TMI Blog1879 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... khal, walls had been erected, one at each side of the khal, and that the Defendant, upon the wall on his side becoming somewhat dilapidated, constructed a fresh one, and employed a skilled person to do so, who to some degree altered the direction of the wall; a portion of it he built further in towards the Defendant's land than it had been before, and another small portion he built a little further out. We have the precise extent to which it was built further out, which was five feet, making what may be called in one sense an encroachment, consisting of a triangle whose altitude was five feet, and whose base was about double that length. The Plaintiff, it appears, first applied to Mr. Whitfield, the Government engineer, desiring Mr. Whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The case came before two subordinate Courts. The Court of the moonsif found that the Plaintiff had no right to the bed of the khal or any part of it, but that the Defendant had a right ad medium filum. He further found that the khal was not navigable, and that no injury had been caused to the Plaintiff, and that the flow of the water had not been in any way sensibly obstructed. 4. On appeal to the Subordinate Judge, he affirmed the findings, with an exception which constitutes the chief difference between the decrees, that neither the Plaintiff nor the Defendant had any right to the bed of the khal, which it would appear is vested in the Government in right of their zemindary of the Twenty-four Pergunnahs. The finding of the Subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether a proprietor on the banks of a river might not build a boat-house upon it? Undoubtedly this would be a perfectly fair use of his rights, provided he did not thereby obstruct the river or divert its course; but if the erection produced this effect, the answer would be that, essential as it might be to his full enjoyment of the use of the river, it could not be permitted. 6. Their Lordships observe that in a subsequent case in the House of Lords of Orr Ewing v. Colquhoun reported in 2 App. Cas. p. 839, not in itself having much bearing on the present, inasmuch as it related to the obstruction of a navigable stream, Lord Blackburn explains the previous case in this manner: The Defender had without any right built an encroachment on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the stream ad medium filum. It may be that this khal being in possession of the Government, the Government may be able to do what they like with it; and if the Plaintiff would have no right to complain as against them of any interference with the flow, it does not seem clear what right he could have against a riparian proprietor on the other side. But further it has not been found in this case--indeed the evidence on the whole points in the other direction--that the Defendant, by what he has done, has to use the words of Lord Blackburn sensibly altered the flow of water. Without establishing this, the Plaintiff has failed to shew any such injury to his right as would support an action. All that has been found is that the Defendant encr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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