ALBERT BROWNE v ORMOND WILLIAMS

~. ' H , ., ~g) SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE • CASE NO. 91 of 1993 ( BETWEEN: , 't " ALBERT BROWNE of Cane Hall PtAIN'fIFF AND '\ ORMOND WILUI\L1S ofOIlC'cn's Dnve I \' 't Mr. A. F. Williams for the plahtiff Mr. P.R. Campbell for the defendant " 15th Octlber. 1997 , 1 DeliVt:red 6t~ rovember, J9~7 I, " ••'p illDGMENT . , i BAPTISTE J. ; \ I r . ,I This IS a case in private nu' sanfe brought by tfe plaintiff wherein I.e testjfied that \,11 t Ie v:a4'~ . from the defendant's land is channelled into his land thus occasio.ning dantage to hi.; lrutd. Tli~ plaintiff alleges that the water devalues his land, forms holes ,lnd ditches pU along the way ,and. flooded the downstairs of .)n( of his properties. Further the water affects lis sav~ah~ lawn ard· 1 -: plants. As far as the savannah is cOl1lerned it impacts negatively on 'hi~ cattle rur thqy cal1~ot , graze properly because the mud from the water 'covers the grass especiallr in the 5crlny ,l~aso~. , The plaintiff is therefore seeking a declaration, injunctive relief, darttages abd costs. " " t, i ' " The defendant in paragraph 4 of his dclc~~e states: h ' I .. "The plaintiff owns land which adjoin the 1efendantls lan~s, ,T e to~Og~~p~y of the land is such that the defendant has no chntrol over the' wate that flows to ,,..' ~ .JI the plaintiffs lands from the defendant's land or otherwis~. II I II t.. , j., f At paragraph 5 he states: ' . liThe Defendant has dug drains at {rarious points on his lan~ t~ take ~nd , conduct water ~way from the Plainti~S land ~thOut ~Usin~d1e.' H~wev~. " . I , ,t

t f " 2 / ' 1 the plaintiffs lands lie on the bottom side of the slope l1c1nw the dt;!felll..hul s. lands, and the area being mountainous is characterised by I; 'ge Jo~ges wh~ch arc made by the. patch of the mil' water through th". defenpan " I rlaintifrs lands." " t The facts as I find them are as follow~ I , I The plaintiff and tht defendant both live at Queen's Drive: on the island of Saint Vincent an'd the, both own land there, The dcl:,nd.nt has one ;usc on his lan,1 and th~ ~;aintitr'hal t",n, lh~ 1 defendant's land bounds fith that of the plair tib. The lane! if'} question is hilly. In faqt the land slopes down with the detlndant~s' land situated above that of the plaintiff. ~bove the ~~I~ndalll's I , land is a public road, the Queen'~ Drive ma~n road. This puhlic road has ~etved a.s a vehicle for the transportation of rain water which has caused soil erm.ion dn the l~nds in ques~ion. '.1'0 counter the problem of soil erosio~, a system of contour fl'ass b,~rriers /was instituted by the Ministry of Agriculture. IhM'cve/ the contour grass barrier 'II) the plainlitr~ land w.rs destroyed , 'I by the plaintiff's brother to racilftate the potato frop. There are a ntll11ber ofgullies 1Td ~'orgt.;s ft~ well as natural springs on the land of the plaintiff and defendant. The plaintitl's land ha"s f~ncrc~I' , erosion over the years. • t According to Clerk and Linds.ell on Tor'lS: " 1\ private nuisance may he and usually is caused hy a pL"rson doing O~l IllS f , , own land, something which he is lawfully entitled to do, His conduct onCy (' becomes a n~isance when the consequences of hi~ act are not confined to ihi~ i " own land, but extend to the land ofhis neigh~ur by ... causing ph~sical damage 'f I t, 1 t • to his neighbour's land ~r building or works o~ vegetation ~pon it .. f " [See ~I~~ " and Lindsell on Torts, 1'7 edi1ion. tlara 18.05 p,ge 8911 . . I I \ I As we have seen, the plaintiff is alleging such physical dam~ge to ~ ~and, tb!;dirl'g and vegetation. The plait\tiff complaips about the d~fendant domestic waterr rain water ,fro~ the t t • .'J • 1 ,I • defendant's roof and water from tile defendant's land. l He stat:d that ~ere is a drain pn the \ ' ' • I dclcndanl's land thaL takes lhe ~all r ri'om the dclcndant's land amI directs itlinto his land. In his evidence the defendant stated thaL:- f . , 't " ... my house has two noors, A 8round fldflr and a first floor. The house is ~ . about 60 feet by 54 feet. It is el shaped. To avoid the water flowing. into tvl', . , ~ i . Browne's area, the water' was put away from Mr. Brov. Ie's land and more towards Mr. rylvesters land There is a soak-a-v·.·.y. ~t;s h lih.;itr blocks wil,h ." steel reinforcement and rabacca and quarry wasf.e. It IS about 10 titt long. : It.,~ t f, ' t r on the lower side of the hous·. I have no gu,~ring.: ThF ~~te~ •om my r.cl)o_ ' falls onto a concrete t~rrace. lit flows very ldzily OB to the soMa-way. The system was~ so constru\:ted to prevent th,e water from going dO~II. ~n r e J , . 'p

t' 3 ) : I , eastern side t~rl is a drain. lhe wholb rationale of.a hcad drain :is t~, trap Ihl' , l water from th~ ter of tile land. It traps or channels lhc water. Some of the w~t~rP permeates. I had a .lead drain huilt "11 my land. II was flowing rnHld sOllth \\:'SI to north east. My head urain went straight down into the interlock drain. What r the plaintiff said is incorrect My drain did not lead t. his Iplld." ' , \ r The ~e~endant appeared to mc to he a credih/e witness <lnd gave his evidence inl;.&·" Illk • ,jl~\:' convincing manner. ' , ~ f. • , . , The defendant further testifie(l: "I observed that when the water came"from the road to Mr. Sylvester's land. r the furrows - each furrow is a potential drain - from these fitrrows the watcr was 'f , channelled into my land, then my la Ild was used as a conduit to transport ,the • I water to Mr. Browne's land during rainfall. 1;he drain helped to ward off son1e . ~ . '" , t of the water." , I l I The defendant further deposeo that he ha5 no tenants: his family' eonsiste~ of one pe;son, onl1 I • , I himself and since about 1980 he had been living on hi~ own. He did not have a domestic helper. The water from his domestic activity went into the soak-a-way an~ to Mr. S~l'teste*s t'd~, I , I" , . I accept the evidence of the defendant and hold that the defendal t has done nothitlg on his ,ana I " I so as to constitute a nuisance. 1 also 'hold that the topography of the area is such as to facili lle the erosion of the land by rain water. The rJ!moval or the contour grass bar~ier fI'oll1 Ihl.: plaintiffs land would not have helped the situation. I am also ofthe .. iew that ,the defehdta~l did', t . all that was reasonable in the circumstances to control the water on IllS land . . · · t Considering that the very essence of private nuisance is tl.< unrea, Olla~ei user by a ma~ ot: Js land to the detriment,:>f his neighbour, I can find nothing in the psel of.hr ~and by the defendant '\' t fl , , I which could be described as unreasonable. I' 'r I ~ , I' I As stated in Clerk and Lindsell on Torts 17th edition, plla 19.1.7 al)d para 1· .28: . .. I " ~ i "Liability! in respect (f water depends on w~ether the water is n rally on the land or whether it is al1jftcially accum~lat~d' or i~terf(:red with i, some'~y. The owner of'arf on (\ lower ~and '-:lrJOt complam of water nat ally fl.Q~l~ • or percolating t~ his land from a higher level. Nevcrtheles, 'the higher , . . proprietor is liable if he deliberately, drains his land on to his neighoour's,land, and this appears to be so if the water is caused to tlJW in a mGretconcentrated form that it naturally woul~as the result of artificial :'iterations in ~e levels and contours of the higl~e:r land~ 1\ r : '

f 4 I -'" .. Although the lower proprietor cannot complmn of the lIalural l.l~oncenlratul now or percolating water ii-om a higher lund, "hc may pUlllp barriers aliil pl..'ll il • • back, notwithstanding that doil1~ so damages the upper proprietor's land. r,t all events if he uses reasonable care and ski'~l and does no more than IS reasonable f , I necessary to protect his enjoyment of h~s own land. Rut he must not act for the r purpose of injuring his neighbour." ! ~ , . , 'l I From the evidence I am satisfied that the plaintiff ha.$ not made 'out a ca~e in privilttJ. Illlis<lI1T against the defendant. The :1efend~nt has not deliberately or recklessly used his land. in a way I ' which he knows will cause harm to the plaintiff an~ which could constitute on uJlfcMsonahlc • ~. I infringement of the plainti frs intel ~st in his proptfty. and therefo're an unrifasonaJe user hy the dclcmhmL On t.he contrary the dclClItlanl has ~aken all r~asonahk stcp:-;' lo prevcnt ,his \' ,lk! , . flowing on to the plaintiff's p~oP'rt~. I conclude that the wate,.r damage would be cau.!;e(" hy water naturally flowing or percolating to the land (.£th6 plaintiff fro III a higher level.. f ' . , In the circumstances, the plaintiff's claim is dismissed. Costs to be ta~ed in not agreed. . , .I/ I "?.~~ " " "c_ ~'" ,r Davidson elv~n Baptiste ,~ . , l ~. HIgh Court Jud~e (Ab-)" 11 , If ! I ' ~ , " I I I , 1 ,f .,'p ',I I , r ~ . ", , - f ' , \ , [ -, I, r f " I \: .. , .. r·

~. ‘ H , ., SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE • CASE NO. 91 of 1993 ( BETWEEN: , 't “ ALBERT BROWNE of Cane Hall PtAIN’fIFF AND ‘\ ORMOND WILUI\L1S ofOIlC’cn’s Dnve I \’ 't Mr. A. F. Williams for the plahtiff Mr. P.R. Campbell for the defendant “ 15th Octlber. 1997 , 1 DeliVt:red 6t~ rovember, J9~7 I, ” ••'p illDGMENT . , i BAPTISTE J. ; \ I r . ,I This IS a case in private nu' sanfe brought by tfe plaintiff wherein I.e testjfied that \,11 t Ie v:a4'~ . from the defendant’s land is channelled into his land thus occasio.ning dantage to hi.; lrutd. Tli~ plaintiff alleges that the water devalues his land, forms holes ,lnd ditches pU along the way ,and. flooded the downstairs of .)n( of his properties. Further the water affects lis sav~ah~ lawn ard· 1 -: plants. As far as the savannah is cOl1lerned

it impacts negatively on ‘hi~ cattle rur thqy cal1~ot , graze properly because The mud from the water ‘covers The grass especiallr In the 5crlny ,l~aso~. , the plaintiff. is therefore seeking a declaration, injunctive relief, darttages abd costs. “ “ ~g) i ‘ “ the defendant in paragraph 4 of his dclc~~e states: h ‘ t, 'I .. the plaintiff owns land, which adjoin the 1efendantls lan~s, ,T e to~Og~~p~y of the land is such that the defendant has no chntrol over the’ wate that flows to ,,..’ ~ .JI the plaintiffs lands from the defendant’s land or otherwis~.II I II t ~ , t .'J f ~ ,I At paragraph 5 He states: 1 I “ , ! ‘. ‘ 1 liThe Defendant has dug drains at {rarious points on his lan~ t~ take ~nd , conduct water' ~way from the Plainti~S land ~thOut ~Usin~d1e.’ H~wev~. ” . I I , ,t t f “ 2 / ‘

1 the plaintiffs lands lie on the bottom side of the slope l1c1nw the dt;!felll..hul s. lands, and the area being mountainous is characterised by "I ‘ge Jo~ges wh~ch arc made by ,the patch of the mil’ water." through th”. defenpan I rlaintifrs lands.” “ t The facts as I find them are as follow~ I , I The plaintiff and tht defendant both live at Queen’s Drive: on The island of Saint Vincent an’d the both own land there, the dcl:,nd.nt has one ;usc on his lan,1 and th~ ~;aintitr’hal t”,n, lh~ 1 defendant’s land bounds fith that of the plair tib. ,the lane! if’} question is hilly. in faqt the land slopes down with the detlndant~s’ land situated above that of the plaintiff. ~bove the ~~I~ndalll’s I , land is a public road, 'the Queen’~ Drive ma~n road. this puhlic road has ~etved a.s a vehicle for the transportation of rain water which has caused soil erm.ion dn

the l~nds in ques~ion. ‘.1’0 counter the problem of soil erosio~, a system of contour fl’ass b,~rriers /was instituted by the Ministry of Agriculture. IhM’cve/ the contour grass barrier ‘II) The plainlitr~ land. w.rs destroyed , I by the plaintiff’s brother to racilftate the potato frop. There are a ntll11ber ofgullies 1Td ~’orgt.;s ft~ well as natural springs on the land of the plaintiff and defendant. the plaintitl’s land ha”s f~ncrc~I’ , erosion over the years. • t According to Clerk and Linds.ell on Tor’lS: ” 1\ private nuisance may he and usually is caused hy a pL”rson doing O~l IllS f , , own land, something which he is lawfully entitled to do, His conduct onCy (‘ becomes a n~isance when the consequences of hi~ act are not confined to ihi~ I, “ own land, but extend to the land ofhis neigh~ur by … causing ph~sical damage f I t, 1 t • to his neighbour’s land r· building

or works o~ vegetation ~pon it .. f ” [See ~I~~ “ and Lindsell on Torts, 1’7 edi1ion. tlara 18.05 p,ge 8911 . . I I \ I As we have seen, the plaintiff is alleging such physical dam~ge to ~~and, tb!;dirl’g and vegetation. The plait\tiff complaips about the d~fendant domestic waterr rain water ,fro~ the t t • .’J • 1 ,I • defendant’s roof and water from tile defendant’s land. l He stat:d that ~ere is a drain pn the \ ‘ ‘ • I dclcndanl’s land thaL takes lhe ~all r ri’om the dclcndant’s land amI directs itlinto his land. “ In his evidence the defendant stated thaL:-f . , ‘t ” … my house has two noors, A 8round fldflr and a first floor. The house is ~ . about 60 feet by 54 feet. It is el shaped. To avoid the water flowing. into tvl’, . , ~ i e . Browne’s area, the water’

was put away from Mr. Brov. Ie’s land and more towards Mr. rylvesters land There is a soak-a-v·.·.y. ~t;s h lih.;itr blocks wil,h .” steel reinforcement and rabacca and quarry wasf.e. It IS about 10 titt long. : It.,~ t f, ,t I ‘ t r on the lower side of the hous·. I have no gu,~ring.: ThF ~~te~ •om my r.cl)o_ ‘ ~ falls onto a concrete t~rrace. lit flows very ldzily OB to the soMa-way. The system was~so constru:ted to prevent th,e water from going dO~II. ~n r1 ‘. e I, ,. J , . “ ‘p . I t’ 3 ) : I , eastern side t~rl is a drain. lhe wholb rationale of.a hcad drain :is t~, trap Ihl’ , l water from th~ ter of tile land. It traps or channels lhc water. Some of the w~t~rP permeates. I had a .lead drain huilt “11 my land. II was flowing rnHld sOllth \:’SI to north

east. My head urain went straight down into the interlock drain. What r the plaintiff said is incorrect My drain did not lead t. his Iplld.” ‘ , \ r The ~e~endant appeared to mc to he a credih/e witness <lnd gave his evidence inl;.&·” Illk • ,jl~:’ convincing manner. ‘ , ~ f. • , . , The defendant further testifie(l: “I observed that when the water came”from the road to Mr. Sylvester’s land. r the furrows -each furrow is a potential drain -from these fitrrows the watcr was ‘f , channelled into my land, then my la Ild was used as a conduit to transport ,the • I water to Mr. Browne’s land during rainfall. 1;he drain helped to ward off son1e . ~ . ‘” , t of the water.” , I l I The defendant further deposeo that he ha5 no tenants: his family’ eonsiste~ of one pe;son, onl1 I • , I himself and since

about 1980 he had been living on hi~ own. He did not have a domestic helper. The water from his domestic activity went into the soak-a-way an~ to Mr. S~l’teste*s t’d~, I , I” , . I accept the evidence of the defendant and hold that the defendal t has done nothitlg on his ,ana I ” I so as to constitute a nuisance. 1also ‘hold that the topography of the area is such as to facili lle the erosion of the land by rain water. The rJ!moval or the contour grass bar~ier fI’oll1 Ihl.: plaintiffs land would not have helped the situation. I am also ofthe .. iew that ,the defehdta~l did’, t . all that was reasonable in the circumstances to control the water on IllS land . . · · t Considering that the very essence of private nuisance is tl.< unrea, Olla~ei user by a ma~ ot: Js land to the detriment,:>f his neighbour, I can

find nothing in the psel of.hr ~and by the defendant which could be described as unreasonable. I’ ‘r I ~ ,, ,t fl ‘\’ I’ I As stated in Clerk and Lindsell on Torts 17th edition, plla 19.1.7 al)d para 1· .28: I . .. I ” ~ i “Liability! in respect (f water depends on w~ether the water is n rally on the 1 land or whether it is al1jftcially accum~lat~d’ or i~terf(:red with i, some’~y. The owner of’arf on (\ lower ~and ‘-:lrJOt complam of water nat ally fl.Q~l~ • or percolating t~ his land from a higher level. Nevcrtheles, ‘the higher , . . proprietor is liable if he deliberately, drains his land on to his neighoour’s,land, • I ‘ and this appears to be so ifthe water is caused to tlJW in a mGretconcentrated form that it naturally woul~as the result of artificial :’iterations in ~e levels and I I contours of the higl~e:r land~1\ ,

\ r i : * i 1 : ‘ • • f 4 I -‘” .. Although the lower proprietor cannot complmn of the lIalural l.l~oncenlratul now or percolating water ii-om a higher lund, “hc may pUlllp barriers aliil pl..’ll il back, notwithstanding that doil1~ so damages the upper proprietor’s land. r,t all events if he uses reasonable care and ski’~l and does no more than IS reasonable f , I necessary to protect his enjoyment of h~s own land. Rut he must not act for the r purpose of injuring his neighbour.” ~ , . , ‘l ! I From the evidence I am satisfied that the plaintiff ha.$ not made ‘out a ca~e in privilttJ. Illlis<lI1T against the defendant. The :1efend~nt has not deliberately or recklessly used his land. in a way I ‘ which he knows will cause harm to the plaintiff an~ which could constitute on uJlfcMsonahlc • ~. I infringement of the plainti frs intel

~st in his proptfty. and therefo’re an unrifasonaJe user hy the dclcmhmL On t.he contrary the dclClItlanl has ~aken all r~asonahk stcp:-;’ lo prevcnt ,his \’ ,lk! , . flowing on to the plaintiff’s p~oP’rt~. I conclude that the wate,.r damage would be cau.!;e(” hy water naturally flowing or percolating to the land (.£th6 plaintiff fro III a higher level.. f ‘ . , In the circumstances, the plaintiff’s claim is dismissed. Costs to be ta~ed in not agreed. . , .I/ I “?.~~” “ “c_ ~'” ,r Davidson elv~n Baptiste ,~ . , l ~. HIgh Court Jud~e (Ab-)” 11 , If ! I ‘ ~ , “ I I I , 1 ,f ., ‘p , ‘,I I \ , r , ~ . “, , -f ‘ [ 1 -, I, r I’ f . f “ I : ! ,~ .. , .. ~ ‘1 r· t’