Land Law-Diversion of fioodwaters-s-Whether occupier of land can divert wa-
ter onto neighbor's property by means of an embankment-s-Whether the
neighbor is justified in destroying the embankment himself

Tort-Diversion of floodwaters

Tort-Self help-Destruction of neighbor's improper embankment

Appellant, who was tenant of agricultural land lying west of a railway
embankment, had in 192Q been tenant of adjoining land to the south upon
which. he had then built. an earthwork causing flood water, to flow south
towards the land of respondent instead of taking its natural course to the-,
north. In the rains of 1922 water, which had collected at the earthwork,
threatened to damage respondent's land and respondent cut through the
earthwork, thereby releasing the water, which flowed onto appellant's
land and damaged his crops.

Appellant sued for damages.

Held: (1) An occupier of land has a right to build an earthwork to
keep flood waters away only if the danger of flood is common to the occu-
pier and the neighbour. Where the danger threatens the occupier alone,
he will be liable for any damage to his neighbour due to his earthwork.
The danger in 1920 affected appellant only, and so respondent would have
been entitled to damages for injury to his land due to the earthwork •

. (2) But respondent was not entitled to remove the earthwork himself,
and, if appellant's land suffered any injury thereby in excess of the injury
which it would have suffered from the natural flow of the waters, had
the earthwork not been built, appellant would be entitled to damages in
respect of such injury.

Yusif Fawaz v. Sudan Government (Railways) HC-CS-8-1921;-1 S.L.R.
Fletcher v. Rylands (1868) L.R. 1 Ex. 265.

• Court: Bell C.J., Owenand David-Davis JJ.

Fletcher v. Smith (1877) 2 App, Cas. 78~.
Gerrard v. Crowe [192J] 1 A.C. 395.
G.reyvensteyn v. Hattingh [1911] A.C. 355.

Hanley v. Lord Provost of Edinburgh [1913] A.C. 488.

Maxey Drainage Board v. Great Northern Railway Co. (1912) 106 L.T.

429.

Menzies v. Earl of Breadalbane (1828) 3 Bli. (N.S.) 414.
Nield v. London and North Western Ry. (1874) L.R. 10 Ex. 4.

Rex. v. Commissioners of Sewers for Pagham Sussex (1828) 8 B. & C.

. Rickards v. Lothian [1913] A.C. 263.

Scott v. Shepard 1 Sm. L.C. 513.

Whalley v. The Lancashire and Yorkshire Railway Co. (1884) 13 Q.B.D.

Appeal

December 24, 1928, Bell C.J.: The two principal questions
now are; firstly, 'was the appellant entitled to erect and maintain
the embankment, and, secondly, was the respondent entitled to cut
it through when the flood water came.

On the first question the court decided that the appellant was en-
titled to erect, but not to maintain the embankment. The appellant
contends that a landowner is entitled to take reasonable precautions
against apprehended danger, even if the result is 'to throw the danger
upon his neighbour. And in support of his contention he refers to cer-
tain cases decided in the English courts. In Whalley v. The Lancashire
and Yorkshire Railway Co. (1884) 13 Q.B.D. 131, upon which the
appellant has largely relied, the master of the rolls in his judgement

   put four classes of cases:                                       

(1) A person owns property so situated with regard to his neigh-
bour that it must be injured if his neighbour uses his prop-
erty in the natural way. This position has arisen in certain
cases relating to mines. The person has no remedy .

(2) A person's property has this defect, that unless he can pre-
vent the injury which the ordinary course of nature will
bring upon it by transferring that injury to his neighbour's

property, his property will suffer on the natural consequence
of its position. The case of Menzies v. Earl of Breadalbane
(1828) 3 Bli. (N.S.) 414 is an example. In that case
there was a regular flood channel encroaching on the re-
spondent's land, and it was held to be wrong for the respon-
dent to obstruct the channel so as to throw the water upon
the appellant's land.

(3) A -person is threatened with an extraordinary danger; he has
the right to defend himself against it before it has occurred.
"To protect yourself, and only for the purpose of so protecting
yourself, you prevent the danger from happening to you,
but the danger is so far common that the necessary con-
sequence of its being prevented from happening to you is that
it will happen to your neighbor. Per Bre H.M.R. (1884)
13 Q.B.D. 136. Nield v. London and North Western RY.
(1874) L.R. 10 Ex.4, Rex v. Commissioners of Sewers for
Pagham Sussex (1828) 8 B. & C. 355, and, Greyvensteyn
v. Hattingh [1911] A.C.· 355 are illustrations.

( 4) There is in existence something which is 'injurious to a per-
son's property, and the question is whether by any' positive
act the person in entitled, in order to get rid of that mischief,
to do something which would cause a misfortune to J;rls
neighbour. This is the case of Whalley v. Lancashire and
Yorkshire Railway Co., supra.

Now the facts .of the case before the court, so far as the erection
of the embankment is concerned, bring the case either under' class .
(2) or class (3). The appellant contends that the case .is of class

. (3), and further cites the case of Maxey Drainage Board v. Great
Northern Railway Co. (1912) 106 L.T. 429. A report, of this case
is not available, but the headnote to it says ."where: a landowner
erects an embankment on his own ground to prevent natural floo.ding
water, which by the lie of the ground would come upon his land,
from doing so, and in consequence the water floods. other land it is

          case of damnum sine injuria."                                                            .

Bu examination of the authorities shows that an, essential condi- .
tion (or the application of the principle stated under class. (3) is that
th~Aanger to be guarded against is a common danger, "and -not a
~ger which must naturally and normally happen to a person's land as
Iii a result of its position. In Rex v. Commissioners of Sewers for Pagham

  Sussex (1828) 8 B. & C. 355 the danger was the sea, "a common
enemy to all proprietors on that part of the coast." In Greyvensteyn v.
Hattingh [1911] A.C. 355 the common danger was a flight of locusts.
In Gerrard v. Crowe [1921] 1 A.C. 395 the common enemy was the
river. In the last named case the parties· owned land on opposite
banks of a river, and the respondent erected an embankment on his
land, diagonally to the river, with the object of protecting part of Pis
land. The water flowing over the appellant's land in time of heavy
flood was thereby increased. .It was not proved that any flood channel
was obstructed, or existed, or that there was any ancient or rightful
course for the flood waters across the respondent's land. Therefore
it was decided that the respondent was not liable. .

These cases show that there is a right of protection against a
common danger, even at the risk of injury to a neighbour, but they
equally clearly show that the common danger is an essential condition.
If a person obstructs or diverts a natural course" of water, there is
not a common danger, and he is liable.

Menzies v. Breadalbane supra, Hanley v. Lord Prevost of Edinburgh
[1913] A.C. 488 and Fletcher v. Smith (1877) 2 App. Cas. 781
are examples. In the last case the headnote reads, "Where for his
own convenience (a person) does something, e.g .. divert the course of
a stream, he must take care that the new course provided for it shall
be sufficient to prevent mischief from an overflow, so that, even if that
overflow should be mainly or directly caused by an act 'of nature,
his own conduct in not so forming the new and diverted course for
the stream, of form and of sufficient capacity to carry off an accidental
overflow of water, even of an exceptional kind, will be matter for con-
sideration in determining the question of his liability."

It follows, therefore, that, for a determination of tnis case, the
first point to decide is whether the appellant was protecting himself
from a common danger, or whether the property, which the embank-
ment was designed to protect, was so situated that it was bound to
suffer }fom the natural consequences of its position, and could only
be protected by the diversion or obstruction of a natural channel.

In the case before us the learned Judge found; as ~ fact that
the embankment constituted a danger to the respondent's land by
diverting thereto the flood water from its natural and normal course.
There is, in my opinion, ample' evidence on which to base this finding.
A khor in the Sudan is not a river, but it is a natural water course

down which the flood flows, whenever there is sufficient rain. It does
not matter that some khors are deep and well defined, and that others
are broad and shallow, resembling a delta. From this finding of fact
it follows, from the arguments given above, that the appellant had
no right to erect the embankment. And, of 'course, if there was no
right to erect the embankment, there was no right to maintain it.
Hence if the respondent had suffered injury from the diversion of
water, he would have been entitled to damages. He did not wait
however to see whether injury would result, but cut through the em-
bankment, to prevent injury which he anticipated. It remains to
consider whether he ,,:as justified in adopting this course.

The position after the erection of the embankment and the flood
was that a quantity of water, some of which would not have been there
if the embankment had not been in existence, was accumulated on the
south side of the embankment. These facts bring the case now within
the fourth class mentioned above in the judgement in Whalley's' case.
The case before the court differs from Whalley's case in that the
person who cut through the embankment was not the owner of the em-
bankment, or of the land on which it stood, and also in that the
embankment was erected wrongfully. Whether the respondent entered
on th~ land with theIeave of the owner, or was a trespasser, does
not seem to me to make any difference as regards his liability to
the appellant, though it might make a difference in theliability of the
owner of the land. It is obvious that, if the respondent was a tres-
passer, the appellant could not sue him in respect of the trespass.
But it is impossible to say that a person, who cuts down an, em-
bankment so as to release water and cause damage to a stranger,
should escape liability merely because he was trespassing on some-
body's land. If this was so, nobody would be liable, as the principle
of Fletcher v. Rylands (1868) L.R. 1 Ex. 265 does not apply in the
case of damage caused by the wrongful acts of third persons. See
Rickards v. Lothian [1913] A.C. 263.

The fact that the embankment was erected wrongfully no doubt
entitled the respondent to have it removed, but it did not, in my

, opinion, entitle him to remove it himself. Even if emergency justifies
entry on to another person's land, on the authorities notice is un-
doubtedly necessary, where the person complained of is not the original

          wrongdoer but only continues the nuisance.               

Every person is justified in protecting his property by all reason-
able and proper steps. But Whal?ey's case shows that the act of the

respondent was not a proper step. It follows therefore that, if damage
resulted to the appellant. from the respondent's act, the respondent is
liable. But the measure of damage is not necessarily the value of the
crop destroyed. If the embankment, which was wrongfully erected,
had not been in existence, the water would have flowed north, and,
so far as appears, would have reached the appellant's crops. There-
fore, if the embankment had been destroyed before the flood, the
appellant would not have been entitled to recover damages, because
the flood would have been pursuing its normal course. The question
is 'whether the fact that the water accumulated- against the embank-
ment, and then let loose, caused a larger amount of water to reach
the appellant's crops, and so caused greater damage than would have
resulted, than if the water unrestricted by the embankment had flowed
in its normal course.

It is for the appellant to prove this, and, if he seeks to do so,
I think that the case must be sent back to the High Court for com-
pletion. The measure of damages is the difference between the damage
caused by the flood and the damage which, in any event, would have
resulted, if the embankment had not been in existence.

As regards the 'costs of the appeal, if the appellant fails to
recover damages, I think the costs must be borne by him, as damage
is the essence of the claim in this case. If the appellant recovers
damages, I think that he is entitled to the costs of the appeal, and
that the costs in the court below should follow the event.

Owen J.: I think it is clear from the authorities, firstly, that you
are not entitled to protect your own land from a danger which threatens
it by diverting the source of that danger on to your neighbour's land,
and, secondly, that this principle only admits of exception, generally
speaking, when the danger which threatens is a common one, i.e.,
involving the possibility of damage to all in general, and not to one
in particular.

Halford J. has found that the erection of the earthwork by the
appellant at Kilo 19 was lawful, although the admitted result of
such erection was the diversion of flood water from his or his land-
lord's land to that of the respondent. This decision was arrived at
reluctantly, and was based upon. the headnote or digest, of the case
of Maxey Drainage Board v. G.N.R., supra. Unfortunately the full
report of the case is not available, and it is' impossible, without that
full report, to do more than explain that decision in the light of
other cases which precede and follow it. The headnote does not say

so, but I think it is clearly implied that the "natural flooding waters"
referred to constituted a common danger and not a particular one.
The opposite seems to me to involve direct contradiction of the law
laid down in Menzies v. Breadalbane, supra and also in Nield v.
L.N.W. Railway, supra.

It must be assumed therefore that the learned Judge found that
the erection of the earthwork was an act of reasonable selfishness to
avert a "common danger." 'What kind of "danger" is it to which the
authorities apply the epithet "common?" The flooding of a river is
clearly a danger common to riparian owners. Inundation by extra-
ordinarily high tide is equally a common danger to the owners of the
foreshore, or the inhabitants of -a sea coast town. A swarm of locusts
is a danger common to owners of the cultivated lands, which lie across
its path. The inhabitants of a town lying at the tqot of a volcano in
eruption share the danger from showers of mud and ashes. And in
all these typical cases, with their common characteristic, the law
says that you, as one of those threatened, may take precautions to
protect yourself and your possessions, even if your so doing involves
the diversion of your share of the damage to your neighbour. But
your neighbour, must he share the common damage? H, by reason
of the position of your house it is threatened by a stream of water,
you are not entitled 'to divert it in the direction of your neighbour,
whose house does not lie in the path of the stream, unless, following
the well-known "squib" case Scott v. Sheperd (1773) 2 W. 'BI. 892
(1 Sm. L.C. 12th Ed. 513), the cause of the danger is so sudden,
extraordinary, and so uncertain in its direction and effect that your
instinctive measure of self-protection deprives the act of the voluntary
character, which, of course, is essential to liability. The principle
which underlies the exception of common danger is, therefore, I think,
quite clear, and it only remains' to see if it can properly be applied

, to the admitted facts in this case.

The .ordinary rainfall in that part of the country whence this
appeal comes drains naturally down to. the river in a northwesterly
direction, and, before the building of the railway embankment, con-'
stituted a danger to nobody. The embankment however caused these
waters to accumulate on its east side, from where they could only be
released by culverts built over the beds of various watercourses at
long intervals apart.

One of these culverts was built at Kilo 10, about midway between
the north and south boundaries of Viscount Fontaree's land, known as

Kadaru Farm. Therefore, any flood water, ordinary or extraordinary,
. which passed through this culvert, debouched on to Kadaru and passed
over it, in a north-westerly direction towards the river. Further, there
is evidence that in a year of extraordinary rainfall (1920) the waters
not only flooded Kadaru,' but spread southward as far as Izergab, the
property of the respondent in this case. This, however, was ex-
ceptional, and it is clear from the appellant's own evidence that
normally the waters released by this culvert only flowed in the direc-
tion of the Kadaru and Abu Halima lands lying to the north and
west, and did not reach Izergab to the south at all.

After the exceptional floods of 1920, and after it had been held
in Yusif Fawa; v. Sudan Government (Railways) that the building
of the culvert constituted a normal use of their land by the Govern-
ment, the appellant in this case-then the tenant of Kadaru farm-
built an earthwork on the northern side of the culvert, preventing
the access 'of water to any of the lands north of it"and causing an the
water passing through it to collect and flow towards the river in a
south-westerly direction. In July of 1922 this water threatened to
damage the respondent's land at Izergab, and he cut down the earth-
work, throwing the flow of water back to the north, where it extended
to lands in Abu Halima held by the appellant on lease, and damaged

          his crops there.                                                                                                        .

To what extent was the appellent entitled to build this earthwork?

What was the nature of the danger which prompted it? In so far as
it diverted natural flood water, or a natural accumulation of rain
water, from his land to that of his neighbour, where in the normal
course it would not have gone, it was clearly wrongful. It must
therefore have been erected in pursuance of that right of reasonable
selfishness in the face of a common danger, which I have discussed .
above.

But whether the danger arose from the accumulation due to heavy
rainfall or not, I cannot bring myself to see how it fits in with the
definition of the -common danger, indicated in the cases wherein the
subject has been discussed. Even supposing the danger arising from
exceptionally heavy rains was common, in the sense that the flood
water might have spread from the Kadaru farm on to Izergab and
Abu Halima, it surely does not entitle him to divert the normal course
of flood water from his land to his neighbour's. It no longer becomes
"reasonable" selfishness. It is unreasonable, because he has taken
advantage of exceptional circumstances, involving, let it be assumed,

a common danger, to divert from his land to the respondent's a dis-
ability to which only the appellant's land, by reason of its proximity
to the culvert, was' subject. So therefore, even assuming that there
was a coronion danger I am of opinion that the appellant, iIi damming .
the flow of the normal flood, did more than the law permits him to do.

But I will go further. There was no common danger here at
all. The expression implies the existence of a danger to all at the
same time, and the law's permission is based on the enterprise and'
initiative of the individual, who immediately, and before his neigh-
bour takes :precautions and takes advantage o~ the opportunity that
is at the same time open to all the others threatened. In this case
the danger to Izergab could only accrue after the flood had covered
Kadaru. No danger existed during normal floods, and it is difficult
to see how, if the danger was common,' the owner of Izergab could had
an equal opportunity of averting a danger, which did not threaten
him until after Kadaru had been covered. As I have said a common
danger implies unity of time, with corresponding unity of opportunity .
for taking advantage of the law's permission to avert it at the expense
of your equally threatened neighbour, and it is impossible to make
the facts of this case fit the description.

I am of opinion, therefore, that the learned Judge was wrong
in law when he found that the appellant had the right to build this
earthwork. .

But this by no means disposes of 'the matter. Now, the breaking
down of the earthwork by the respondent must be presumed to have
been done by leave and license of the owner of Kadaru farm. It
is the same as if the Viscount de Fontarce had done it himself, and,

if his action had no more effect than to restore the normal course
of flood water issuing from the culvert on its way to the' river, and

if in that normal course the water caused damage to the land ovet '
which it flowed, the owner of that land must suffer for the disability
entailed in the position and lie' of the land in relation to the source
of the danger, i.e., the culvert. The appellant, however, contends that
the respondent's action was committed in circumstances that caused
greater damage to him -than if the water which flowed, over his .land
was merely the no_I19Z flood water. He says, that having, by reason
of the earthwork, ",accumulated a large bulk of water on his land, the
respondent "or 'hiS licensor released that accumulation in such' a w'ay .!;
that greater d(mage was-done by it than would have been done if
the earthw~k had never .been erected at all, and he relies upon

Whalley's case and the principle "sic utere tue ut alienum non laedas"
to show that, by doing so, the respondent has committed an actionable
wrong.

You cannot get rid of the consequences of an injury which has
occurred to you by doing something which damages your neighbour,
If water has already invaded the land and eollected on it, the owner
may not dig a cut for the purpose of getting rid of the water, if by
so doing he will cause damage to the parties on to whose land he
discharges it. For this purpose, as I have said, the respondent must
be identified with the Viscount de Fontaree, by whose consent, it
must be presumed, the earthwork was both made find broken, and who
should properly have been joined as a respondent. Assuming, there-
fore, that this earthwork when, originally erected, had the effect, not
only of blocking the normal flow of flood water through the culvert,
but also of accumulating it, it becomes necessary to examine how far
the appellant has shown that the daniage to his property was occasioned
by the release of the bulk of water, as distinguished from the damage,
if any, that would have occurred to his land by ordinary flood' water
from Kadaru farm, if the earthwork had never been erected.' Did
the earthwork have the effect of accumulating the water or merely
diverting it? That is the first question to be answered. The second
question is, if the earthwork accumulated it, to what extent did the
release of the accumulation, as such, affect the appellant's land to its
detriment?

As to the first question, the appellant, of course, says it did
actually accumulate water. Unfortunately the case in the court below
did not proceed on lines which enabled this important issue to be
answered by a 'specific finding, but it is. clear from the judgement
of the learned Judge that he would have answered it in. the affirmative.
He speaks of the water being "accumulated and diverted" to the
southern side of the earthwork, and further refers to quantities of
flood water which has "collected" by reason of the' erection of the
earthwork. He finds al~o that the breaking of the enbankment had
the effect of releasing the flood water, which was . diverted to the
appellant's land and caused the destruction of his crops.

Therefore, it seems to me that two questions, the second depend-
ing upon the answer to the first, remain. yet to be answered. They
are; firstly, if the earthwork had never been 'erected at all would the
flood water have normally reached and damaged the appellant's culti-
vation, and, secondly, did the release of the accumulated flood water