MADRAS RAILWAY COMPANY Vs. ZEMINDAR OF CARVATENAGARUM

JUDGEMENT

(1.) THE Madras Railway Company claimed in this suit damages against the Defendant, the Zemindar of Carvatenagarum, for injuries occasioned to their railway and works by the bursting of two tanks upon his land.

(2.) THE Defendant denied that the injuries complained of resulted from the bursting of the tanks; he asserted that if they did so arise, the bursting was caused by no act or negligence of his, but by vis major, or the act of God. He further pleaded in these terms: The tanks referred to in the plaint have existed from time immemorial, and are requisite and absolutely necessary for the cultivation and enjoyment of the land, which cannot be otherwise irrigated; and the practice of storing water in such tanks in India, and particularly in this district and in the Zemindary of Carvatenagaram and the adjacent districts, is lawful, and is sanctioned by usage and custom. The said zemindary is a hilly district, and the ryots will be unable to carry on their cultivation without such tanks, they being the chief source of irrigation, and the omission to store quantities of water in such tanks will be attended with consequences dreadful to the inhabitants of the country. The Defendant could not have avoided collecting a quantity of water in the tanks during the monsoon, and he has not failed to use any reasonable care that may be expected from him. There were also several tanks and channels above his tank belonging to Government and other people, which, also burst at the same time.

(3.) THE issues, as far as they are material to this appeal, agreed to by the parties, were: