Property – Reparation – Negligence – River – Burgh – Operations in Alveo Fluminis Causing Damage to Lower Heritor – Damnum Fatale.
A burn in a slight depression ran alongside of, but at a lower level than, a public road in a burgh. The burgh corporation, having been given the valley of the burn, which it used as a park, constructed a culvert to carry the burn and levelled up the valley so that the roadway became the lowest point on the surface. An exceptionally heavy rainfall occurred lasting over an hour. The roadway became flooded, and the water, sweeping down the incline of the road, in one place went to swell the water collecting behind the retaining wall of a railway in cutting, which fell, and in another place carried away a garage and with the debris drove against the mouth of a culvert under another railway and the railway wall, and that wall also fell.
Held, on the basis that the culvert in the park had proved unable to receive the water coming to it and that an overflow had occurred at its intake prior to the damage being done to the railway property, that the Corporation was liable in damages.
Held also, by Lord Wrenbury, that even if the overflow at the intake of the culvert took place subsequent to the damage to the railway property, the Corporation was liable in damages inasmuch as the result of their operations was, irrespective of the overflow, to increase the water running on the road by water which would but for their operations have been safely carried away in the valley of the burn.
Per the Lord Chancellor-‘It is the duty of anyone who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable. Such damage is not in the nature of damnum fatale, but is the direct result of the obstruction of a natural watercourse by the defenders’ works followed by heavy rain.’
Judges:
Lord Chancellor (Finlay), Lord Dunedin, Lord Shaw, Lord Parker, and Lord Wrenbury
Citations:
[1917] UKHL 600, 54 SLR 600
Links:
Jurisdiction:
Scotland
Land
Updated: 23 July 2022; Ref: scu.631009