Right of ripa

might, by proper caution, have prevented the injury to plaintiff, an action was maintainable; and that the compensation awarded to the owner of the land, before the railway was made, did not include the unforeseen damage in the present case.1

A riparian owner on inland waters has, it would seem, an rian owner to ordinary right primâ facie to protect his land from the inroads of flood water, provided he can do so without injury to others.

protect his

land from

floods.

No right to throw the water on to the opposite

It has been already stated with regard to the sea, that every landowner exposed to its inroads has a right to protect himself by erecting such works as are necessary for that purpose; and that if he acts bonâ fide, he is not liable for any damage thereby occasioned to his neighbours, who must protect themselves." The law does not appear-except, perhaps, in the case of extraordinary floods to give such large powers for protection to the owners on the banks of inland waters, whether tidal or not. Thus it has been laid down by the House of Lords, that riparian owners on the banks of a non-tidal river may protect their property from the invasion of the water by building a bulwark ripæ muniendæ causâ; but that even in this necessary defence of themselves, they are not at liberty to conduct their operations so as to do any actual injury to the property on the opposite side of the river, or above or below them. "Mere apprehension, how"ever," says Lord Chelmsford, "will not be sufficient to found a "complaint of the acts done by the opposite proprietor; because, "being on the party's own ground, they were lawful in themselves, and only became unlawful in their consequences, upon "the principle of sic utere tuo ut alienum non lædas. But any "operation extending into the stream itself is an interference "with the common interest of the opposite riparian proprietor; "and therefore, the act being prima facie an encroachment, the onus seems properly to be cast upon the party doing it to show "that it is not an injurious obstruction."

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"A proprietor on the banks of a river," says Lord Lyndhurst, "has no right to build a mound which, according to the opinion and report of an engineer, would, if completed, in times of

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1 Lawrence v. G. N. Rail. Co., 16 Q. B. 643.

2 R. v. Trafford, 8 Bing. 204: 34 R. R. 680; 1 B. & A. 874; Ridge v. Midland Rly., 53 J. P. 55.

3 See ante, Chap. I., p. 39; R. v. Commissioners of Pagham Level, 8 B. & C. 355; 32 R. R. 406.

4 Bickett v. Morris, L. R., 1 Sc. App.

47: Orr Ewing v. Colquhoun, 2 App. C. 839. See A.-G. v. Lonsdale, L. R., 7 Eq. 377.

5 Menzies v. Breadalbane, 3 Bli., N. S. 414 (H. L.); 32 R. R. 103; 3 Wils. & Shaw, 235; Orr Ewing v. Colquhoun, 2 App. C. 839; Bickett v. Morris, L. R., 1 Sc. 47, ante, pp. 82 et seq.

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in times of

ordinary flood throw the water of the river on the grounds of a proprietors "proprietor on the opposite bank, so as to overflow and injure ordinary "them. It is clear beyond the possibility of a doubt that by the flood, "law of England such an operation could not be carried on. "The old course of the flood stream being along certain lands, it "is not competent for the proprietors of those lands to obstruct "that old course by a sort of new water way, to the prejudice of "the proprietors on the other side. The ordinary course of the "river is that which it takes at ordinary times; there is also a "flood channel. I am not talking of that which it takes in extraordinary or accidental floods; but the ordinary course of "the river at the different seasons of the year must, I apprehend, “be subject to the same principles. Erskine, in his Institutes, says: When a river threatens an alteration of its present "channel, by which damage may arise to the proprietor of the adjacent or opposite ground, it is lawful for him to build a bulwark "ripe munienda causâ " to prevent the loss of ground "that is threatened by that encroachment.' Though the river "threatens to change its channel and to encroach upon your "land, you cannot protect yourself to the prejudice of the "opposite proprietor. It is true that passages may be found in "the Digest (Roman) appearing to have a contrary tendency, but "I think they may all be reconciled; and I consider the subject "in this light-that these passages to which I am now alluding "have reference to accidental and extraordinary casualties from the flood suddenly bursting forth; and they go to "this-that in such a case the parties may, for the sake of self-preservation, guard themselves against the consequence. Farquharson v. Farquharson is distinguishable in every par"ticular. There it was held, that where Invercauld had erected "a mound on his ground to prevent the old course of the river being (gradually) altered, and there was evidence to "show that a great part of the bank was built on old founda"tions, and of a custom of the county for opposite proprietors "to embank under these circumstances, the Court gave their opinion in favour of Invercauld.”

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9

In the case of Ridge v. Midland Rail. Co., it was held, that a riparian owner on a natural stream has the right to raise the banks of the river from time to time as it becomes necessary,

1 Cited in Menzies v. Breadalbane, 3 Bli. N. S. 414 (H. L.); 32 R. R. 103;

3 Wils. & Shaw, 235.

2 53 J. P. 55.

so as to prevent it from overflowing his lands, so long as he does not injure the property of others. Lord Coleridge, C. J., in delivering the judgment of the Court, says, at p. 56 of the report : "The only question that remains and was seriously argued by the "plaintiffs is as to the raising of the level of the defendants' ground "and its effects. The argument of the plaintiffs was to this effect : "There are two riparian proprietors and occupiers of land on the 'opposite banks of the same river, the land of one being some "feet lower than that of the other. In ordinary times this makes "no difference, because the level of the plaintiffs' land is much "above the surface of the stream, but in times of flood, occurring

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at uncertain intervals and with uncertain volume and force, "if the river overflows its banks at all, it always overflows the "lower bank. That bank was the defendants'. The defendants "wanted to build upon the land subject to flood; they had a right to build upon the land, and, according to all the cases, including "those which have been adjudicated upon by such lawyers as "Tenterden, Tindal, and Lord Esher, it is a matter of common"law right that every riparian owner is justified in preventing the "river overflowing his land. Tindal, C. J., expresses his view "thus: At common law the landowners would have the right "to raise the banks of the river and brook from time to time,

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as it became necessary, upon their own lands, so as to confine "the flood water within the banks, and to prevent it from over"flowing their own lands.' That is a right everybody may "exercise without the slightest objection. But in improving "his property the owner must not injure that of another. That, of course, assumes that the other has rights. Sie utere "tuo ut alieni (as I prefer to express it, not alienum) non lædas. "But that was not the contention of the plaintiffs. Their view was a new view to me; it was this: I shall not take the "smallest care of my land; mine is the dominant tenement to "yours; yours is the servient tenement; anything you do in this "connection must be by my leave and license. Such a doctrine "is preposterous, to say the least. The case of Bickett v. Morris "et Ux.2 has nothing to do with this case at all. The facts there were widely different. Similarly with the other cases cited by the plaintiffs; I agree with them entirely, but they do not seem "to me to be any authority in support of the contention submitted "to us. Judgment must therefore be entered for the defendants." 2 L. R., 1 Sc. App. 47.

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Trafford v. The King, 8 Bing., at p. 211.

nary floods.

With regard to such extraordinary floods as would come Extraordiwithin the definition of extraordinary casualties, it would seem, from the opinion of Lord Lyndhurst in the case just cited,1 as well as from the words of Bramwell, B., in a late case, that a riparian owner may exercise a reasonable selfishness in protecting himself from such a common enemy.

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a

The flood is

a common

In the case of Nield v. L. & N. W. Rail. Co., where a flood occurred in a canal from the bursting of the banks of an adjoining river, and the defendants, the canal company, placed a barricade across the canal above their premises, and thereby flooded the plaintiff's premises, it was held they were not liable for the damage. "The flood," says Bramwell, B., "is "common enemy against which every man has a right to defend enemy. "himself, and it would be 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!' The law allows, I may say, a kind of "reasonable selfishness in such matters; it says, 'Let every "one look out for himself, and protect his own interest,' and he who puts up a barricade against a flood is entitled to say to "his neighbour who complains of it, 'Why did not you do the "same?' I think what is said in Menzies v. Earl of Breadalbane "is an authority for this, and the rule so laid down is quite "consistent with what one would understand to be the natural "rule. Where, indeed, there is a natural outlet for natural "water, no one has a right for his own purpose to diminish "it, and if he does so, he is, with some qualification, perhaps, "liable to any one who has been injured by his act, no matter

where the water which does the mischief comes into the water"course-I say with some qualification, because it may be that, "even in the case of a natural watercourse, the riparian owner "is entitled to protect himself against extraordinary floods by "keeping off extraordinary water."

It would seem, however, that to justify such "reasonable "selfishness" that the acts done in self-defence must be done to avoid a common danger, and that no one can transfer such a danger coming on to his land to the land of another. Thus in Thomas v. Birmingham Canal,3 where, on the occasion of an extraordinary rainfall, the defendants opened a sluice and

1 Menzies v. Breadalbane, ante, pp. 154,

155.

2 L. R., 10 Ex. 4.

349 L. J., Q. B. 851; 43 L. T. 435.

discharged from their canal into a brook more water than the latter was able to carry off, the consequence being that the brook overflowed into the plaintiffs' mines, and it was found that if the sluice had not been so opened the canal bank would shortly have burst; that the adjacent country and the plaintiffs' mines would have been inundated; that the course which the defendants adopted to avert such a catastrophe was a prudent one, and the only effectual one which could have been adopted in the emergency; that so far as the plaintiffs' mines were concerned the opening of the sluices caused them to be flooded sooner than they would otherwise have been, but that no additional damage was caused thereby to the plaintiffs, the inundation being inevitable by reason of the excessive rainfall and consequent accumulation of water:-The Court held, upon these findings, that even assuming the defendants' act to have been a wrongful one, it was injuria absque damno, and therefore not a ground of action; and, secondly, that the compensation clauses of the Acts of Parliament did not apply to such a case.

But in a more recent case, Whalley v. Lancashire and Yorkshire Rail. Co.,1 where owing to an excessive rainfall a quantity of water accumulated on the upper side of the defendants' railway embankment, which crossed some sloping land, and they, finding that the pressure of water was causing danger to their embankment, cut trenches through the embankment and thereby caused the water to flow through and on to the land of the plaintiff, which lay at a lower level; although the jury found that the defendants had acted reasonably, regard being had to the safety of their own property, and that there was no negligence :The Court of Appeal held that the defendants were liable, for what they had done was not to ward off a common danger, but to transfer to the land of the plaintiff the danger and mischief already existing on their own land.

The Right to Water in its Natural Quality.

With regard to this subject, we propose to treat, in the first place, of the common law rights and liabilities of riparian. owners with regard to water in its natural quality, and then

153 L. J., Q. B. 285; 13 Q. B. D. 131 ; 50 L. T. 472.

2 Menzies v. Breadalbane, 3 Bligh, N. S. 414; 32 R. R. 103; Queen v.

Pagham, 8 B. & C. 355; 32 R. R. 406: Nield v. L. & N. W. Rail. Co., 44 L. J., Ex. 15; L. R., 10 Exch. 4; Scott v. Shepherd, 1 Sm. L. C. (8th ed.) 466, were cited.