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Gerrard v. Crowe And Another
Case Summary — Viscount Cave (House of Lords opinion)
Factual and Procedural Background
This appeal arises from an interlocutory history in which the Court of Appeal of New Zealand reversed a judgment of the Supreme Court that had been in favour of the appellant (the plaintiff at trial). The core dispute concerns whether the respondents are liable in damages to the appellant for having constructed an embankment to protect their lands from flood.
The trial judge (Sim, J.) found the following facts: the plaintiff owned a farm on the east bank of the Oreti River; the defendants owned land on the opposite bank, part of which was intersected by Hillend Creek flowing into the Oreti. Before 1913 flood waters sometimes flowed over the western bank and spread south-westerly across the defendants' land, re-entering the river at points further south and below the plaintiff's farm. Around the end of 1913 the defendants erected an earthen embankment about 90 chains long and about two feet high, set back from the river bank. The embankment prevented flood waters from spreading westward across the defendants' land, and had the effect of increasing the river volume opposite the plaintiff's land such that, in heavy floods, more water was thrown upon the plaintiff's land than would otherwise have been the case.
The plaintiff sued for damages and sought a mandatory injunction requiring removal of the embankment. The trial judge found the plaintiff had not established the existence of a defined flood channel or an "ancient and rightful course" of flood waters across the defendants' land, but nevertheless entered judgment for the plaintiff for reasons discussed in the opinion. The Court of Appeal (by a majority) reversed and gave judgment for the defendants, and the appellant then brought the present appeal.
Legal Issues Presented
- Whether the respondents are liable in damages to the appellant by reason of their having constructed an embankment on their land to protect against floods.
- Whether a landowner's right to protect his land against floods (including by embanking) is limited by the maxim sic utere tuo ut alienum non laedas — i.e., whether that right cannot be exercised if, as a consequence, more water is thrown on to a neighbour's land and damage results; and relatedly, whether a landowner becomes liable by setting his embankment back so as to leave part of his land (fourteen acres here) unprotected and thereby causing damage.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the respondents' right to protect their land was conditioned by the maxim sic utere tuo ut alienum non laedas, and therefore could not be exercised if the operation resulted in increased flooding and damage to the neighbour's land.
- In support of that contention the appellant relied on authorities including Menzies v. Earl Breadalbane, Rex v. Trafford (and related reports), Trafford v. The King, and a dictum of Lord Chelmsford in Bickett v. Morris.
- A further argument advanced by the appellant was that because the respondents' embankment was set back from the river and left some fourteen acres of the respondents' land unprotected, the embankment's effect was to throw flood water on to those fourteen acres and thus to the plaintiff's land; for this proposition Hurdman v. N. E. Ry. Co. and Whalley v. L. and Y. Ry. Co. were cited.
The opinion does not contain a detailed, separate summary of the respondents' oral or written submissions beyond the factual record and the precedents invoked; the Court's treatment of the appellant's points and the authorities supplies the relevant opposing reasoning.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Farguharson v. Farquliarson [1741] Mor. 12779 | Established that it is lawful for an owner to build a fence on his own ground by the side of a river to prevent overflow, even if thereby damage results to a neighbour, but not lawful to perform operations in the alveus (the channel). | Cited as part of the general rule that a landowner may protect his land from flood even if adjoining owners are prejudiced, subject to the limitation against acting in the alveus. |
| Menzies v. Earl Breadalbane [1828] 3 Bli. N. S. 414 | Dealt with obstruction of a regular flood channel (part of the alveus) which cannot be obstructed. | Distinguished from the present facts: in Menzies there was a defined flood channel forming part of the alveus; the trial judge found no such channel here, so Menzies did not support the appellant. |
| Rex v. Commissioners of Sewers for Pagham [1828] 8 B. and C. 355 | Holds that owners exposed to the inroads of the sea may erect necessary works for self-protection even if prejudicial to others; the sea is a common enemy. | Applied to support the principle that a landowner may erect reasonable defences against a common enemy (flood/sea) without being liable for consequent damage to neighbours. |
| Nield v. L. and N. W. Ry. Co. [1874] L.R. 10 Ex. 4 | Affirms the proposition that a landowner may protect his land from extraordinary flood and so divert waters without liability for consequent injury to neighbour. | Relied upon (with Whalley) to confirm that protective measures against seen extraordinary floods are permissible. |
| Whalley v. L. and Y. Ry. Co., 13 Q.B.D. 131 | Lindley, L.J.: if an extraordinary flood is seen to be coming, the owner may fence off and protect his land and turn it away without being responsible for consequences to neighbours. | Quoted to support the rule permitting protective action against floods without resulting liability. |
| Greyvensteyn v. Hattingh [1911] A.C. 355 | Later application of the protective-right rule. | Cited as a later case applying the same principle; used to show continuity of authority. |
| Maxey Drainage Board v. G. N. Ry. Co. [1912] 106 L.T. 429 | Another later application of the rule allowing protection against flood. | Cited as a further later application confirming the general rule. |
| Rex v. Trafford / Trafford (var.) [reported as 8 Bing., 1 B. & Ad. 874] | Initial statement (per Lord Tenterden) that the ordinary course of water cannot be lawfully changed to the injury of others and suggesting no distinction between ordinary and extraordinary courses. | The Court noted that the initial judgment was reversed on error in the Exchequer Chamber (venire de novo) and thus that the authority could not safely be relied upon to support the appellant's contention. |
| Bickett v. Morris [1877] 2 A.C. 839 | Contains dicta (Lord Chelmsford) relied upon by the appellant concerning limitations on protective actions; the case concerned injury to the alveus. | The Court observed the dictum quoted was not necessary for the decision in Bickett and that the case dealt with injury to the alveus; the dictum therefore could not be used to derogate from the established decisions relied on by the respondents. |
| Orr-Ewing v. Colquhoun [1877] 2 A.C. 839 | Discussed in relation to Bickett v. Morris (noted by the Court). | Mentioned as related authority in the same report context; the opinion refers to it when discussing the limits of Bickett. |
| Hurdman v. N. E. Ry. Co., 3 C.P.D. 168 | Example of liability where defendant's earth mound captured ordinary rainfall on its own land and discharged it onto a neighbour. | Distinguished from the present case: here defendants did not accumulate or actively discharge water; therefore Hurdman did not make the defendants liable. |
Court's Reasoning and Analysis
The Court began from the established general rule that a landowner on or near a river has a right to protect his land from floods even where that protective action may prejudice neighbouring landowners, provided the owner does not act upon or within the alveus (the channel) itself. The opinion cites Farguharson v. Farquliarson and Rex v. Commissioners of Sewers for Pagham to state and support this principle, and refers to subsequent cases (Nield, Whalley, Greyvensteyn, Maxey) as later applications of the rule.
The appellants' primary contention — that the right to protect is curtailed by the maxim sic utere tuo ut alienum non laedas and thus cannot be exercised where it redirects more water to a neighbour — was examined against the authorities. The Court analysed the authorities invoked by the appellant and found them insufficient to supplant the established rule permitting reasonable protective measures. Specifically, the Court distinguished Menzies v. Earl Breadalbane on the ground that it concerned a defined flood channel forming part of the alveus (which cannot be obstructed), whereas the trial judge had found no such channel here: the flood waters spread over country rather than move in a defined course. The Court also observed that the earlier strong language in Rex v. Trafford had been undermined by reversal in the Exchequer Chamber and thus could not be relied on as a controlling authority. Bickett v. Morris was likewise treated as inapplicable to the present facts because it concerned injury to the alveus and the quoted dictum was unnecessary to that decision.
The opinion allowed that certain dicta might be understood to mean that a landowner must act with reasonable care and not do more than is reasonably necessary in protecting his land, but emphasised that such dicta do not detract from the express decisions establishing the protective right.
The Court then addressed a subsidiary argument: that the defendants, by setting the embankment back and leaving about fourteen acres unprotected, had in effect thrown flood water upon those fourteen acres and thereby increased the injury to the plaintiff. The Court contrasted the present facts with cases like Hurdman and Whalley in which the defendants had actively accumulated or discharged water on to a neighbour. In the present situation the defendants had not accumulated water nor actively discharged it; instead, the river (the "common enemy") first flooded the fourteen acres. The Court concluded that the injury to the plaintiff was not increased, and probably diminished, by leaving those acres unembanked; therefore no actionable injuria or damnum was proved on that ground.
On the combined analysis of authorities and the factual findings (notably the absence of any defined flood channel forming part of the alveus and the defendants' lack of active accumulation or discharge of water), the Court found the appellant's contentions unsupported.
Holding and Implications
Holding: The appeal is DISMISSED and the House will humbly advise His Majesty accordingly; dismissal is with costs.
Implications: The decision directly affirms the defendants' right, on these facts, to erect an embankment to protect their land from flood without incurring liability to the neighbouring landowner for the increased flow of water the embankment occasioned, subject to the long-standing qualification that operations within the alveus or actions amounting to active accumulation and discharge of water onto a neighbour remain unlawful. The opinion applies and reiterates existing authorities rather than announcing a novel rule; it treats cases involving a defined flood channel or active accumulation/discharge as distinguishable. The Court did not indicate that a new precedent altering the general rule was established; rather, it dismissed the appeal on those grounds and confirmed the application of the established principle to the facts of this case.
Viscount Cave :-
This is an appeal from an order of the Court of Appeal of New Zealand reversing a judgment of the Supreme Court in favour of the appellant, the plaintiff in the action. The question involved in the appeal is whether the respondents are liable to the appellant in damages by reason of their having constructed an embankment to protect their lands from flood.
The facts of the case as found by Sim, J, at the trial, are as follows :
"The plaintiff is the owner of a farm on the east bank of the Oreti River. The defendants are the owners of certain land on the opposite bank of the river. Part of this land is intersected by a creek known as Hillend Creek, which flows into the Oreti River. Before the year 1913 when the river was in flood and rose above its banks some of the flood waters flowed over the western bank at a point on the defendant Michael Crowe's land about half a mile above the junction of the Hillend Creek with the river. The waters then flowed in a south-westerly direction across the defendant's lands, and ultimately found their way back into the river bed at some point or points further south and below the plaintiff's farm. About the end of the year 1913 the defendants erected an earthen embankment on their land. It is about 90 chains in length and about two feet in height. It begins at a point about half a mile from the western bank of the river and runs in a southerly direction to a point close to the river bank. The object of the defendants in ejecting this embankment was to prevent the flood waters spreading over their land to the west. And that has been its effect. Its effect also has been to increase the volume of water in the river opposite the plaintiff's land and thus to throw on to that land in times of heavy flood more water than otherwise would have gone there."
The plaintiff accordingly brought this action, alleging that the embankment caused his farm to be 'flooded to a greater extent than would otherwise have been the case and claiming damages and a mandatory injunction to compel the defendants to remove their embankment.
The trial Judge found as a fact that the plaintiff had failed to prove the existence of any flood channel such as was held to have been obstructed in Menzies v. Earl Breadalbane. [1828] 3 Bli. N. S. 414, and had also failed to prove that there was any ancient and rightful course for the flood waters of the river across the defendants' land so as to bring the case within the law as laid down by
Tindal, C. J. in the Exchequer Chamber in Trafford v. Rex. 8 Bing. 204, and added:
"It is clear, I think, from the evidence that in times of flood the waters of the river did not flow in any defined course, but simply spread over the country in a south-westerly direction and found their way back to the river at different points to the south of the plaintiff's land."
Notwithstanding these findings, the learned Judge, for a reason to be here-after noticed, gave judgment for the plaintiff; but on appeal that judgment was reversed by the Court of appeal, who, by a Majority, gave judgment for the defendants, and thereupon this appeal was brought.
The general rule as to the rights of an owner of land on or near a river to protect himself from floods is well settled. In Farguharson v. Farquliarson. [1741] Mor. 12779; see also 3 Bli. N. S. 414. The rule was stated as follows :
"It was found lawful for one to build a fence upon his own ground by the side of the river to prevent damage to his ground by the overflow of the river though thereby a damage should happen to his neighbour by throwing the whole overflow in time of flood upon his ground; but it was found not lawful to use any operation in the alveus."
In Rex v. Commissioners of Sewers for Pagham. [1828] 8 B. and . C. 355. It was held that owners of land exposed to the inroads of the sea have a right to erect such works as are necessary for their own protection, even although they may be prejudicial to others; and Lord Tenterden expressed himself as follows:
"But it is contended that this new groyne has caused the sea to flow with greater violence against the land of Mr. Cosens, and make a greater inroad upon it, than possibly it might otherwise have done; and that as the Commissioners, acting for the benefit of the level, have occasioned this damage, they must make compensation for it. It may be conceived that such is the effect of the groyne; but the sea is a common enemy to all proprietors on that part of the coast, and I cannot see that the Commissioners, acting for the common interest of several landowners, are, as to this question, in a different situation from any individual proprietor. Now, is there any authority for saying that any proprietor of land exposed to the inroads of the sea, may not endeavour to protect himself by erecting a groyne or other reasonable defence, although it may render it necessary for the owner of the adjoining land to do the like? I certainly am not aware of any authority or principle of law which can prevent him from so doing."
To the same effect is Nield v. L. and N. W. Ry. Co. [1874] L.R. 10 Ex. 4; and in Whalley v. L. and Y. Ry. Co. 13 Q.B.D. 131. Lindley, L. J. said :
"It seems to me established by those cases (i. e. Menzies v. Earl Breadalbane (1) and Nield v. L. and N. W. Ry., Co. (5) that if an extraordinary flood is seen to be coming upon land the owner of such land may fence off and protect his land from it and so turn it away, without being responsible for the consequences, although his neighbour may be injured by it."
Later applications of the rule are to be found in Greyvensteyn v. Hattingh. [1911] A.C. 355, and Maxey Drainage Board v. G. N. Ry. Co., [1912] 106 L.T. 429.
It was argued on behalf of the appellants that the right of a landowner to protect himself against floods is conditioned by the maxim sicutere tuo at alienum non laedas and cannot be exercised if as a consequence of his operations more water flows on to his neighbour's land and thereby damage is caused; and reliance was placed on Menzies v. Earl Breadalbane (1), Rex v. Trafford. [1831] 1 B. and Ad. 874, and Trafford v. The King (2) and on a dictum of Lord Chelmsford in Bickett v. Morris (10) To import such a condition would be directly contrary to the rule as stated in the authorities above cited and would indeed render those authorities meaningless; for it would surely have been unnecessary to invoke the authority of the Courts in order to establish the proposition that a man may erect an embankment on his own land if no damage ensues to others. But in fact the authorities cited are in their Lordships' opinion, insufficient to support the proposition contended for. In Menzies v. Earl Breadalbane (1) there was a regular flood channel which, although dry when the river was low, became filled with water at times of flood; and it is plain that such a channel forms part of the alveus of the river and cannot be obstructed. In Rex v. Trafford (9) Lord Tenterden, C. J. no doubt said that "it has long been established that the ordinary course of water cannot be lawfully changed or obstructed for the benefit of one class of persons, to the injury of another," and appears to have expressed the view that no sound distinction can be drawn between the ordinary course of water flowing in a bounded channel at all usual seasons and the extraordinary course which its superabundant quality has been accustomed to take at particular seasons. But on the case being removed into the Exchequer Chamber on error the above judgment was reversed and a venire de novo awarded, partly on the ground that it did not appear by the verdict that the course which the flood water had taken was the "ancient and rightful course" which it ought to take nor whether it had been so carried for such a period of years over the lands of different persons so as to constitute a right of water course in time of flood in the direction described by the special verdict. The case is not further reported; and in view of the decision in the Exchequer Chamber it cannot be relied upon as a safe authority for the contention put forward. Bickett v. Morris. [1877] 2 A. C. 839, 845, 853, was a case of injury to the alveus: and the sentence quoted from Lord Chelmsford's judgment does not appear to have been necessary for the decision of the case; see on this case Orr-Ewing v. Colquhoun. [1877] 2 A. C. 839, 845, 853. Possibly the dicta relied upon mean no more than this, that a landowner in protecting his land from the common enemy must use reasonable care and skill and must not do more than is reasonably necessary for that purpose; but, however that may be they cannot be held to derogate from the express decisions above referred to. In their Lordships' opinion, therefore, this contention fails.
A further point, founded on the decision of the trial judge was taken on behalf of the appellant. It was said that the effect of the respondents' embankment, which was not erected on the bank of the river Oreti, but stood back a little distance on the respondents' property and left some fourteen acres of land unprotected, was to throw the flood water on to those fourteen acres and accordingly that the respondents were liable for the damage caused by its escape; and in support of this contention Hurdman v. N. E. Ry., Co. 3 C. P. D. 168, and Whalley v. L. and Y. Ry., Co. (4) were cited.
It would be strange if a landowner, not being liable for protecting the whole of his land against floods by raising the bank of a river became liable by reason of the fact that he had set his embankment further back and so had left a portion of his land unprotected; and it does not appear to their Lordships that this is the law. In Hurdman v. N. E. Ry., Co., (12) the defendant had erected on his property a mound of earth, which caught the rain naturally and ordinarily falling on his own land and discharged it on to the land of his neighbour. In Whalley v. L. and Y. Ry. Co. (6) the defendants had allowed a pool of water to accumulate on their property, and had subsequently taken active steps to discharge it on to the plaintiff's property. In the present case the defendants neither accumulate water on their own land nor discharge it by active steps on to the plaintiff's land. It is the river - the "common enemy" - which first floods the fourteen acres and then carries away flood; and the injury to the plaintiff is not increased, but is probably diminished, by the fact that the fourteen acres are left open and unembanked. There is, in fact, neither injuria nor damnum proved under this head. This contention, therefore, also fails.
For the above reasons their Lordships are of opinion that this appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly.
Appeal dismissed.
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