Robert P. Collier, J.
1. In this case the Plaintiff and Defendant were proprietors of land and gardens on opposite sides of a khal in which the tide in the River Hooghly flowed and re-flowed, and by which the surface water of certain lands was carried in a direction from the east to the west into the Hooghly. The Plaintiff was the proprietor on the north side, the Defendant on the south side just at the mouth of the khal. It seems that it is a tidal creek which is daily subject to the flow of the river; that for the protection of the banks on each side of the khal, walls had been erected, one at each side of the khal, and that the Defendant, upon the wall on his side becoming somewhat dilapidated, constructed a fresh one, and employed a skilled person to do so, who to some degree altered the direction of the wall; a portion of it he built further in towards the Defendant''s land than it had been before, and another small portion he built a little further out. We have the precise extent to which it was built further out, which was five feet, making what may be called in one sense an encroachment, consisting of a triangle whose altitude was five feet, and whose base was about double that length. The Plaintiff, it appears, first applied to Mr. Whitfield, the Government engineer, desiring Mr. Whitfield to interfere, on the ground that the Defendant''s wall was an obstruction to the public navigation in the khal which belonged to the Government. Mr. Whitfield declined, however, to interfere, on many grounds, one of which was that the khal was not navigable, and another that there was in his opinion no obstruction.
2. The Plaintiff thereupon brought this action. It is stated to be a suit "for possession of land by demolishing a brick-built retaining wall.'' He goes on to aver:--" By the said act of the Defendant, injury having accrued to the retaining wall of my garden, and inconvenience having been caused to the passage of boats to my screw-house through the said khal, and apprehensions being created as to the screw-house falling down eventually, a cause of action has arisen. Therefore my prayer is that a decree be given directing the removal of everything built by the Defendant that stands on the disputed land mentioned below, and awarding me possession of the land and khal in question." His case was that he was entitled to the solum on which the Defendant had built his wall; that his navigation was obstructed, and that there was a danger of his screw-house falling down. It is true that he subsequently presented a petition in which he prayed that if he was not entitled to possession of the disputed land, still, if it was found that the retaining wall ought to be removed, there should be a decree granting that remedy. The petition was however rejected.
3. The case came before two subordinate Courts. The Court of the moonsif found that the Plaintiff had no right to the bed of the khal or any part of it, but that the Defendant had a right ad medium filum. He further found that the khal was not navigable, and that no injury had been caused to the Plaintiff, and that the flow of the water had not been in any way sensibly obstructed.
4. On appeal to the Subordinate Judge, he affirmed the findings, with an exception which constitutes the chief difference between the decrees, that neither the Plaintiff nor the Defendant had any right to the bed of the khal, which it would appear is vested in the Government in right of their zemindary of the Twenty-four Pergunnahs. The finding of the Subordinate Judge is in these terms: " The conclusion, therefore, at which I arrive is that the Defendant has in fact committed an encroachment, though not upon the Plaintiff''s property; but that it is not established that damage to the Plaintiff''s property must necessarily result from the encroachment. Plaintiff, therefore, is not entitled to have the wall removed."
5. The case came on special appeal before the High Court; and the High Court, having remanded the case for the purpose of ascertaining the precise extent of the encroachment, considered themselves bound to reverse the decisions of both the Courts, and to order the removal of a portion of the Defendant''s wall, apparently on the authority of the case of Bickett v. Morris et Ux., which is reported in Law Rep. 1 H. L., Sc. p. 47. The effect of that case may be stated thus: A riparian proprietor on one side of a stream complained of the riparian proprietor on the other side, who had built into the solum of the stream beyond a line which had been agreed upon between the parties, and had thereby obstructed and changed the flow of the water so that the Plaintiff''s right to have the water flow in its accustomed manner was injured. It was held that such an obstruction was such an injury to the Plaintiff''s rights as enabled him to support the action without proof of actual damage immediate or even probable. The ratio decidendi is illustrated by the remark of the Lord Chancellor. " It was asked in argument whether a proprietor on the banks of a river might not build a boat-house upon it? Undoubtedly this would be a perfectly fair use of his rights, provided he did not thereby obstruct the river or divert its course; but if the erection produced this effect, the answer would be that, essential as it might be to his full enjoyment of the use of the river, it could not be permitted."
6. Their Lordships observe that in a subsequent case in the House of Lords of Orr Ewing v. Colquhoun reported in 2 App. Cas. p. 839, not in itself having much bearing on the present, inasmuch as it related to the obstruction of a navigable stream, Lord Blackburn explains the previous case in this manner: "The Defender had without any right built an encroachment on his side of the river which necessarily caused more water to now on the Pursuer''s side, and though that encroachment was small, it was such as in a small stream to make a sensible alteration in the flow. That was an injury to the proprietary right of the Pursuer, but he was not able to qualify present damage."
7. Their Lordships are of opinion that the case of Bickett v. Morris Law Rep. 1 H.L. Sc. 47 does not govern the present. In the first place, the Plaintiff does not state his cause of action in the manner in which it was stated in Bickett v. Morris Law Rep. 1 H.L. S.C. 47. The Plaintiff does not state that he, as a riparian proprietor, was entitled to the flow of the water as it had been accustomed to flow, and that that flow was seriously and sensibly diverted so as to be an injury to his rights; but he puts his case on the ground that he is the owner of the soil on which the wall was built, an issue which is found against him. It is true that he sought to enlarge his plaint, and avail himself of any ground he might have for obtaining the removal of this wall; but their Lordships do not find that he has either claimed or proved such an easement as that which has been described in the case of Bickett v. Morris Law Rep. 1 H.L. S.C. 47, and which was there interfered with, or that any issue was raised as to such a right of easement. It appears that the Plaintiff, at all events, has not all the rights of a riparian proprietor, or he would have been entitled to the bed of the stream ad medium filum. It may be that this khal being in possession of the Government, the Government may be able to do what they like with it; and if the Plaintiff would have no right to complain as against them of any interference with the flow, it does not seem clear what right he could have against a riparian proprietor on the other side. But further it has not been found in this case--indeed the evidence on the whole points in the other direction--that the Defendant, by what he has done, has to use the words of Lord Blackburn sensibly altered the flow of water. Without establishing this, the Plaintiff has failed to shew any such injury to his right as would support an action. All that has been found is that the Defendant encroached on the Led of the khal, which is the soil of the Government, without causing any sensible injury to the Plaintiff. There may be, where a right is interfered with, injuria sine damno sufficient to found an action; but no action can be maintained where there is neither damnum nor injuria.
8. Under these circumstances their Lordships are of opinion that the High Court was wrong in reversing the decision of the Lower Courts and ordering, as they did, the wall to be removed; and their Lordships are of opinion that the decision of the Subordinate Judge was right.
9. Their Lordships will therefore humbly advise Her Majesty that the judgment of the High Court be reversed; that the judgment of the Subordinate Judge be affirmed; and that the Appellant have the costs of the appeal in the High Court and also the costs of this appeal.
