February 9, 2023

The rights of the upper riparian owners and lower riparian owners

Halsbury’s Laws of England[1], following has the following to say:

‘Every riparian owner may divert the water of a stream for purposes in connection with his land, or for other purposes; but he is bound to return the water which he has diverted into the stream again before it leaves his land substantially undiminished in volume and unaltered in character; for a lower riparian owner, subject to the rights of an upper owner, is entitled to have the water flowing in the natural bed of the stream come to him unaltered in quality and quantity, and to come to his land in its ordinary and accustomed channel.

An upper riparian owner must not enlarge the channel so as to prejudice a lower owner. A riparian owner who diverts water altogether from a stream can be restrained without proof of actual damage, because his acts, if continued long enough, would crystallise into a right and it is no defence that in place of the diverted water he has substituted an equal quantity of water from another source.

Obstructions must not be erected in a stream so as to throw back the water on to the lands of an upper riparian owner and thereby flood his lands or injure his mill, for each owner is entitled to have the water go from his lands in the ordinary course of nature; such right may be acquired as an easement. When an obstruction is a natural one, or formed by long natural accumulation, it must not be removed, if by so doing an injury would be inflicted on a lower riparian owner”.

Coulson and Forbes on Waters and Land Drainage[2];

“The right to the flow of running water, with-out diminution or alteration, being common to all those through whose land it flows, any unauthorised interference with or use of the water, to the prejudice of one entitled to its use, is the subject of an action for damage, and may be restrained by injunction.

This right, however, is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian owners to the reasonable enjoyment of it, and consequently it is only for an unreasonable and unauthorised use of this common benefit that an action will lie, thought where there is an injury to a right actual perceptible damage is not necessary to maintain it.”

American Jurisprudence, Section 27 (page 517) has the following to say regarding damming:

“…… Subject to public regulation in proper cases, a dam may be constructed and maintained across a stream by a riparian proprietor or by another with proper authority, provided that thereby he does not appreciably diminish the amount of water which should naturally flow on to or by the land of lower proprietors, or materially affect the continuity of the flow, or wrongfully throw the water back upon upper proprietors.

As implied by the foregoing proviso, liability may be incurred by the erection and maintenance of a dam which will virtually result in the drying up of the stream, or which will materially interfere with the flow or with the continuity of power supplied by the stream to a lower, proprietor, or which will result in the overflow or flooding of the lands, works, or other property of other persons……’

Farnham on Waters and Water Rights[3] to a discussion of the extent of right to damming back water of stream and at page 1843 and following states the procedure for securing redress by the affected lower down riparian owner and which reliefs are classified under five heads,

(a) abatement by the injured party;

(b) statutory action for redress, like ‘the Boards Standing Orders and Acts and Regulations in vogue in this State, enabling the Collector to take various actions; like penalising etc.;

(c) common law action like an assize of nuisance or a quid permitted action on trespass in the case;

(d), relief in equity viz., injunctions; and

(e) criminal proceedings.

Section 430, IPC

The Indian Penal Code contains provisions for dealing with such cases under the head of “mischief. Section 430 penalises mischief by injury to works of irrigation or by wrongfully diverting water or doing any act which causes or is likely to cause a diminution of the supply of water.

Sir H. S. Gour The Penal Law of India[4] dealing with diversion states:

“A riparian proprietor may divert the water from the stream, as it passes through his own land, without license from the proprietors above him, it he does not obstruct the water from flowing as freely as it was wont, and without license from the lower proprietors if he restores the water to its natural channel before it enters their land and does not materially diminish its flow The distinction is to be observed between the right to divert or change the course of the stream itself so as to turn it away from a lower proprietor, and the right to take water from the stream.

The first is wholly unlawful; the second may be exercised to a reasonable extent. There must not be such an abstraction of the water as will materially interfere will the rights of any other proprietor, and it is no answer to such a violation of right by one party that the other has increased the usefulness of die stream by means of a reservoir higher up, since the private right of one man cannot be taken by another upon the substitution of an equivalent benefit ……

The question whether the injury is caused by the defendant’s diversion or artificial diminution or by a gradual drying up of the stream is properly a question of fact for the jury…….”

Angell on Water Courses[5]:

“The Law has been supposed to be well settled, and in my opinion is nowhere more clearly stated than by Lord Kingsdown, in Minor v. Gilmour[6],…… By the general law applicable to running streams, every riparian proprietor has a right to what may he called the ordinary use of water flowing past his land…….

But he has no right to intercept the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury’. The use in all the above cases must be a reasonable one. By all the modern as well as by all the ancient authorities, the right of properly in the water is usufructuary, and consists not so much of the fluid itself, as of the advantage of its momentum or impetus.

The owner of the land merely transmits the water over the surface; he receives as much from his higher neighbour as he sends down to his neighbour below; lie is neither better nor worse; the level of the water, remains the same.

……..the general doctrine in relation to the right to apply the water of a watercourse is thus laid down by Mr. Justice Story (Tyler v. Wilkinson, 4 Mason 400). Prima facie, every proprietor on each bank of a river is entitled to the land covered with water, to the middle thread of the stream or as is-commonly expressed, usque ad filum aquae. In virtue of this ownership, he has a right to the use of the water flowing over it, in its natural current, without diminution or obstruction.

But strictly speaking, he has no property in the water itself; but a simple use of it, while it passes along, the consequence of this principle, is that no proprietor has a right to use the water to the prejudice of another. This, adds the same high authority, ‘is the necessary result of the perfect equality of right among all the proprietors of that which is common to all……..”

Indian decisions

These principles regarding the rights of the riparian owners have been set out in the following Indian decisions.

In Venkatadri Appa Rao v. Seetharamayya,[7] 1939, what is a riparian tenement and what are the rights of a riparian proprietor have been fully discussed be Venkata Subba Rao and Abdur Rahman, JJ. on the same lines as Halsbury.[8]

In Ah Li v. U San Baw, AIR 1939 Rang 446, it has been laid down:

“The proprietor of an upper tenement who claims the right to dam up a natural stream has right to take for the purpose of irrigation so much water only as can be abstracted without materially diminishing what should be allowed to descend. If the amount which is allowed to descend is sufficient to supply the owner of a lower holding with as much water as he needs for his own purpose, it cannot be said that the amount that goes down is materially diminished.

Diminished it may be, but not materially diminished if the owner of the lower holding has enough for his needs. The owner of the lower holding is not entitled to restrain the owner of the upper holding without any proof of damage, actual or to be feared, for the future”.

In Zamindar of Bethavole v. Satyanarayana Rao,[9] 1940; it was held that where from the evidence in the case it was found that the putting up a bund was an infraction of the right of the defendants, the defendants had every right to have it removed without showing any damage.

In Bakthavathslammal v. Secy, of State,[10], the Court has held that a person who is entitled to put up a dam of turf and loose stones is not necessarily entitled to substitute a tighter and stronger dam. The question in each case is the exact nature of the right which is shown by the evidence to have been acquired.

The whole position has been summed up by their Lordships of the Privy Council in Debi Pershad Singh v. Joynath Singh[11], as follows:

“A riparian owner, where a stream flows in a channel down from a property higher up, is entitled to the flow of water. without interruption, and without substantial diminution caused by the upper proprietor, who may for legitimate purposes withdraw so much only of the water as will not materially lessen the downward flow on to his neighbour’s land. In this suit the upper proprietor claimed the right to dam up a stream OH his own estate, and to impound so much of its water as he might find convenient for irrigation, leaving only the surplus, if any, for the use of the proprietors below.

He has no such right, in the absence of a right obtained by him in virtue of contract with the lower proprietors, or acquired by him as a consequence of prescriptive use. His common law right is to take for the purpose of irrigation so much water only as can be abstracted without materially diminishing what is to be allowed to descend. What quantity of water can be abstracted and used without infringing that essential condition must in all cases be a question of the circumstances, depending mainly upon the size of the stream and the proportion which the water taken bears to its entire volume?”

Reference

State of Madras Represented by vs S K S O Muhammed Ghani 1958


[1] (Hailsham Edition) Volume 33, page 599

[2] Sixth Edition (1952) at page 134

[3] (1904) Volume II, devotes Chapter XX (page 1763 and following)

[4] Fourth Edition Volume II p. 2313 and foll

[5] 7th Edition (1877) page 96

[6] 12 Moo PC 131 at p. 156

[7] ILR 1939 Mad 45: (AIR 1938 Mad 816),

[8] See also the later decision of Abbas Ali v. Shaikh Munir, .

[9] 1940-1 Mad LJ 699: (AIR 1940 Mad 656);

[10] 9 Mad LT 375: 9 Ind Cas 636,

[11] ILR 24 Gal 865