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    Home » Judgments » High Court Judgments » FITZROY MC KREE v JOHN LEWIS

    1
    ST VINCENT AND THE GRENADINES
    IN THE HIGH COURT OF JUSTICE
    CIVIL SUIT NO.88 OF 1999
    BETWEEN:
    FITZROY MC KREE
    Plaintiff
    and
    JOHN LEWIS
    Defendant
    Appearances:
    Paula David for the Plaintiff
    John Bayliss Frederick for the Defendant
    – – – – – – – – – – – – – – – – – – – – – – – – – – – –
    2000: September 20, 22, 27
    – – – – – – – – – – – – – – – – – – – – – – – – – – – –
    JUDGMENT
    [1] MITCHELL, J: This was a case of nuisance by water. The facts were not
    significantly in dispute. The resolution of the dispute turned on a contested point
    of law rather than on the facts.
    [2] The facts can be simply stated. The Plaintiff and the Defendant own and occupy
    their properties at Hamilton in Bequia. Their properties are separated from each
    other by a third property owned or occupied by Pearl Marks. The 3 properties lie
    on a slope running from the north down to the public road in the south. The
    Plaintiff and the Defendant have their houses on their properties. By contrast,
    Pearl Marks’ land, which lies between and separating them, is bare land, without
    any house. The Plaintiff and the Defendant have built walls for the privacy and
    protection of their properties. The property of Pearl Marks is not walled in.
    Because of the slope of the land on which all 3 properties lie, during heavy rain the
    2
    water falling on the hillside collects and runs naturally down a gutter from the top
    of the lands towards the public road where government has constructed a drain to
    catch the runoff and take it away. This gutter is normally dry and only flows during
    heavy rainfall. This natural gutter which brings the runoff on the lands on the
    hillside above to the drain in the public road below runs principally through the land
    of Pearl Marks. The gutter does not lie in or towards the middle of the land of
    Pearl Marks; it lies closer to the boundary of the land of the Defendant. In places,
    it appears that it forms the natural boundary of the two parcels; in other places, it
    runs entirely through the land of Pearl Marks; and in yet other places, it crosses
    the boundary with the Defendant and runs entirely through the land of the
    Defendant. There was no direct evidence on the point, but my understanding is
    that this gutter which takes away the natural runoff does not originate on the land
    of Pearl Marks but instead enters her land from property of other persons higher
    up the hillside.
    [3] Pearl Marks, according to the evidence of the Defendant, did not appreciate this
    natural gutter running through her land alongside the boundary with the
    Defendant. Sometime around the year 1992, she built a length of wall some 12
    feet long on her land. She built the wall partially running down alongside the
    natural gutter, but also cutting across the gutter and pointing the water towards the
    land of the Defendant. The only purpose of this part of the wall, apparently, was to
    divert the water from out of the gutter and onto the land of the Defendant. The
    Defendant was not happy with this development. He commenced legal
    proceedings against Pearl Marks, and obtained an injunction of some sort against
    her. After having obtained the injunction, he did not pursue those legal
    proceedings, and nothing appears to have come of them. Pearl Marks did not
    remove her wall as a result of the injunction obtained against her by the
    Defendant, and it remained in place and continued to divert the runoff water from
    off her land onto the land of the Defendant when it rained. Sometime thereafter,
    the Defendant took further steps that he considered more appropriate or effective
    than the injunction to abate the nuisance being caused to him by this wall of Pearl
    3
    Marks. What he did to achieve this is the ultimate cause of these legal
    proceedings. A little lower down from the offending wall of Pearl Marks, on his
    own land, the Defendant constructed a wall so that most of it caught the water that
    had been diverted onto his land and a small part of it, some 2 ½ feet he says,
    extended into and obstructed the natural gutter where it ran over his land. The
    wall that he constructed caught the water where Pearl Marks had diverted it onto
    his land and took it back towards the gutter. But, he had carefully constructed this
    wall so that the water could not run again in the gutter down towards the public
    road and the drain; because of the 2 ½ feet of wall now obstructing the gutter, the
    water was forced instead to flow out of the gutter and onto the land of Pearl Marks.
    Pearl Marks has not apparently brought any proceedings against the Defendant
    for this retaliatory action of the Defendant. She has been content to allow the
    diverted water to flow over her land. There is no direct evidence on the point, but
    it must be apparent that if Pearl Marks took the Defendant to court for the
    nuisance caused to her by the water diverted by the Defendant, he will complain in
    his turn of the diversion she had caused to him higher up the slope. The diverted
    water that now flowed out from the land of the Defendant onto the land of Pearl
    Marks did not find its way back into the natural gutter. Because of the contours of
    the land of Pearl Marks, the water flowed instead over the land of Pearl Marks and
    out to the other side of the land of Pearl Marks where it met the land of the
    Plaintiff.
    [4] Bequia is normally a very dry island. The year 1998 was a notoriously wet year.
    From general knowledge the court is aware that during the year 1998 rain fell
    continuously in Bequia for many days at a time. Areas of the island were flooded
    and much damage was caused to property on Bequia from this heavy rainfall and
    flooding. The water that was diverted by the wall that the Defendant had
    constructed across the gutter on his land flowed across the land of Pearl Marks
    and collided with the base of the boundary wall of the Plaintiff. This wall of the
    Plaintiff had not been engineered to divert a flow of water, particularly the heavier
    than normal flow that occurred in the year 1998. The water that came into contact
    4
    with the base of the wall undermined it and caused it to crack. That crack is what
    has resulted in this suit being brought against the Defendant by the Plaintiff. The
    Plaintiff seeks an injunction stopping the Defendant from continuing to divert the
    water from the gutter and general damages.
    [5] The principle defence of the Defendant is that he is not liable in nuisance to the
    Plaintiff, as the water damaging the wall of the Plaintiff has come from the land of
    Pearl Marks and not from his land. He claims that the Plaintiff has brought the
    wrong person to court. He protests that he has only been taking steps to protect
    his land from the action of Pearl Marks, and that he had not acted maliciously. If
    what he did as described above is not malicious in its legal sense, then this court
    does not know what malice means. But, do the facts in this case make the
    Defendant liable in nuisance to the Plaintiff? Accepting that the proximate cause
    of the damage to the Plaintiff was the water running from the land of Pearl Marks,
    and not from the land of the Defendant, does the fact that the malicious act of the
    Defendant was an ultimate cause make him liable to the Plaintiff in nuisance?
    What about the actions of Pearl Marks? She may be described as also an
    ultimate cause of the damage to the Plaintiff, but she is not a party to this action.
    Is her action in stopping the natural flow of the water and diverting it onto the land
    of the Defendant to have any effect on the outcome of this dispute? She is
    undoubtedly a neighbour of both the Plaintiff and the Defendant. Is the Defendant
    for the purpose of the law of nuisance by water also a neighbour of the Plaintiff?
    The Plaintiff says that he is, while the Defendant denies that he is.
    [6] The authoritative legal text of Winfield and Jolowicz on Tort, 10th Edition, does
    not provide much assistance. The text simply states at page 318 that the law of
    private nuisance is:
    an attempt to preserve a balance between two conflicting interests, that of
    one occupier in using his land as he thinks fit, and that of his neighbour in
    the quiet enjoyment of his land.
    5
    At Clerk and Lindsell on Torts, 14th Edition, at para 1393, the following
    definition appears:
    A private nuisance may be and usually is caused by a person doing on his
    own land something which he is lawfully entitled to do. His conduct only
    becomes a nuisance when the consequences of his acts are not confined
    to his own land but extend to the land of his neighbour by (1) causing an
    encroachment on his neighbour’s land, when it closely resembles
    trespass, (2) causing physical damage to his neighbour’s land or buildings
    or works or vegetation upon it, or (3) unduly interfering with his neighbour
    in the comfortable and convenient enjoyment of his land.
    And, a little later in the same paragraph, appear the following relevant examples,
    none of which help with the question that has to be answered in this case:
    Nuisances of the second kind, causing physical damage to land or to
    something erected or growing upon it, occur when a man allows a drain
    on his own land to become blocked or makes a concrete paved drive so
    that the water overflows onto his neighbour’s land, maintains a mound of
    earth or other artificial erection on his own land so as to cause damp to
    enter his neighbour’s land, works the mines under his own land so as to
    cause the surface of his neighbour’s land to subside, allows buildings
    upon his land to become dilapidated so that they, or parts of them, fall
    upon his neighbour’s land, sets up vibrations on his own land which cause
    damage to his neighbour’s buildings, or emits noxious fumes from his land
    which damage his neighbour’s crops or trees.
    Nothing appears in either of these two textbooks to assist us with the question that
    arises in this case, is the Defendant the neighbour of the Plaintiff for the tort of
    nuisance? Halsbury’s Laws of England, 4th Edition, Vol 34, dealing with
    Nuisance, at para 318, offers the following equally unhelpful text:
    6
    Acts beyond reasonable user. As a general rule, no act can be justified
    as an ordinary user of premises which in fact results in substantial
    interference with the ordinary use and enjoyment of property by other
    persons. Also a person who injures the property of another or disturbs
    him in his legitimate enjoyment of it cannot justify that injury or disturbance
    as being the natural result of the exercise of his own rights of enjoyment, if
    he exercises his rights in an excessive and extravagant manner, or, it
    seems, if the inconvenience or injury resulting from the exercise of rights
    might easily be avoided.
    The question is, in the circumstances of this case, accepting that what the
    Defendant did in blocking the gutter is not an ordinary use of his land, is the
    Defendant the person who is injuring the property of the Plaintiff, or is it the water
    running off the land of Pearl Marks that is causing the injury? At para 319 the
    following appears:
    Extraordinary and unreasonable user. A person is not entitled by
    applying his property to extraordinary or unreasonable uses or purposes
    to impose upon his neighbours burdens which, in the ordinary course of
    things, they are not called upon to bear. Examples of such extraordinary
    or unreasonable user are interference with the course of natural agencies
    or conditions . . .
    There is still no guidance in this last on the question that vexes us in this case.
    [7] A question arises what might be the effect of the malice of the Defendant in
    constructing his protective wall so that it not only caught the water diverted onto
    his land by Pearl Marks, but also ensured that the water could not run back into
    the natural gutter but was forced out onto the land of Pearl marks? The effect of
    7
    malice in the tort of nuisance is dealt with in this way at para 311 of the same
    edition of Halsbury:
    Effect of malice. An act which is otherwise lawful, and which a person
    has a right to perform in the ordinary enjoyment of his property and rights,
    does not become unlawful merely because the doer is actuated by
    motives of malice; but in some cases a malicious motive may make the
    defendant’s act unreasonable and therefore actionable as a nuisance.
    [8] Applying the above principles, I am satisfied that, if Pearl Marks had been the
    Plaintiff in this case, the constructing of a part of his “defensive” wall across the
    natural gutter on his land so as to divert the flow of rainwater back onto the land of
    Pearl Marks was not done by the Defendant in the ordinary enjoyment of his
    property and rights, and would probably amount to a nuisance on Pearl Marks if.
    But, Pearl Marks is not the Plaintiff here.
    [9] None of the above texts deals specifically with the defence raised by the
    Defendant, as described above. The textbooks we have looked at have provided
    little assistance. Stroud’s Judicial Dictionary, 3rd Edition, does not help us with
    a definition of neighbour in the tort of nuisance. The closest we get to a legal
    answer to the issue raised in this case is the definition of private nuisance at
    paragraph 307 of the same volume of Halsbury. It reads
    Private nuisance. A private nuisance is one which interferes with a
    person’s use or enjoyment of land or of some right connected with land. It
    is thus a violation of a person’s private rights as opposed to a violation of
    rights which he enjoys in common with all members of the public. The
    ground of the responsibility is ordinarily the possession and control of land
    from which the nuisance proceeds.
    8
    The last sentence is the only guidance that has been produced for the assistance
    of the court on the principal issue that arises in this case. The statement of law
    appears clear: the nuisance must proceed from the land of the defendant; liability
    in nuisance lies where the defendant possesses and controls the land from which
    the nuisance proceeds. The normal definition of neighbour in relation to the
    ownership and occupation of land is the person living next door, or the adjacent
    occupier. The classic definition of neighbour in the tort of negligence as anyone
    whom one can reasonably foresee will be affected by one’s action, is special to the
    tort of negligence. Nuisance is an ancient tort at common law predating the law of
    negligence. Despite considerably research, counsel for the Plaintiff has not been
    able to find any legal authority or principle to suggest that the normal definition of
    neighbour in relation to land does not apply in the tort of nuisance and that
    something akin to the definition of neighbour in the tort of negligence should also
    apply to the tort of nuisance. The cases involving nuisance by smoke or fumes do
    not assist. The rule is not that for the Defendant to be a neighbour the lands must
    lie contiguous to the Plaintiff’s land. In the smoke and fume cases, the Plaintiff’s
    land frequently lies some distance away from the land of the Defendant. But, the
    smoke or fume nuisance proceeds directly from the land of the Defendant to the
    land of the Plaintiff. It may pass over the intervening lands, but it does not fall onto
    the land of the immediate neighbour and then get pushed or placed onto the land
    of the Plaintiff. If that happened, a question would arise as to whether the
    nuisance was originating from the land of the distant Defendant. The land from
    which the water complained of by the Plaintiff proceeds is the land of Pearl Marks
    and not the land of the Defendant. The proximate cause of the damage to the
    Plaintiff is the water flowing from the land of Pearl Marks, not the water flowing
    from the land of the Defendant. It is the shape and contours of the land of Pearl
    Marks that has directed the water flowing on and over the land of Pearl Marks,
    however that water was ultimately derived, to flow onto the wall of the Plaintiff and
    damage it. If this were a case of negligence, which it is not, we might be
    discussing either the concept of novus actus interveniens or the principle of
    remoteness of damage. The damage caused to the Plaintiff results from the water
    9
    flowing over the land of Pearl Marks. This is not to suggest that Pearl Marks may
    be liable in the tort of nuisance on the evidence to the Plaintiff. Pearl Marks may
    be immune from an action brought by the Plaintiff, as she has done nothing to
    cause the water to flow over her land onto the land of the Plaintiff. The rain water
    run-off appears to be following the natural contours of her land. She appears to
    have done nothing to adopt any nuisance of the Defendant. So long as she is
    happy with the water flowing over her land, and brings no action against the
    Defendant to have him cease his nuisance committed against her, then the
    Defendant may continue to discharge the runoff water onto the land of Pearl
    Marks.
    [10] The proper step that the Defendant might have taken in law is clear. He should
    not have diverted the water back onto the land of Pearl Marks in retaliation for the
    nuisance she has allegedly committed against him; he should have persisted in
    the legal action that he had earlier brought against Pearl Marks. Pearl Marks
    should not have started the entire saga of unneighbourlyness by diverting the
    water onto the land of the Defendant; if she had a problem with the water flowing
    where it did on her land she should have discussed with him joint steps to regulate
    and divert to their mutual satisfaction the water flowing over both their lands. If
    someone further up the hill above her had done something to cause the water to
    damage her land she should have sought a legal remedy against that person.
    Further, the Planning Authorities might have jurisdiction in disputes such as this
    under planning legislation. Additionally, there may be an offence that has been
    committed by someone here under the watercourses legislation, which exists to
    regulate conduct such as that complained of here. Alternatively, the Plaintiff may
    want to discuss with Pearl Marks, if she does not intend to settle her dispute with
    the Defendant, suitable steps that the Plaintiff and she may take to divert the flow
    of rain water over her land from damaging the wall of the Plaintiff. In conclusion, I
    can find no tort of nuisance committed by the Defendant against the Plaintiff which
    entitles the Plaintiff to an injunction or damages against the Defendant.
    10
    [11] I must express my appreciation to counsel for the Plaintiff who has been diligent in
    researching and producing to the court copies of all the relevant textbook pages
    and the cases that she considered might have helped. However, for the reasons
    set out above I consider myself constrained, however reluctantly, to dismiss the
    suit of the Plaintiff. Given the malice shown by the Defendant in having taken the
    steps he did that caused this suit to be instituted, in exercise of the discretion
    vested in me in awarding costs the order will be that each party is to bear his own
    costs.
    I D MITCHELL, QC
    High Court Judge

    /fitzroy-mc-kree-v-john-lewis/
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