PNG Law Reports 1993
[1993] PNGLR 94
N1141
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
PEN RUMINTS
V
THE STATE
AND THE WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Mount Hagen
Woods J
21 August 1993
27 August 1993
14 December 1992
1 March 1993
WATER - Nuisance - Drainage of swamp upstream and increase of flow - Reasonable and natural use of land - Erosion to land by river flow.
REAL PROPERTY - Erosion to land by river flow.
Facts
The plaintiff owned some land at the junction of two rivers. This he farmed for many years with cash and subsistence crops. Owing to drainage work in some swamp areas carried out by the government, the rate of the flow of water down the rivers increased, causing the erosion and flooding of the plaintiff's land, which ceased to be productive.
The plaintiff claimed compensation for damage to his land caused by the actions of the officers of the State and Provincial Government in effecting the drainage work.
Held
1.       The law has always recognised that, in the case of water coming onto the lower land from land higher up, consideration must be given to what is the normal flow and normal expectations. A flood of water from higher up, if it is not created by the positive intervention of people living higher up, cannot lead to any liability.
2.       This case is not a situation where a defendant has introduced onto his land something which has escaped and done damage, such as an artificial obstruction like a dam which breaks and causes an artificial flood. It is a case where the State exercised its natural right to drain the land for productive farming and to tidy up the flow of a river in the vicinity of a bridge. The water was natural, it was always on or coming onto the land by the work of nature. The State was merely assisting its flow by digging better drains and ensuring the free flow of the river. Where the water naturally accumulating is allowed to flow freely, in its natural state it would eventually flow down the rivers. There is nothing artificial or unnatural about the draining of a swamp or repairing the banks of a river to ensure a safer flow.
Cases Cited
Bell v Pitt [1956] Tas SR 161.
Gibbons v Lenfestey (1915) 84 LJPC 158.
Rouse v Gravelworks Ltd [1940] 1 All ER 26.
Vinnicombe v MacGregor (1902) 28 VLR 144.
Counsel
S Norum for the plaintiff.
M Maladina for the second defendant.
1 March 1993
WOODS J: This is a claim for damages to land caused by the actions of officers of the State and the Western Highlands Provincial Government in doing drainage works in some swamp area and work affecting the flow of water in some streams upstream from the plaintiff's land. The work changed the rate of flow of water down the Poli and the Gumanch Rivers such that the traditional land owned by the plaintiff at the junction of the said two rivers was so seriously eroded that he lost the use of his land, which he had been using for his subsistence and cash crop farming.
The plaintiff's evidence is that he owned some land at the junction of the Poli and Gumanch Rivers and had been farming it for many years with coffee and banana trees and subsistence agriculture. He recalls there was some drainage works being carried on upstream from his land in the vicinity of the Poli River in the early 1980's. By 1985, he realised that soil and sand had been washed down the river and had settled near the junction and this and the increased flow of the Poli River had affected the flow of the Gumanch River such that there was severe erosion and water damage on his own land. Much of his land was being flooded, and that had never happened before. Eventually, his land either became completely waterlogged or eroded away and he lost all his trees and the use of his land. The plaintiff consulted with the appropriate district officers and agriculture officers to seek some recourse. In due course, his complaint was investigated and Peter Numdi, a field officer with the Department of Agriculture, came and assessed the situation. Mr Numdi agreed with his complaint and found that the plaintiff had lost the use of his land, approximately 17.5 hectares, and 3,280 coffee trees and 230 banana trees. Mr Numdi submitted his report on 25 November 1985 to the Provincial Government authorities and recommended that the plaintiff should be compensated.
Various other witnesses came and gave evidence about their knowledge and understanding of the situation. John Yama, who was the Provincial Secretary between 1978 and 1982, said he recalls work being done in the area of the Poli River to assist the drainage of the swamp, which was State land, and also to improve the flow of the river. He recalls that about that time the land was leased for the Rui Plantation. He also recalls some complaints being made about the effect of the changes to the flow of the river. He recalls that the work was done by the Local Government Engineering Unit.
Pol Goimba, a patrol officer at the time, recalls work being done by the Hagen North Development Authority to help drainage in the swamp and to tidy up the flow of the Poli River.
Korowa Kump, a rural development officer in the area at the time, recalls inspecting the complaint of the plaintiff. He understood the drainage was done by Rui Plantation to drain the swamp so they could set up the plantation. He then says that Rui Plantation did some of the work and the Provincial Government did some.
Persons concerned with Rui Plantation also gave evidence that they helped the Provincial Government with drainage work on the Poli River because they had equipment in the area at the time and it was to help the access to the bridge over the Poli River and the erection of a new bridge.
There is no dispute that there was work done in the vicinity of the Poli River, whether to drain some swamp or to tidy up the flow of the river. It is submitted that the effect of that work may have contributed to damage on the land owned by the plaintiff at the junction of the Poli and Gumanch rivers and that there was some complaint at or soon after the damage was obvious. 
So what is the law concerning such a complaint. This would be a private nuisance which has interfered with the plaintiff's interest in the beneficial use of his land. This is to be distinguished from trespass, which is a direct infringement of a person's possession. Nuisance is a consequential infringement. In this case, it has come about because of what persons have done upstream from the plaintiff's land. So is this nuisance actionable by being unreasonable and, further, who is responsible for this nuisance?
To constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable.
"Life in organised society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and these interferences range from trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of risk in order that all may get on together. The very existence of organised society depends on the principle of 'give and take, live and let live' so that the law of torts does not attempt to impose liability or shift the loss in every case where one person's conduct has some detrimental effect on another. Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances." See the Restatement of the Law of Torts.
The paramount problem in the law of nuisance is, therefore, to strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of others. Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place.
Here we are dealing with customary land at the junction of two rivers.
The law has always recognised that, in the case of water coming onto the lower land from land higher up, consideration must be given to what is the normal flow and normal expectations. A flood of water from higher up, if it is not created by the positive intervention of people living higher up, cannot lead to any liability. In the case Rouse v Gravelworks [1940] 1 All ER 26, it was held that no action would lie for damages as the water had accumulated only as a result of the defendant's natural use of its land and had escaped onto the land of the plaintiff only by the operation of natural causes. 
Halsbury states the general principle as follows: "When water escapes or overflows from land, the owner of that land is not liable for the consequences, if this happens in the ordinary use of the land without any wilful act or negligence on his part." The difficulty with this principle is when the rule is expressed by saying that the upper holder has a right to discharge casual water upon the lower contiguous land of his neighbour. A comprehensive review of the 19th century cases is found in the case of Vinnicombe v MacGregor (1902) 28 VLR 144. In that case, Madden CJ said at p 182:
"It is a basic principle of all our rights of personal liberty and of property that our use and enjoyment of both is as unrestricted as social existence will permit; but subject always to leaving it possible that all others may use and enjoy their liberty and property with like freedom. Thus we arrive at the well known principle, 'Sic utere tuo ut alienum non laedas'. Hence it is clear that every owner of land, wherever it is, may use his own land for any ordinary purpose for which land can be used, but he must thus use it always subject to his not so doing as to hurt his neighbour." 
How are these principles applied when the natural user is more than just allowing natural flow to run off? When you drain a swamp to create agricultural land, is this regarded as natural use? Unfortunately, where elaborate schemes have been done to drain swamps and create useable land there has often been special legislation enacted to give governments the power to so act and to clearly define their responsibilities and acts.
In 1915, the Privy Council in Gibbons v Lenfestey (1915) 84 LJPC 158 held that an upper land holder had a right to send natural water falling onto his land on to the adjoining land of a lower land holder; and that the lower land holder was bound to receive such water even if, in the course of draining or otherwise improving his land, such upper land holder had collected the water in a more concentrated volume than nature had done.
All these authorities are examples of the reasonable use rule in connection with the natural use of land. But the term natural use is not such a straightforward term in these days of modern land improvement methods and cultivation techniques, where elaborate private drainage and irrigation systems are common. Such have become part of ordinary agricultural activities and could not, in most cases, be described as anything but natural use. But such methods may result in a concentration of water at the lower boundary of the higher land which is discharged in one or more damaging jets onto the adjoining land.
In Bell v Pitt [1956] Tas SR 161, Burbury CJ faced all the problems resulting from the previous authorities. Burbury was faced with a situation where a lower landholder had erected a barrier to stop water from the upper land holder flowing in a more increased capacity through specially constructed drains. In the circumstances, he found that the lower landholder was entitled to build such a barrier; but in considering all the past authorities, Burbury CJ formulated the following principles:
1.       A lower owner may take reasonable practical measures to prevent surface water flowing onto his land; but it does not follow that he will be entitled to an injunction against the upper owner to prevent such flow.
2.       The owner of farming land may carry out reasonable drainage operations for the better cultivation of his land without incurring liability for damage to lower neighbours, even if the drainage operations result in an increased quantity of surface water flowing onto his neighbour's land.
3.       Precise definition of limits of reasonable drainage operations cannot be formulated a priori. Each case must depend on its own circumstances.
In this case before me now, we are not talking about a situation where a defendant has introduced onto his land something which has escaped and done damage, such as an artificial obstruction like a dam which breaks and causes an artificial flood. It is a case where the State exercised its natural right to drain the land for productive farming and to tidy up the flow of a river in the vicinity of a bridge. The water was natural, it was always on or coming onto the land by the work of nature. The State was merely assisting its flow by digging better drains and ensuring the free flow of the river. This is where the water naturally accumulating is allowed to flow freely, in its natural state it would eventually flow down the rivers. There is nothing artificial or unnatural about the draining of a swamp or repairing the banks of a river to ensure a safer flow. People in the Highlands are always digging drains or barrettes to drain their garden land, and this must always have some effect on the flow downstream. So why should this drainage work be an exception and actionable? Any damage done may just be one of the vicissitudes of life which people face who have land on the banks of a river. Rivers are always eroding their banks or even creating new courses, and, possibly, if one looked upstream far enough one would be likely to find someone upstream who may have done some digging of drains or drainage work. Is such a person to be immediately liable, therefore, for the effect of the river flow downstream? Has custom ever recognised the digging of barrettes for better drainage as being work that is actionable or compensable for persons lower down? I do not think that nuisance can go that far.
Perhaps there is also a lot of supposition that the damage to the plaintiff's land was the result of the drainage work done by the Government or anyone else upstream. It must be realised that, if you own very fertile land at the junction of two rivers, it is a matter of the normal flow and erosion effect of rivers that some of the fertility of the land could be by reason of the advantages of the soil that does come down the rivers and that, in the normal cycle of life, there would be excessive flows which could affect the land and even erode it. So some of the erosion is something that could happen over the fullness of time without any human intervention. Therefore, I am satisfied there should be a balance between the normal problems that can happen downstream in such an area and the actions by the State in improving the quality of the land upstream for the benefit of others. I find, in the words of Burbury CJ referred to above, that the work by the State in doing drainage work for and adjacent to the Poli River was no more than reasonable drainage operations in the circumstances. There is, thus, no liability, and I find for the defendants.
Lawyer for the plaintiff: Joseph Mek Teine.
Lawyer for the second defendant: Moses Maladina.