HIGH COURT, CAPE COAST
Date: 16 JULY 1975
BAIDOO J
CASES REFERRED TO
(1) Rylands v. Fletcher (1868) L.R. 3 H.L. 330; 37 L.J.Ex. 161; 19 L.T. 220; 33 J.P. 70, H.L. affirming sub nom. Fletcher v. Rylands (1866) L.R. 1 Ex. 265.
(2) Broder v. Saillard (1876) 2 Ch.D. 692; 45 L.J.Ch. 414; 40 J.P. 644; 24 WR. 1011.
(3) Wilson v. Waddell (1876) 2 App.Cas. 95; 35 L.T. 639; 42 J.P. 116, H.L.
(4) Whalley v. Lancashire and Yorkshire Railway Co. (1884) 13 Q.B.D. 131; 53 L.J.Q.B. 285; 50 L.T. 472; 48 J.P. 500; 32 W.R. 711, C.A.
(5) Hurdman v. North Eastern Railway Co. (1878) 3 C.P.D. 168; 47 L.J.Q.B. 368; 38 L.T. 339; 26 W.R. 489, C.A.
(6) Nield v. London and North Western Railway Co. (1874) L.R. 10 Exch. 4; 44 L.J.Ex. 15; 23 W.R. 60.
(7) Gerrard v. Crowe [1921] 1 A C. 395; [1920] All E.R. Rep. 266; 90 L.J.P.C. 42; 124 L.T. 486; 37 T.L.R. 110, PC.
(8) Maxey Drainage Board v. Great Northern Railway Co. (1912) 106 L.T. 429; 76 J.P. 236; 56 S.J. 275; 10 L.G.R. 248.
NATURE OF PROCEEDINGS
ACTION for, inter alia, damages for nuisance to the plaintiff ‘s premises as a result of constructional works effected by the defendant corporation on its housing estate. The facts are sufficiently stated in the judgment.
COUNSEL
Sackeyfio for the plaintiff.
Mrs. Dwumah for the defendant corporation.
JUDGMENT OF BAIDOO J
The plaintiff in this action is claiming against the defendant 04,765.00 damages for trespass on the ground that the defendant has constructed through her land at Pedu on which she has her building (i.e.
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house No. 1 Pedu village) a gutter which gets over-flooded during rainfall with the result that water flowing therefrom gets into her compound and runs to fill the rooms on the ground floor. The onus was on the plaintiff to establish the trespass she was complaining of. She should have led evidence disclosing the persons seen on her land constructing the lane, their names or at least some of them, the dates they worked and establish that they were servants or agents of the defendant corporation working within the scope of their employment. Unfortunately the plaintiff ‘s evidence-in-chief was rather sketchy and of the vaguest nature. The relevant portion of her testimony was as follows:
“I have a plot of land at Pedu village, on which I have a building. I wish to tender the municipal council site plan [no objection, accepted and marked exhibit A]. The number of the house is No. 1 Pedu. The defendant has constructed a drain, and when it rains it gets ‘overflooded’ and the water therefrom enters my house about two feet high. The drain itself is on my land. I was not consulted before the drain was made. Because of the water coming to my house, tenants in the house moved out, and for the past three years I have had no tenant. I complained to the defendant that because of the ‘flooding’ I have lost my tenants. In that connection, I went to Accra to see one Mr. Yanney of the Housing Corporation. He instructed a surveyor Mr. Osekere to make the gutter, which they were making, into a concrete drain. Later the surveyor was called, but he did not make the concrete drain.”
Her evidence creates the impression that the defendant corporation was still in the process of constructing the drain when she went to the defendant’s head office in Accra and lodged a protest as a result of which Mr. Osekere, the defendant’s surveyor, was instructed to make the gutter a concrete drain. Obviously if the defendant wanted to detail an officer to construct a concrete drain to remedy the situation as suggested by the plaintiff it certainly would not have picked on a surveyor, Mr. Osekere, but on a constructional engineer or an experienced mason many of whom the Housing Corporation undoubtedly had on its pay roll.
I accept the opposing evidence of Osekere (the defendant’s second witness) as more worthy of credence. His evidence sums up the whole defence put up by the defendant corporation and due to its importance I reproduce the whole of it hereunder:
Reginald Moses Osekere: S. O. B. in English: “I am a licensed surveyor with the State Housing Corporation living in Accra. I was transferred from the Survey Department in 1955 and have been with the Housing Corporation for 20 years. I know the plaintiff. She came to our Accra office with a complaint. She complained to the chief engineer, Mr. Kendall, that because of our developments at Pedu her house was being flooded. As a result I came to Pedu and at the site with a Topo covering the area I discovered that the surrounding area including the properties of both parties is encompassed by hills
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or mountains. I also discovered that the road level of Cape Coast—Jukwa road is higher than the floor level of the plaintiff s house and also there was an existing earth drain at the foot of Pedu and Roman Catholic hill (i.e. the Seminary). I want to tender the topo sheet covering the area [not objected to; accepted as exhibit 2]. Apart from the earth drain I saw a service drain from her house to the earth drain. I discovered that there was a culvert near her house passing under the Jukwa road to take the water away. The earth drain was in existence before we started our constructional works at Pedu estate. None of our tenants has complained of flooding at Pedu estate, because we usually take precautionary measures. We usually raise the floor levels of our buildings about two feet above the crown of the roads in the area. In my opinion the flooding of the plaintiff ‘s house has no bearing on our Pedu estate. The flooding is due to a technical fault on her part. She failed to raise her floor level above the crown of the road.”
The evidence of the defendant’s first witness, J. K. Morrison, the senior building inspector of the Cape Coast District Council, also confirmed that the place where the plaintiff has erected her building is muddy and waterlogged and therefore the foundation footings of the building should have been raised to a height of three feet at least. He also made the point that it was the duty of the plaintiff ‘s architect who designed her building plan, or her building contractor to have taken the requisite precautionary measures against the flooding she is now experiencing.
The defendant’s third witness, Kwesi Ellis who was stationed at Cape Coast as the housing officer in charge of the corporation’s affairs in the Central Region at the material time denied having ever admitted anywhere or in any letter (exhibit B) that the drain in dispute was constructed by the defendant corporation. He emphasised in his evidence that he knew of his own knowledge “there is a natural water way (or earth drain) in the area. It was not the defendant corporation which constructed it. All that the defendant did was to construct its own drain which it later joined up to connect this natural earth drain. The natural water way is not on the plaintiff ‘s land at all.”
The plaintiff is suing in trespass. I have already pointed out that her evidence was rather scanty and failed to establish that the drain was constructed by the servants or agents of the defendant. The admission alleged by the plaintiff ‘s counsel to have been made by the defendant’s third witness, Ellis in his letter (exhibit B) is not borne out by the evidence. The defendant’s third witness positively denied any such admission. The relevant paragraph in the said letter exhibit B reads as follows: “As promised during our discussion, we have already started to weed the area of our earth drain as well as widening and regrading the bottom of the drain.” To get the proper and logical interpretation of the above paragraph the two words emphasised, i.e. “the” and “our” must exchange places because the paragraph considered in its true context means, “we have
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already started to weed our area of the earth drain as well as widening and regrading the bottom of the drain.” I have taken this view because from the boundary of the defendant’s housing estate the earth drain runs through a stretch of land of about 400 to 500 yards owned by other persons before reaching the area where the plaintiff ‘s house stands as I discovered during my inspection of the locus in quo. The drain then runs about 80 feet away past the plaintiff s house which stands along the Cape Coast—Jukwa road. Due to the considerable length of the drain it will cost a huge sum of money to change it into a concrete drain. Could it be believed therefore that the defendant’s third witness, Ellis really promised to construct 500 yards of concrete drain to relieve the plaintiff of her private burden? I would seriously question the authority of an officer of Ellis’s status to commit the Housing Corporation to such colossal expenditure without the prior authorisation of the management board of the defendant corporation.
It is untenable therefore to argue that the defendant by exhibit B admitted having constructed the earth drain and therefore the plaintiff was absolved of her responsibility to prove the alleged acts of trespass. There was also evidence from Ellis the defendant’s third witness that as a result of the plaintiff ‘s complaint he invited the town planning officer to the site who after checking up from the survey sheet assured him that the area through which the water course passes does not form part of the plaintiff ‘s land. The evidence does not show that the plaintiff was present when the town planning officer made the check at the site, so I treat that evidence as hearsay. But it calls to mind another serious defect in the plaintiff ‘s case. Apart from her bare assertion that her land measures 200 ft. by 115 ft. she failed to establish that she really owns the area where the drain runs. She failed to tender her title deeds to establish that she truly owns land measuring 200 ft. by 115 ft. which covers the earth drain. Her grantors could have been called to cure the defect but nobody was called by her to support her title. The only witness she called was Aggrey but he was called as an expert to try and establish that the earth drain was in a poor state of construction. Aggrey’s evidence was that the earth drain was about 40 ft. away from the plaintiff s house. The defendant’s first witness estimated the distance to be about 100 ft. away. From my own observation at the locus I estimate the distance to be about 80 feet away, and I cannot assume in the absence of positive proof from the plaintiff that all that stretch of land is part of the plaintiff s plot. This means the plaintiff failed to prove she was in possession of the area bordering the drain, and as I have already found that she failed to prove any act of trespass committed by the servants or agents of the defendant corporation, her claim in trespass therefore totters to the ground.
The plaintiff was originally claiming only in trespass but in the concluding portion of his final address learned counsel for the plaintiff broadened the claim to include liability under the Rylands v. Fletcher rule (see (1866) L.R. 1 Ex. 265 affirmed (1868) L.R. 3 H.L. 330). At the last minute a motion was filed by the plaintiff for leave to amend the endorsement on the writ so as to include a claim under the rule in Rylands v.
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Fletcher. On the evidence however the plaintiff can hardly sustain a claim under this head. The evidence clearly shows that the properties of both parties are situated in a low lying area surrounded by hills although the defendant’s site is a little higher than the plaintiff ‘s area with the result that after a heavy down-pour of rain, running water from the surrounding hills rushes down past the defendant’s housing estate in the direction of the plaintiff ‘s area. It then continues beyond the plaintiff s land and passes through a culvert under the Cape Coast—Jukwa road to the other side of the road. There was no evidence that any pool of water was ever allowed by the defendant to remain on its land. All that the defendant did was to construct suitable gutters on its housing estate so as to divert instantly away from its land any rain water which would otherwise have formed a pool there. Some of the gutters were connected to an earth drain which on the evidence I find was naturally in existence on the land. The said earth drain after passing through some 400 to 500 yards of intervening land eventually runs by the side of the plaintiff ‘s house some 80 feet away from it.
On those facts the defendant is not liable under Rylands v. Fletcher for any damage caused to the plaintiff ‘s property by water escaping from the drain during over flooding in a heavy rainfall. To sustain her claim the plaintiff must establish that there was an accumulation of water on the defendant’s property by deliberate act of the defendant such as constructing a dam or reservoir. In such circumstances the defendant should actively take steps to prevent the water from escaping to the neighbouring land to cause damage there or else answer for the consequences. This situation is covered by such cases as Broder v. Saillard (1876) 2 Ch.D. 692 where water brought to the land for the foddering of cattle escaped, and Rylands v. Fletcher (supra), where a reservoir was constructed on the land. The authorities show that if the water was naturally on the land and he did nothing to accumulate it there then the landlord was not liable if the water escaped to cause damage on neighbouring land. The case of Wilson v. Waddell (1876) 2 App.Cas. 95, H.L. illustrates this point.
To take the point further even if the water accumulated naturally on his land as in the last case, the landlord will be liable for any consequent damage if the water escapes as a result of active deliberate steps taken by him to transfer the misfortune from his property on to his neighbour’s land. This principle is well established by such cases as Whalley v. Lancashire and Yorkshire Railway Co. (1884) 13 Q.B.D. 131 and Hurdman v. North Eastern Railway Co. (1878) 3 C.P.D. 168, C.A. But on the facts of the instant case before the court the plaintiff cannot sustain a claim either under the strict liability rule in Rylands v. Fletcher or under the less strict rule in the Whalley case cited above because there was no evidence that there was ever any accumulation of water anywhere on the defendant’s property at any time.
The evidence shows that the defendant anticipating the possibility of flooding of its land in rainy weather was prudent enough to take reasonable and effective steps to prevent the expected flood which in fact is a common
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threat to all landowners in the area. The law in those circumstances permits the landowner in that sort of plight to construct gutters or walls to prevent the rain water which is a sort of common enemy, from remaining on his land. His adjoining landowners may follow suit so that the common enemy may be expelled from his land also. He incurs no liability thereby at the suit of his neighbour who complains that as the result of those precautionary measures taken by him there has been an excess flow of water on to his land. Thus in the case of Nield v. London and North Western Railway Co. (1874) L.R. 10 Exch. 4, an action having been instituted to recover damages for injury caused to the plaintiffs’ premises through water which was, as the plaintiff s alleged, thrown upon them through the act of the defendants in placing a barricade across their canal, by the side of which the plaintiffs’ premises were situated, Bramwell B. observed at p. 7 as follows:
“But it has been argued that the defendants had no right to defend themselves against the flood. That is an argument which I cannot understand; the flood is a common enemy against which every man has a right to defend himself. And it would be most mischievous if the law were otherwise, for a man must then stand by and see his property destroyed out of fear lest some neighbour might say ‘You have caused me an injury’.
The law allows what I may term a kind of reasonable selfishness in such matters; it says, ‘Let every one look out for himself and protect his own interest,’and he who puts up a barricade against a flood is entitled to say to his neighbour who complains of it, ‘Why did not you do the same?’ I think what is said in Menzies v. Earl of Breadalbane ((1828) 3 Bli (N.S.) 414, H.L.) is an authority for this, and the rule so laid down is quite consistent with what one would understand to be the natural rule.”
Other cases on the point are Gerrard v. Crowe [1921] A.C.395, P.C.; Maxey Drainage Board v. Great Northern Railway Co. (1912) 106 L.T. 429. The last three cited cases support the defendant’s case. The plaintiff s action therefore fails and is dismissed.
Costs to defendant assessed at 100.00 against plaintiff.
DECISION
Action dismissed with costs.
K. S. N.-D.
