Constitutional. Law-s-Act of state-Military necessity may justify acquisition of
new title to land \by Government . (

LIlnd Law-s-Government ownership-Title to land acquired by Government by military necessity                                                             

Ne~ligence-Railway embankment-Flood damage to adjacent land

Tort-s-Strict liability-Railway embankment-Flood water passing through cul-
verts and destroying crops-Natural flow as a defence

Plaintiff occupied and cultivated certain bugr land along the east bank
of the Nile. Originally this land . depended for irrigation on rain flood wa-
ter accumulating east of plaintiff's land; crops were sown after the r~.
which were aD adyantage to plaintiff. Defendant bUilt a. railway embank-
men,t parallel to the Nile and east of plaintiff's lai,d,' thereby preventiq

, raiJi flood-water from draining on to plaiDtiff's land . frOm the east as f«-
jnerly, Plaintiff, with other local farmers, was thereby forced to, c~
his system of cultivation, so as to depend on pumped irrigation. . Crops
were now sown before the rains, and a 'rain flood therefore became a serioua

                  disadvantage to plaintiff.                                                                        .             .

Defendant had, at different tinies, constructed khors and cuive~ under;
the Railway embankment at points where the water accumulating east, of

,. Court: Peacock J.

the embankment naturally tried to flo,,< to the west of the embankment, In
times of very heavy rains, however, water passing through these khors and
culverts would flood plaintiff's land ~d wash out his previously planted
crops.

Plaintiff sued defendant under the rule in Rylands v. Fletcher, allegllig
that the construction of the' embankment caused water to accumulate east
of the embankment in quantities that made it likely to do mischief if it
escaped, and that the construction of the khors and culverts - permitted such
an escape, improperly directing the escaping water on to plaintiff's: land.
Plaintiff also sued defendant in negligence, alleging that the embankment
and the khors and culverts had been negligently constructed in that their
construction was such as to cause the discharge of artificially large quanti-
ties of water on to plaintiff's land, to the injury of plaintiff.

Held:

(i) Since' the khors and culverts had been constructed by de-
fendant in places at which the water flowed naturally from east to west,
plaintiff's land would be ftooded in the manner complained of in any event,
whether the embankment had been constructed or not, and in fact used to
be so flooded before the construction of the embankment.

- (ii) The construction of the khors and culverts was such that some
additional quantity of water might pass on to plaintiff's land because of the
existence of' the embankment, but such additional quantity was negligible ,
in that it could not by itself have caused damage to plaintiff, and therefore
could not found liability in: defendant.

(iii) A defendant may be made liable in the Sudan under the general
principles of law established in the case of Rylands v. Fletcher. But there is
no strict liability for a natural accummulation of something, or for its natu-
ral escape. Defendant 'had merely made arrangements for the natural es-
cape of water naturally accumulated. Defendant had not therefore Caused
by his acts any appreciable quantity of water to flood plaintiff's land over
and above what would have ftooded plaintiff's land if defendant !fad never
built his embankment.

(iv) By the same reasoning defendant was not liable in negligence.

Defendant had no duty, when constructing his embankment, khors and cul-
verts, to construct them in' such a way as to prevent damage to plaintiff
which would otherwise have occurred naturally in .any case. In particular
defendant had- no such duty, where he could only jhave made' arrangements
for preventing such damage to plaintiff by trespassing on the land of plain-
tiff and others.

(v) Land acquired by the Government by force produces the same
quality of ownership as if the land had been acquired under the Land Acquisi-
tion Ordinance 1903. '

Menzies v. Breadalbane (1828) 3 Bli. (N.S.) 414, 4 Eng. Rep. 138.1 ap-
proved.

Nield v. London and North Western Ry, (1874) L.R. 10 ~. 4 approved.
Rex v. Commissioners of Sewers for Pagham Sussex (1828) 8 B. & C. 3.55,
108 Eng. Rep. 107S'approved.

Rylands v. Fletcher (1868) L.R. 3 H.L. 330 approved.

Whalley v. Lancashire and Yorkshire Ry. (1884) 13 Q.B.D. 131 distin-
guished.

Action

Advocate: Mr. Claxton ... for plaintiff .

 February 22, 1922. Peacock J.: The court finds as a fact that if
any water was prevented by the Railway embankment from passing
from east to west, either at kilo 15 or kilo 16, such amount of water
was relatively small compared with the large volume of water which
flowed under Kadaru bridge at kilo 19, that such additional water had
no material effect on the life or death of the plaintiff's cultivation, and
that the destruction of the plaintiff's cultivation was caused by the flow.
of water which would have passed under natural conditions from east
to west at the site of the bridge whether or not the embankment had
been constructed in 1899 or the bridges at kilo 19 and kilo 19% had
been erected in 1908.

Assuming that the plaintiff had established that a large body of
water would pass at or about kilo 16. What would have been the result.
Not one of his native witnesses has said that this water passed in old
days to the river. Having viewed the land and having heard the evi-

dence given by the plaintiff's own witnesses, I am quite satisfied that

this water would have contributed to the flood of, the Bugr land 'of the
Ezergab and Kadaru farms and that although it descended to the low
lands of these farms by a different route, the result, except by reason
of obstacles constructed since the year 1899, would have been exactly
the same. I do not say that no water could have passed to the river,
but I am quite satisfied that the low lands of these, farms would have
been flooded before any water discharged into the river.

I propose now to consider the relations of the respective parties,
the conditions under which the Sudan Railway came. into existence; for
what reasons it is maintained, and to what remedy, if any, an individual
who has sustained injury by reason of the construction or maintenance
is entitled.

The Railway was constructed in 1899. It was constructed for
purely military purposes under circumstances which took no account of
compensation to private owners, if such existed, for injury if any was
sustained. It is now the Railway of the Sudan Government maintained
not only for the development of the Sudan and for the conveyance of
passengers and goods, but it is also maintained for military reasons.
Except for the construction of two bridges at kilos 19 and 19% the
embankment on which the rails are placed is the same embankment
as was made up in the year 1899. It has no doubt been repaired, but

there is no evidence that it is of greater height or has greater resisting
power to rain flood now than in the year 1899.

In the year 1899, therefore, the Sudan Government acquired by
military necessity the land on which the Railway was constructed, and
on this for the purpose of. the line they made their embankment. It
is this land and this embankment which is their property. This owner-
ship has never been assailed and no chum for compensation since 1899
up to 1921 has been received.

If at the present day the Sudan Government wishes to run 'a c0n-
struction of their line through a distance under conditions which would
cause injury to private owners, such owners might compel the Govern-
ment to acquire the land necessary for the Railway under the Land Ac-
quisition Ordinance 1903 and could obtain compensation. I know of
no law which would enable such. owner afterwards to claim dan .ages
from the Government for the natural result of such acquisition.

Instead of 'adopting procedure, which in 1899 did not exist, by
which compensation at the time might have been obtained by an in-
jured person, a victorious army acquired this ownership by force. The
previous owner of the land received no compensation, but the legal re-
suit is the same. The owner has the same right of ownership -and the
same quality of ownership as if the land had been acquired under the

         Land Acquisition Ordinance.                                     .

The plaintiff bought Abu Halima Farm in the year 1907. He has
not-asked for compensation for the construction of theRailway in 1899,
nor has he demanded its removal. He asks for damages for the results
of its construction as a military operation, and that in the year 1921 the
Sudan Government should do something which in the year 1899 the
existing owner had no power to compel.

I am satisfied that the Railway embankment is the embankment

. which was constructed in 1899. Having regard to this fact, I know of
no law which entitles the plaintiff to any remedy for damage resulting
from that embankment, unless he is able to show that between that
date and the present time the Sudan Government has by some act or
omission materially altered the conditions.

It is contended that the construction of bridges has materially al-
tered the conditions, but I am satisfied that the bridges at kilos 19 and
19% have been erected over the sites of existing w~tercourse, and have
not materially in: any way altered the conditions. In the absence of
bridges the embankment was washed out in the year 1906 and 1907

and was bound to have been w~ed out at these places in the, year
1920.

I will now consider the plaintiff's case in its legal aspect and-fer
this purpose will assume for the sake of su~h consideration that the
plaintiff has satisfied the court that his crops were' destroyed by wa-
ter which in the absence of the embankment and bridges would have
flowed elsewhere.

In the main I agree with the principles of laW which the. plaintiff
seeks to establish. His first principle is really the principle brought into
prominence by Lord Blackburn in the case of Ryiands v. Fletcher
(1868) L.R. 3' H.L. 330, you may do what, you Will with your own
property, but you must remember the old maxim of English Law, Sic
utere tuo ut alienum non laedas, so to use your property as not to in-
jure another. The property of the defendants is the site of the Railway
and the embankment. .Have the defendants used these property to the
plaintiff's injury?

The part of the pl!lintiff's case based on this principle of law de-
pends entirely upon the erection of the embarikment or the embank-
ment and the bridges at kilo 19 and 19%.' The plaintiff does not con-
tend, and certainly has not proved, that, apart from .the construction Of·
the embankment and bridges, the defendants have done any act to his
injury. Nor does the plaintiff Contend, nor certainly prove, that the
injury of '_which he complains is other. than ~e natural result of such

      construction.                                  

The land on which the Railway was constructed and the embank-
ment became the property of the defendants in the year 1899. It is
property which they acquired as a military ,operation, and property
over which they have since acquirement exercised the right of. full
ownership.

Further the plaintiff's action was commenced in January 19Z1.

Under the highest period of years necessary to establish. ownership. by.
exercising ownership rights, i.e., '20 years wider English law, thede-
fendants before the action was commenced had' acquired ownership by
lapse of time. I hold that in law the defendants acquired full ownership
of the site of the Railway and of the embankment both by acquirement
by military force in the year 1899 and by lapse' of time.

In the absence of any act subsequent to that date in the use of the
property to the injury of the plaintiff suggested or proved against the

defendants, in my judgement this principle of law does not assist the
plaintiff.

The plaintiff's second principle, "that a person having control of a
dangerous thing who allows it to escape is liable for the damage caused
to his neighbour," is perfectly well recognised in law, and it is a princi-
ple which has been largely applied in cases against persons keeping.
lions and tigers, monkeys and animals including dogs known to be
dangerous. It would however be perfectly applicable against owners
of a Railway.

The plaintiff has in his argument treated these two principles as
one, and for the purposes of this case I agree that they may be con-
veniently considered together. In the absence of any act of the de-
fendants to the injury of the plaintiff subsequent to the year 1899, for
the reasons above given, in my judgement this principle of law does not
help him.

Before considering the claim based on negligence, I would refer to
the case of Whalley v. Lancashire and Yorkshire Ry. (1884) L.R. 13
Q.B.D. 131 and to the legal effect of the construction ofbridges at kilos .

            19 and 19% in the year 1908.                                    

Whalley v. Lancashire and Yorkshire Ry. is a case' on which the
plaintiff places considerable reliance, and of which he states the factS"
are very similar to the facts. of the present case. In that case the own-
ers of a Railway, in order to save their embankment from water, which
had accumulated, themselves cut the bank with the consequence that
water, which otherwise would not have passed, flowed on to their neigh-
bour's land and damaged his crop. Now clearly the facts arenot sim-
ilar. In my judgement that case would be a considerable support to' an
action by the owner of the Azergab farm if the defendants had cut their

. bank at kilo 15 and allowed water, which was not strong enough to pass
by its own force, to cross the line to injure his cultivation, but is of no
assistanc7-' to the plaintiff in this case. Having regard to .the fact that .
the bri9ges were built over natural water courses at kilos 19 and. 19~ t
and,,,ebrresponded in span to the length of line affected by the washouts.

~ 1906 and 1907, in my judgement the defendants had a legal'righ.! to,
~nstruct them. Further, having, regard to the decisionsIn cases of· .
•. which Rex v. Commissioners of Sewers for Pagham Sussex (1828) 8 .

B. & C. 355, 108 Eng. Rep. 1075; Nield v. London & No'nh.:Westem
Ry: (1874) L.R. 10 Ex. 4; Menzies v. Breadolbane (1828) 3 Bli.
(N.S.) 414,4 Eng. Rep. 1387, may be-taken as examples, they would_t