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Deo v Mahabir [2000] FJLawRp 48; [2000] 1 FLR 190 (23 August 2000)

[2000] 1 FLR 190

IN THE HIGH COURT OF FIJI

KRISHNA DEO

v

PREM CHAND MAHABIR
& NUR AIYAZ ALI

High Court Civil Jurisdiction
Scott, J
23 August, 2000
HBC 257/96S

Land - encroachment by neighbour - damages - whether action brought in trespass or nuisance - how justice to be served

The plaintiff claimed that excavation of a footpath by the defendants had resulted in encroachment of the plaintiff's land along the northern and eastern boundary, causing erosion, subsidence, weakening the foundations and exposing his house to imminent collapse. The Court found that excavation work removed the north eastern boundary peg and the plaintiff's boundary on the eastern side was unstable and was being eroded, but that any lie back of a cliff on the northern boundary was within the plaintiff's compound.

Held - The plaintiff's pleadings did not clearly disclose whether the action was brought in trespass or nuisance, and no evidence was led as to plaintiff's loss, however, justice can be served as a whole for the two defendants to pay for construction of a retaining wall 10 metres westwards from the previous position of the north eastern peg and a height to the plaintiff's land before excavations took place.

Order that defendants pay the plaintiff's costs of erecting a retaining wall. The plaintiff to have half his costs to be taxed if not agreed.

Cases referred to in judgment
cons Rochford v Essex CC (1916) 85 LJ Ch 281
cons Humphries v Brogdin (1850) 2 QB 739
dist Dalton v Angus (1881) 6 App Cas 740
cons Wyatt v Harrison (1832) 3 Barn. & Adol. 871
dist Brown v Robbins (1859) 4 Hurl & Norman 186

Suresh Chandra for the plaintiff
Defendants in person

23 August, 2000.

JUDGMENT

Scott, J

The Plaintiff is the owner of Lot 122 on DP 3291, Godfrey Street, Nasinu 7 miles. A plan of the property prepared after survey is annexed to Exhibit 2. Running alongside the eastern 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 the Plaintiff's property on its northern boundary and which 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 1995 the two Defendants undertook excavation of the footpath and 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 result of these excavations his land was damaged and that the foundation upon which his house rests was weakened. The Plaintiff says that the erosion of his land, which is continuing, presents the danger that the house may collapse. The Plaintiff seek damages which, as I understood Mr. Chandra, were to be calculated by reference to the cost of building a retaining wall along the northern and eastern boundaries or the Plaintiff's property to prevent further erosion.

The Defendants were not represented but they told me that although they had indeed carried out excavations along the footpath in order to turn it into a drive these had not encroached upon the Plaintiff's land. The 2nd Defendant 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 engineer, Mr. R.J. Pole. Both experts produced reports (Exhibit 2 & 3). Both Defendants gave evidence and I also visited the site in the company of the parties.

The Plaintiff told me that the Defendants undertook some excavations with a digger "about 4 to 5 years ago". The digger was "digging on the side of my property. Up the footpath. They dug the area next to the footpath. They also dug the back of the area themselves. Both the Defendants".

The Plaintiff told me that as a result of the excavation to the footpath a cliff had been created where none had previously existed. This has led to landslides particularly when it rains. On the day the excavations took place the Plaintiff told me that he had heard the noise and seen what was happening. He had called out and pointed out to the Defendants that he had pegs along the edge of his boundary but they had ignored him.

Mr. Manoj Sharma produced the survey plan, Exhibit 2. He also told me that in June 1995 he had surveyed the Plaintiff's land. He had seen where the excavation had taken place along the footpath. He also had seen that on the north eastern corner of the Plaintiff's property the encroachment was so severe that the peg which was supposed to be there had vanished.

Mr. Pole told me that he had also inspected the Plaintiff's land. In his view the result of the excavations, both to the northern boundary and the footpath boundary would be continuing erosion unless a retaining wall is constructed. The erosion on the footpath boundary appears to have settled but that on the northern boundary is likely to continue and may eventually endanger the Plaintiff's house. Mr. Pole recommended that a 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 excavation was deepest on the side. The cost of the retaining wall was estimated to be a little less than $25,000.

Neither Defendant addressed me at the close of the hearing but Mr. Chandra stressed that the 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 clear, he suggested that a retaining wall will have to be built and he invited me to award the Plaintiff the cost of constructing such a wall.

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

As already noted the Defendants did not deny excavating the footpath in order to turn it into a driveway and although 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 consequence 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 and is being eroded. In the light of Mr. Pole'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 this case I find the evidence much less compelling. As already noted the Plaintiff's evidence was also considerably vaguer as to this boundary. He added, almost as an after thought it seemed to me, that the Defendants had themselves also dug the back of the area, "both of them".

The second Defendant whose property abuts the northern boundary denied carrying out excavations on this boundary. He told that he would 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 this concrete had been laid down in 1973 when he extended the house shortly after buying it. He pointed out, which Mr. Sharma confirmed and which I saw for myself, that the northern boundary cliff is not in fact straight as you would expect to find it if it had been cut with a digger but is quite irregular.

In paragraph 6.0 of his report (Exhibit 3) Mr. Pole, who was reissuing a report originally prepared in 1995, says of the northern boundary:

"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."

This suggests to me not that the excavation of the northern boundary was carried out in April 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. It may well be that the two 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 case then there was simply no room in 1995 between the house and the base of the cliff for a digger to operate.

There is a further legal difficulty which unfortunately was not the subject of any legal submissions. It is not clear from the pleadings whether the Plaintiff's case is brought in trespass or in nuisance. If in trespass then where, 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 the amount by which the value of the land has been diminished and is not the cost of restoration. No evidence however was led to enable me to compute the Plaintiff's loss on this basis although Mr. Pole did suggest that if the retaining wall were constructed then the Plaintiff's property would be restored to its value prior to the excavations.

If on the other hand the action is brought in nuisance then the position at common law 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 position is that a landowner may make an excavation of his own land notwithstanding that by doing so he may cause his neighbours land to fall (Wyatt v. Harrison (1832) 3 Barn. & Adol. 871; but c.f. Brown v. Robbins (1859) 4 Hurl & Norman 186). While it may possibly be that the second Defendant's 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 from Exhibit 2, there is no encroachment (save on the north eastern corner) onto the plaintiff's land on its northern boundary at the base of the cliff. If the cliff is now beginning 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 whole I consider that justice would be served if the two Defendants 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 calculate the precise cost of this wall - that can be left to Mr. Pole.

The Plaintiff, having only partly succeeded he is also to have one ½ of his costs to be taxed if not agreed.

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

Judgment for the plaintiff with liberty to parties apply further.

Marie Chan