Nelson v Walker [1910] HCA 27

Nelson v Walker [1910] HCA 27 - HCA 1910 case summary — Zoe

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I turn to the point on which the Supreme Court thought the plaintiff entitled to recover. They were of opinion that the obstruction by the defendant of the flow of water from the higher to the lower level of the bottom of the excavation was a deroga- tion from the defendant's grant to the plaintiff. Before any ques- tion of derogation from grant ean arise there must be a grant, either express or implied. In the present case there is no sugges- tion of an express grant. The foundation of the doctrine of implied grant in the case of a conveyance of part of a parcel of land, the vendor retaining the rest, is that, having regard to all the circumstances of the case it must (not may) have been in the contemplation of the parties that the grantor should not use the land which he retains in suck a way as to preclude any use of the land which he sells, or that use for which he knows he is selling it to the purchaser : Broomfield v. Williams (2). What, then, were the circumstances in the present case? The only relevant cireum- stances, in my opinion, are that the subject matter of the sale was one of two contiguous town allotments, each containing about 30 perches, fronting two streets, and on which an excavation had been made extending into the land retained by the vendor, and that the bottom of the excavation was lower in the land retained than in the land sold. It must have been in the contemplation of both parties that the land sold as well as that retained should be used for the purposes for which land in towns is ordinarily used, one of which is the purpose of building upon it. Under such circumstances the Court is asked to infer that it must have been in the contemplation of the parties that the vendor should never fill up the excavation so long as the purchaser desired to use it as a receptacle for surface water falling on or flowing into his land - in other words, that the vendor was not to use it for building purposes, or for any other purpose which would require that the surface should be raised to the level of the surrounding land, or that water should be excluded from it, except upon con- dition of providing an exit for the water that would otherwise flow from the purchaser's land. I think that such a servitude

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In 1905 the respondent owned numbers 10 and 11 of the subdivi- sion, and the appellant owned the adjoining allotments on the east- ern side, numbers 12, 13, 14, and 15. he title was under the Transfer of Land Act 1890, and the parties were the registered proprietors of their allotments respectively. In that year the appellant sold and transferred No. 12 to the respondent, and the boundary line between those allotments then became their common boundary. Many years before the parties first acquired the land the Government Railway Department had excavated the site of the subdivision, taking out the surface to the extent of a few feet in depth, leaving the bottom with a general slope from north-west to north-east, so that surface water falling on re- spondent's allotment 12 would flow naturally onto appellant's allot- ment 13. I mention the circumstance of the excavation, not be- cause I think it has any relevancy to the matter under considera- tion, but because the learned Judges in the Supreme Court seem to have held that the principles of law regulating the rights of adjoining land owners with regard to the flow of water over the natural surface of the land from the higher to the lower land had no application to a case in which the natural surface had been altered. In my opinion there can be no reason for any such distinction between the natural surface and the arti- ficial surface. Whatever rights or liabilities arise at common law by reason of the surface slope of adjoining allotments must be based on the conditions actually existing when the rights arise. The surface as it then exists whether artificial or not is, for the purpose of applying the law regulating the rights of the respec- tive owners, the natural surface. The proposition laid down by the Supreme Court would lead to some extraordinary conse- quences. Adjoining land owners, who had built on filled in land, for instance, would either have their rights regulated by the slope of the original surface buried many feet beneath them, or else the ordinary principles of the common law regulating such rights could have no application to them. Mr. Dethridge, the respon- dent's counsel, very properly, in my opinion, declined to adopt or to rely upon any such distinction. I take it, therefore, that what- ever was the surface condition of the land when these parties first became adjoining owners, that is, when the appellant sold

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to have been the natural surface for the purpose of ascertaining their common law rights. It is clear that at that period there was no defined channel or watercourse carrying water down the slope, but rain water falling on allotment 12 and those above it flowed naturally over the surface from 12 on to and across allot- ment 13 and the appellant's other allotments to a sand-pit on the lower part of the last mentioned allotment. At the time when the appellant sold allotment 12 to the respondent that was the only get away for rain water falling on the surface of that allotment and the allotments above it. After the appellant's sale of allotment 12 to the respondent she built an embankment on a portion of her boundary between allotment 12 and allotment 13 for the purpose of protecting the lower part of her land from the flow of surface water off allotment 12, and the other allotments above it. The result was that the water thus prevented from flowing off allotment 12 was backed up on the lower part of that allotment and remained there to the respondent's injury. The latter proceeded in the County Court for relief and the learned Judge granted an injunction directing the removal of the embank- ment, awarding also a small sum for damages. He delivered a judgment basing his decision on the principle laid down by Madden C.J., in Vinnicombe vy. MacGregor (1) namely, that the lower adjoining owner is bound to receive on his land without hindrance waters naturally flowing on to it from the surface of the higher adjoining owner's land. The Supreme Court on appeal, while affirming the principle acted on by the learned County Court Judge, held it to be inapplicable to a case in which the sur- face on both adjoining lands had been altered from its original condition, but they affirmed the judgment on the ground that the appellant could not without derogation of his grant deny the right claimed by the respondent. It seems difficult to find any reason for this ground of decision, as it is explained in the judgment of the learned Chief Justice, without applying the principle of Vinni- combe v. MacGregor (2). I propose, therefore, to consider in the first place whether that case has rightly laid down the law, and

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secondly, whether the steps taken by the appellant to protect his land from the surface water coming on to it from the respondent's land did amount to a derogation of his grant. The decision in Vinnicombe y. MacGregor (1) went on appeal to the Full Court, which reversed it on other grounds, but the majority of the Judges expressed approval of the general principle on which it was founded. Mr. Justice &Beckett, however, declined to fol- low that view. In the course of his judgment he summarizes the principle laid down by the learned Chief Justice in the form of two propositions as follows (2): - («) "That, according to English law, where lands of different owners adjoin the lower land is sub- ject to an easement to receive the natural flow of the natural surface water from the higher land. (b) That the owner of the lower land has no right to raise any structure on his own land which will impede this flow, and that he is answerable in dam- ages to the owner of the higher land for any injury caused by his doing so." I entirely concur with Mr. Justice d Beckett's view that no such principle has been established by decided cases, or is recognized by English text writers of authority, and I wish to adopt the reasoning by which the learned Judge arrives at that conclusion. The doctrine in question is really an application of the civil law doctrine as to the rights of adjoining land owners. I agree with my learned brother the Chief Justice for the reasons he has given that the doctrine of the civil law as stated by Madden C.J. does not apply to town lands. On that matter, however, it is unnecessary to express an opinion, because I take the view that the English common law has never in this respect adopted the doctrine of the civil law. In England the rule of the common law on this question seems never to have been laid down by any direct authority, But in America, where in such matters the rule of the civil law prevails in some States and the English common law in others, it has become necessary to deter- mine and lay down what is the doctrine of the common law. Out of many authorities cited in argument I shall select one for the purposes of quotation. In Walker v. New Mexico and Southern Pacific Railroad Co. (3) the Supreme Court of the United States

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from its language whether with or without the aid of the 7ansfer of Land Act 1890 or the Conveyancing Act 1904. But it is contended that the full rights of ownership which passed by the transfer cannot be enjoyed by the respondent unless the surface water from allotment 12 which the appellant sold to him is permitted to flow on to allotment 13 which the appellant did not sell to him just as it did when the appellant was the owner of both allotments. It is argued that the appellant cannot without derogating from his grant prevent that flow of surface water from continuing. It is important therefore to have regard to what it was that the appellant sold to the respondent - a town allotment of vacant land not for any special purpose, but to be put to any use the respondent might think fit to make of it. In the Grosvenor Hotel Co. vy. Hamilton (1) and in all the cases cited therein one circumstance is invariably present. The grantor has let or sold land with a building on it which required for its reasonable enjoyment some advantage or convenience from land adjoining which the grantor still retains, or the land was sold or let for some special purpose which could not be carried out unless the state of things existing at the time of grant or lease on the grantor's property adjoining was permitted to continue. As I have pointed out, the sale in this case was for no special purpose, it was an ordinary sale of a vacant town allotment to be used as the purchaser thought fit. For the enjoyment of such a grant how could it be necessary that the grantee should have any larger or greater right of having his surface water carried off than the vendor himself, or any other owner of the allotment would have ? If the appellant had sold allotment 13 to another person before selling allotment 12 to the respondent the latter would have had no such right as he is now claiming and the owner of allotment 13 would have been entitled to protect his land from the flow of surface water just as the appellant has done. But the respondent claims that by a mere transfer of a vacant allotment under the cireum- stances I have stated he is entitled to be placed in a better position because his vendor continues to be the owner of the adjoining allotment. Further, I am at a loss to understand how the right which the respondent demands to have continued can exist after

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the ownership of the allotments have been severed. It is true no doubt that when the appellant owned both allotments the surface water flowed from allotment 12 to allotment 13 without obstruc- tion. It did so because the appellant chose not to prevent it. But the sale of allotment 13 severed the ownership, and there- upon as between these parties all the common law obligations, rights and duties which arise out of the ownership of adjoining lands attached unless they were modified by contract. The transfer in no way purported to modify any of those rights, and amongst them was the right of the appellant to protect his land from being flooded by surface water from the higher adjoining allotment. In doing what is complained of he exercised that right and no more. But it is claimed that by the mere act of transfer he has prevented himself from using the right, nay more, that he has imposed on himself an obligation to receive the respondent's surface water, and has deprived himself of the possi- bility of making any use of his allotment by filling up, building or otherwise which would interfere with that flow of water. That such consequences might follow from an ordinary transfer of ah allotment under the circumstances put before the Court in this case is certainly a startling proposition, and I have been unable to find any reason on which it can be justified. I have come to the conclusion, with every respect to the learned Chief Justice in the Court below, that the principle on which he has based his decision in this case is inapplicable to the facts proved except on the supposition that there does exist in the owner of the higher land the right of having surface water flow on to the lower land adjoining as expounded in Vinnicombe vy. MacGregor (1). But as I have pointed out there is no such right known to the common law. For these reasons I am of opinion that the ground on which the learned County Court Judge based his opinion was erroneous, that the Supreme Court upheld the judg- ment upon a ground which cannot be supported, and that the appeal must be allowed.

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"if the conveyance is made for the express pwrpose of having buildings erected upon the land so granted, a contract is implied on the part of the grantor to do nothing to prevent the land from being used for the purpose for which to the knowledge of the grantor the conveyance is made"; and see Lyttleton Times Co. Ltd. v. Warners Ltd. (2). Counsel have not been able to refer us to any case in which the doctrine of "derogation from grant " has been applied where the purpose for which the land was to be used 'was not in some way mentioned in the conveyance. If a "stable" is leased, the lessor must not do anything to prevent the lessee from using it asa stable ; if a "house " is leased, the vendor cannot undermine it so as to bring it down. But if A. sell to B. land described merely by metes and bounds, C. and other subsequent purchasers of the land are not bound to investigate all the rela- tions between A. and B. at the time of the sale by A. They need not inquire into matters which do not appear on the face of the title or on the face of the land. I am confining my observations to the doctrine of grant - grant binding the land in the hands of successors in title. Under the Transfer of Land Act 1890 the position of transferees is still stronger owing to its express pro- visions for their protection, and also to the simple form of transfer prescribed. Under the old system of conveyancing the purpose for which land is bought is usually apparent. The case of Bir- mingham, Dudley and District Banking Co. v. Ross (3) has been, in my opinion, misunderstood. The contract and the lease men- tioned " buildings"; the parties admitted that the grant was for building purposes ; and the question arising as to the extent of the right granted, the Court examined all the circumstances at the time of the contract. There was no question then arising as to the interpretation of the words of the deed. The question was, was there any infringement? But I must not spend too much time on this subject ; for in this case my opinion is that, even if we look outside the transfer, there is no grant to be implied of any right to discharge the water.

At a glance

Court

Decision date

Before

Source

Judgment (187 paragraphs)