JUDGMENT
1. This is a contest between the defendant who may be taken to be the proprietor of mouza Teswar, on the west, and the plaintiffs who are, respectively, the proprietor and ticcadar of mouza Lebura on the east. Situated in the plaintiff’s mouza is an Ahar, or reservoir, called Bandh Ahar. According to the facts found, the surface water of the plaintiff’s mouza collects within this Ahar from the southward, northward and eastward, and there is also, a well-defined channel marked as H.I. in the Commissioner’s map which conducts the water from another mouza on the northwest, into the Bandh Ahar. The plaintiff constructed on the confines of the Bandh Ahar a pyne A. B. C. for the purpose of irrigating his lands on the east, and by so doing he prevented the surface water from accumulating in the Bandh Ahar to some extent.
2. The matter came before the Criminal Court under Section 147, Criminal Procedure Code, and the plaintiffs were prohibited, on the 30th September 1905, from constructing the new pyne. They, therefore, brought their suit for various reliefs.
3. Both the Courts below have agreed in the findings arrived at and as to the manner in which they have disposed of the suit.
4. The plaintiffs have failed to obtain the declaration they sought that the defendant is not entitled to the use of the water of the Bandh Altar, for it has been held that the defendant has a prescriptive right to use that water and to lead it westward by means of two channels from the western embankment. The prescriptive right has been affirmed; but the plaintiffs have also obtained a declaration that the defendant has no right to obstruct them in intercepting the water or in constructing the pyne A. B. C. In the result, therefore, both parties have partly succeeded.
5. Now, in second appeal, the substantial contention raised on behalf of the defendant is this that the plaintiffs have no right by their acts to deprive him of his supply of water through the two channels on the west as to which he has a prescriptive right, and in support of this contention, reliance has been placed on the case of Grand Junction Canal Co. v. Shugar 6 Ch. App. 483 : 24 L.T. 402 : 19 W.R. 569, which embodies, it is urged, a well-known exception to the general rule laid down in Chasemore v. Richards 7 H.L.C. 349.
6. We have carefully considered the case to which our attention has been called. The head-note correctly represents the general effect of the decision of Lord Hatherley, L.C. It is this, that “although a landowner will not in general be restrained from drawing off the subterranean waters in the adjoining land, yet he will be restrained if, in doing so, he draws off the water flowing in a defined surface channel through the adjoining land.” So far as this decision goes, it would not appear to be in point. The plaintiffs have not, in any way, interfered with the water as it might have existed, at any given time either in the Ahar or in the channels leading to the westward. What the plaintiffs have done is to intercept the surface water before it reached the Ahar.
7. The passage in the judgment, upon which reliance has been placed, is this: “You are not by you operation, or by any act of yours to diminish the water which runs in this defined channel, because that is not only for yourself but for your neighbours also who have a clear right to use it and have it come to them unimpaired in quality and undiminished in quantity.” The precise meaning of this passage was considered in English v. Metropolitan Water Board (1907) 1 K.B. 588 at p. 600 : 5 L.G.R. 384 : 71 J.P. 313 : 23 T.L.R. 313 : 76 L.J.K.B. 361 : 96 L.T. 573, where, also, the case mainly relied upon by the plaintiff was Grand Junction Canal Co. v. Shugar 6 Ch. App. 483 : 24 L.T. 402 : 19 W.R. 569, and the learned Chief Justice (Lord Alverstone) said that “Lord Hatherley treated Shugars Case 6 Ch. App. 483 : 24 L.T. 402 : 19 W.R. 569, as one in which there was direct tapping of an underground stream flowing in a defined channel and not merely percolating water indirectly affecting the surface stream” and the learned Judge went on to say that “if he had been satisfied that the defendants, by their operations, had directly drained or tapped water from the brook, which would otherwise flow past the plaintiff’s property he would have applied the principle in Shugar’s case 6 Ch. App. 483 : 24 L.T. 402 : 19 W.R. 569.” In a subsequent decision Popplewell v. Hodkinson L.R. 4 Ex. 248, where the case was not one of direct abstruction but of the withdrawal of support of subterranean water, it was held that no action could be maintained.
8. These decisions, as already observed, deal with cases of subterranean water. The authority which is more directly applicable to the facts found is Broadbent v. Ramsbotham L.J. 25 Ex. 115 : 11 Ex. 602 : 4 W. 290. The principle of that case is sufficiently expressed by what was decided therein namely, that “a landowner has a right to appropriate surface water which flows over his land in no definite channel although the the water is thereby prevented from reaching a water course which it previously supplied” Therefore, “Where the plaintiff’s mill, for more than 50 years, had been worked by the stream of a brook which was supplied by water of a pond filled by rain, a shallow well supplied by subterranean water, a swamp and well formed by a stream springing out of the side of a hill, the waters of all which occasionally overflowed and ran down the defendant’s land in no definite channel into the brook,” it was held that “the plaintiff had no right as against the defendant to the natural flow of any of the water.” The plaintiffs here, in intercepting the flow of the surface water into the Bandh Ahar, appear to have acted within their natural rights.
9. By reason of the fact that the defendant in the present litigation has acquired in respect of the Bandh Ahar, a prescriptive right to use the water of that reservoir the question resolves itself into this: To what extent can the easement be admitted to avail him? Is he to be permitted to say: I am entitled to have the Ahar brimful of water, at all times of the year, and to have the surface water of the whole of the plaintiffs mouzah allowed to flow in that direction in virtue of my easement.” Such a claim, however would be preposterous and opposed to the well-known principles and justice of the case. The plaintiffs, no doubt, have constructed a pyne immediately contiguous to the Ahar which indicated their intention to minimise the advantages to which the defendant is entitled in irrigating his own mouza; but if the plaintiffs keep within their rights according to the settled law on the subject, we cannot say that they have acted in a way they should not have done.
10. We can look at the matter from another point of view. The land on which the surface water flows towards the Ahar is intended to be and is cultivated by agriculturists who confine the rain water within the limits of their respective fields, and it cannot be urged that such water is not to be allowed to remain in situ to promote the growth of the crops. Is it to be said that all surface water must be allowed to flow to the reservoir for the purpose of irrigating the defendant’s mouza in preference to that of the plaintiffs? Such a contention needs only to be stated for its own refutation.
11. We are fortified in our conclusions by the cases decided by the Courts of this country. It is unnecessary to discuss them in detail because they are founded on the case of Broadbent v. Ramsbotham L.J. 25 Ex. 115 : 11 Ex. 602 : 4 W. 290, to which allusion has already been made.
12. In our opinion, therefore, the judgment of the Court below must be sustained and this appeal dismissed with costs.
