Texas Co (SA) Ltd v Cape Town Municipality

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA and Wessels JA
• Judgment Date: 14 July 1926
• Citation: 1926 AD 467
• Court: Appellate Division

Innes, C.J.:

On the 27th December, 1917, the appellant company leased from the respondent municipality a site on Woodstock beach to be used for the storage of petroleum and its products. The currency of the lease was 15 years, with the right of renewal on specified conditions. A detailed reference to the terms of the contract is unnecessary; but it is important to note that they made no mention of railway facilities or of the construction of any siding. Yet access by rail was, to the knowledge of the respondent, essential to the company's business; and the Council had promised to assist in that direction by allowing metals to he laid over municipal land adjoining the site; indeed before the lease was signed the railway authorities had, with the knowledge and consent of the Council, been approached with a view to the construction of a suitable siding. Those authorities undertook to lay, at the company's expense a short line connecting the site with an already existing siding utilised bar the Vacuum Oil Company. The Council was no party to, but was fully aware of, this agreement. As then proposed, and as ultimately constructed, the new line deviated from the existing siding on War Department property: it then crossed a strip of railway ground, and finally traversed municipal land until the site of the store was reached. The greater part of its length was over the municipal area. An encroachment agreement was entered into between the military and the railway authorities; the railway land was of course at the disposal of the department; and the Council consented, without any special arrangement, to allow the metals to be laid upon its property with the view to facilitating the use of the leased site

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by the company. The appellant proceeded, so soon as the lease had been signed, to erect a warehouse upon the site the construction of the siding was also taken in hand, and it was completed in 1918. The respondent was at the same time carrying out a reclamation scheme which involved raising the level of the low-lying ground north and south of the siding, and this action is brought in respect of flooding alleged to be due to the reclamation works. This flooding is said to have taken place during the winter season of every year from 1918 to 1923 inclusive; but the damage claimed is admittedly confined to the submersion of the metals in 19233 in consequence of which the Railway Department raised the line by 15 inches, at a cost to the company of rather more than £300. To the recovery of that amount the claim for damages was, at the trial, confined; but a mandatory order was prayed compelling the Council to do everything necessary to prevent flooding in the future; and also an interdict restraining it from carrying out the reclamation work so as to divert on to the siding and the leased premises any water from the reclamation area, or so as to impede the natural flow of the water from such siding and premises. The trial court entered judgment for the Council on the whole case, and the correctness of that order is the matter to be considered.

An examination of this bulky record shows that the real issue has been overlaid with a mass of evidence, much of which might well have been omitted. The controversy would have been simplified had the legal relationship between the parties been more clearly appreciated. The reclamation work which is alleged to have injured the company was carried out under statutory authority. (See Ordinance 19 of 1913; sec. 30). And there is no allegation that the Council has been negligent in the exercise of the powers entrusted to it by the Legislature. The declaration is drawn on quite different lines. The case there made is that, prior to the construction of the siding, the configuration and levels in the neighbourhood were such that the natural flow of the water was from the siding site and the land south of it in a northerly direction to the sea shore, and that the reclamation works so raised the level of the land to the north as to divert the flow of the water therefrom on to the siding, and to obstruct the natural southerly flow away from the siding, which was inundated in consequence. There is, moreover, a definite assertion that the

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siding is the property of the company. The frame of the declaration would seem therefore to cover an actio pluviae arcendae, so far as the cause of the damage was reclamation work done upon municipal land, and proceedings quod via aut clam, so far as it was work done upon the land of a third party. Both these actions were known to the Roman Dutch as well as to the Civil law, and are well recognised in our procedure. (See Cape Town Council v Benning (1917 AD p. 315). In a care like the present a right to relief upon those lines would be based, as this declaration is based, entirely upon a wrongful and non-natural concentration of water upon the appellant's property as a consequence of the Council's reclamation work. There are obvious difficulties, however, in the way of applying that form of relief to a case where the plaintiff is neither the dominus nor the possessor of the submerged land, and where that land is owned partly by the defendant himself and partly by persons not before the Court.

But the important fact is that the siding built for the company's convenience, and at its expense, traverses with the Council's permission municipal land which is alleged to have been flooded as a result of the Council's operations. And that fact supplies the clue to the legal relationship between the parties. A reference to the applications addressed by the company to the General Manager of Railways with regard to the construction and maintenance of the siding shows that it was to be constructed and maintained by the Railway Administration at the company's expense, and it was to be worked in accordance with the statutory regulations applicable for the time being. The term "siding" in those documents relates only to so much of the line as the property of the Administration the remainder which traverses the land of the War Department and of the Council is called a "siding-extension." And it is specially provided that the company shall procure a registered servitude upon the private lands traversed by the "siding-extension" in favour of the Administration. The evidence does not show whether such a registration was procured, and it is unnecessary to consider whether time Council could have been compelled to register against its title deeds a servitude in favour of the Administration. Because the declaration alleges, and the evidence shows, that leave to construct, or cause to be constructed, a line across municipal lend was given by the Council to the company, and as far as these proceedings

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are concerned the matter must be regarded as if the company had itself built and was operating this short line of railway across municipal property. I do not propose to investigate the circumstances under which a personal right of way granted precario can be revoked by the grantor. Because no question of revocation arises in this case; and because permission to lay the siding was not given precario in the civil law sense of that term. The correspondence shows that railway access to the leased premises was contemplated by both parties. The company would not have hired the site without due provision for such access; and it was in order to meet that requirement that leave was given it to cause to be constructed a siding across municipal land. The lease was signed and considerable expense was incurred by the company acting upon that leave; and it must be regarded as operative throughout the full term of the hiring. The question of the constitution of personal servitudes, or of rights in the nature of personal servitudes, was considered by the Court in Willoughby's Consolidated Company v Copthall Stores (1913 AD p. 267; and 1918 AD p. 1). It was pointed out that usufructus, usus, and habitatio, which are the ordinary personal servitudes discussed in the books, did not exhaust the category of servitutal rights which might he constituted in favour of individuals. Also that mere permission to make use of property might amount to a servitude if the owner allowed a permanent work to be done under it, the removal of which would entail substantial damage and prejudice. In this instance permission granted for the construction of a siding over the Council's property with intent that it should be used in connection with the site leased by the grantor to the grantee; for the leave to make a siding over municipal land was simply a grant to the company. The Council was necessarily in communication with the Railway Administration in regard to the point of junction and other details, but before the site bad been finally selected the company was written to in terms which made the position clear. It was informed on the 16th March. 1917, that any siding required would have to be constructed by agreement with the Railway Department, and at the expense of the company, and it was in due course so constructed. It was held in. S.A. Railways v Paarl Mills (1921, C.P.D p. 62) that the rights there given to a private firm to use a siding laid on railway land were of the nature of a personal servitude. And the

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grant to the company of permission to cause this siding to be constructed over municipal land, and to be utilised in manner contemplated, followed as it was by the execution of the work, amounted in my opinion to a contract for the creation of a personal servitude enduring for the term of the lease. That is the highest at which the position can be placed in favour of the company. There is nothing to show that the contractual obligation was implemented by registration. But as between the parties themselves, the matter must be regarded as if the grant of a servitutal right were complete. As regards the smaller lengths of...