[1997] SGCA 18

In the Court of Appeal of the Republic of Singapore

[1997] SGCA 18

CA 132/1996

Between

Medway Investments Pte Ltd

… Appellant

And

Trustees of the Estate of Cheong Eak Chong

… Respondent

grounds of decision

Land — Easements — Rights of support; Land — Easements — Rights of water; Land — Easements — Rights of water

This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.

Medway Investments Pte Ltd v Trustees of the Estate of Cheong Eak Chong

[1997] SGCA 18

CA 132/1996
Karthigesu JA; L P Thean JA; Yong Pung How CJ
14 May 1997

1 LP THEAN JA

4 The facts

5 The respondents are the trustees of the estate of Cheong Eak Chong and they own a large property known as No 5 Oxley Rise (the `higher property`). The appellants are the owners of the adjoining property known as Nos 35 and 41 Oxley Road (the `lower property`). The higher property is on the summit of a part of a hillock and on it stands, among others, a large two-storey mansion. On the south, immediately adjoining the higher property, is the lower property. The rear of the mansion faces southwards in the direction of the lower property and is connected by a covered walkway to a smaller building, next to which is a roofed structure which from the evidence appears to be a car park. From that point southwards the ground slopes downwards unevenly towards the lower property (`the slope`). Nearer to the lower property on the eastern side is what may roughly be termed a terrace, on which stands another roofed structure which we shall refer to as `the shed`.

9 The dispute

10 In or just before 1992, part of the retaining wall collapsed. There also occurred a subsidence in the soil adjacent to this collapsed portion of the retaining wall. Officers from the Building Control Division (`BCD`) upon inspecting the site concluded that the slope in that state was dangerous. The BCD therefore issued an order dated 10 January 1992 under the Building Control Act (Cap 29) to the appellants and the respondents requiring them to take remedial measures to protect the slope from further erosion. As a result of this order, both the appellants and the respondents engaged professional engineers to advise them and to make proposals or recommendations to be submitted to the BCD for approval.

The failure [of the slope] was probably triggered by the retaining wall within 35 Oxley Road giving way resulting in a slip failure of the slope above.

It is also our considered opinion that some adjacent retaining walls within 35 Oxley Road are potentially unstable and could lead to further slope failures.

Despite our efforts over the last few weeks, an amicable solution has yet to be reached between our clients and the owner of 35 Oxley Road over the questions of sharing of costs, connections to existing drains and future responsibilities including long term liability for the proposed works as well as provisions for maintenance. We are therefore unable to proceed on further at present.

19 (b). A declaration that this right entitles the respondents to discharge such surface or rain water through a drainage connection to the existing compound drains of the appellants` property or through some other connection and to enter the latter`s property to effect, at their own cost and making good all damage to the lower property, the construction of such connection and all ancillary works; and

20 (c). An injunction restraining the appellants from interfering with this right.

22 The decision below

23 In a reserved judgment (reported in [1997] 1 SLR 329) the learned judge allowed the application. First, he held that every landowner has a natural right of support from the adjacent and subjacent soil. The effect of this is that the adjoining landowner is under an obligation not to excavate his land in a manner which may cause a subsidence of his neighbour`s land. Consequently if the servient owner withdraws the natural support and substitutes it with an artificial support, such as a retaining wall, he must ensure that it is designed and constructed to be sound and strong to provide the support. Secondly, he held that the owner of land on a higher level has a right to let rain water flow naturally onto or into adjacent lower land, and that the owner of the lower land has an obligation to receive such water. Thirdly, he held in the alternative that this right is an adjunct right to the natural right of support. Fourthly, he held that the respondents had acquired an easement of drainage over the appellants` property and applied the doctrine of lost modern grant. In the result, he came to the following conclusion in [para ] 28:

In the result I accept the points of law submitted on behalf of the plaintiffs [the respondents]. They were entitled to rely on the doctrine of natural right lateral support, natural right to discharge rain water into the defendants` property and the right based on lost modern grant. By applying the law I hold that from the topography of the properties and the outline of two principles of land law I have set out, it is unarguable that the defendants [the appellants] bear two responsibilities. First they have to provide support to the plaintiffs` land to prevent landslide or subsidence of the plaintiffs` land where the two properties have a common boundary. This can happen if water accumulates against the retaining wall above or below ground level in the plaintiffs` property. Water will naturally accumulate below and above the ground if there is no adequate drainage. Secondly, the defendants are under an obligation to receive rain water that falls on the slope and the shed naturally flows towards the plaintiffs` property.

25 The appeal

26 Three issues were raised on behalf of the appellants: (a). whether the owner of a lower lying land is obliged to accept water percolating through or flowing on to his land from a higher land and whether he is entitled to pen it back;

27 (b). whether as an adjunct to the natural right of support, the lower lying land is obliged to receive the water and therefore the respondents are entitled to construct their drain or drains over the appellants` property; and

28 (c). whether the respondents have acquired an easement of drainage over the appellants` property.

29 Natural right of drainage

30 On the first issue, the authorities relied upon by counsel for the appellants and respondents in support of their respective cases are in some conflict, and it is necessary to consider them in detail. The starting point is John Young & Co v Bankier Distillery Co [1893] AC 691. There, the respondents had for many years been using the water flowing downstream for the purpose of their distillery. The appellants, who were miners and whose property was further up the stream, in the course of their mining, had poured into the stream a large quantity of water which they had pumped up from their mines. The respondents found that the quality of such foreign water was different and prejudicially affected the water of the stream which they had been using for distillery purposes. They brought an action against the appellants. The Court of Session held that the appellants were not entitled to discharge into the stream the water they had pumped up from their mines. The appellants appealed and their appeal was dismissed by the House of Lords.

... A riparian proprietor is entitled to have the water of the stream, on the banks of which his property lies, flow down as it has been accustomed to flow down to his property, subject to the ordinary use of the flowing water by upper proprietors, and to such further use, if any, on their part in connection with their property as may be reasonable under the circumstances. Every riparian proprietor is thus entitled to the water of his stream, in its natural flow, without sensible diminution or increase and without sensible alteration in its character or quality.

The right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive, natural water, whether flowing in a definite channel or not, and whether upon or below the surface, are incidents of property arising from the relative levels of their respective lands and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground is due to gravitation, unless it has been unduly and unreasonably increased by operations which are in aemulationem vicini. But he is under no legal obligation to receive foreign water brought to the surface of his neighbour`s property by artificial means; and I can see no distinction in principle between water raised from a mine below the level of the surface of either property, which is the case here, and water artificially conveyed from a distant stream.

The law of Scotland upon this point is the same with that of England. In Blair v Hunter, Finlay & Co, Lord Gifford said: `Although there is a natural servitude on lower heritors to receive the natural or surface water from higher grounds, the flow must not be increased by artificial means, although reasonable drainage operations are permissible.` The rule that the upper heritor cannot interfere with the gravitation of the water so as to make it more injurious to the land below is clearly stated by Erle CJ in Baird v Williamson, which was rightly accepted by the First Division as establishing a principle conclusive of the present case.

35 Gibbons v Lenfestey [1915] 84 LJ PC 158 on an appeal from the decision of the Royal Court of Guernsey. In that case, the respondent had stopped up a hole in the wall between the appellant`s land and his own which had previously allowed the natural flow of water from the appellant`s land to his land. The wall had been constructed in pursuance of a verbal agreement by the respective predecessors in title. The respondent`s actions resulted in severe flooding of the appellant`s land. The appellant, according to the law of Guernsey, could not rely on the verbal contract which had to be registered in order to have binding effect on successors in title. The Privy Council, however, held that theowner of the higher land had the right to have the water which naturally fell on his land discharged onto the contiguous lower land of another proprietor. Lord Dunedin, delivering the advice of the Board said, at p 160:

... But the true cause of action is not the agreement of 1872; it is the natural right of a superior proprietor to call on the inferior proprietor to receive the water that naturally flows from the higher to the lower level. The agreement of 1872 is nothing as regards binding force; it is merely narrative of how the natural flow of the water came to be as it was.

The law of Guernsey, differing in this respect from some other systems, does not allow of the constitution of ordinary servitude or easements except by grant. But the right of the superior proprietor to throw the natural water on the lower land is not an ordinary servitude to which this rule can apply. It is a natural right inherent in property; it is a question of nomenclature whether it is or is not called a servitude. Their Lordships do not doubt that the law of Guernsey in this matter is the same as that of every other country whose jurisprudence is traceable to Roman sources. Indeed, even the countries ruled by the common law have accepted the Roman rules. ... The law may be stated thus: Where two contiguous fields belong to different proprietors, one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water that falls from the superior.

36 Bailey v Vile & Anor [1930] NZLR 829. In that case, the appellant and the respondents were owners of adjoining agricultural farms with the latter`s farms on a higher level than that of the appellant`s farm. In farming on their property the respondents kept open certain surface drains constructed long ago and these drains conveyed the surface water from their farms to the appellant`s. The appellant claimed that this flow of water caused his land to be flooded and claimed an injunction which was refused at first instance. He appealed, and his appeal was dismissed by the Court of Appeal following the decision of the Privy Council in Gibbons v Lenfestey . Blair J said, at p 839:

The question here is as to the extent of liability of appellant`s lands to take the natural water from respondents` properties, notwithstanding that such natural waters have been more or less confined into drains, and notwithstanding that no easement is registered on the title. As already pointed out, the natural fall of the land is from the respondents` properties towards the appellant`s. There is thus created by nature itself a servitude whereby the lower-lying property is required to take the water flowing naturally from the higher to the lower land. It has never been questioned that an owner of land has to take it with all its natural burdens. This liability has to some extent been defined. The necessity for this definition arises from what is called the natural use of the land. The law on this subject has been definitely settled by the Privy Council in Gibbons v Lenfestey 84 LJ PC 158.

37 Gibbons v Lenfestey was also followed in India. In Sheik Hussain Sahib v Pachipulusu Subbayya [1925] ILR 49 Mad 441, the plaintiff`s land was on higher ground than the defendant`s land, and rain water from the plaintiff`s land naturally flowed to the defendant`s land. The defendant erected a bund on his land, the effect of which was to pen back the plaintiff`s water. The plaintiff brought an action seeking an injunction restraining the defendant from obstructing the flow. It was held by the appellate court in Madras that an owner of lower landto which the surface water from the adjacent higher land naturally flowed was not entitled to deal with his land so as to obstruct the flow of water from the higher land and that Gibbons v Lenfestey was a direct authority binding on the court.

38 Scott Rural Municipality v Edwards [1934] 3 DLR 793; the decision of the High Court of Australia in Gartner v Kidman (1961-1962) 108 CLR 12; and a recent decision of the court of first instance in England in Home Brewery plc v William Davis and Co (Loughborough) Ltd [1987] 1 All ER 637. Relying on these authorities, counsel submitted that the principle laid down in Gibbons v Lenfestey (supra) is not the principle of common law in Canada, Australia and England and urged us to reject it as a principle of common law in Singapore.

39 Scott Rural Municipality v Edwards (supra). There, the Supreme Court upheld the decision of the Saskatchewan Court of Appeal that a right of drainage of surface water does not exist jure naturae and the owner of a lower property may lawfully erect a dam on his own property to keep out the water or pen it back to the land of the higher proprietor. Martin JA delivering the judgment of the Saskatchewan Court of Appeal (with which the Supreme Court concurred) said, at p 796:

I cannot but conclude that the weight of authority in the Provinces of Canada where the English common law prevails is that the principles which apply to water flowing in a defined channel do not apply to surface water - water of a temporary and casual character - which does not flow in any regular channel and has no certain course but which merely squanders itself over the surface of the ground. A right of drainage of surface water does not exist jure naturae and the plaintiff was within his rights in attempting by the erection of the drain on his own property to keep the surface water which had accumulated on sec 20 and on the road allowance from draining onto sec 21.

40 Gartner v Kidman (supra). There, rain water was collected in a swampy basin that was mainly on the plaintiff`s property and also partly on the defendant`s. In wet weather, the water from the basin would overflow onto the defendant`s land and travel along a depression on the defendant`s land into a sandpit whereupon it escaped into the ground. The predecessor in title of the plaintiff had dug a drain along the depression and this drain was subsequently enlarged by another predecessor. These works were executed without any objection from the defendant`s predecessors in title. The drain helped to drain the plaintiff`s land so that less of it was submerged under water during the rainy season. The defendant subsequently discovered that the sand from the sandpit had a commercial value. He therefore built two sand banks across the drain which kept the water from entering the sandpit. This had the effect of penning the water back into the swamp and flooding it. Consequently, the plaintiff had less grazing land and his vegetation in the flooded area was destroyed. He therefore commenced an action for an injunction and damages. The Supreme Court of South Australia grantedthese reliefs. On appeal, the High Court of Australia allowed the appeal and found for the defendant.

41 Gibbons v Lenfestey (supra) preferring an approach grounded on the concept of reasonable user of land. At p 46, he held:

After considering a great number of authorities in addition to those I have referred to, but which I do not find it necessary to discuss in detail, I have come to the conclusion that the correct view is that the so-called rule of the civil law that the owner of higher land has a right to insist upon his lower neighbour receiving surface water running off his land is not part of the common law as it exists in Australia and that so far as the dicta in the Privy Council case suggest that it is they should not be followed by this court. ... the law is, I think, that he may block it by any works on his own land, so far as they are reasonably necessary to protect his land for his reasonable use and enjoyment; but that in doing so he must not act recklessly of his neighbour so as to cause wanton damage to him.

The higher proprietor: he is not liable merely because surface water flows naturally from his land on to lower land.

He may be liable if such water is caused to flow in a more concentrated form than it naturally would.

It flows in a more concentrated form than it naturally would if, by the discernible work of man, the levels or conformations of land have been altered, and as a result the flow of surface water is increased at any particular point.

If a more concentrated flow occurs simply as the result of the `natural` use of his land by the higher proprietor, he is, generally speaking, not liable. What is a natural use is a question to be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased: ...

...

The lower proprietor: He may recover damages from, or in appropriate cases obtain an injunction against, the proprietor of the higher land who is, for any of the reasons given above, liable to an action because he has concentrated or altered the natural flow.

Although he has no action against the higher proprietor because of the natural unconcentrated flow of water from his land, he is not bound to receive it. He may put up barriers and pen it back, notwithstanding that doing so damages the upper proprietor`s land, at all events if he uses reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case depends upon its own circumstances.

It may be added that the proprietor`s right to defend his land against water coming upon it by erecting barriers, is generally speaking restricted to penning it back on to thehigher land whence it would otherwise have naturally come. It does not entitle him to divert it on to the land of a third proprietor to which it would not have naturally gone to the damage of that proprietor.

43 Home Brewery plc v William Davis and Co (Loughborough) Ltd (supra), a decision of the High Court in England. In that case, water from the plaintiff`s land was drained to the adjoining lower land which had two disused clay pits and an osier bed. The defendants bought over the adjoining land for the purpose of developing it for a housing project. They filled up the pits. This had the effect of restricting the flow of water from the osier-bed to the pit and in turn restricting the flow of water from the plaintiffs` land. In effect, the defendants had erected a partial barrier against the flow of water from the plaintiffs` land. The plaintiffs` land became flooded during heavy rainfalls, and pumps had to be installed to alleviate the flood. The plaintiffs brought an action against the defendants claiming damages for nuisance. Mr Piers Ashworth QC, sitting as a Deputy High Court judge, declined to follow the Privy Council`s decision in Gibbons which was not binding on him. He rejected the rule that the owner of higher land could insist on the lower land receiving surface water as one of the civil law which did not represent the common law. He expressed his views on the common law position in the following terms, at p 644:

I hold that the common law rule is that the lower occupier has no ground of complaint and no cause of action against the higher occupier for permitting the natural, unconcentrated flow of water, whether on or under the surface, to pass from the higher to the lower land, but that at the same time the lower occupier is under no obligation to receive it. He may put up barriers, or otherwise pen it back, even though this may cause damage to a higher occupier.

44 John Young (supra) at pp 696-697 which merits repetition:

45 Gibbons .

No doubt a proprietor may not build on the extreme verge of his property and then throw water off his roof on to the neighbour`s land; ... But if the water from the roof of a building falls on the proprietor`s own grounds it does not cease to be natural water, but must be received by the lower proprietor as the water was received before the building was there.

48 Wilsher v Corban & Ors [1955] NZLR 478 at p 490, North J carried out a comprehensive review of the authorities and held that Gibbons established the following principles:

First, the obligation of the inferior proprietor to receive the natural waters flowing from higher land was not an ordinary servitude which required to be supported by an express grant, or by registration to bind successors. Secondly, it could never be said as a matter of law that the collection of surface waters into one body per se was not a natural user of land for this was a question of fact which required to be determined in each case with due regard to the whole of the surrounding circumstances. Thirdly, if the facts disclosed that the natural waters from the superior tenement had been cast on the inferior tenement in a certain place over a period of years, then prima facie, at all events, the inferior proprietor was obliged to receive the surface waters in this way. Fourthly, the mere circumstance that surface waters had been collected into one body and so discharged on to the inferior tenement did not necessarily alter the nature of the right and, therefore, no question of the need of an express grant or of registration need arise.

49 Davies & Anor v Lethbridge & Anor [1976] 1 NZLR 689. This case is of particular relevance, as the facts bore some similarity to those in the present case. The plaintiffs and the defendants were owners of adjoining residential properties. The plaintiffs` land was slightly below that of the defendants` and the surface water would flow from the defendants` land to the plaintiffs`. The prior owner of the defendants` land had built a concrete retaining wall along the common boundary and part of the back boundary. This deflected the flow of water from the defendants` land to the plaintiffs` and it flowed along the wall and then crossed the plaintiffs` back fence. The defendants after they had bought the land filled the rear part of the land to the level of the top of the concrete wall. On heavy rainfalls the surface water from the defendants` land ran over the top of the wall and in some cases percolated through the wall discharging on to the plaintiffs` land. On the plaintiffs` complaint, the defendants dug a ditch on their side of the wall to lead the water down to the bottom of their land. Notwithstanding that, the plaintiffs brought an action against the defendants complaining that the ditch was insufficient to drain the water and obtained damages in the magistrates court.

50 Wilsher v Corban (supra). He found that the land of the plaintiffs was at all times on a level lower than the defendants` land and when both properties were in their natural state the plaintiffs` land receivedthe natural flow of the surface water from the defendants` land. When the concrete retaining wall was built it deflected temporarily the flow of water from the plaintiffs` land. But when the defendants filled the section of their land to the level of the top of the retaining wall, the surface water which had been deflected returned and flowed over the wall to the plaintiff`s land in the same quantity as before and without any altered velocity or concentration. He held that the right of the higher owner of land to allow surface water to flow to the lower land is subject to three limitations. He said, at p 695:

Once the civil law natural servitude is seen to form part of the common law of New Zealand it then applies subject to three principal limitations. First, the lower tenement is not obliged to accept `foreign water`, meaning thereby water arriving on the upper tenement from elsewhere by means of active collection by the occupier, this being an exception specifically nominated by Lord Dunedin in Gibbons v Lenfestey. Secondly, there is the `artificial structure` exception exemplified by Whalley v Lancashire and Yorkshire Railway Co [1884] 13 QBD 131 and Hurdman v North Eastern Railway Co [1878] 3 CPD 168, whereby the superior occupier will be liable if by artificial means, including the erection of buildings or raising of soil level, he causes natural surface water to pass on to the lower tenement in a way different from before and causes damage which was absent when the lower tenement received the surface waters by natural flow. Thirdly, the user of the superior tenement will be held not to be natural user if the result is to discharge surface water on to the lower land with an altered concentration or velocity, causing damage which did not occur when the lower tenement received the surface water by natural flow.

53 An adjunct right of the natural support

54 The learned judge also relied, as an alternative and discrete ground for his decision, on the natural right of support to justify the right of the respondents to enter the lower property to build the connecting drain. He began with the proposition that the higher land has a natural right of support from the adjacent and subjacent soil and that it is a natural right in the sense that it arises from ownership of land. It is not an easement and does not depend on any grant: see Dalton v Henry Angus and Co [1881] 6 App Cas 740. But that is merely a right not to have the support removed without replacement; it does not impose a positive duty on the owner of servient tenement. It does not prevent the servient tenement from being altered from its natural state. It only insists that if such alteration occurs, the servient owner is obliged to provide an alternative, albeit artificial, means of support.

56 Bond v Nottingham Corporation [1940] 1 Ch 429 at p 438:

The nature of the right of support is not open to dispute. The owner of the servient tenement is under no obligation to repair that part of his building which provides support for his neighbour. He can let it fall into decay. If it does so, and support is removed, the owner of the dominant tenement has no cause for complaint. On the other hand, the owner of the dominant tenement is not bound to sit by and watch the gradual deterioration of the support constituted by his neighbour`s building. He is entitled to enter and take the necessary steps to ensure that the support continues by effecting repairs, and so forth, to the part of the building which gives the support. But what the owner of the servient tenement is not entitled to do is, by an act of his own, to remove the support without providing an equivalent. There is the qualification upon his ownership of his own building that he is bound to deal with it, and can only deal with it, subject to the rights in it which are vested in his neighbour.

60 Easement of drainage

61 We turn to the final issue in this appeal. The learned judge found that the respondents had acquired an easement of drainage over the property of the appellants, and this finding was challenged by the appellants.

Karthigesu JA
L P Thean JA
Yong Pung How CJ

Vangat Ramayah (Wee Ramayah & Partners) for the appellants
Alvin Yeo and Lena Chan (Wong Partnership) for the respondents