Pollution — Damage to crops — Riparian rights — Negligence — Salinity in irrigation water — Spray irrigation — Source of excessive salinity was high chlorine content of water pumped out of mine and discharged into river — Action by owners and tenants of farmland against National Coal Board and water authority for damages for loss of crops — Action based both on plaintiffs’ rights as riparian owners to an uncontaminated supply of water and on negligence — Plaintiffs required a supply of uncontaminated water for irrigation purposes — Irrigation by underground drainage and by spray irrigation — Plaintiffs’ claims were framed in somewhat different terms according to the location of the land in question in relation to the river from which water was taken — The spray irrigation system introduced in the mid-fifties is described in the judgment — The plaintiffs’ claims as riparian owners were contested by the defendant board and authority on the ground that the right to receive a pure and uncontaminated water supply did not extend to spray irrigation — Alternatively the defendants claimed a prescriptive right to discharge chlorine into a particular river — The judge rejected the submission that the riparian owners’ rights against the defendants did not cover the use of water for spray irrigation — Rugby Joint Water Board v Walters distinguished — As regards the defence of a prescriptive right to pollute the river, the judge held that the defendants had failed to establish that the pollution was the same as at the beginning of the alleged prescriptive period and had also failed to prove the necessary certainty and uniformity of user required to substantiate such a right — There had been an infringement of the plaintiffs’ rights as riparian owners in respect of the land affected — The plaintiffs were held to have more limited rights, based on prescription as distinct from riparian ownership, in respect of another stream — As regards the claim in negligence, the position of the defendant National Coal Board differed from that of the water authority — The water authority was negligent in failing to warn the plaintiffs of the dangerously high levels of salt concentrations which the authority knew to be dangerous to crops, and the authority, of course, was aware of the volume and flow of water — The Coal Board, on the other hand, although they knew, or ought to have known, the chlorine load which they were putting into the water, were not aware of the volume and flow of the river — A case of negligence was not made out against the board — Held that the defendants were liable to compensate the plaintiffs for the total loss in the land affected of crops of potatoes, cauliflowers, swedes and kale, spring greens and stick beans — Judgment was given for £36,589.99, together with interest and costs
The following
cases are referred to in this report.
Blackburne v Somers (1880) LR Ir 5 ChD 1
Cargill v Gotts [1981] 1 WLR 441; [1981] 1 All ER 682; (1980) 41
P&CR 300, CA
Crossley
& Sons Ltd v Lightowler (1867) LR 2 Ch
478
Diment v N H Foot Ltd [1974] 1 WLR 1427; [1974] 2 All ER 785; (1974)
28 P&CR 163; [1974] EGD 124; 231 EG 499
Goldsmid v Tunbridge Wells Improvement Commissioners (1865) LR 1 Ch
349
Hulley v Silversprings Bleaching & Dyeing Co Ltd [1922] 2 Ch
268; [1922] All ER 683
Liverpool
Corporation v H Coghill & Sons Ltd
[1918] 1 Ch 307
Pugh v Savage [1970] 2 QB 373; [1970] 2 WLR 634; [1970] 2 All ER
353; (1970) 21 P&CR 242; 213 EG 1535, CA
Rugby
Joint Water Board v Walters [1967] Ch 397;
[1966] 3 WLR 934; [1966] 3 All ER 497; [1966] EGD 612; 199 EG 565
Woodhouse
& Co Ltd v Kirkland (Derby) Ltd [1970] 1
WLR 1185; [1970] 2 All ER 587 (1970) 21 P&CR 534; [1970] EGD 472; 214 EG
1632
Young
(John) & Co v Bankier Distillery Co
[1893] AC 691, HL
Editor’s
note: This case was decided in July 1985 but was not brought to the notice of
Estates Gazette until 1987. It has been considered worth reporting, in spite of
the delay, as it is likely to be of interest to agricultural practitioners,
particularly the decision that riparian rights can cover the use of river water
for spray irrigation.
This was an
action by five plaintiffs who owned or rented 700 acres of farmland at Dene
Farm, Stourmouth, Kent, against the National Coal Board and the Southern Water
Authority for damage to or loss of crops due to pollution of river water.
Richard Havery
QC and John Moxom (instructed by Ellis & Fairbairn) appeared on behalf of
the plaintiffs; D J Gibson-Watt (instructed by R V Cowles, legal department of
National Coal Board) represented the board, the first defendants; W M Gage QC
and Lawrence West (instructed by Lawrence Graham Middleton Lewis) represented
the water authority, the second defendants.
Giving
judgment, STUART-SMITH J said: The first four plaintiffs in this action,
together with the personal representatives of the fifth plaintiff, who has
recently died, own or rent 700 acres of farmland at Dene Farm, Stourmouth, in
the County of Kent. The area of the land they occupy is shown edged in green on
the plan. The plaintiff company farms the land on behalf of the other
plaintiffs. The land can conveniently be divided into the marshlands, that is
to say the land lying between the Little Stour to the south and the Great Stour
to the north, and the uplands which are situated in the area south of the
Little Stour and some distance from it.
Various
parcels of land were bought by the plaintiffs between 1930 and the 1950s, the
earliest purchase being in the area of Old Harry’s, OS 187. Dene Farm itself or
the uplands was purchased some time in the 1950s.
Many years ago
the whole area was inundated by the sea. But after building the sea walls the
area became reclaimed. For many years it was the marshlands between the rivers
that were used for grazing, but over the last 40 or 50 years the marshlands
have been gradually drained. The first plaintiff’s evidence was that during the
war his recollections from boyhood were that on his father’s farm they grew
arable crops, mainly corn, and used the rest of the land for grazing. The
process of draining has continued, with the result that the land is now mainly
arable, although the plaintiffs keep some stock.
The land is highly
fertile, especially that of the marshlands, being alluvial soil. But in order
to get the highest yields, particularly in years of low rainfall, it is
necessary for the plaintiffs to irrigate their crops, especially potatoes and
other vegetables. That is done in one of two ways. First, the system of
underground drainage can be used to form irrigation for the crops. The drains
consist of tile drains laid at intervals across the fields with an outfall into
specially constructed
drains to flow into the river. But in spring or early summer the practice is to
stop the dykes and then fill them with water to the level above the outfall of
the tile drains, so that water can back up the tile drains and from thence
percolate into the soil of the fields. In this way the water table of the field
can be raised and the crops, by their roots, go down to the area where the
moisture is to be found, it being attracted upwards by capillary action in the
soil.
More
importantly, since about the mid 1950s, the plaintiffs have used spray
irrigation for their crops. The system involves the placing of a pump in the
river, or one of the dykes running into the river and fed by the river water,
which then pumps the water up into the pipelines and thence to various
sprinklers which are placed across the field. In order for the plaintiffs to
operate their spray irrigation system lawfully, they have under the provisions
of the Water Resources Act 1963 to obtain a licence from the second defendants,
the Southern Water Authority, who are the appropriate water authority for the
area. They have such a licence which permits them to extract six million
gallons per year from the Great and Little Stour for the purposes of irrigation
of the lands marked in green on the plan. There are appropriate limitations on
the amount of water that can be extracted in any one day.
The year 1976
was exceptionally dry, but Mr John Scott-Whitehead, who gave evidence on behalf
of the plaintiffs, has said that the total amount of six million gallons per
year would have been sufficient, together with the underground irrigation
system, to have provided all the water for the plaintiffs’ needs. Although the
defendants disputed this, maintaining that the quantity required would have
been some nine million gallons or more, in my judgment the plaintiff’s evidence
is correct. It is quite clear that a substantial amount of irrigation takes
place through the underground system; it is impossible to calculate how much
water is taken in this way; but I accept Mr Scott-Whitehead’s evidence that a
substantial quantity is so taken and that the limit of six million gallons
would have been sufficient for all purposes.
So far as is
material, the crops grown by the plaintiffs in 1976 were as follows. Going from
west to east in the marshlands: at OS 187, Old Harry’s, there were potatoes; in
the area of the Pump House at ‘W’ OS 59, 60, 54, 61 and 62, which I shall refer
to as the Pump House fields, there were also potatoes. In the area of the
confluence of the two rivers, referred to as the Dog and Duck, OS 160, 162 and
163, there were more potatoes. On the uplands, reading from north-east to
south-west, on OS 103 there were cauliflowers. On OS 42 there were stick beans
or runner beans. On OS 48 there were eight acres of swedes and kale for sheep
feed. On part of OS 48 there were four and a half acres of spring greens and on
OS 12 there were stick beans. There were also some potatoes on part of OS 48.
Between June 8
and 10 1976 the plaintiffs irrigated their early potatoes on part of OS 48.
Between June 12 and 17 and continuing on to the 30th and July 1-4 they
irrigated other crops on the uplands. No problems resulted from this. Between
July 1 and 5 inclusive the irrigation was switched to Old Harry’s. The source
of the water for this irrigation was the Great Stour. Between July 6 and 10
inclusive the Pump House fields were sprayed by irrigation; on the 6th and 7th,
OS 59 and 60; between the 8th and 10th, OS 54, 61 and 62. In fact these are all
one large field. On July 12 the irrigation system was moved to the Dog and
Duck, where irrigation was carried out between then and the morning of July 16.
Although the
second defendant’s records cast some doubt upon it, I accept Mr
Scott-Whitehead’s evidence that the source of the water for the Pump House
fields was the Little Stour, the water being pumped via the sluice at ‘P’,
through the dyke 83, round the north end of the field into the dyke marked
’50A’. The pumps were put into the dyke near the points marked 1 and 2 on the
plan. So far as the Dog and Duck fields were concerned the pump was put into
the Little Stour near the confluence, the plaintiffs there having a pump house.
Although the defendants did not know of this, I accept that that was the
position.
On July 16 Mr
Scott-Whitehead went to look at the crops near the Pump House. He was appalled
by what he saw. The foliage was withering and going brown, particularly at the
north end of the field. He said it was apparent that it was something to do
with the irrigation, because he could see the lines where the sprays had been.
He immediately rang ADAS, the Advisory Service of the Ministry of Agriculture,
Fisheries and Food, and Mr Charlesworth of that organisation came out. Mr
Charlesworth took samples of the water and the soil and advised straightaway
that the trouble was due to the salinity of the irrigation water. The
plaintiffs immediately stopped irrigating at the Dog and Duck. The results of
Mr Charlesworth’s test were agreed. Although the soil samples did not show
excess salinity, the water samples taken from the ditch at ’50A’ (points 1 and
2 on the plan) showed 817 and 944 parts of chloride per million or milligrammes
per litre, indicating chloride levels substantially in excess of those that are
safe for potatoes.
The plaintiffs
attempted to take remedial steps by leaching the soil, that is to say by
pouring on or irrigating with fresh water. But they were unable to find
suitable pumps to pump water from the Great Stour. Mr Scott-Whitehead said that
pumps were like gold dust at the time and I can well believe it. Eventually
they succeeded in obtaining a pump, but it was too late to do more than save
the residue of the crop.
At the Dog and
Duck they were able to take more effective steps because it was possible to
transfer the pump from the Little Stour to the Great Stour, the waters of which
were uncontaminated with salt. I am satisfied that the plaintiffs took
reasonable steps to mitigate the damage which had been caused by the excess
salinity in the irrigation water.
News of the
plaintiffs’ problems was quickly conveyed to the second defendants. One result
of this was that the sluice at ‘X’, Cater Bridge, was not, and reasonably not,
opened to admit water from the Little Stour into the Preston and Deerson
Stream, which is the blue stream marked on the plan running to the south of the
Little Stour. Normally the uplands were irrigated from this source.
Because of the
high salinity, which after July 16 was known to exist in the Little Stour, the
plaintiffs were unable to irrigate the crops on the uplands. They made some
attempt to obtain supplies of water from a neighbouring farm and did receive
some, but by no means sufficient to sustain the various crops. Again I am satisfied
that the plaintiffs made reasonable attempts to mitigate the problem caused by
the inability to get water into the Preston and Deerson Stream.
The source of
the salinity in the Little Stour was not far to seek. The first defendants own
a colliery at Snowdown, some eight miles away from the first plaintiff’s farm.
The colliery was opened some time around the first world war. As frequently
happens in coal-mining operations, water collects in the mine and has to be
pumped out. It has a high chloride content. In the early days it was pumped
into lagoons surrounding the mine and thence gradually percolated into the
subsoil. Unfortunately, the chloride or saline content of the water percolated
through the underlying chalk and contaminated the water supply of a large area
of Kent. In the result, by agreement between the Margate Corporation, who are
the predecessors of the second defendants and the Coal Board’s predecessors, an
arrangement was made to discharge the mine water into the Little Stour. By 1935
what is known as the Wingham Main had been constructed. It is diagrammatically
shown in two sketches. The Wingham Main for most of its length is a 15-in pipe
travelling underground for some six miles. Near its outflow it decreases to a
10-in pipe and then to a 9-in pipe and thence disgorges its contents into a
lagoon. This is something of a misnomer for those for whom the name conjures up
palm trees and a coral reef. It is illustrated in some agreed photographs. From
the lagoon the water is discharged through three pipes into the Little Stour
itself. Having been pumped to ground level at the mine, the water feeds by
gravity down the pipe into the lagoon and from the lagoon into the river.
The first
defendants produced some figures which purport to show the daily volume of
water sent down the Wingham Main and the chloride content of such water. In
para 47 of his report Mr Herbertson, a hydrologist employed by the second
defendants, dealt with the chloride load coming down the Wingham Main. At first
glance it might be thought that Mr Herbertson was inviting the court to
conclude that the chloride load, namely 25 tons per day, had remained constant
throughout the period from 1935 to 1976, notwithstanding that the volume of
water had clearly increased over the years. However, when he gave evidence Mr
Herbertson disclaimed any such intention and, in my view, no such conclusion
can be drawn from the figures in this exhibit. This is because until 1976 there
is no coincidence between the figures for the volume of water and the mean
chloride figure. And, in my view, it is not safe to make any assumptions about
this other than that between about 1952 and 1976 the volume of water increased.
For example, it can be shown that in the year 1972 if the daily gallonage
remained at 630,000 the daily input of salt into the river was 30.6 tons. If it
had increased to
Probably the actual figure is somewhere in between.
Concentration
of chloride in the water depends on two factors: (1) the amount of chloride
which is put in and (2) the volume of water which dilutes it, namely the flow
of the river. It will be apparent that in a wet year probably no problems will
arise because there is sufficient dilution by the river water of the chloride
content in the mine water; but in a dry year the concentration of chloride will
increase. 1976 was a very dry year, though not so bad as 1973. Statistically
the drought of 1973 is reckoned to occur with a frequency of once in every 50
years, and that of 1976 once every 40 years. Though, as is apparent, they may
in fact occur within a few years of each other.
In the papers
can be found the concentrations of chloride in the Little Stour at Blue Bridge
between the years 1965 and 1979. It will be seen that in the summer of 1976
they rose as high as 1500 milligrammes per litre.
For slightly
sensitive crops, which includes potatoes, the figure of 300-500 milligrammes
per litre is the danger level. It is clear that the water in the Little Stour
at the material time in July 1976 substantially exceeded this level.
Mr
Scott-Whitehead said that although he was aware that sea water and very salty
water could be harmful to crops, as indeed anybody would know, he was unaware
until after July 16 of the harmful levels, that is to say between 300-500
milligrammes per litre, that could affect potatoes and other crops. Moreover he
said, and I accept, that he was not aware of the existence of the Wingham Main
and was not aware that salt was being discharged into the river Little Stour.
So far as the
defendants are concerned, Mr Herbertson said that the second defendants had no
knowledge of such harmful levels until 1976. He said that they had had no
complaints from farmers or anyone else of deleterious effects of the water of
the Little Stour. The first defendants called no evidence, but Mr Gibson-Watt
invited me to conclude that if the second defendants did not know of these
matters and had had no complaints about them, then the probability was that the
first defendants knew nothing of them either.
It will be
necessary to make specific findings of fact in relation to the legal issues
raised in the case, but those are the background facts upon which the claim
arises.
The plaintiffs
put their claim in two ways. First, they submit that as riparian owners they
are entitled to receive the water of the Little Stour in a pure and
uncontaminated state and they allege that both defendants have infringed this
right. The defendants raise two main defences to this; they deny that the right
to receive pure and uncontaminated water extends to use of spray irrigation;
alternatively they claim that they have a prescriptive right to discharge the
chloride into the Little Stour.
Secondly, the
plaintiffs base their claim in negligence against both defendants. The
defendants deny negligence. Issues of contributory negligence and causation
arise. Special considerations apply to the uplands, since the source of water
for irrigation is not the Little Stour but the Preston and Deerson Stream.
The
plaintiffs’ rights as riparian owner
A riparian
owner has as an incident to property a natural and proprietary right not
dependent on prescription, grant or acquiescence but arising jure nature
to have water in any normal channel which is known and defined on which his
land abuts, or which passes through his land to flow to him in its natural
state, both as regards quantity and quality, whether he has made use of it or
not: see Halsbury’s Law of England, vol 49 para 392.
So far as the
Little Stour is concerned, it is a natural channel or watercourse and the
marshlands abut on it.
In John
Young & Co v Bankier Distillery Co [1893] AC 691 Lord Macnaghten
stated the law thus, at p 698:
The law
relating to the rights of riparian proprietors is well settled. A riparian
proprietor is entitled to have the water of the stream, on the banks of which
his property lies, flow down as it has been accustomed to flow to his property,
subject to the ordinary use of the flowing water by other riparian proprietors,
and to such further use, if any, on their part in connection with their
property as may be reasonable under the circumstances. Every riparian
proprietor is thus entitled to the water of his stream, in natural flow,
without sensible diminution or increase and without sensible alteration in its
character or quality. Any invasion of this right causing actual damage or
calculated to found a claim which may ripen into an adverse right entitles the
party injured to the intervention of the court.
The law relating
to riparian rights is the same in Scotland as in England: see per Lord
Watson, p 697.
Pollution is
the doing of something which changes the natural qualities of the water and may
be actionable at common law as the infringement of proprietary right. The
riparian owner is entitled to the flow of the water past his land in its
natural state of purity: see Halsbury’s Laws, vol 49, paras 783 and 787.
But Mr
Gibson-Watt on behalf of the Coal Board submits that this right is limited and
extends only in so far as the plaintiff is using the water for certain
permitted purposes which are recognised by the law and that use of the water
for spray irrigation does not fall within such use. This submission was also
supported by Mr Gage for the Water Authority. He cited in support of his
submission a passage from Clerk and Lindsell, 15th ed p 1173, paras
23-49:
A riparian
proprietor can take and use water from the stream for ordinary purposes
connected with the riparian land, that is, for domestic purposes and the wants of
his cattle, even to the exhaustion of the whole supply. For extraordinary
purposes, that is, for any other purposes connected with the riparian land, he
may only take and use so much water as not sensibly to diminish the flow or
alter the character of the water; even in such a case, the water must be used
for a reasonable purpose connected with the riparian land and restored
substantially undiminished in volume and unaltered in character. Irrigation is
an extraordinary purpose in this connection. Thus extraction from a river of
over 10 per cent of the flow in order to spray crops, etc, has been prohibited
by injunction at the instance of a lower riparian owner, but that injunction
was not extended to the use of water collected by the defendant in a reservoir
fed by surface drainage and not part of a watercourse.
That is a
reference to the case of Rugby Joint Water Board v Walters [1967]
Ch 397, upon which Mr Gibson-Watt relied. After reviewing the authorities,
Buckley J, as he then was, at p 422F said:
With the two
exceptions I have mentioned, all the cases to which I have referred appear to
me to be consistent with the correctness of Lord Macnaghten’s dictum and I
think that Attwood v Llay Main Collieries Ltd is an authority
binding upon me that a riparian owner is not entitled to take water from a
stream for extraordinary purposes without returning it to the stream
substantially undiminished in quantity. This appears to me to be wholly
consistent with the principles laid down in Wood v Waud and Embrey
v Owen; for, if a riparian owner has no property in the water of the
stream, by what right can he appropriate any of that water to himself? He is entitled at common law with other
riparian owners to its use, but no more. If he permanently abstracts any of the
water, he deprives other riparian owners of any use of the water so abstracted
and thus infringes their rights. In such circumstances lower riparian owners
are entitled to complain, even without proof of damages: see Attwood v Llay
Main Collieries Ltd. The question whether the effect of the abstraction is
such as to cause them sensible injury is consequently irrelevant.
If, as
Lawrence J held, it is impermissible to take water from a river and dissipate
it as steam in the course of manufacture carried on upon a riparian tenement,
it follows logically that it is impermissible to take water from a river and so
use it on a riparian tenement that much the greater part of it evaporates
either directly from the soil into the atmosphere or through the medium of growing
crops. Consequently, in my judgment, the defendant’s spray irrigation cannot be
justified if it is to be considered as an extraordinary use.
The evidence in
the present case is to the like effect, namely, that all or substantially all
of the water used for spray irrigation is not returned to the river. Mr
Gibson-Watt accordingly submits that since the use of water for spray
irrigation was not a permissible use at common law, the plaintiffs cannot
maintain an action for alleged infringement of their rights which relate to
such use. I cannot accept this submission. In my judgment the Rugby case
is concerned only with the extent to which an upper riparian owner is entitled
to extract water as against a lower riparian owner (see the argument of Mr
Raymond Walton QC, as he then was, at p 404C-D).
It is perhaps
worth observing that in Young v Bankier the respondents were a
distillery company and thus used the water of the stream for distilling whisky.
It seems improbable that they returned the water so used to the stream for the
benefit of lower riparian owners. Yet no suggestion was made that they were
thereby limited in their claim against the appellants for making their water
hard, which had previously been soft.
The question
of user by the plaintiffs seems to me to be entirely irrelevant to their rights
as riparian owners to receive the water in the stream unpolluted. It might have
a bearing on the question of remoteness of damage; but no such argument has
been advanced by the defendants.
All questions
of the amount and purposes for which a riparian owner may abstract water are
now dealt with under the provisions of the Water Resources Act 1963. And
provided the plaintiffs comply
by the river authority or a lower riparian owner in respect of the abstraction
of water: see section 31(1).
The
defendants’ claim to a prescriptive right to pollute the river
Secondly, the
defendants contend that they have acquired a prescriptive right to pollute the
Little Stour by the addition of the mine water, including chloride. They have
undoubtedly been doing so for a continuous period in excess of 20 years before
1976, that is to say from 1935 when the Wingham Main was installed. The burden
of proving a prescriptive right is upon the defendants who assert it: see Crossley
& Sons Ltd v Lightowler (1867) LR 2 Ch App 478 and 482 per
Lord Chelmsford LC.
Mr Havery on
behalf of the plaintiffs makes a number of points against the defendants’ claim
to have a prescriptive right. He submits that a right to pollute water may be
acquired by prescription but the right must be restricted to the extent of the
pollution when the period of prescription started. In Blackburne v Somers
(1880) LR Ir 5 Ch D 1 the Vice-Chancellor at p 18 said:
But supposing
that a prescriptive right to foul a stream with sewage injurious to the public
health could be acquired, that right must be restricted to the limits of it
when the period of prescription commenced. If the pollution has increased
either gradually or suddenly, and has, at least to a substantial extent,
exceeded those limits, I am of opinion that this court is bound to interfere by
injunction to prevent this wrongful excess; . . .
As Lord Chelmsford
in Crossley v Lightowler at p 481 said:
The use which
originated the right must also be its measure, it cannot be enlarged to the
prejudice of any other person.
There is great
difficulty in this case in ascertaining the quantity of chloride deposited in
the river over the years. And I certainly do not think that the evidence
justifies the conclusion that the level has been constant throughout the years
or that it was the same in 1976 as in 1935. In any event, the plaintiffs submit
that it is not the quantity of chloride that is discharged into the water that
is relevant but the effect that it had upon the water that reaches them, that
is to say the chloride concentration. Mr Havery relied upon the judgment of Eve
J in Liverpool Corporation v H Coghill & Sons Ltd [1918] 1 Ch
307 at p 313.
It is, I
think, convenient to consider in conjunction with this submission the next
point that is made by Mr Havery, namely, that certainty and uniformity of use
are required to establish a prescriptive right and that the defendants have
failed to establish this. In Hulley v Silversprings Bleaching and
Dyeing Co Ltd [1922] 2 Ch 268 at p 281, Eve J said:
the
progressive increase in the plant in the defendant’s mill and in the volume of
water polluted is destructive of that certainty and uniformity essential for
the measurement and determination of the user by which the extent of the
prescriptive right is to be ascertained.
It is
submitted on the plaintiffs’ behalf that the figures in evidence cannot
possibly be a basis for a conclusion that there has been certainty and
uniformity; they show wide variation in the mean chloride content of the
samples between 1960 and 1976, and before that time no figures for chloride
content are available, save for 1934, where the number of samples is not
indicated. Secondly, there are no figures for the volume of water discharged
between 1960 and 1976. If one looks at the figures for the chloride
concentration in the Little Stour at Blue Bridge (point 2 on the plan which is
near the plaintiffs’ land) they show a wide variation ranging from as low as 50
milligrammes per litre in the winter of 1974 to 1,950 milligrammes per litre in
the summer of 1976.
Mr Gage, on
the other hand, submits that where a prescriptive right has been acquired certainty
and uniformity is not changed so as to destroy it, if the discharge is the same
but for some reason the impact is more serious. He contends, no doubt
correctly, that the impact was more serious because of the low flow in the
river due to the drought. He relied on two cases: Woodhouse & Co Ltd
v Kirkland (Derby) Ltd [1970] 1 WLR 1185. That was a right of way case
where it was held that once the right of way was established by prescription
increased user did not invalidate the right unless the burden imposed on the
servient tenement was excessive or different in kind. The second case was Cargill
v Gotts [1981] 1 WLR 441. In that case the plaintiff had a prescriptive
right to take water from a millpond for the benefit of his farm. It was held
that the right was not lost because over the years his demands for water
increased, even to the extent that he used it for spray irrigation. The right
established was to take water for the benefit of the farm. But in my judgment
these cases do not greatly assist when one is considering a prescriptive right
to pollute a stream. In the course of his judgment, Templeman LJ (as he then
was) pointed to this distinction. At p 448 he said:
Mr Knox, who
appeared for the defendant, referred to Millington v Griffiths
(1874) 30 LT 65. In that case a prescriptive right to pollute was not
established because, over the alleged prescription period, the amount of
pollution had gone on increasing. If a plaintiff claims a prescriptive right to
pollute a stream he must show that he has, for a 20 year period, asserted the
right to introduce polluting material of a kind and quantity which produces the
effect on the stream which he claims to be entitled to continue. No such
principle applies or needs to be applied to a prescriptive right to take water
from a stream if, as in the present case, the right claimed has no material
effect on the stream. The defendant in the present case is not defending the
stream; he is seeking, for understandable reasons, to prevent the plaintiff
from introducing a vehicle on the defendant’s property.
In Hulley
v Silversprings Bleaching and Dyeing Co Ltd [1922] 2 Ch 268 it
was held that the progressive increase in plant in a mill which polluted water
taken from a stream and in the volume of water subsequently polluted was
destructive of that certainty and uniformity essential for the measurement and
determination of the user by which the extent of the prescriptive right claimed
was to be established. That is another pollution case in which the plaintiff
could not establish the extent of the right which he had asserted for 20 years.
It was not sufficient for him to show that he had put some polluting material
in the stream throughout the 20 year period. He must justify the extent of the
pollution which he was causing at the date of the proceedings. In the present
case the plaintiff does not claim a prescriptive right to extract any
particular volume of water from the mill pond. He claims he has asserted for 20
years and more the right take such water as he requires from the mill pond for
agricultural purposes connected with Grove Farm. Easements to take water,
whether express or prescriptive, are rarely if ever defined by reference to
quantity as well as or instead of by reference to the purposes for which the
water may be abstracted.
Lawton and
Brandon LJJ agreed with his judgment.
No doubt to
some extent it is a question of degree and the court will not take account of
small variations, but in my judgment the defendants have failed to establish
that the pollution was the same as that at the beginning of the prescription
period or even for the relevant 20 years’ period before 1976 and they have
failed to establish the necessary certainty and uniformity of user to acquire
the right. Such evidence as there is suggests the contrary.
Thirdly, the
defendants contend that there can be no prescription until actual damage is
suffered by the plaintiffs. This certainly appears to have been the view of
Turner LJ in Goldsmid v Tunbridge Wells Improvement Commissioners
(1865) LR 1 Ch 349, which was a pollution case. At p 352 he said:
I assume, but
without meaning to give any opinion upon the point, that such a right (a
prescriptive right to pollute the stream) might well be acquired, but then I
think that it could be acquired only by a continuance of the discharge of the
sewage prejudicially altering the estate at least to some extent, for the
period of twenty years, and I think that the evidence sufficiently shows that
the discharge has not prejudicially altered the estate for so long a period.
Knight Bruce LJ
agreed with this judgment, which was affirming the decision of Lord Romilly MR.
This decision was followed on the point in the Liverpool Corporation
case [1918] 1 Ch 307 at p 314.
Mr Gage points
out that pollution of a river is an infringement of a lower riparian owner’s
rights and is actionable without proof of damage. See Coulson and Forbes on
Waters and Drainage 6th ed p 198 and Halsbury’s Laws, vol 49 at para
784. The submission seems to me to be that the prescription period begins to
run from the first pollution irrespective of any effect on the plaintiffs’
land. It may be that a plaintiff can sue, even if no damage is sustained, but
it seems to me to be clear, on the basis of the two authorities to which I have
referred, that the period of prescription does not begin to run until actual
damage is suffered. It is common ground that no such damage was suffered by the
plaintiffs prior to 1976.
Fourthly, Mr
Havery contends that there can be no prescription where the pollution is
unknown to and unsuspected by the plaintiff: see Liverpool Corporation v
H Coghill & Sons Ltd. Mr Gage accepts this is so, but he contends
that where the plaintiff has the means of knowledge, that is sufficient. I am
not altogether clear what this means in the present context. If it means that
the plaintiff was aware of all the material facts, but failed to reach the
conclusion that the defendant was polluting the stream, I would agree with the
proposition so stated; otherwise I do not find it helpful. Moreover, he submits
that where long usage is established, and he contends that it lasted from 1935,
the onus is upon the plaintiff to prove lack of knowledge on the part of
himself or any relevant predecessor during the prescription period. He relies
upon Pugh v Savage [1970] 2 QB
1 WLR 1427 per Pennycuick V-C at p 1434. But those are right of way cases and
it may well be that where it has been exercised over many years there is a
presumption that it is known to the owner of the servient tenement or at least
that the inference can be drawn. But I do not think the same consideration
applies to pollution where there are no visible or sensible signs to be observed.
I accept Mr
Scott-Whitehead’s evidence that he did not know the defendants were discharging
water containing chloride into the river. Mr Gage contends that his father must
have done so; that all in the area must have been aware of the construction and
purpose of the Wingham Main in 1934 and this must have been a matter of
discussion in the area. Unfortunately, although the plaintiff’s father was a
plaintiff originally, he died before trial. But it seems to me wholly uncertain
whether he knew. It is possible that he had heard at the time of the
construction of the water pipe, but I see no reason to conclude that he was
aware that substantial quantities of chloride would be discharged into the
river without being told of this. If he had made any assumptions about the
matter, it seems to me that he would conclude that the water authorities would
not knowingly pollute the water. Moreover, the fact that the existence of the
Wingham Main and the nature of its discharge was unknown to Mr John
Scott-Whitehead suggests to me that it was also unknown to his father. Were it
otherwise, it seems that in a close-knit family, where the land was owned and
farmed by the family, this knowledge would be likely to be transferred by
father to son. I hold that the pollution was unknown to and unsuspected by the
plaintiffs and their predecessors.
For all these
reasons, any one of which is sufficient in itself to invalidate the defendants’
claim, I hold that they have not established a prescriptive right to pollute
the Little Stour river. In relation to the marshlands, therefore, there was an
infringement of the plaintiffs’ rights as riparian owners, assuming the damage
was caused by the chloride content of the water.
But the
position on the uplands is somewhat different. These fields do not abut on the
Little Stour. Any claim as riparian owner is therefore based on the plaintiffs’
right in relation to the Preston and Deerson Stream. Mr Scott-Whitehead said
that he thought this was a natural stream; but I am bound to say that I prefer
the view of Mr Herbertson on this point. It seems to me that the configuration
and indeed the name suggests that it is a man-made drainage dyke or stream.
This being so, the plaintiffs’ rights must depend upon prescription. It is
clear that such rights can be acquired after a period of 20 years: see Blackburne
v Somers (1880) LR Ir 5 ChD 1.
The evidence
of Mr Scott-Whitehead established that the Preston and Deerson Stream existed
substantially in its present state for 20 years before 1976, save only that
after the installation of the pumping station water was admitted to the stream
from the Little Stour at point ‘X’ and there was a reverse flow: ie from east
to west for at least part of its course. But it would, in my judgment, be
impossible to conclude that it so existed for 20 years prior to 1935. I simply
do not know and it is for the plaintiffs to establish the prescriptive right.
Mr Gage
therefore submits that whatever right the plaintiffs may have, it is merely to
take the waters as they are with their chloride content from the Preston and
Deerson Stream. I do not find this an easy point. But it seems to me that some
at least of the arguments which destroy the defendants’ claim to a prescriptive
right to pollute the Little Stour apply with equal force to the Preston and
Deerson Stream, particularly those in relation to certainty and uniformity.
Accordingly, in my opinion, the plaintiffs establish the right not to have more
than 300 milligrams per litre of chloride in the waters of the Preston and Deerson
Stream, to put it no higher.
The
plaintiffs’ claim in negligence.
The allegation
in para 5 of the amended statement is as against both defendants:
that they
owed the plaintiffs a duty of care not to cause the plaintiffs damage by
polluting the said river. The defendants knew or ought to have known that a
concentration of more than 300-400 ppm of chloride in the water of the river
was likely to cause damage to crops irrigated with such water and was likely to
cause damage of the kind alleged to the plaintiffs. The defendants knew or
ought to have known that by discharging brine into the river the defendants
were negligent and in breach of such duty to the plaintiffs in (a) so polluting
the said river in those circumstances and/or (b) failing to warn the plaintiffs
that the said defendant or defendants thereby caused the damage aforesaid.
The position
of the two defendants is somewhat different and it is convenient to consider
the position of the second defendant, the water authority, first. Mr Gage contends
that the water authority were under no duty of care to the plaintiffs because
they could not reasonably foresee damage to them from the concentration of
chloride in the water; they had no actual knowledge of the harmful levels until
1976; and since there were no claims in respect of damage before then, it is
contended that they had no occasion to know of the risk nor to foresee that it
might occur, since it required an exceptionally dry year for the concentration
to rise to dangerous levels.
I cannot accept
this submission. The second defendants were well aware that substantial
quantities of chloride were being put into the Little Stour. It has been common
knowledge for centuries that sea water is harmful to plants; it is readily
foreseeable that if water is sufficiently salty it may be injurious to crops.
Moreover, it is clear to my mind that the second defendant’s predecessors
appreciated this in 1963. In an internal memorandum dated April 5 1963 from the
area engineer to the engineer concerning the plaintiffs’ abstraction of water,
there appears this paragraph:
As to
abstraction from the Little Stour and Great Stour — tidal stretches — it seems
to me that the supply is unlimited. Whitehead must take the risk that the water
will not be too salt for his requirements, but my own observations, based on an
analysis done for me some years ago by the Chief Inspector, suggests that the
water will be perfectly all right.
Even assuming
that what the writer had in mind is the sea water that will come up and mix with
the river water in the tidal stretches, and not the additional influences of
the Wingham Main, this memorandum shows quite clearly that the second
defendant’s then area engineer was alive to a possible risk to the plaintiffs
from the concentrations of salt in the water which must have been markedly less
than pure sea water. There is, unfortunately, no record of the analysis
referred to. Although this certainly suggests that there may at that time, and
indeed even earlier, have been known criteria for safety of crops, I am not
prepared to accept that the plaintiffs have proved that such information was
available before 1972. But in that year ADAS published such criteria which
clearly showed that water with a chloride content in excess of 500 milligrams
per litre was wholly unsuitable for, inter alia, potatoes; and lower
concentrations might be harmful, depending on the extent of the application. It
is true that that information was published primarily for farmers, but it was
obviously available for those who cared to inquire of the obvious source,
namely, the Ministry of Agriculture, Fisheries and Food.
Mr Gage
submitted that his clients could not reasonably have foreseen the severe
conditions of drought, which by reducing the water level in the river created
the high concentration of chloride. But quite apart from the fact that Mr
Herbertson conceded that such a summer was foreseeable as a distinct
possibility, England had in fact experienced just such weather, indeed even
dryer, only three years before in 1973.
In my
judgment, where, as here, the second defendants were themselves by agreement
with the Coal Board admitting large quantities of salt into the river which
could be harmful to the plaintiffs’ crops, if the salinity of the river rose to
dangerous levels of chloride, the second defendants were under a duty of care
to the plaintiffs; they were well aware of the purpose for which the plaintiffs
and other farmers used the water. No considerations of policy have been urged
upon me which would negate such duty. This duty arose in the latter part of
1972 when the information on dangerous levels was available. It may have been
available earlier; but on the evidence I cannot so find.
This being so,
the question arises whether the defendants or either of them could have
diverted the Wingham Main before the summer of 1976. The eventual diversion
started in 1980 and was completed in 1984; but before that there were
feasibility studies and the defendants were no doubt spurred on by the
knowledge that a substantial claim was being made. There is, I think, no reason
to suppose that the defendants, even if they had reacted with reasonable
dispatch as from the end of 1972, could have diverted the mine water by the
summer of 1976. The first ground of claim in negligence must fail.
But the second
allegation is more formidable. Mr Herbertson sought to paint a terrifying
picture of the burden and expense that would be imposed upon the second
defendants if they were under such an obligation. But that evidence, in my
judgment, is entirely beside the point. No one, least of all I, is suggesting
that the water authority have to test the water in every river every day to see
whether it is suitable for the multitude of different uses to which riparian
owners or licensees may put it and then warn such licensees if there is a risk
to their operations. Such a burden would be wholly
as 1973 and 1976, farmers downstream of the Wingham Main extracting water from
the Little Stour for irrigating their crops should be told that salt
concentrations might rise to dangerously high levels and they should check
whether the water was suitable before use. This would have cost the second
defendants the price of sending a number of letters and perhaps the modest
price of a testing kit with which to equip the pump attendant or foreman on
this stretch of the river. Such expense or burden would have been minimal. In
my judgment the second defendants were negligent in failing to warn the
plaintiffs of this risk in 1976.
So far as the
Coal Board are concerned, they are, in my view, in a stronger position than the
water authority. Mr Gibson-Watt submits that although they knew or could have
discovered the chloride load that they were putting into the river, they did
not know and could not reasonably discern the other element in the equation,
namely, the volume and flow of the river. This was a matter for the water
authority. Moreover, he submits that the Coal Board were entitled to rely on
the water authority, who knew the identity of the licensees and the purposes
for which they extracted water and could reasonably expect the water authority
to give any necessary warning. I think there is force in these submissions. I
do not think the case in negligence is made out against the Coal Board under
either head in para 5 of the amended statement of claim.
Contributory
negligence.
The second
defendant, though not the first, alleged the plaintiffs themselves were guilty
of contributory negligence in failing adequately to test the water. In my
judgment this plea fails. The plaintiffs neither knew nor could reasonably have
known that dangerous levels of chloride might be being put into the river.
Causation.
1. The
marshlands. It is not seriously disputed that the damage caused to the badly
affected crop in the eight and a quarter acres of potatoes in the Pump House
fields at OS 54, 61, 62 and parts of OS 59 and 60 was due to the excess
chloride in the irrigation water. In my judgment it is also established that
the reduction in the yield on the other 10 acres of this area and the 13 acres
at the Dog and Duck was also due to the fact that they were irrigated with
excessively salty water. The extent of the reduction in yield I will consider
later when I deal with the question of damages. It was significant; it would
have been much more severe but for the prompt action in leaching the fields.
This damage was caused both by the infringement of the plaintiffs’ rights as
riparian owners and also by the second defendant’s failure to warn. I am
satisfied that if the plaintiffs had been warned in time other arrangements
could and would have been made to irrigate these crops with water from the
Great Stour.
2. The
uplands. If the water in the Preston and Deerson Stream had not been polluted
in infringement of the plaintiffs’ rights, then clearly sufficient water would
have been available to irrigate these crops. Causation is, therefore,
established in respect of this cause of action. The position is different,
however, so far as the claim in negligence is concerned. Although Mr
Scott-Whitehead said that if he had been warned in time he would have been able
to connect up to the second defendant’s main and so obtain supplies of water, I
do not think it is established that in the drought conditions of 1976 the
plaintiffs would have been able to avail themselves of this. There were
hosepipe restrictions in force and a severe shortage for domestic purposes. The
evidence on this aspect of the case is not entirely satisfactory. But the
burden of establishing causation is upon the plaintiffs. I think the proper
inference, in the absence of clear evidence to the contrary, is that if the
hosepipes were banned spray irrigation, which would have taken far greater
quantities, would not have been permitted; and the plaintiffs had no right to
such water from the main.
Damages.
Many of the
figures and other matters have been agreed. But there are some matters in
dispute upon which it is necessary for me to make findings:
1. The plaintiffs
contend that had it not been for the salt the yield they would have expected
would have been 22 tons per acre. This figure is taken by averaging the yield
for 1975 and 1977. The defendants, on the other hand, say that the yield would
have been 19.03 tons to the acre, which is the yield actually achieved on Old
Harry’s, which was not subjected to salty irrigation. But Mr Scott-Whitehead
said, and I accept, that had it not been for the trouble caused by the salty
irrigation, the plaintiffs would have used the equipment to irrigate Old
Harry’s three times. In fact they were only able to do it twice; they had to
omit the middle one because they were leaching the affected areas. A third
irrigation, so he said, would have brought the yield up to 22 tons. In my
judgment this is the proper figure to take.
2. The price
achieved for the potato crops depends on the size and quality of the potatoes
in any given quantity. The highest price is paid for ware potatoes, which are
the larger potatoes, which will not pass through the appropriate riddle. These
are sold for human consumption. Next come the mids; they are smaller; they are
used for industrial processing and ultimate human consumption. Finally, there
are chats and greens; those that are too small or too green and are used for
animal feed. There is also a proportion of earth in every ton of potatoes
lifted. The different figures are based on different samples taken by Mr
Scott-Whitehead from Old Harry’s. It seems to me that the proposition for which
the plaintiffs contend is to be preferred, based as it is on a much larger
sample.
3. The spring
greens. The defendants dispute this claim because they say that soon after the
seed was sown the rain came. Ironically it was the fact that it rained very
heavily that caused some of the trouble. Mr Scott-Whitehead said that the time
for planting spring greens is critical. If they had had irrigation available on
the uplands a proper seedbed would have been prepared in mid-August and the
seed planted. As it was, it was then a dust bowl. They did plant later, hoping
that some rain would come and save the crop. In fact torrential rain washed
much of the seed away. Had the crop been sown at the correct time it would have
been established by the time the rain came and would have benefited from it. I
see no reason why I should not accept this evidence. Mr Scott-Whitehead was an
impressive witness who showed no tendency to exaggerate. The plaintiffs made
out their claim in respect of the spring greens.
Applying these
figures to the agreed figures, I arrive at the following figures for damages:
|
Total loss of |
Potatoes |
£30,395.31 |
|
Cauliflowers |
1,359.50 |
|
|
Swedes and kale |
600.00 |
|
|
Spring greens |
2,570.00 |
|
|
Stick beans |
1,023.49 |
|
|
Additional costs |
435.99 |
|
|
£36,384.29 |
Accordingly there will be judgment for the plaintiffs in that sum.
Judgment was
given for the above sum with costs.
