Elston v Dore [1982] HCA 71; (1982) 149 CLR 480 (14 December 1982)

HIGH COURT OF AUSTRALIA

ELSTON v. DORE [1982] HCA 71; (1982) 149 CLR 480

Nuisance - Tort

High Court of Australia
Gibbs C.J.(1), Murphy(2), Wilson(1) and Brennan(1) JJ.

CATCHWORDS

Nuisance - Creek flowing through one piece of land on to another - Artificial drain constructed to facilitate drainage - Reversal of flow in part of creek - Interference with drain by one landowner - Drainage retarded - Damage - Cause.

Tort - Action on the case - Unlawful, intentional and positive act inevitably causing loss or harm to another - Obstruction of drain retarding escape of water from land - Whether obstruction unlawful - Whether drain a "watercourse" - The Water Act of 1920 (Q.), s. 3, Sch. Pt. 1, cll. 16, 43.

HEARING

Brisbane, 1982, June 22, 23;
Canberra, 1982, December 14. 14:12:1982
APPEAL from the Supreme Court of Queensland.

DECISION

December 14.
The following written judgments were delivered:-
GIBBS C.J., WILSON AND BRENNAN JJ. This is an appeal from a judgment of the Kneipp J. in favour of the respondent, the defendant in the action. The appellants are respectively the first and third plaintiffs in the action. There were other plaintiffs, but they have ceased to be parties to the proceedings. (at p483)

2. The appellants and the respondent are the owners and occupiers of lands near Euramo, a few miles south of Tully in North Queensland. The area is low-lying and comparatively level and the annual rainfall is very high. The learned trial judge described the nature of the area as follows:
"The subject lands and surrounding lands are drained by numerous watercourses but, because of the flatness of the country, any gradients are likely to be short, watersheds are likely to be formed by very low ridges, and watercourses which are quite close to each other are apt to flow in quite different directions. In addition, the whole area is from time to time completely inundated by flood waters from the Murray, or the Tulley, or both, and the flow of floodwaters when they recede can result in scouring or other intereference with the surface of the country and with the watercourses which carry water away in times of normal rainfall." (at p483)

3. There was a dispute as to some of the features of the land in its original state, and particularly as to the natural direction of the flow of water from the appellants' lands, but there is now no challenge to the findings of fact made by the learned trial judge and accepted as correct by the Full Court. We shall briefly describe the situation as it was before 1964, and in doing so shall refer to the lands in question as the lands of the parties, although at that time none of the parties had yet become owners of the lands. To the east of the lands in question was Bedford Creek, which flowed in a south-easterly direction until it joined the Murray River. Another creek, Orchard Creek, was comprised of two arms, which, after their confluence, flowed in a southerly direction to the Murray River. The eastern arm of Orchard Creek had its source some distance to the north of a swamp which was the source of Bedford Creek. It flowed in a westerly direction through the respondent's land (Portions 13V and 14V) and then through part of the land of the first plaintiffs, which was immediately to the southwest of the respondent's land and was downstream of the respondent's land. The western arm of the creek flowed through the land of the third plaintiffs, which is to the west of the other lands mentioned, but not contiguous with them. The eastern arm of the creek did not flow through the land of the third plaintiffs. The two arms of the creek joined at or near the south-eastern boundary of the land of the third plaintiffs. According to the unchallenged findings, when the lands were in their natural state water did not flow from the appellants' lands on to the respondent's land. (at p484)

4. In about 1964 one William Alec Lago, who was the owner of lands which included some of those now owned by the third plaintiffs, approached Mr. Edward Basil Dore, the respondent's father and at that time the owner of the lands now owned by the respondent. Mr. Lago was concerned to provide a means of drainage that would carry water more quickly away from his property after floods. To enable this to be achieved, he obtained the permission of Mr. Dore, senior, to cut two drains on Mr. Dore's property. The first drain joined one part of Orchard Creek to another across the base of a loop made by the eastern arm of the creek where it flowed through Portion 13V. This drain ("the long drain") was about 15 to 20 chains in length, about 13 to 14 ft wide at the top, about 12 ft wide at the bottom, and in depth varied from 2 ft to 4 ft 6 ins. (It seems to us unnecessary to go through the formality of a conversion into metric measurements.) A further drain ("the short drain") was cut in the respondent's land further to the east. This drain was about 3 chains long and about 8 to 10 ft deep and was cut through the watershed between Orchard Creek and Bedford Creek. The construction of the two drains caused the flow of water in part of the eastern arm of Orchard Creek to be reversed, so that instead of flowing westwards, it flowed to the east, and then south into Bedford Creek. (at p484)

5. The third plaintiffs acquired their land in 1964, after these drains had been constructed. The first plaintiffs acquired their land in 1973 or 1974. All the appellants use their lands as cane farms. The respondent acquired his lands from his father in 1975; he uses them for grazing purposes. (at p484)

6. Thereafter, and until 1979, the water from the appellants' lands was carried eastwards across the respondent's land by means of the eastern arm of Orchard Creek and the long drain and ultimately by way of the short drain into Bedford Creek. The flow of the water from the appellants' lands was assisted by drains within those lands. In January 1976 the long drain had shown signs of obstruction and the respondent gave permission to have it cleaned. Within a day or so after the work of cleaning had been completed, the respondent caused the long drain to be blocked by a bank. He said that he did this because he found the appellants and other persons putting in drainage pipes that would ultimately have resulted in the breach of a condition which he had imposed when he gave the permission to clean the long drain. The learned trial judge said that there may have been a misunderstanding about this matter but that he could not with any confidence come to any conclusion as to the truth of the matter. January is the wet season, and the effect of the blockage was to prevent water from flowing from the appellants' lands. However, the blockage was soon broken down - whether by the natural effect of scouring, or by human agency, or both, does not clearly appear. The long drain continued to perform its function until about October 1979. The respondent then caused the drain to be completely filled in. He said that he did this to improve his own land. He denied that he did it in an endeavour to bring pressure on the farmers concerned to pay him large sums of money to enable their farms to be drained. No finding was made by the learned trial judge as to the motive with which the respondent acted. Since the drain has been filled the water that falls on the appellants' lands drains away more slowly and some of it does not get away at all; the lands remain flooded. In consequence the appellants have suffered serious damage. (at p485)

7. The learned trial judge said that by filling in the drain the respondent merely prevented the flow of water on to his land which, if things were in their natural state, would not have come on to his land at all. That appears to be correct. Counsel for the respondent submitted that the respondent has merely restored things to the situation in which they were before the drains were cut. With all respect, however, that is not correct. The restoration of the status quo could not so easily be achieved. In 1964 there was a considerable expansion of cane growing in the area. Work done in consequence of this expansion has interfered with the natural flow of Orchard Creek. Mr. Astill, an engineer, made an inspection of the area in 1980 and the correctness of his report was accepted by the learned trial judge. He said that at the time of his inspection water was impounded in the eastern arm of Orchard Creek from a lagoon (which he called Lagoon No. 2) which had formed some distance to the west of the loop over the base of which the drain was constructed to a point within that loop. In his opinion the creek would have flowed in a westerly direction from approximately that point if it had not been for the fact that the creek is now blocked. Eastward of the point to which the impounded water extends, water flows in an easterly to south-easterly direction into Bedford Creek. Mr. Astill described the effect of the work that has been done generally in the area as follows:
"Filling of the creek for cane farm development has removed the western arm from the creek as it is now diverted to Murray River by a drain. It has also removed the eastern arm from the creek and has impounded its normal runoff in Lagoon No. 2 and upstream. The drainage system now discharging into the lagoon has considerably increased the catchment area contributing to it.
Virtually the whole catchment of Orchard Creek has now been removed upstream of the confluence of both branches. As a result very little discharge enters Orchard Creek downstream of this confluence, and this gives rise to deterioration of the creek by siltation with consequent decrease in discharge capacity."
He found that some connexion has developed between the eastern arm of Orchard Creek and Bedford Creek additional to the short drain. This may have been caused by erosion in time of flood and may have been contributed to by the fact that Orchard Creek no longer has a natural outlet to the west. The construction of the drains may also have contributed to it. The short drain is still open: it has all the appearance of a natural stream. (at p486)

8. It is apparent that since the long drain has been filled in the appellants are in a worse position than they would have been in if the area had remained in its original state. It is no longer possible for the creek to carry water from their lands to the west and then south in the way that it did previously. (at p486)

9. The appellants do not claim that they are entitled to a drainage easement over the respondent's land. They do not claim to have any rights as riparian owners. They have no contractual rights against the respondent. They assert a cause of action against the respondent on three bases: (1) in nuisance; (2) on the principle of Beaudesert Shire Council v. Smith [1966] HCA 49; (1966) 120 CLR 145 ; and (3) on the footing that they have an irrevocable licence determinable only on reasonable notice. (at p486)

10. The argument on behalf of the appellants, that the action of the respondent in filling in the long drain, with the result that the appellants' lands were flooded, constituted a nuisance, took as its starting point the decision of the House of Lords in Sedleigh-Denfield v. O'Callaghan [1940] UKHL 2; (1940) AC 880 . The main question in that case was whether the defendants were liable for the flooding of the plaintiff's land when a pipe or culvert, laid by a trespasser in the line of a ditch on the defendants' land, became blocked by debris because it was inadequately guarded by a grating. The defendants were held liable because, having knowledge of the hazard constituted by the unguarded pipe, they failed to take reasonable steps to remove it. In so far as the case deals with the continuance of a nuisance, we are not concerned with it here, for there is no doubt in the present case that if there was a nuisance the respondent created it. However, the decision proceeded on the footing that it was a nuisance, or at least a potential nuisance, to render the ditch liable to obstruction in such a way that flooding might occur. In the present case it was submitted on behalf of the appellants that if an occupier, by blocking a drainage channel on his land, causes another's land to be flooded, he is prima facie liable in nuisance. It is true that in Sedleigh-Denfield v. O'Callaghan, as in the present case, the flooding was caused by the obstruction of an artificial channel. The distinction between the cases is that the obstruction in Sedleigh-Denfield v. O'Callaghan was caused by the negligent construction of an artificial work, which resulted in flood waters flowing on to the plaintiff's land, whereas in the present case it was caused by the filling in of the artificial channel and the restoration of the levels of the land to those of its original state, which prevented waters already on the appellants' lands from draining from them. In Sedleigh-Denfield v. O'Callaghan, Lord Atkin said (1940) AC, at pp 896-897 :
"For the purpose of ascertaining whether as here the plaintiff can establish a private nuisance I think that nuisance is sufficiently defined as a wrongful interference with another's enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour's property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word 'use'."
Lord Atkin's judgment suggests that an interference with the enjoyment of lands can be described as "wrongful" if it was deliberate or negligent. In the same case, Lord Wright said (1940) AC, at p 903 :
"A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society."
In our respectful opinion, that is the proper test to apply in most cases. Although, as was pointed out in Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. ("The Wagon Mound" (No. 2)) [1966] UKPC 1; (1967) 1 AC 617, at p 639 , the wide and uncertain boundaries of the law of nuisance include cases in which negligence in the narrow sense is not essential, fault of some kind is almost always necessary. In the present case the action of the respondent was deliberate, but in our opinion it will only have been wrongful if it was not reasonable in the sense to which Lord Wright refers. However, an anterior question arises, viz., whether the blocking of the drain injured the appellants' property, or interfered with their enjoyment of their property, or otherwise invaded their rights. If it did not, the fact that the respondent's conduct was unreasonable would not give the appellants a cause of action. (at p488)

11. A case which bears a resemblace to the present is the decision of this Court in Gartner v. Kidman [1962] HCA 27; (1962) 108 CLR 12 . In that case, for at least twenty years, a swamp basin situated mainly on the plaintiff's land, but extending for a small distance on to the defendant's land, had been drained by a ditch on the defendant's land into a sandpit which was also on the defendant's land. The sandpit eventually proved to be of commercial value, and the defendant, to protect it from the waters of the swamp, erected on his land barriers that blocked the drain and caused the plaintiff's land to be flooded. It was held that the plaintiff had no cause of action. The plaintiff's case was primarily based on the claim that the drain was to be considered as a natural watercourse in which he had the rights of a riparian owner, but it was further contended that the defendant, being the owner of lower land, was not entitled to impede the flow of water in the course that it would naturally follow. These questions do not now arise in the present case. After discussing the rights and duties of the owner of land on a natural stream, Windeyer J. (with whose judgment Dixon C.J. agreed) said (1962) 108 CLR, at p 24 :
"The position of an artificial watercourse, that is a water channel constructed by man as distinct from a natural stream, is entirely different. Generally speaking the owner of land through which an artificial watercourse runs may block or divert it at his will, unless some easement over it has been acquired by grant or prescription."
It is unnecessary for present purposes to refer in detail to his Honour's learned and valuable exposition of the position of riparian owners and of the question whether a proprietor of lower land may impede the natural flow of surface water from adjacent higher land. However, his Honour said that the latter case depended upon the law of nuisance (1962) 108 CLR, at p 38 . After discussing the authorities, he stated his conclusions as follows (1962) 108 CLR, at p 46 :
"The field is, of course, one in which any fundamental rule may be modified by circumstances or in its application yield to circumstances. But the fundamental rule is, I think, the reverse of what Madden C.J. in Vinnicombe v. MacGregor (1902) 28 VLR 144 stated it to be. He said that the lower owner cannot obstruct the natural flow of surface water unless he can and does so in a manner which will not injure the upper land. On the contrary the law is, I think, that he may block it by any works on his own land, so far as they are reasonably necessary to protect his land for his reasonable use and enjoyment; but that in doing so he must not act recklessly of his neighbour so as to cause wanton damage to him." (at p489)

12. In the present case, as we have said, the natural flow of surface water was not obstructed by the filling in of the long drain, for the natural flow was in the other direction. In such a case, it is difficult to see why the respondent should not have been free to block the artificial drain on his own land, even if to do that was not reasonably necessary for the enjoyment of his own land. Another decision which throws some light on the present case is that of the Court of Appeal in Thomas & Evans Ltd. v. Mid-Rhondda Co-operative Society Ltd. (1941) 1 KB 381 . In that case the appellants had built a wall along the side of a river to protect their own lands and an adjacent highway from flooding. In the course of building alterations they pulled down the wall, leaving gaps which they intended to fill by a new building, but the river suddenly rose and the respondents' land was flooded. It was held that the appellants were not liable either in nuisance or in negligence. Sir Wilfred Greene M.R., who delivered the judgment of the Court of Appeal, said (1941) 1 KB, at p 389 :
"If this wall had been erected by the freeholder and taken down by the freeholder the next day, or a week, or a year afterwards, with the result that the flood water took the course which it would have taken if the wall had never been there, I cannot see, on any principle known to me, that the respondents would have been entitled to complain. If it were not so, a person, in putting up a defensive work on his own land, would act at his peril, because by the mere fact of erecting it he would be conferring on his neighbours, or persons in the neighbourhood, rights to insist that he should never remove the wall or building that he had put up." He went on to say that "the respondents had no right to have the wall erected, they had no right to insist on its continuance, they had no ground of complaint whatsoever against anybody who rightfully took it down" (1941) 1 KB, at p 393 . The decision in that case was explained in Leakey v. National Trust (1980) QB 485, at p 522 on the ground that there was nothing unreasonable in the action of the appellants in taking down the old protective wall on their own land in order to rebuild it. However, it seems to us, with all respect, that the judgment of Sir Wilfred Greene M.R. proceeded on the basis that the appellants had no duty to act reasonably. If there was such a duty, it must, in our opinion, have been created by the fact that the removal of the wall caused the flood water to flow onto the respondent's land. Where a person, by doing something on his own land, causes actual and material damage to another's land, the act of the first mentioned person, although otherwise lawful, may be actionable if it was unreasonable having regard to all the circumstances, including the effect it was likely to have on the other land. For example, the neighbour of a railway company may have no right to require the company to maintain an embankment, and the company may lawfully cut trenches in the embankment, but if it does so when the consequence is to cast flood waters onto the neighbour's land, the company may be liable: see Whalley v. Lancashire and Yorkshire Railway Co. (1884) 13 QBD 131 . A landowner may lawfully build a paved driveway on his land, but he may be liable in nuisance if he does so in such a way as to divert storm waters onto his neighbour's land: Bennetts v. Honroth (1959) SASR 170 . (at p490)

13. If the respondent, by filling in the long drain, had diverted water onto the appellants' lands, it would have been necessary to decide whether his action in blocking the drain was a reasonable use of his own land in all the circumstances. But that was not the case. The filling in of the drain has not caused water to flow onto the appellants' lands; it has had the effect that waters already on those lands, whether surface waters resulting from heavy rain or waters from flooded rivers or creeks, now cannot flow from those lands by the artificial drainage system that was made available by the cutting of the drain. Before the drain was cut the waters did not flow from the appellants' land to the respondent's land. The closure of the drain has not penned back water on the appellants' land, but has blocked the artificial channel which enabled the water to escape from those lands. The respondent's action has not caused the appellants' lands to be damaged, invaded or interfered with. The damage which the appellants have suffered is due to the natural deficiency of their lands, and to the fact that occupiers of land other than the respondent have impaired the natural drainage system provided by Orchard Creek, and to the fact that the respondent would no longer provide an artificial means of drainage to carry from the appellants' lands water that would not naturally flow onto the respondent's land. The respondent had no duty to help the appellants in this way. (at p491)

14. For these reasons we consider that the claim in nuisance must fail. (at p491)

15. The second argument on behalf of the appellant, which invokes the much criticized principle of Beaudesert Shire Council v. Smith [1966] HCA 49; (1966) 120 CLR 145 , is based on the contention that it was unlawful for the respondent to block the drain. It was argued that the filling in of the drain was in contravention of a number of provisions of The Water Act of 1926 (Q.), as amended ("the Water Act"). Section 11B(1) of the Water Act provides that a person shall not construct or use a levee bank except under the authority of a licence under the Act issued by the Commissioner, and by sub-s. (2) of that section "levee bank" is defined to mean, inter alia, any embankment or other structure for preventing, regulating or controlling the flow of water into or out of a "watercourse". Clause 16 of Pt 1 of the Schedule to the Water Act provides that any person who without the authority of the Act (inter alia) interferes with or obstructs the water or the flow of water "in any watercourse" shall be liable to a penalty. Clause 43 of Pt 1 of the Schedule provides that every owner or occupier of land "intersected or bounded by any stream or watercourse, or through or near to which any channel or drain is cut by the Commissioner or any person by its authority", who unlawfully obstructs or in manner unlawfully interferes with the water or flow of water "therein" shall be liable to a penalty. None of these sections applied in the present case unless the long drain was a "watercourse" within the meaning of the Water Act; there is no suggestion that the long drain was cut by or with the authority of the Commissioner. The expression "Watercourse" is defined in s. 3 of the Water Act as follows:
"A river, creek or stream in which water flows either permanently, intermittently or occasionally in a natural channel or in a natural channel artificially improved or in an artificial channel that has changed the course of the watercourse but in any such case only at every place upstream of the point to which the spring tide ordinarily flows and reflows therein whether due to a natural cause or to an artificial barrier therein".
The governing words of this definition are "A river, creek or stream". A creek will still be within the definition if its water flows in an artificial channel that has changed the course of the creek, but if the artificial channel does not form part of the creek it is not a watercourse. The question whether the long drain is a watercourse therefore depends on whether it forms part of Orchard Creek and has changed the course of the watercourse of that creek. If the long drain is a "watercourse" its construction in the first place was probably unlawful, but in the view that we take that matter need not be considered. Although the drain linked two points on Orchard Creek, the loop of the creek at the base of which the long drain was constructed still remained the watercourse of the creek. The creek remained something distinct from the long drain, which was designed to carry, not the waters of the creek, but the waters that came from the lands to the west and that did not normally enter that part of the creek. In these circumstances we agree with the conclusion reached by the learned trial judge and the Full Court that the long drain did not so much change the course of Orchard Creek as create a completely new and artificial system of drainage, and was not a "watercourse" within the meaning of the Water Act. It follows that it has not been established that it was unlawful for the respondent to close the drain. It is therefore unnecessary to consider whether Beaudesert Shire Council v. Smith [1966] HCA 49; (1966) 120 CLR 145 should be followed. When that question does arise for decision, it will be desirable that a court of seven justices should consider it. (at p492)

16. The third argument submitted on behalf of the appellant cannot be supported. That argument was that the appellants had a licence to have their water carried over the respondent's land and that the licence could be revoked only by reasonable notice which was not given. It is clear that when the drain was originally constructed the appellants had nothing to do with it. If a licence was then given to anyone, it was given to Mr. Lago. It was however submitted that when permission was given in 1976 to clean the drain the respondent then granted the appellants a licence to use it. The evidence is quite insufficient to support that conclusion. Moreover the question was not raised at the trial and if it had been raised it is quite possible that further evidence could have been called to throw light on the matter. As things were, the evidence regarding the permission to clean the drain was far from precise and was not directed to this issue. It would not be right to infer that the appellants were granted a licence to use the drain. (at p493)

17. The case is a regrettable one, and the situation of the appellants is most unfortunate, but for the reasons we have given we consider that the appeal should be dismissed. (at p493)

MURPHY J. I agree with the conclusion of the Chief Justice, and Wilson and Brennan JJ., that the appeal should be dismissed, and generally with their reasons. (at p493)

ORDER

Appeal dismissed with costs.