In previous posts in this series we looked at how courts dealt with the question of whether the common law rules of water law needed to give way to the felt necessities of different environmental conditions in two doctrinal contexts - public rights in non-tidal rivers and shifting watercourses. Next up is an examination of how "the rule in Rylands v Fletcher" fared in India.
The 1868 decision of the House of Lords in Rylands, affirming an 1866 decision of the Court of Exchequer Chamber, is one of the best-known cases in English tort law. The defendant in the case had built a water reservoir on his land to store water for powering a mill, taking all due care, but the water in the reservoir escaped through some old mineshafts and flooded the mines of his neighbor. The court ruled that if a defendant brings something dangerous on to his land and that thing escapes and causes damage to a neighbor, he is liable in tort even if he acted without fault.
Of particular relevance for this study, Lord Chancellor Cairns's ruling turned to a large extent on the issue of whether the use made by the defendant landowner was natural or not. Lord Cairns wrote that if the defendant's land had accumulated water by "natural user" of the land, and then "by the operation of the laws of nature" flowed onto his neighbor's land, there would be no liability. If, however, the defendant used his land for "a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it", liability would ensue were the water to escape and cause damage, as it did in this case.
Even before the House of Lords had issued its opinion in Rylands's appeal, the Madras Railway Company decided to try and have the rule in the case established by the Court of Exchequer Chamber imported to India. A couple of tanks (reservoirs) located near the rail line in the District of North Arcot had burst several times in 1865 and 1866, and the resulting floods had damaged embankments, bridges, and culverts belonging to the railway company. The company brought suit against the landowner for the damages (Madras Rwy Co v Salvah Makaraju, 5 Madras High Court Reports 139 (1870)), at the same time refusing to allege negligence on the part of the defendant, choosing instead to rely on the new rule of Fletcher v Rylands. It seems that the railway company was hoping from the start to appeal the case up to the Privy Council in London, hoping, as the Madras High Court put it, to take the final decision out of the hands of "Judges conversant with the necessities of the country", instead having "a rule […] imposed elsewhere by Judges not so conversant" (Madras Rwy Co v Zamnida'r of Ka'vatinaggur, 6 Madras High Court Reports 180 (1871)).
As expected by the company, the court of first instance rejected its claim, as the defendant had taken reasonable precautions against the escape of water from his tanks. On appeal to the Madras High Court, Acting Chief Justice Holloway accepted the application of the rule in Rylands, according to which strict liability for escaping water applied only if the land use made by the defendant was artificial, not natural. Yet he argued while water storage for irrigation in England would not be considered a natural use, "Surely the storing up of water is no mere artificial user of Indian land, but the only possible mode of natural user." The ancient art of agriculture, he continued, "in the country from which this case comes, is impossible without tanks by which water is to be stored to meet the terrible drought which, in their absence, would wither every blade of grass, destroy the cattle and render future culture impossible."
According to plan, the Madras Railway then appealed to the Privy Council, arguing for the application of the rule in Rylands to India. The decision of this highest court must have disappointed them. While the Privy Council ruled that Rylands did, indeed, apply in India, it distinguished the circumstances of the case from those in England:
The tanks are ancient, and formed part of what may be termed a national system of irrigation, recognised by Hindu and Mahomedan law, by regulations of the East India Company, and by experience older than history, as essential to the welfare, and, indeed, to the existence of a large portion of the population of India […].
In [Rylands] the Defendants, for their own purposes, brought upon their land and there accumulated a large quantity of water by what is termed by Lord Cairns 'a non-natural use' of their land. They were under no obligation, public or private, to make or to maintain the reservoir ; no rights in it had been acquired by other persons, and they could have removed it if they had thought fit. The rights and liabilities of the Defendant [in the Madras case] appear to their Lordships much more analogous to those of persons or corporations on whom statutory powers have been conferred and statutory duties imposed.
The distinction made by the courts between English and Indian reservoirs thus recognized a new sort of connection between law and nature. Water storage in England for industrial purposes was "non-natural". In India, on the other hand, it was "the only possible mode of natural user", not only because irrigation was necessary in the different climate, but because the law itself had recognized the use as essential, even obligatory. Nature here fed into the legal norm, but what was to be considered natural and what not was itself influenced by the attitude that law had taken to the activity in question.
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