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High Court of Australia |
THORPES LTD. v. GRANT PASTORAL CO. PTY. LTD. [1955] HCA 10; (1955) 92 CLR 317
Water, Water Supply and Watercourses - Appeal
High Court of Australia
Dixon C.J.(1), McTiernan(2), Webb(3), Fullagar(4) and Kitto(5) JJ.
CATCHWORDS
Water, Water Supply and Watercourses - River - Riparian owners - Rights and liabilities - Common law - Statute - Earth works - Construction along banks of tributary and flood alveus - Interference with natural flow - Flood waters - Damage - Water Act 1912-1946 (N.S.W.) (No. 44 of 1912 - No. 35 of 1946), s. 4A.Appeal - Submission - Made late in address to High Court - Not made at trial of action, nor during appeal to State court - Not allowed.
HEARING
Sydney, 1954, December 3, 6-8;DECISION
15th March, 1955.McTIERNAN J. I agree that the appeal should be dismissed. There was ample evidence upon which the jury could find for the respondent upon the causes of action declared upon. The appeal really turns upon the question whether those causes of action were barred by the Water Act 1912-1946. Upon reading the two counts in the declaration, it is clear that neither of them falls within the scope of the Act. Kinsella J. said: "The complaint in the present case is not of interference with the flow of water in the river, but of inundation of lands by overflow of water which having left the channels has ceased to be part of the flow of the stream contemplated by s. 4A (1). (at p325)
2. Hanson's Case (1900) 21 NSWLR 271 , in my opinion, is not authority for the proposition on which the appellant's case depends, that the Act in abrogating the riparian rights of riparian owners has also divested those owners of their common law right to enjoy their lands outside the natural channels of a stream without unlawful interference with their possession, if that interference be in the form of inundation by water diverted from a river. At common law riparian rights are not and never were the only rights of riparian owners in relation to riparian lands, but were of a special class super-added to the ordinary rights incident to the possession of the land. The right to freedom from wrongful diversion of water out of the channel and on to his land is distinct from and independent of the right of a riparian owner to the uninterrupted flow of water in the channel. (at p325)
3. I am therefore unable to accede to the appellant's contention that this action is a contest in respect only of riparian rights. In my view it is based on the general common law right of landowners. The action of the appellant in interfering with the natural flow of the stream was clearly wrongful. Its results extended beyond the immediate limits of the river and caused an interference with the lands of the plaintiff. The respondent's lands were damaged by the wrongful act of the appellant and for this an action will lie. (at p325)
4. 'At common law, apart from statute, the duty of one who obstructs the natural flow of a river is to prevent damage, and, if damage results to any persons, he will be liable to them, irrespective of whether or not they are riparian owners'. R. v. Southern Canada Power Co. Ltd. (1937) 3 All ER 923, at p 928 (per Lord Maugham)" (1953) 54 SR (NSW), at p 145; 71 WN 101 . (at p325)
5. In my opinion this passage is correct, and it is a complete reply to the appellant's defence based upon s. 4A (1) of the Water Act 1912-1946. (at p326)
WEBB J. I would dismiss this appeal for the reasons given by Fullagar J. whose judgment I have had the advantage of perusing. (at p326)
FULLAGAR J. The respondent was the plaintiff, and the appellant the defendant, in an action brought in the Supreme Court of New South Wales and tried before McClemens J. and a jury. The jury returned a verdict for the plaintiff for damages assessed at 3,600 pounds, and judgment was entered for the plaintiff for that amount. The defendant appealed to the Full Court of New South Wales against the verdict and judgment. A majority of that court (Herron and Kinsella JJ., Owen J. dissenting) was of opinion that the appeal should be dismissed, and it was dismissed accordingly (1953) 54 SR (NSW) 129; 71 WN 101 . The defendant now appeals to this Court against the order of the Full Court. (at p326)
2. The plaintiff's declaration contained two counts, of which only the first need now be considered. By the first count it was alleged that "the plaintiff was the owner and occupier of certain lands in the neighbourhood of the Belubula River and of certain other creeks or streams and the defendant was possessed of and in occupation by its servants and agents of certain land in the same neighbourhood and the defendant by its servants and agents wrongfully and unlawfully made and erected certain works embankments and channels on the said land of the defendant and kept and maintained the same and wrongfully and unlawfully diverted and altered the usual and regular course of the waters of the said river and of the said creeks or streams and of flood waters coming therefrom and prevented and obstructed such waters from passing and flowing in the channels in and through which they had prior to the said wrongful acts of the defendant regularly passed and flowed and caused the said waters to flow and pass on to the said lands of the plaintiff in greater quantities and with greater velocity than they would but for the said wrongful acts of the defendant have done whereby the pasturage and crops on the said lands of the plaintiff were destroyed and damaged and parts of the said lands were washed away and destroyed and parts of the said lands were and for a long time remained covered by water and great quantities of sand and silt and debris were depositied upon the said lands of the plaintiff and the value of the said lands was greatly diminished". (at p326)
3. The defendant pleaded the general issue. By a second plea it specifically denied the allegations of ownership and occupation of land by the plaintiff and defendant respectively. A third plea, which was allowed by amendment during the trial, was designed to lay the foundation for an argument that any cause of action which the plaintiff might have had at common law in respect of the matters and things complained of had been taken away by the Water Act 1912-1946 (N.S.W.). This contention was the only ground of appeal argued in the Full Court, and it is the only point upon which it was intended to support the appeal to this Court, although, at the end of the argument for the appellant, as will appear, another ground was taken. (at p327)
4. The plaintiff and the defendant are the respective occupiers of two properties near Canowindra in New South Wales. Between the two properties runs a stream known as the Belubula River. The river at the relevant part of its course runs approximately from north to south, the plaintiff's land abutting on it to the west, and the defendant's land abutting on it to the east. Running through the defendant's land, and following a course roughly from east to west, is a creek known as Emu Creek, the course of which joins that of the Belubula River at a point opposite the plaintiff's land. The plaintiff's case may be stated in outline as follows. Both the river and the creek are subject to flooding in times of heavy rainfall, but the normal flooding which took place on the plaintiff's land did no harm and was indeed, since the land was used for the growing of lucerne, generally rather beneficial than otherwise in its effects. When the land was in its natural state, flood water overflowing from Emu Creek, together with flood water coming from the part of the defendant's land to the north of Emu Creek, flowed in a general south and south-westerly direction, following a defined natural depression and spreading out here and there into "lagoons". until it joined the course of another creek, known as Sullivan's Creek, and ultimately found its way into the Belubula River at a point more than a mile below the point of confluence of Emu Creek with the river. Some time before 1950 two banks or levees had been erected on the defendant's land, one along the north bank and the other along the south bank of Emu Creek. These levees were some five feet in height and some 2,000 feet in length, extending east from the point of confluence with the river. Some at least of the earth required for the erection of these levees was taken from the bed of the creek, so that the operation involved the deepening and widening of the channel of the creek for the whole length of the levees. There was a gap some six feet long in the northern levee, but the southern levee was continuous. The effect of this work was, when heavy flooding took place in 1950, to concentrate into the channel of Emu Creek large quantities of water which had formerly run down to the south and south-west. The water so concentrated ran, of course, into the river, and, entering it with some velocity, caused a "turbulence" and a "scouring", with the result that not only was much more water thrown on the plaintiff's land than would normally have gone there, but considerable quantities of sand and silt and debris were deposited on the plaintiff's land, affecting it injuriously to a serious extent. (at p328)
5. The above brief statement is in no sense a statement of agreed or admitted facts. On the contrary it was at most points the subject of strong controversy at the trial. It involves, moreover, a degree of simplification. It represents, however, the substance of the plaintiff's case, and there was evidence, including expert evidence, on which a jury could find that the plaintiff had established its case in point of fact. The jury must, of course, be taken so to have found. (at p328)
6. The argument for the defendant appellant is that the plaintiff's action is an action for damages for the infringement of a right in respect of water, a right vested in it by virtue of its ownership of riparian land, and that in New South Wales no private person has had any such right since the enactment of the Water Rights Act 1896. Section 1 of that Act provided, so far as material, that "The right to the use and flow and to the control of the water in all rivers and lakes which flow through or past or are situate within the land of two or more occupiers shall, subject only to the restrictions hereinafter mentioned, vest in the Crown. And in the exercise of that right the Crown by its officers and servants may enter any land, and take such measures as may be thought fit or may be prescribed for the conservation and supply of such water as aforesaid and its more equal distribution and beneficial use, and its protection from pollution and for preventing the unauthorised obstruction of rivers". The "restrictions" referred to are then set out: the only one that need be mentioned is that which makes the rights of the Crown subject to the right of a riparian owner to use the water of a river or lake for domestic purposes or for stock or for the irrigation of a garden not exceeding five acres in area. The Act of 1896 has been repealed, and the relevant statutory provision now in force is s. 4A of the Water Act 1912-1946 which does not differ materially in terms from s. 1 of the Act of 1896. The existing Act, however, is a much more elaborate Act, containing extensive provisions relating to water supply generally and to the constitution of water trusts with wide powers. A similar Act was passed in Victoria in 1905, the provisions of which now appear in the consolidating Water Act 1928. (at p328)
7. The rights of an owner of land in respect of the water of a river flowing past his land are generally referred to as his "riparian rights". They are rights of a special character, which he has by virtue of his ownership of land abutting on a river - his "riparian" ownership. The nature of these rights has been generally regarded as settled by the decision of the Court of King's Bench in Mason v. Hill [1833] EngR 171; (1833) 5 B & Ad 1 (110 ER 692) ; they were recently discussed in relation to somewhat exceptional circumstances in this Court in H. Jones & Co. Pty. Ltd. v. Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282 . The appellant says that all these special rights of a riparian owner have been abrogated and destroyed by statute. Let it be assumed - though the correctness of the assumption is far from being obvious - that this is so. The case for the defendant is in no way advanced. For the plaintiff here is not relying upon any special right vested in him by virtue of riparian ownership. As Kinsella J. said, "at common law riparian rights are not and never were the only rights of riparian owners in relation to riparian lands, but were of a special class super-added to the ordinary rights incident to the possession of the land" (1953) 54 SR (NSW), at p 145; 71 WN 101 . Here the plaintiff is not asserting any right to the use or flow or control of water, or any right dependent upon, or in any way connected with, the fact that its land abuts upon a river. Its action is an ordinary action of nuisance. Whether that action ought in old days to have been framed in trespass or in case need not be considered. The cause of action is the alleged throwing on the plaintiff's land of water, silt and debris with resultant damage. The acts alleged are equally lawful, or equally wrongful, whether the plaintiff's land is riparian land or not. The plaintiff's position would be precisely the same if the nearest point of its land to the river were miles away from the river. (at p329)
8. For the reasons given above the argument for the defendant, in my opinion, fails. It is necessary, however, to consider two cases on which counsel for the defendant relied. These cases are Hanson v. Grassy Gully Gold Mining Co. (1900) 21 NSWLR 271 and Dougherty v. Ah Lee (1902) 19 WN (NSW) 8 . (at p329)
9. In the earlier of these cases the declaration alleged that the plaintiff was possessed of certain land, that there was a creek flowing past that land, and the defendants had dammed back that creek above the plaintiff's land so that it ceased to flow past his land. A Full Court consisting of Stephen and Cohen JJ. held that the common law right asserted by the plaintiff had been taken away from him by s. 1 of the Water Rights Act 1896, which has been, so far as material, set out above. This case seems clearly distinguishable from the present case, because the plaintiff was asserting, and had to assert, a special right vested in him at common law by virtue of his being a riparian proprietor. The plaintiff in the present case is, as has been said, in an entirely different position. He is not asserting a "riparian" right, but an ordinary right vested in every owner of land. (at p330)
10. In Dougherty v. Ah Lee (1902) 19 WN (NSW) 8 a plaint for ten pounds in the Small Debts Court alleged that the plaintiff was possessed of certain land, through which there passed a creek, that he was entitled to have that creek flow by and away from his land, and that the defendant had dammed back and obstructed the creek so that it could not flow by and away from the plaintiff's land, whereby the creek overflowed and flooded the plaintiff's land and did damage thereon. The magistrates having refused to adjudicate on the ground that a "general right" was involved, the plaintiff moved in the Supreme Court for a mandamus. Owen J. said: "This is clearly a case based upon the riparian owner's right to have the water flow past by and away from his land" (1902) 19 WN (NSW) 8 . And his Honour held the case to be governed by Hanson's Case (1900) 21 NSWLR 271 so that the plaintiff must fail, and the motion was dismissed. Here the claim, as framed in the plaint, seems to have been based on a supposed "riparian" right, and, if it be regarded as so based, Owen J. was justified in treating the case as indistinguishable from Hanson's Case (1900) 21 NSWLR 271 , and on that basis Dougherty v. Ah Lee (1902) 19 WN (NSW) 8 is just as clearly distinguishable from the present case as is Hanson's Case (1900) 21 NSWLR 271 . But the substance of the two cases (though the facts are not fully stated in the report) would appear to have been different, because it seems probable that the plaintiff in Dougherty v. Ah Lee (1), like the plaintiff in the present case, but unlike the plaintiff in Hanson's Case (1900) 21 NSWLR 271 , had no need to rely on any special "riparian" right. If this be the correct view of the facts in Dougherty v. Ah Lee (1902) 19 WN (NSW) 8 then that case was, in my opinion, wrongly decided. (at p330)
11. It is not, I think, strictly necessary, for the purposes of the present case, to consider the correctness of the decision in Hanson's Case (1900) 21 NSWLR 271 But I feel bound to say that I regard the correctness of that decision as open to grave question. (at p330)
12. What was thought to be the object of the statute is stated by Stephen J. as follows: - "Has the plaintiff since the passing of the Water Rights Act any right to bring this action? It cannot be denied that for years and years past the question of the rights of riparian owners in this country, where the conditions are so totally different from the condition of things in England, has been a source of almost insuperable difficulty. There has been a great deal of expensive litigation, and I suppose, for that reason, the Legislature passed this Act, in order to prevent riparian owners above and below from bringing actions against one another. If this Act does not aim to take the old common law rights from the riparian owners and vest them in the Crown, then I do not know what it was passed for nor what it means. It was passed in the public interest to prevent litigation" (1900) 21 NSWLR, at p 275 . (at p331)
13. This passage is open to several comments. For one thing, this intention to cure the disease by killing the patient is in itself a very curious intention to attribute to the legislature. I should have thought, with all respect to Stephen J. and Cohen J., that the real object of the Water Rights Act 1896, as revealed by the latter part of s. 1, was to enable the Crown, in a country in which water is a comparatively scarce and important commodity, to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destroy anybody's rights, but it was necessary to give to the Crown, or to some statutory authority, overriding rights to which private rights must, if need arise, give way. (at p331)
14. The effect given to the statute in Hanson's Case (1900) 21 NSWLR 271 means that a riparian proprietor has no remedy as of right if a river is dammed by an upper owner so that no water reaches him, or if it is polluted and poisoned by the refuse of a factory. There is much to be said for the view that it would be contrary to elementary rules of construction to give to it any such effect in the absence of clear and unmistakable language. The view which I am disposed to take is that the Act does not directly affect any private rights, but gives to the Crown new rights - not riparian rights - which are superior to, and may be exercised in derogation of, private riparian rights, but that, until those new and superior rights are exercised, private rights can and do co-exist with them. However, the question of the correctness of Hanson's Case (1900) 21 NSWLR 271 was not fully argued, and it is perhaps better not to express a concluded opinion upon it in a case in which it is not strictly necessary to do so. (at p331)
15. For the reasons given the argument of the defendant appellant, in my opinion, fails. There is one other matter which should be mentioned. The argument which I have been considering was the only argument put before the Full Court, and was, until just at the very close of counsel's address, the only argument put before this Court. Counsel had indeed more than once expressly disclaimed advancing any other argument. He had expressly accepted the verdict as a finding that the flood waters had followed a defined flood channel which had been obstructed by the erection of the levees. He had referred to Menzies v. Breadalbane (1828) 3 Bli (NS) 414 (4 ER 1387) and a number of other cases, but only with a view to showing that the right put in suit by the plaintiff was a "riparian" right, and therefore among the rights destroyed, according to Hanson's Case (1900) 21 NSWLR 271 by the statute. At the very end of his address, however, he made a brief submission, the effect of which I understood to be that flood waters on the defendant's land had not followed a defined course but had merely spread out over its land, that the levee banks had been erected by way of defence against a "common enemy", and that the case was covered by Gerrard v. Crowe (1921) 1 AC 395 . I do not think it possible that any such argument should be allowed to be raised at this stage. It is not merely that it was not raised at all in the Full Court, and not raised until a very late stage before this Court. What is more important, it does not appear to have been raised at the trial. The learned judge directed the jury without reference to it, and no objection relating to this point was taken to his charge. Moreover, counsel for the respondent referred us to certain evidence which, as it appears to me, would, if believed, make the decision in Gerrard v. Crowe (1921) 1 AC 395 irrelevant. I think that counsel for the appellant was justified in his initial decision to confine himself to the one argument, and that no other argument can now be entertained. (at p332)
16. The appeal should, in my opinion, be dismissed. (at p332)
KITTO J. I agree with my brother Fullagar in his reasons for holding that the appeal should be dismissed. The case appears to me to be covered in principle by Greenock Corporation v. Caledonian Railway Co. [1917] UKHL 3; (1917) AC 556 . In that case as in this the damage complained of had been done to land which was not riparian, and the judgments delivered by their Lordships and the authorities cited are conclusive, as Lord Maugham remarked for the Privy Council in R. v. Southern Canada Power Co. Ltd. (1937) 3 All ER 923 , "to show that, at common law, apart from statute, the duty of one who obstructs the natural flow of a river is to prevent damage, and, if damage results to any persons, he will be liable to them, irrespective of whether or not they are riparian owners" (1937) 3 All ER, at p 928 . (at p333)
2. Accordingly there is no necessity to consider the decision in Hanson v. Grassy Gully Gold Mining Co. (1900) 21 NSWLR 271 as to the meaning and effect of the Water Act 1912-1946. (at p333)
ORDER
Appeal dismissed with costs including the costs reserved.
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