface waters, as distinct from the flow of natural watercourses to which riparian rights attach. And, for this purpose, surface waters do not include the waters of a stream or river which when periodically swollen in time of flood flows in a wider channel than ordinarily, the super-abundant waters following the general course of the stream but flowing on lands outside its ordinary bed. Such "flood channels" are to be regarded as if they were part of the alveus of the stream. The law of natural watercourses applies, not that of surface waters. The riparian owner may not impede the flow or throw the flood waters upon the lands of his neighbour on the opposite bank: see Menzies v. Breadalbane [1] . On the other hand waters that are the occasional overflow of lakes or ponds, not being part of a stream, are surface waters.

1. (1912) 106 L.T. 429. 2. [1921] 1 A.C. 395. 3. (1828) 3 Bligh N.S. 414 [4 E.R. 1387].

The following propositions concerning surface waters relate only to water which came naturally upon the land from which it flows, as distinct from water artificially brought or concentrated there and allowed to escape as in Rylands v. Fletcher [2] .

With the above limitations in mind, the rights and obligations of the proprietors of contiguous closes, one on a higher level than the other, may be stated as follows: -

The higher proprietor: He is not liable merely because surface water flows naturally from his land on to lower land.

He may be liable if such water is caused to flow in a more concentrated form than it naturally would.

It flows in a more concentrated form than it naturally would if, by the discernible work of man, the levels or conformations of land have been altered, and as a result the flow of surface water is increased at any particular point.

If a more concentrated flow occurs simply as the result of the "natural" use of his land by the higher proprietor, he is, generally speaking, not liable. What is a natural use is a question to be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased: as for example whether it is agricultural land drained in the ordinary course of agriculture, whether it is timbered land cleared for grazing, whether it is a mining tenement, or is used for buildings and so forth.

The proprietor of higher land is not liable for a more concentrated flow from his land if it is the result of work done outside his land by someone else, and for the doing of which he is not responsible, as for example by the paving and guttering of public roads by municipal authorities.

The above statements concerning the concentration of surface waters relate to cases when the increased flow results from work done when the higher land and the lower land were held by separate proprietors. Different considerations apply when the lower land receives a concentrated flow as the result of work which was done when it and the higher land were in the same ownership and possession.

The lower proprietor: He may recover damages from, or in appropriate cases obtain an injunction against, the proprietor of the higher land who is, for any of the reasons given above, liable to an action because he has concentrated or altered the natural flow.

Although he has no action against the higher proprietor because of the natural unconcentrated flow of water from his land, he is not bound to receive it. He may put up barriers and pen it back, notwithstanding that doing so damages the upper proprietor's land, at all events if he uses reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case depends upon its own circumstances.

It may be added that the proprietor's right to defend his land against water coming upon it by erecting barriers, is generally speaking restricted to penning it back on to the higher land whence it would otherwise have naturally come. It does not entitle him to divert it on to the land of a third proprietor to which it would not have naturally gone to the damage of that proprietor.

In the present case the injunction granted and declaration made cannot stand. They were based upon the erroneous view that the respondent had the rights of a riparian owner in a natural watercourse. And the evidence does not establish any right to any different relief. The appeal should therefore be allowed, the injunction dissolved and the declaration vacated.