Perth v Halle [1911] HCA 57

Perth v Halle [1911] HCA 57 - HCA 1911 case summary — Zoe

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pany v. Johnson (1). There the New River Company, acting under statutory authority, had caused the plaintiff damage by making a drain or sewer which had deprived her of water she should have had from her well. The Statute took away the right of action and substituted a right to compensation, but the com- pany contended that the landowner would, in the absence of the Statute, have had no right of action, and therefore she could not claim compensation. The claim was put in two ways, first, that the defendants had wrongfully cut off the underground supply of water to the well before it could reach the well, and, secondly, that they had wrongfully drained the plaintiff's well of water which had already percolated into it underground. The Court of Queen's Bench held, on the authority of Chasemore v, Richards (2) and Acton v. Blundell (3), that there had not been on either ground any right of action for such damage before the Statute, and consequently that there was no right to compensa- tion since its passage. There can be no doubt that, if the appel- lants rightly interpret the judgments in that case, they can be adduced in support of the argument that, even apart from statutory authority and apart from ownership, they were entitled to do the things complained of, in the absence of negligence. The results of such a doctrine, if upheld, need not be enlarged on. But they would be rather alarming. For myself, I think, as I pointed out during argument, that the key to the decision is to be found in the passage already read by the Chief Justice from the judgment of Blackburn J., which supports the position of the New River Company by treating them as adjoining owners, and applying in their favour the words of the judgment of the Court in Acton v. Blundell (4) " that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure" &. That was abundant authority on which to base a decision in favour of such owners, and it is not likely that the other Judges intended by any observations of theirs to put the case any higher. I am of opinion, therefore, that the mere stranger fares no better under this decision than under any

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It is to my mind clear that the appellants had no right to drain the subsoil of adjacent owners to the injury of their pro- perties. The authority given them by sec. 235 of the Act of 1906, following sec. 109 of the Act of 1895, is to drain the streets which they are to control, and not to drain the subsoil of surrounding localities or districts. If the former cannot be drained without also draining the latter, well and good ; they are protected to that extent. But, as I understand the case, it is not set up that all the withdrawal of support which occurred was inevitable. Nor is it, indeed it cannot be, seriously contended that, if the drain had been properly built and kept, the extensive damage complained of would still have been sustained. The withdrawal of water has occurred at a depth which would have been untouched had the work been sound. Although under proper construction there might have been a little subsidence by reason of the drying of the surface and the subjacent soil to some very slight depth, yet the bottom and sides of the invert would not have let in the water, or the sand and water, and the respon- dent would not have suffered the damage consequent on their doing so, and which we have here to deal with. I am of opinion then that the appellants, who admit the withdrawal of water, have failed to show that the damage was due to that cause only, and that even had they succeeded in doing so, they have not shown themselves, in respect of the damage from that single cause, to be in the position of adjoining owners so as to be able to justify it on that ground. In the absence of such justification I think they fail altogether. They admit that they are liable for damage caused by the withdrawal of supporting sand, if it occurred. The learned Judge who tried the case has found that it has occurred, and that with his other findings of fact must be sustained. In my judgment therefore the appellants are liable for the damage from both these causes, so far as their negligence has caused it. Under these cireumstances the endeavour to dis-

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O'Connor J. By agreement between the parties the learned Judge at the trial determined only the question of the defend- ants' liability on the facts established in evidence, leaving the matter of damages in respect of the liability so determined to be assessed later on by a jury. The plaintiff charged the defendants with having damaged his houses by withdrawing from under their foundations sand and other soil with water by means of a drain negligently constructed and maintained by them in a street adjoining. The defendants, besides denying the charge, alleged that the plaintiff's houses were injured, if at all, by the mere draining off of water from the land upon which they were built and contended that, even if the municipality had by means of the negligently constructed drain drawn off the water and so let down the foundations of the houses, no action would lie against them at the suit of the plaintiff for that injury. The learned Judge was therefore called upon to decide, and did decide, the two questions thus raised. He held that the drain had been negli- gently constructed and that the plaintiff's houses had been injured by the withdrawal of sand and water from under their foundations by means of holes in the invert of the negligently constructed drain, but he also held that, even if there had been no withdrawal of sand but a withdrawal of water only, the defendants would have been equally liable. This Court is there- fore called upon, in the first place, to decide whether the learned Judge determined rightly that the injury to the plaintiff's houses was caused by the withdrawal of sand and water from under the foundations by means of the defendants' drain negligently con- structed and whether the defendants were liable to the plaintiff for damages in respect of that injury. If the Court upholds the learned Judge's determination in that matter, it appears to me that the question whether the defendants are or are not liable for the withdrawal of water only cannot arise. If, however, the Court should come to the conclusion that the injury was caused in whole or in part by the withdrawal of water only, then it must also determine whether or not the defendants are liable to the plaintiff under the circumstances established in evidence for injuries caused by the withdrawal of water only. After having had the advantage of a careful examination of the evidence

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which Rigby LJ. referred must be applied. The rights of a land- Harte. owner to the use of everything on his own land "usque ad inferos" cannot be cut down except in so far as their exercise would interfere with the adjoining owner in the exercise of his tights. The landowner's right to the support of underground water, for instance, has to give way when the land of his neigh- bour adjoining cannot be fully used without draining it away. The proposition, therefore, that a landowner has no enforceable legal right to the support of subterranean waters under his land cannot be sustained. The true position of the landowner in my opinion is this: - He is entitled to have his land supported by the underground water which naturally underlies it. That right is one of the incidents arising out of his ownership, and, unless it is taken away by Statute, he can assert it against all the world except the adjoining owner. Even the latter is entitled to interfere with the full enjoyment of the right only when the lawful use of his own land necessarily involves that interference. But, as against every person other than the adjoining landowner, he has the same remedy for the protection of this, as he has for the protection of any other, right arising out of his ownership. The municipality in this case had not, as I have pointed out, either the rights of a private owner or the authority of a Statute to justify what they have done. Their position was and is no other than that of any public body which, having charge of a public street, has by negligent, and there- fore unauthorized, work in the street injuriously affected the right of an adjoining owner to his special damage. The con- struction and maintenance of the drain under these cireumstances is a nuisance, actionable at the suit of a party injured. (See the observations of Mellor J. in R.v. Metropolitan Board of Works (1) and the judgment of Lord Alverstone C.J. in English v. Metro- politan Water Board (2). I can see nothing in the Municipalities Acts which relieves them from liability to the plaintiff for the special injuries he has suffered from the nuisance which their

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Judgment (117 paragraphs)