Breede River (Robertson) Irrigation Board v Brink

• Jurisdiction: South Africa
• Judge: Curlewis JA, Beyers JA and De Villiers JA
• Judgment Date: 28 May 1936
• Citation: 1936 AD 359
• Court: Appellate Division

De Villiers, J.A.:

In 1898 a certain area of land in the division of Robertson was proclaimed as an Irrigation District under Act 8 of 1877 (Cape), and was placed under the appellant irrigation board. The powers of an irrigation board are defined in secs. 33 and 34, which (so far as material) read as follows: "33. The charge and conservation of every natural river, stream, creek and watercourse, and of every dam, reservoir, vlei and embankment, within the limits of irrigation district, which is by its nature common to two or more of the owners of land within such district, and the absolute control and regulation (so far as the same can be effected by artificial means) of the supply of water throughout the course of every such river, stream, creek or watercourse within such limits as aforesaid, shall be vested in the irrigation board of such district.

"34. The powers of an irrigation board acting within the area for which the said board is constituted shall extend to the following acts: that is to say: (iii). To making or erecting any new dam, reservoir, vlei, watercourse or embankment, erecting any

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machinery or doing any other act not hereinbefore referred to which may be required or considered expedient for the storage, drainage or supply of water, or the irrigation of the area comprised within the limits of the district or for the use of travellers and travelling stock within the district, hereinafter referred to under the expression the construction of new works. Provided always that (c) full compensation shall be made for all injury sustained by any person by reason of the exercise by the board of the above powers."

In the year 1900 the board gave notice under sec. 39 of its intention to take water out of the Breede River by means of a weir, and to conduct the water by a canal for a distance of some 21 miles across certain farms along a certain route pegged out and shown on plans, which lay for inspection of interested persons. The construction of the canal began in 1900 and ended in 1904, though the canal was only finally completed its present form in 1907, as I shall subsequently narrate. In its course it passed over a farm called Kraalboschvlakte. On this farm there was (and is) a channel or dry river bed, called Sand River, which brought down considerable bodies of surface drainage water after rains. In extraordinary floods the flow might amount to 300 cusecs or even to 600 cusecs. The canal was taken across the Sand River at a point which I shall name the "crossing." It appears from the evidence and from the plans prepared by the Public Works Department at the time of construction of the canal that the Sand River had a well-defined channel above the crossing. It also had a well-defined channel below the crossing till it reached a point about 300 yards below it, where it ceased to have a well-defined channel. At this point the floodwater would spread out "fanwise" over the veld, part of it going southwards and the rest westwards. The canal was constructed for the purpose of irrigating land on farms crossed by its route, including the farm of Kraalboschvlakte. The owners took out their shares or turns of water by sluices which were provided at necessary points in the lower (southern) bank of the canal. A plan has been found in the Department of Lands consisting of a drawing of an aqueduct for carrying the canal across the channel of the Sand River at the crossing. It does not appear whether the board ever had the intention of constructing this aqueduct; if so, it must have decided that it was unnecessary to do so. I do

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not think that any inference favourable to either party can be drawn from the existence of this drawing. At any rate the aqueduct was never constructed. The canal where it crosses the Sand River consisted merely of two earthen banks. In the north or upper bank a gap was left through which floodwater of the Sand River could enter the canal; but the south bank was continuous. Subsequently, however, in 1907, the south bank was replaced by a cement wall. This cement wall was (and is) some six feet lower than the earth bank had been and thus reduced the crest level of the southern bank by about six feet. In the centre of the cement wall a sluice was inserted consisting of removable planks. The object of these alterations is not quite clear; but its effect at any rate, was to ameliorate the position of the owners of land above and below the crossing, as it facilitated the passage of floodwater coming down in the Sand River. In a sense, therefore, it may be said that the period of construction of the canal was from 1900 to 1907, but for the sake of simplicity I shall refer to the year 1900 as the time of construction of the canal, as that was the time when the notices were published under Act 8 of 1877, and when the plans of the canal lay for inspection. In 1900 (and for many years thereafter) the land on Kraalboschvlakte lying below the canal was bare veld, and had not been cultivated; but when the water of the canal became available for irrigation, this land was cultivated and planted, mainly with vineyards, which were and still are irrigated by water taken from the canal by sluices and conveyed to the land by furrows. In 1915 Brink became owner of a portion (called Rouxvale) of Kraalboschvlakte on which the crossing is situated, and comprising land both above and below the canal at that point. He at the same time acquired another piece of land, 12 morgen in extent, lying near the point where the floodwater of the Sand River spreads out "fanwise" as above described. In 1920 the Sand River came down in flood and Brink complained of damage done to his property by the floodwater owing to the lay-out of the canal at the crossing. The board thereupon passed a resolution "that the Sand River be given free passage over the canal as soon as the overseer can undertake the work." This resolution was however not carried into effect by the board, on reconsidering the matter. In February, 1930, the Sand River again came down in flood and overflowed from the canal into Brink's lands. He

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complained to the board, which however refused to alter the lay-out at the crossing on the ground that any change might cause damage to other persons. Another flood came down in August, 1930, and several floods came down in 1932, and on each occasion Brink complained of damage. Fruitless negotiations took place between Brink and the board, and in May, 1935, Brink brought action in the Cape Provincial Division against the board. He claimed an order directing the board to "remove the obstruction to the free flow of the Sand River caused by the canal," and also claimed damages. His grounds of action are disclosed in paras. 5 and 6 of his declaration, which read as follows: "5. The defendant board unlawfully and negligently constructed, and control, a canal with high banks known as the Breede Rivier canal which crosses the said Sand Rivier at right angles on the said farm Rouxvale and entirely obstructs its course by reason of the lower bank of the said canal. No provision has been made for the continuance of the flow of the water in the said Sand Rivier.

"6. As the result of the said unlawful and negligent obstruction the water in the said Sand Rivier in times of flood is partly dammed back so as to flood bluegum plantations and buildings on plaintiff's said farm above the said canal and is partly diverted by the said canal the lower bank of which it overflows so as to flood lands, vineyards and crops, the property of the plaintiff." The board defended the action on the ground that Brink's predecessors in title had consented to, and acquiesced in, the manner of construction of the canal at the crossing, and that Brink himself had acquiesced therein and had made no complaint fill 1920, by which time conditions had so changed that the board could not give free passage to the Sand River floodwaters without causing heavy damage to lower owners. It also raised other defences founded on prescription, estoppel and lâches. The Court (SUTTON, J.) refused to grant the order claimed for removing the obstruction, but awarded Brink £176 10s as damages. The board now appeals to this Court.

The gist of Brink's case was that the floodwater of the Sand River on reaching the crossing, was dammed up by the south bank of the canal so as to stand back on his land above the canal, and that the floodwater also entered the canal and then overflowed at some six points, and flooded and injured his vineyards and

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crops lying below the canal. I shall first consider the law applicable in the case. The canal was constructed by the board by virtue of statutory authority, that is, under the powers conferrer be secs. 33 and 34 of the Act (8 of 1877) set out above. Now the case of New Heriot Company v Union Government (1916 AD 415), presents many features of similarity to the present case. In that case the construction of a railway line under statutory authority caused floodwater to enter a mine. It was held that statutory authority to construct a work excuses from liability for damage caused to third persons, subject to the proviso that the work will not be negligently executed and maintained. "The general rule that statutory authority to construct a work excuses from liability for damage thereby caused to third persons is subject to the proviso that the work be not negligently executed or maintained. And as pointed out in Halliwell v Johannesburg Municipality (1912, A.D., at p. 669) if such damage could have been avoided by measures reasonably practicable, it would be negligence not to have taken the necessary steps. Apart from servitude no one is entitled...