Singh v Pati [2003] FJHC 7; Hbc0097j.2000s (1 May 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 97 OF 2000S

Between:

VIJAY SINGH
and
MATI SINGH
Plaintiffs

and

RAJ PATI
(f/n Bore)
Defendant

S. Chandra for the Plaintiffs
Ms. P. Lal for the Defendant

JUDGMENT

The Plaintiffs and the Defendant are next door neighbours, the former living on Lot 7 Corbett Avenue, Nausori, the latter on the adjacent Lot 6.

The first two questions before the Court are whether the Defendant by excavation has encroached on to Lot 7 and whether as a result of this excavation Lot 7 has been deprived of the support to which it is entitled from the subadjacent land, Lot 6 (see Dalton v. Angus (1881) 6 App Cas 740). If answered in the affirmative then the remaining question is the value of necessary restorative works which the Plaintiffs are entitled to recover.

The first named Plaintiff who was the first witness was not able to be of much assistance since he told me that he had bought Lot 7 about 5 years ago by which time the excavation and encroachment complained of had already occurred. After buying the property he spoke to his lawyer and also went to a firm of registered surveyors, Messrs Wood and Jepsen Consultants who in due course prepared two reports each of which he paid for, together with two estimates.

The second witness for the Plaintiff was Mr. C.M. Lenz, a consultant with Wood and Jepsen. Without objection Mr. Lenz produced copies of two reports prepared by his firm (Documents 2 to 3 and 4 to 5 in the Plaintiff’s bundle of documents). Mr. Lenz explained that after the boundary between Lots 7 and 6 had been surveyed he was able to calculate that the excavation which had occurred and which had encroached into Lot 7 totalled an area of 13 square metres. At its maximum the encroachment extended 0.9 metres into Lot 7 at which point the excavated cliff between the 2 Lots (best illustrated in the first of a bundle of photographs tendered by consent) rose to a height of about four to five feet. This encroachment and the height of the cliff gradually reduced as one moved southward along the common boundary. By about 23 metres from Prince’s Road both the encroachment and the cliff dwindled almost completely away.

Mr. Lenz told me that when he visited the site in February 2000 he had seen signs that the boundary had been excavated within perhaps the previous twelve to eighteen months. Because of the height of the cliff there was a probability that if left unattended there would be further loss of soil by erosion. Ultimately this would threaten the safety of the house on Lot 7 which is about two to three metres from the boundary.

Mr. Lenz also produced the two estimates prepared by his firm (Documents 6 and 14 in the Plaintiffs bundle). The first, dated August 2000, put the cost of a remedial retaining wall at $8,000. By April 2003 the price has risen to $10,000.

The Defendant, an elderly lady, told me that she had not excavated the boundary between Lots 6 and 7. She did however agree that she had excavated the rear of her property “a long time ago”. She also asserted that a previous owner of Lot 7 had excavated the lot before the house was built.

The second Defence witness, a relation of the Defendant, told me that he had lived on Lot 6 since 1974. He admitted that he had undertaken excavation on Lot 6 in 1997 including excavation between the house and the prayer house. He also admitted that he had moved excavated soil from the rear of the lot to the front. He however denied excavating on the boundary. He accepted that the land erodes from Lot 7 when it rains but maintained that the slope or cliff between the properties had never been disturbed.

The final Defence witness was another surveyor, Mr. Ronald Chan. His brief report is document 13 in the Defendant’s bundle. In his evidence Mr. Chan told me that so far as he was concerned the main boundary pegs (marked green and light green on the boundary in the plan exhibited to the May 2000 report by Wood and Jepsen) were in the correct position. Since, even on Mr. Lenz’s evidence, the green peg on Prince’s Road was in the correct position while the light green peg was only a few inches out of place I do not think that any difference between the two surveyors arising from the position of the pegs is of material significance. What however was much more important was Mr. Chan’s evidence that he was never asked to determine and was therefore not able to tell me what the relationship was between the alleged encroachment on the top of the cliff and the boundary. In other words he was not in a position to dispute Mr. Lenz’e evidence that 32 square metres of Lot 7 had been lost and that the maximum extent of the encroachment was 0.9 metres. He was however able to confirm that at its maximum height the cliff was about four to five feet high.

Having heard the evidence and seen the documents which were produced I have no reason to doubt that an encroachment has indeed occurred on the boundary. I also find that the topography of the boundary is such that the excavation has deprived Lot 7 of the support to which it is entitled. To suggest that the higher lot would be excavated along its boundary by its own owner in order to undermine it seems fanciful. I am satisfied that responsibility for the excavation, encroachment and consequent loss of support must be that of the Defendant whose own relative, the second defence witness, admitted carrying out excavation on Lot 6 in 1997 (and see also Manley v. Burn [1916] 2 KB 121).

I also accept the second and unchallenged estimate for the cost of constructing a retaining wall to prevent further loss of support.

There will be judgment for the Plaintiffs in the sum of $10,000 plus costs, including disbursements, to be taxed if not agreed.

M.D. Scott
Judge

1 May 2003