Panigrahi, C.J.
1. This is a plaintiffs' second appeal arising out of a suit for a declaration of their right to receive the surface water within the limits of village Kankili and flowing from Landabir, Brahmandei Khol and Amba Khol hills lying to the south of a tank known as 'Parana Bandh' belonging to the plaintiffs and measuring 13 acres 62 decimals in Khata No. 34 of Mouza Patharkumbha in Dhenkanal district. The defendants are some of villagers who own lands which lie between the hills from which the water flows and the tank of the plaintiffs.
Admittedly, these lands of the defendants are on a higher level than the tank of the plaintiffs, and water flows naturally by force of gravitation northwards towards the tank. The plaintiffs' further case is -- and this is not denied by the defendants -- that their ancestors dug a channel from the foot of the hills leading to the tank, which carried the water falling on the hills through the channel. The plaintiffs had acquired a prior right of irrigation of their lands lying to the north of the tank and an exclusive right of fishing in it.
Disputes have been going on between theplaintiffs and the defendants regarding the distribution of the rain water for several years. In1945 the defendants opened a sub-channel fromthe old channel and diverted the water of theChannel westwards and dug a new channel to carry the water, thus diverted, to their own landsfarther north. The course of this new channel isdelineated as Ka to Kha in the plan attached tothe plaint.
The plaintiffs' complaint is that the construction of the new channel has resulted in a substantial diminution of the customary flow of water into the 'Purana Bandh' and that the defendants have thereby infringed the plaintiffs' easementary right to receive water from the hills. The plaintiffs also prayed that the diversion created by the new channel should be closed.
The defendants denied that the plaintiffs owned the original channel or the tank in question and pleaded that even after the opening of the new channel there was sufficient water left to feed the tank and that no diminution in the volume of water has been caused. It is, in fact, asserted that the volume of water going into the tank is so large that it often caused damage to the lands in the vicinity of the Bundh. The defendants disputed the plaintiffs' claim to receive the surface water that flowed over their own lands known as 'Bahel lands'.
2. Both the Courts below have found, concurrently, that the surface water of the Bahel lands does not follow any defined course before reaching the tank and that it passes through the paddy fields belonging to the defendants and other villagers. It is the surplus water that ultimately finds its way into the tank. The Courts have also found that the defendants own about 500 acres of Bahel lands which admittedly lie on a higher level to the south of the tank from which direction the water flows.
While, therefore, unholding the claim of the plaintiffs to take water through the existing channel, they have negatived the plaintiffs' further claim by way of easement, to receive all the overflow passing over the defendants' lands. The Courts have accordingly directed the defendants to close up the cut made by them in the original channel at the place marked 'Ka' which caused the diversion, but declined to issue a mandatory injunction against them so as to permit the flow of surface water into the plaintiffs' tank.
3. The law is well settled regarding the right to the water of a river flowing in a natural channel through a man's land, and the right to the water flowing into it through aft artificial water-course constructed on his neighbour's land. In the former case each successive riparian proprietor is 'prima facie' entitled to the unimpeded flow of the water in its natural course and to its reasonable enjoyment as it passes through his land as a natural Incident to his ownership of it.
In the latter case any right to the flow of the water must rest on some grant or arrangement, either proved or presumed, from or with the owners of the lands from which the water is artificially brought or on some other legal origin: See 'Ramesur Persad Narain Singh v. Koorj Behari', 6 Ind App 33 (PC) (A).
The plaintiffs' claim to receive water through the channel having been decided in their favour, the question is whether they have acquired a right of easement, so as to compel the defendants to allow the water flowing over their lands to pass to the plaintiffs' tank.
Easement rights are recognised for the benefit of the dominant tenement alone and the servient owner acquires no right to insist on their continuance. The principle was laid down in the following terms in 'Mason v. Shrewsbury & Hereford Rly', (1871) 6 QB 578 (B) (at p. 587):
'It is of the essence of an easement that it exists for the benefit of the dominant tenement alone. Being in its very nature a right created for the benefit of the dominant owner, its exercise by him cannot operate to create a new right for the benefit of the servient owner. Like any other right its exercise may be discontinued if it becomes onerous, or ceases to be beneficial, to the party entitled'.
See also 'Bimalchandra v. Chandra Kanta', AIR 1914 Cal 502 (C). The plaintiffs do not claim any right to the water before it reaches the defendants' lands. Their entire claim is confined to the surface water after it has passed over the defendants' lands.
4. It was assumed in the Courts below that the Easements Act (5 of 1882) applies to the area from which the parties come. Section 17(c) of the Act expressly says that no easement right can be acquired to surface water not flowing in a stream and not permanently collected in a pool, tank, or otherwise. Illustration G to Section 7(b) also speaks of the right of every owner of land to collect and dispose, within his own limits, of all water under land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.
Two principles thus emerge: firstly, that an owner of land is entitled to collect and impound all surface water passing over his land, and secondly, that no prescriptive right can be acquired in respect of such water by the servient owner. In other words, unless the water flows through a defined channel no right can be acquired either by lost grant or prescription to the use of such water.
Every landowner has a natural right to collect and retain upon his own land the surface water passing over his land and put it to such use as he may desire. He has a right to discharge the surplus water upon his neighbour's lands lying at a lower level. But there is no reciprocal right by the servient owner to compel the dominant owner to discharge a particular volume of water.
In Mt. Sarban v. Phudo Sahu', AIR 1923 Pat 65 (D) the plaintiffs claimed a prescriptive right to irrigate their lands from the surface water flowing from the defendants' field which had been bunded up. It was held that the owner of the servient tenement cannot compel the owner of the dominant tenement to use the water in a particular way or to compel him not to interfere with the surface water accumulating on the land, even if its exercise should be for the benefit of the servient owner.
The above principle has been recognised in 'Abdul Baqi v. Sheo Prakash Singh', AIR 1928 Pat 279 (E); 'Henry Hill and Co. v. Sheraj Rai', AIR 1922 Pat 9 (P) and 'Mahabir Sahu v. Ram Saran Sahu', AIR 1918 Pat 493 (G). The chief characteristic of surface water is that its identity and existence as a water body cannot be definitely ascertained and it cannot be said to belong to any particular person. No claim can, therefore be made to such right either as a natural right or as an easement by prescription. The right to the ownership of the water is an incident to the ownership of the land. In 'Rawstron v. Taylor', (1855) 11 EX 369 (H), Parke, B. gave the reasons why no right could be obtained over surface water. He observed;--
'This is the case of common surface water rising out of springly or boggy ground, and flowing in no definite channel, although contributing to the supply of the plaintiff's mill. This water having no defined course, and its supply being merely casual the defendant is entitled to get rid of it in any way he pleases'.
Martin, B., emphasised the right of every landowner to enjoy his land as he chooses, and said:
'The proprietor of the soil has 'prima facie' the right to drain his land. He is at liberty to get rid of the surface water in any manner that may appear most convenient to him; and I think no one has a right to interfere with him, and that the object he may have in so doing is quite immaterial'. Platt, B, observed:
'The plaintiff could not insist upon the defendant maintaining his fields as a mere water-table'. The judgment of Lord Hatherley, L. C. in 'Grand Junction Canal Co., v. Shugar', (1871) 6 Ch A 483 (I) is illuminating on the point. Referring to a previous case, it was observed:-- that the distinction between surface water and channel water was firmly established. Surface water was that
'which comes no one knows exactly whence & flows no one knows exactly how, either underground or on the surface, uncontined in any channel, either as rainfall or from springs of the earth which may vary from day to day, or spring up from beneath the surface in a direction which no one knows -- this species of water is different from water confined in a regular channel'. The true test, therefore, of the existence of the common right to such water is to see whether the flow of water on one person's land is Identified with that on his neighbour's by being traceable to it along a distinct and defined course. If the waters on the two lands do not possess this unity of character they are in the same category as fish or birds, etc., and are only incident to, and form part of the produce of their respective soils.
No proprietor can make a claim to the water in such a condition before it arrives within his own borders. So long as the water rises naturally and squanders itself over the surface it has no public character and before it arrives at any defined natural channel, it belongs solely to the owner of the land which it covers, & he may deal with it exactly as he thinks fit While he is making a reasonable use of his own land. See 'V. Adinarayana v. Ramudu', AIR 1914 Mad 507 (J)..
The earliest case of the Madras High Court, bearing on this question, is reported in 'Perumal v. Ramaswami', 11 Mad 16 (K) where it was held that the owner of land had a natural right to collect or dispose of all the water on the surface which does not pass in a defined channel and that it could not be the subject of an easement by prescription.
Where, as in this case, the lands of the defendants stand upon a higher ground than those of the plaintiffs nature itself may be said to constitute the servitude on the inferior tenement by which it is obliged to receive the water that falls on the superior tenement. This is a natural right inherent in the property. It is a question of nomenclature whether it is or is not called a 'servitude'. See the judgment of Lord Dunedin in 'Gibbons v. Lenfestev', (1915) 84 LJ PC 158 (L). See also 'Kasia Pillai v. Ganesamuthu Kumarasamia Filial', AIR 1929 Mad 337 (M).
5. Mr. Das appearing for the appellants laid considerable stress on the case reported in 'Munsi Misser v. Bhuni Raj Ram', 40 Cal 458 (PB). There the question was whether the defendants had acquired an easementary right to discharge water on their neighbour's lands from their roofs which projected over the land of the plaintiffs. The suit was nominally for the purpose of recovering possession of a strip of land, but substantially for the purpose of preventing the defendants from exercising their right of easement. Jenkins C. J. while remanding the appeal fox fresh disposal, observed:
'The fact that the water flows over the surface of servient tenement without a channel for its carriage cannot prevent the acquisition of an easement'.
This statement of the law is in accordance with what I have stated above and does not in any way support the appellants' contention.
6. I have, therefore, no hesitation in arriving at the conclusion that the plaintiffs have no right to claim by way of easement the surplus water passing over the defendants' lands from the hills on the south unimpaired in quality and undiminished in quantity and no such right can be recognised, either as a natural right or as a right acquired by prescription.
7. The Courts below were right in rejecting the exaggerated claim put forward on behalf of the plaintiffs. The appeal fails and is dismissed with costs.
8.I agree.