Deo v Mahabir [2000] FJHC 96; Hbc0257j.1996s (23 August 2000)

Fiji Islands - Deo v Mahabir - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. HBC 257 OF 1996S

en:

KRISHNA DEO

(f/n Bas Deo)

Plaintiff

and

ass=MsoBodyText align=center style="text-align: center; mar; margin-top: 1; margin-bottom: 1"> PREM CHAND MAHABIR

First Defendant

and

Second Defendant

S. Chandra for the Plaintiff

Defendants in Person

ass=MsoBodyText Text align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT

The Plaintiff is the owner of Lot 122 on DP 3291, Godfrey Street, Nasinu 7 miles.&nbsplan of the property preparrepared after survey is annexed to Exhibit 2. Running alongside the rn eern edge of the Plaintiff’s property there is a footpath reserve which leads from Godfrey Street up to two other properties, the first, Lot 76, which abuts laintiff’s property on its northern boundary and which belo belongs to the second Defendant and the second, Lot 77, on the other side of the footpath reserve which belongs to the first Defendant.

The Plaintiff’s case is that in about April 19e two Defendants undertook excavation of the footpath and fand further excavation to his northern boundary which excavations encroached upon his land and undermined it causing it to subside at its edges. He says that as a r of thef these excavations his land was damaged and that the foundation upon which his house rests was weakened. The Plaintiff that the eroe erosion of hid, which is continuing, presents the danger that the house ouse may collapse. The Plaintiff seek damwhic which, as I understoodChandra, were to be calculated by reference to the cost of t of building a retaining wall along the northern and eastern boundaries o Plaintiff’s property to prevent further erosion.

The Defendants were not represented but they told me that agh they had indeed carried ried out excavations along the footpath in order to turn it into a drive these had not encroached upon the Plaintiff’s land. The 2 Defendant alnt also specifically denied carrying out any excavations at all on the boundary between Lot 76 and the Plaintiff’s property.

I heard the Plaintiff, the surveyor, Mr. Manoj Sharma and a civil eer, Mr. R.J. Pole. Bsp; Both es produced repo reports (Exhibit 2 & 3). Both Defendants gaidence ance and I also visited the site in the company of the parties.

The Plaintiff told me that the Defendants undertook some excavations withgger “about 4 to 5 years agrs ago”. The digger was “digging on the side of my property. Up thepath. They dugy dug the area ne t to the footpath. They also de back of the athe area themselves. Both the Defendants”.

The Plaintiff told me ts a result of the excavation to the footpath a cliff had been created where none had previoreviously existed. This has led to lides part particularly when it rains. On the day the excavationk took place the Plaintiff told me that he had heard the nond seen what was happening. He had c out and pointed oted out to the Defendants that that he had pegs along the edge of his bou but they had ignored him.

Mr. Manoj Sharma produced the survey plan, Exhibit 2. so told me that in Jun5 hen5 he had surveyed the PlainPlaintiff’s land. He had seen where the etiovation had taken place along the footpath. He alsoseen that e north erth eastern corner of the Plaintiff’s pr’s property the encroachment was so severe that the peg which was supposede thed vanished.

Mr. Pole told me that he had also inspected the Plaintiff’s land. In his view the result ofethe excavations, both to the northern boundary and the footpath boundary would be continuing erosion unless a retaining wall istructed. The erosion on the foo bouh boundary appears to have settled but that on then the northern boundary is likely to continue and may eventually endanger the Plaintiff’s house. Mr. Polemmended that a reta retaining wall be built all along the Plaintiff’s northern boundary, around the north eastern corner and on down the footpath boundary for about 8 to 10 metres where the exion was deepest on the side side. The cost of the retaining wall was estimated to be a little less than $25,000.

er Defendants addressed me at the close of the hearing but Mr. Chandra stressed that the owhe ownership of the properties was not in doubt and that there was no dispute that a driveway had been excavated on the footpath reserve. He suggested that encroachment by the Defendants had been proved and that their liability had been established. It was clhe suggested that that a reng wall will have to be built and he invited me to award the Plaintiff the cost of construcstructing such a wall.

Witpect, I do not find the matter to be quite so straightforward. the evidence I be I believelieve that it is necessary to consider the two boundaries, the northern and the eastern, separately.

As already noted the Defendants did not deny excav the footpath in order to turn it into a driveway and althoalthough they denied that the excavation work had encroached onto the Plaintiff’s land adjoining the footpath, I am satisfied, particularly in the light of Mr. Sharma’s evidence, that their digger wittingly or unwittingly in fact did so. I also find that the cuencquence of this encroachment, which was particularly severe at the north eastern corner where the peg was removed, is that the Plaintiff’s boundary on the eastern side has become unstable a being eroded. In then the lighMr. Pole’sole’s evidence I accept that the area of erosion directly attributable to the footpath excavation is from the north eastern corner of the Plaintiff’s property running for a distance of about 8 to 10 metres down the slope towards Godfrey Street.

The second boundary is the northern, sometimes called the back boundary. In tase I the evidence muce muce much less compelling. As already noted laintiff’tiff’s evidence was also considerably vaguer as to boundary. He added, almost as an afher thought it seemed to me, that the Defendants ants had themselves also dug the ba the area, “both of them”.

The second Defendant whose property abuts the northern boundary denied carrying out excons on this boundary. nbsp; He that he would not not have done so since the base of the cliff is embedded in concrete and the concrete would have been damaged by the digger. He told that thicrete had had been laid down in 1973 when he extended the house shortly after buying it. He po out, which Mr. SharmSharma confirmed and which I saw for myself, that the northern boundarff is not in fact straight ight as you would expect to find it if it had been cut with a digger but is quite irregular.

“the excavation was carried out, we understand, within the last 2 years and considered (sic) of further cutting back of an existing bank in order to extend the house at the foot of this bank.”

Tuggests to me not that the excavation of the northern boundary was carried out in April 199l 1995 (which would hardly be described in October 1995 as “within the last 2 years”) but that it was indeed carried out, as claimed by the second Defendant, in 1993 and as such cannot be part of the Plaintiff’s pleaded claim. I well be that the two Defo Defendants tidied up the existing excavation to some small extent in 1995 but if the second Defendants’ house was indeed extended in 1993 which I accept to be the caen there was simply no room room in 1995 between the house and the base of the cliff for a digger to operate.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Thera further legal difficulty which unfortunately was not the subject of any legal submissionssions.

It is not clear the pleadings whether the Plaintiff’s case is brought in trespass or in nuisance. If ; If in trs then where,here, for example, land, as here, is damaged by a bank being dug away (Rochford v. Essex CC (1916) 85 LJ Ch 281) the measure of damage is thent by which the value of the land has been diminished and iand is not the cost of restoration. idence however was led to d to enable me to compute the Plaintiff’s loss on this basis although Mr.Pole did suggest that if the retaining wall were constructed the Plaintiff’s property would be restored to its value prie prior to the excavations.

If on the other hand the acis brought in nuisance then the position at common law is t is that while the owner of land has a right to the support of his land in its natural state from the adjacent and subadjacent land of neighbouring owners (Humphries v. Brogdin (1850) 2 QB 739) there is no natural right of support for buildings unless such a right is acquired by an easement, grant or by prescription, none of which were part of the Plaintiff’s case (Dalton v. Angus (1881) 6 App Cas 740). Surprising though this may seem the common law positon is that a landowner may make an excavation of his own land notwithstanding that by doing so he may causeneighbours land to fall (Wyatt v. Harrison (1832) 3 Barn. & Adol. 871; but c.f. c.f. Brown v. Robbins (1859) 4 Hurl & Norman 186). While y possibly be &bsp; that tcond Defendant’s excs excavations in 1993 breached certain planning or building regulations such breaches are not part of the Plaintiff’s case.

It is significant that, as appears frombit 2, there is no encroachment (save on the north eastern tern corner) onto the plaintiff’s land on its northern boundary at the base of the cliff. If the cli now beginning ting to “lie back” at the top of the cliff on the boundary then it is doing so within the Plaintiff’s own compound and I do not think that the second Defendant can, for the reasons given, be held responsible for it.

It is a pity that photographs were not taken in 1995 and that this case, simple as it may seen at first sight, although not so simple on closer examination, was not more thoroughly prepared.

Taking the evidence as a wholensider that justice would be served if the two Defendants pnts paid for the construction of a wall to a pattern similar to that recommended by Mr. Pole, the wall to extend westwards for 2 metres from the previous position of the north eastern peg and to extend southwards for a distance of 10 metres from the location of the same peg, the height of the wall to be within reason the same as the height of the Plaintiff’s land before the excavations took place.

I do not propose to attempt to calculae precise cost of this wall – that can be left to Mr. Pole.Pole.

The Plaintiff, having only partly succeeded he is to have one 2 of his costs to be taxed if not agreed.

In view of the interim nature of this Judgmeere will be liberty to both parties to apply for further dier directions if these are needed.

M.D.& Scott

Judge

23 August 00.

HBC0257J.96S