MURLI Vs. HANUMAN PRASAD

JUDGEMENT

(1.) This is a Letters Patent appeal by the defendants against the decree of the learned single Judge of this Court restoring the decree of the trial Court in favour of the plaintiffs. The plaintiffs brought a suit for damages caused to the working of their flour mills on the river Paisoni in Banda district by the raising of the height of a bund two miles further down the river for a similar mill by the defendants. The findings of fact of the lower appellate Court are that the defendants had raised the dam and sluices. "it is proved by the evidence...that on account of accumulations of water near their blades plaintiffs mills do not work properly" and that "on account of raising of defendants dam, water accumulated at the causeway," and that by raising their dam the water below the plaintiffs mill was raised 11 inches and plaintiffs would therefore lose about 23 per cent. of the available power and plaintiffs mill would not work efficiently. The lower Court pointed out that plaintiffs did not state whether they based their claim on easement or on natural rights. Para. 4 of the plaint stated that the mills. of the plaintiffs had been working for 15 or 16 years. This period was less than. 20 years required for an easement and therefore the plaintiffs did not claim that they had a right of easement. The plaintiffs argued that they had a natural right. The Court below found that plaintiffs had no natural right to dam up the river and to divert the flow of water for the working of their mills, that such rights could be acquired by prescription but could not be enforced as a natural right and that this was not in connection with riparian tenement. The learned single Judge has relied on a passage in Wright V/s. Howard (1823) 1 LJ (OS) Ch 94 and a passage at p. 99 is quoted which stated in regard to a river: But each proprietor of land on the banks has a right to use it; consequently, all the proprietors have an equal right: and therefore, no one of them can make such a use of it, as will prevent any of the others from having an equal use of the stream when it reaches them. Every proprietor may divert the water for the purpose, for example, of turning a mill; but then he must carry the water back into the stream, so that the other proprietors may in their turn have the benefit of it. His use of the stream must not interfere with the equal common right of his neighbours; he must not injure, either those whose lands lie below him on the banks of the river or those whose lands lie above him. Injury may be done to the proprietors below him, by diminishing the quantity of water which descends to them; it may be done to those above him, by turning the water upon them, so as to overflow their lands, or to disturb any of the operations in which they may have occasion to use the water, as for example by diminishing the extent of its fall.

(2.) We would refer to a later ruling, Embrey V/s. Owen (1851) 6 Ex 352 at pp. 370 to 371, where it is laid down: All that the law requires of the party by or over whose land a stream passes, is that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish or affect the application of the water by the proprietors above or below on the stream. He must not shut the gates of his dams and detain the water unreasonably, or let it off in unusual quantities, to the annoyance of his neighbour. Pothier lays down the rule very strictly, that the owner of the upper stream must not raise the water by dams, so as to make it fall with more abundance and rapidity than it would naturally do, and injure the proprietor below. But this rule must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietors. It must be subjected to the qualifications which have been mentioned: otherwise rivers and streams of water would become utterly useless, either for manufacturing or agricultural purposes.

(3.) In Miner V/s. Gilmour (1858) 12 Moo P C 131 it was laid down at p. 156 as follows: By the general law applicable to running streams every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury.