Williams v. Raleigh (Township), (1892) 21 SCR 103

Supreme Court of Canada

Williams v. Raleigh (Township), (1892) 21 S.C.R. 103                     

Date: 1892-06-28

Sarah Ann Williams and Charles A. Williams (Plaintiffs) Appellants;

and

The Corporation of the Township of Raleigh (Defendants) Respondents.

1891: November 30; 1891: December 1; 1892: June 28.

Present: Sir W.J. Ritchie C.J., and Strong, Taschereau, Gwynne and Patterson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal corporation—Drainage of lands—Injury to other lands by—Remedy for—Arbitration—Notice of action—Mandamus.

By sec. 483 of the Ontario Municipal Act (R.S.O. [1887] ch. 184.) if private lands are injuriously affected by the exercise of municipal powers the council shall make due compensation to the owner, the claim for which, if not mutually agreed upon, shall be determined by arbitration.

Held, reversing the judgment of the Court of Appeal, that it is only when the act causing the injury can be justified as the exercise of a statutory power that the party injured must seek his remedy in the mode provided by the statute; if the right infringed is a common law right and not one created by the statute remedy by action is not taken away.

By sec. 569 of the same act the council, on petition of the owners for drainage of property, may procure an engineer or surveyor to survey the locality and make a plan of the work, and if of opinion that the proposed work is desirable may pass by-laws for having it done.

Held, reversing the judgment of the Court of Appeal, that the council has a discretion to exercise in regard to the adoption, rejection or modification of the scheme proposed by the engineer or surveyor and if adopted the council is not relieved from liability for injuries caused by any defect therein or in the construction of the work or from the necessity to provide a proper outlet for the drain when made thereunder.

The act imposes upon the council, after the construction of work proposed by the engineer or surveyor, the duty to preserve, maintain

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and keep in repair the same. The township of R., in pursuance of a petition for draining flooded lands and a surveyor’s report, constructed a number of drains and embankment. These drains were led into others formerly in use which had not the capacity to carry off the additional volume of water, but became overcharged and flooded the land of W. adjoining.

Held, that the municipality was guilty of neglect of the duty imposed by the act and W. had a right of action for the damage caused to his land thereby.

Held, per Strong and Gwynne JJ., Ritchie C.J. and Patterson J. contra, that the drain causing the injury being wholly within the limits of the municipality in which it was commenced, and not benefiting lands in an adjoining municipality, it did not come under the provisions of s. 583 of The Municipal Act and W. was not entitled to a mandamus under that section.

Per Ritchie C.J. and Patterson J. Sec. 583 applied to the said drain but W. could not claim a mandamus for want of the notice required thereby.

Held, per Strong and Gwynne JJ., that though W. was not entitled to the statutory mandamus it could be granted under the Ontario Judicature Act (R.S.O. [1887] c. 44.)

APPEAL from a decision of the Court of Appeal for Ontario reversing the judgment of the Divisional Court in favour of the plaintiffs.

The facts are fully set out in the judgments hereinafter published.

Christopher Robinson Q.C., and Douglas Q.C. for the appellants, cited the following authorities: Rowe v. The Township of Rochester^[1]; Mallot v. Township of Mersea^[2]; McGarvey v. Town of Strathroy^[3]; Coghlan v. City of Ottawa^[4]; Coe v. Wise^[5]; Geddis v. Proprietors of Bann Reservoir^[6].

Wilson Q.C. for the respondents. As to liability generally for negligence see In re McLean and Township of Ops^[7]; Beer v. Stroud^[8].

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The by-law justified the council in the construction of the work. Hopkins v. Mayor of Swansea^[9]; Heland v. City of Lowell^[10]; The Queen v. Osler^[11].

Plaintiffs are not entitled to a mandamus. Scott v. Corporation of Peterboro’^[12].

As to necessity of notice see Chrysler v. Township of Sarnia^[13]; Luney v. Essery^[14].

See also Drummond v. City of Montreal^[15]; Preston v. Camden^[16]; Derinzy v. City of Ottawa^[17].

Sir W.J. RITCHIE C.J—I concur in the judgment prepared by Mr. Justice Patterson and in the conclusion at which he has arrived.

STRONG J.—I concur in the judgment of my brother Gwynne.

TASCHEREAU J.—I will not take part in the judgment.

GWYNNE J.—A drain known as government drain no. 1 in the Township of Raleigh was commenced in the year 1870 and completed in 1873, on the side line between lots 12 and 13 commencing in the 12th concession and extending northerly until it had its outlet into the River Thames in the 3rd concession of the said township. This drain was constructed under the provisions of the Ontario Drainage Act 33 Vic. ch. 2. By that act it was enacted that after the completion of a work made under the provisions of the act the arbitrators acting under the Ontario Public Works Act, 32 Vic. ch. 28, should make an award, which should be

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deposited with the Commissioner of Public Works and a copy with the registrar of the county in which the lands to which the award relates are situate, and another copy with the clerk of the township or other municipality in which such lands are situate, to remain forever deposited with the records of such municipality, in which award should be specified the proportions of the total amount of the sums expended in and about the works as executed and which should be payable in respect of the several parcels or lots of land drained or improved, and also the proportion in which the said several parcels or lots and the proprietors thereof should in future be annually charged towards the costs and expenses which might from time to time be incurred in maintaining, cleaning and keeping in repair the drains and drainage works executed under the provisions of the act. By an amendment of this act passed on the 15th February, 1871—34 Vic. ch. 22—it was enacted that the municipal council of any township, &c., whose roads might be benefited by the drainage or improvements referred to in the act or the works incidental thereto, and such roads, should be deemed to be within the provisions of the act. The effect of this clause was to make municipal councils and their roads liable to contribute to the original cost of a work and also to the annual charge for maintenance and repair equally as the lands of individuals benefited by the work and their proprietors were. By an act passed on the 29th of March, 1873—36 Vic. ch. 38—the act 33 Vic. ch. 2 was repealed, except as to drainage works executed thereunder in respect of which an award has been made, and new provisions were made enabling the Commissioner of Public Works to undertake drainage works, on the application of the council of any municipality, or on the petition of the majority of all the owners, or of a majority of the owners as shown by

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the last revised assessment roll in any municipality to be resident on the property described in the petition the whole or a part of which is to be benefited by the drainage, and to continue drainage works begun in one municipality into another; and making provision for charging the cost of constructing and maintaining such works upon the lands in both which are benefited by a drain begun in one municipality and continued into another, or by a drain constructed wholly within the limits of one municipality but along the town line separating it from another municipality.

The drain no. 1, when it reached the 6th concession of the township, crossed a small watercourse known now as the Raleigh Plains drain, which coming from an easterly and south-easterly direction crossed the side line between lots nos. 12 and 13, and crossing the 6th, 5th and 4th concessions in a north-westerly direction discharged its waters into a stream called Jeannette’s Creek. The drain no. 1 was constructed on this side line, but on its eastern side, and the earth from the drain was thrown up and spread on the western part of the side line to form an embankment to the drain, whereby the part of the road reserved for travel was raised in height; where this watercourse known as the Raleigh Plains drain crossed the side line that watercourse was stopped up by the embankment of the drain no. 1, and the waters coming down from the east were conducted down the drain no. 1 into the Thames. This stopping up of the Raleigh Plains drain at its junction with drain no. 1 does not appear to have answered the purpose intended or expected to have been attained by it, for in 1875 the council of the municipality re-opened the Raleigh Plains drain there and deepened it and enlarged and strengthened it on the west of the side line between lots 12 and 13, under a by‑law passed under the provi-

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sions of the Municipal Act 36 Vic. ch. 48, and thereby a provided better means of carrying off the waters coming down the Raleigh Plains drain from the east and down the drain no. 1 from the south than had been provided by drain no. 1 as constructed.

By this act, 36 Vic. ch. 48, the provisions of which were consolidated in ch. 174 of the R.S.O. 1877, and re-enacted in 46 Vic. ch. 18, and consolidated again in ch. 184 of the R.S.O. of 1887, it was enacted that upon a petition presented to the council as provided in the act, petitioning the council

for the deepening or straightening of any stream, creek or watercourse, or for the drainage of any property, or for the removal of any obstruction, &c., &c., the council may procure an engineer or provincial land surveyor to make an examination of the stream, creek or watercourse proposed to be deepened or straightened, or of the locality proposed to be drained, and may procure plans and estimates to be made of the work by such engineer or surveyor and an assessment by such engineer or surveyor of the real property to be benefited by such deepening or drainage stating as nearly as may be in the opinion of such engineer or surveyor the proportion of benefit to be derived by such deepening or drainage by every road and lot or portion of lot, and if the council be of opinion that the proposed work, or a portion thereof, would be desirable the council may pass a by-law for providing for the deepening of the stream, creek or watercourse or the draining of the locality.

The act then gave a form of by-law to be passed which contained a recital:

That the council are of opinion that the drainage of the locality described, or the deepening of such stream, creek or watercourse, as the case may be, is desirable.

Then by sec. 586 of 46 Vic. ch. 18, as amended by 48 Vic. ch. 39, sec. 27, now sec. 585 of ch. 184 of R.S.O. of 1887, it was enacted as follows:

In any case wherein the better to maintain any drain constructed under the provisions of the Ontario Drainage Act, 33 Vic. ch. 2, and amendments thereto, or of the Ontario Drainage Act of 1873, or of the revised statute respecting the expenditure of public money for drainage works, or to prevent damage to adjacent lands, it shall be

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deemed expedient to change the course of such drain or make a new outlet or otherwise improve or alter the drain, the council of the municipality or of any of the municipalities whose duty it is to preserve and maintain the said drain, may, on the report of an engineer appointed by them to examine and report on such drain, undertake and complete the alterations and improvements specified in the report under the provisions of sections 570 to 583 (of the act of 46 Vic. ch. 18) inclusive, without the petition required by section 570.

That is to say without any petition for such alteration. Then by section 587 of 46 Vic. ch. 18 it was enacted that.

In any case wherein, after such work is fully made and completed, the same has not been continued into any other municipality than that in which the same was commenced, or wherein the lands or roads of any such other municipality are not benefited by such work, it shall be the duty of the municipality making such work to preserve, maintain and keep in repair the same at the expense of the lots, parts of lots and roads as the case may be as agreed upon and shown in the by-law when finally passed.

And by section 589, it was enacted that:

Where the repairs required to be made under section 587 are so extensive that the municipal council does not deem it expedient to levy the cost thereof in one year the said council may pass a by-law to borrow upon debentures of the municipality the funds necessary for the work, and shall assess and levy upon the property benefited a special rate sufficient for the payment of the principal and interest of the debentures, and the by‑law shall not require the assent of the electors.

Then by 48 Vic. ch. 39, section 26, the provisions of these sections 587 and 589 of 46 Vic. ch. 18 are declared to apply to drains constructed under the provisions of the Ontario Drainage Act, 33. Vic. ch. 2, and amendments thereto, or of the Ontario Drainage Act, 1873, or of the revised statute respecting the expenditure of public money for drainage works, as well as to the work to which the said sections now apply; and, further, it was by the section enacted that:

The deepening or widening of a drain in order to enable it to carry off the water it was originally designed to carry off, shall be deemed to

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be a work of preservation, maintenance or keeping in repair within the meaning of sections 584 and 587.

These sections 587 and 589 of 46 Vic. ch. 18, as. amended by 48 Vic., ch. 39, section 26, are now to be found in section 586 and 587 of ch. 184 of the R.S.O., 1887.

Lot no. 12, in the 4th concession of the township of Raleigh, was assessed for and contributed to the construction of the above government drain no. 1, and to the deepening, enlarging and straightening of the Raleigh Plains drain as made under the municipal by-law in that behalf in 1875. From the time of the completion of these two drains the lot no. 12 continued to be dry and capable of cultivation until year 1883; but in the interval between the completion of the Raleigh Plains drain improvement and the year 1883 the municipal corporation of the township of Raleigh, constructed, under divers by-laws passed by the municipal council under the provisions of the Municipal Institutions Act, divers other drains which were made to empty their waters into the said drain no. 1, the effect of which in progress of time was that by reason of the new drains bringing down more water, and at a greater speed, into the said drain no. 1 than that drain could retain the embankment of drain no. 1 was broken down and the lot 12 in the 4th concession of Raleigh, of which the plaintiff was tenant, became flooded and unfit for cultivation and continued so to be for some time. The defendants, upon a notice given to them on behalf of the plaintiff, proceeded to repair the breach so made but never restored the embankment to the height and efficient condition in which it was originally constructed. Like breaches from the same cause took place in divers places of the embankment in the years 1885-6 and 7, attended with like consequential flood-

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ing upon and damage to the plaintiff’s land on said lot 12. In the year 1884 the municipal council of the township, under the provisions of the Consolidated Municipal Act of 1883, 46 Vic. ch. 18, passed a by-law for the construction of, and constructed thereunder in 1885,

a tap drain from a certain other drain called Government Drain no. 2 along the line of lots 10 and 11 in the 6th concession of Raleigh and along the line between the lands of Mr. Dunn and Mr. Huthnance in the 5th concession to the Raleigh Plains drain, and made a dam on lot 9 in the 7th concession to separate the waters of the Kersey drain from the water brought down the Buxton road.

This tap drain so constructed was little short of a mile in length, and is called the Bell drain. In the month of January, 1888, the plaintiff, then still being lessee of the lot 12 in the 4th concession of Raleigh, brought an action against the defendants for injury to her land occasioned by the waters coming down the said drain no. 1 breaking through the embankment of that drain on to the plaintiff’s land in the years 1885-6 and 7 and by the waters brought down by the Bell drain into the Raleigh Plains drain in excess of what the Raleigh Plains drain in its then condition could carry off and which were thereby backed up the Raleigh Plains drain against the stream and caused to overflow the plaintiff’s land in 1886 and 1887. The plaintiffs action was founded upon the contention that the drains which the defendants were under a statutory obligation from year to year to cleanse, preserve, maintain and keep in repair had been, by the negligence of the defendants and the disregard of their statutory duty, suffered to become so obstructed, choked up, impeded and out of repair as to be incapable of carrying off the extra waters brought into them by the said drains constructed since 1875 by the municipal council of the township, and that therefore the defendants were liable to the plaintiff for the injury thereby

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occasioned to her. She also made claim for a mandamus to compel the defendants to restore, clean out and repair the said drains so suffered to become obstructed, and to maintain the said drains and the embankments thereof in an efficient condition. This action was referred to the county judge of the county of Kent to take evidence and make his report thereon. The learned judge, after a careful inspection upon the ground and taking evidence upon the matters involved, made his report wherein he found among other things,, that the said government drain no. 1 was constructed in the years 1870 to 1873 inclusive along the easterly side of the road allowance between lots 12 and 13 in the said township of Raleigh, commencing in rear of the lake lots and ending the river Thames and lying immediately east of lot no. 12 in the 4th concession of said township, and that as part of the plan or scheme of said drain the earth taken thereout was to be thrown up and, as a matter of fact, was thrown up on the west side of the said drain as an embankment in order thereby to prevent the water from the said drain, and the water flowing into it from the easterly or south-easterly direction, from escaping westward on to the lands of said plaintiff and others; and that it was the duty of the said defendants to keep the said drain properly cleansed out and free from obstructions, and to keep the said embankment in a fit and proper condition; that for some years after the completion of the said drain no. 1 and of the said embankment the said land of the plaintiff was greatly benefited thereby and became more fit for cultivation, and that good crops were grown; that from time to time during the ten years next after the completion of the said drain the defendants constructed a number of other drains leading into said drain no. 1, and thereby brought down into the latter immense quantities of water far beyond its

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capacity to carry off, and that as a result it become surcharged, and from time to time overflowed the embankment on the west side thereof, and that particularly in the years 1885; 1886, 1887 and 1889, and frequently several times in each of said years, the water thus brought down flowed on to and over the plaintiff’s said land and damaged and injured said land and the crops thereon growing; and that the said drain no. 1 has been allowed to become, and has become and is, through the 6th, 5th and that part of the 4th concession lying south of the Grand Trunk Railway, badly filled up with earth and silt and badly over‑grown with grass and willows, and that its capacity has thereby become much diminished and impaired, and is not and has not been for the last five years one-half of what it was when first completed, and that as a result of this condition the overflow of water on to and over the plaintiff’s said lands, and the damage and injury thereto have been much increased; and that by the construction of the Bell drain a large body of water was brought down to the drain known as the Raleigh Plains drain that would not otherwise have come there, and that the Raleigh Plains drain was thereby over-charged with water, and that in time of high water every year except the year 1888, and in some years several times in the year, the water thus brought down has flowed into and over the plaintiff’s land, or by raising the general level of the water has caused other waters to flow on to and over the plaintiff’s land that would not otherwise have gone there, and the plaintiff’s lands and crops have been thereby injured and damaged every year except the year 1888; and that for the water so brought down by the said drains into drain no. 1, and by the said Bell drain into Raleigh Plains drain, the defendants provided no sufficient or proper outlet; and that the defendants have not kept

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the embankment on the westerly side of the said drain no. 1 up to its original height, nor have they kept it up to the height that it was after the earth thrown up as aforesaid had become firm and settled; and when breaks have been made in the embankment by the water over-flowing as aforesaid the defendants have permitted these breaks to remain for a long time wholly unrepaired, and when repaired they were repaired in an inefficient and inadequate manner and still left lower than the road-bed on the north-west or south-east of said breaks, thereby enabling or permitting water to escape on to and flow over the plaintiff’s said land, causing damage and injury to the crops thereon, that would otherwise have been carried down no. 1 drain to the river Thames; and he assessed the plaintiff’s damage at the sum of $850.00, which sum he found that the plaintiff was entitled to receive and he found also that the plaintiff was entitled to a mandamus directing the defendants to properly repair the said drain no. 1, and to enlarge it sufficiently to provide for the additional water brought down as aforesaid or to provide a proper and sufficient outlet by some other method and to stop the additional flow of water brought down by the Bell drain as aforesaid or provide for its escape by some other sufficient method and to maintain the embankment on the west side of no. 1 drain at its original and proper height. Mr. Justice Ferguson affirmed this report and finding of the learned county judge and rendered judgment thereon in favour of the plaintiff for the said sum of eight hundred and fifty dollars and for the said mandamus, but directed that said mandamus should not issue until further order on a subsequent application or until the defendants should have an opportunity to make such improvements as they may deem sufficient.

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The Court of Appeal for Ontario reversed this judgment and ordered judgment to be entered for the defendants upon the grounds that the court were of opinion that the plaintiff had no cause of action against the defendants unless upon default committed after a notice in writing under sub-sec. 2 of sec. 583 of ch. 184 R.S.O. of 1887, and that no sufficient notice had been given; that the defendants are not liable for damages arising from their not providing a sufficient outlet for the waters carried through a drain constructed by them under the statutes relating to the drainage of lands; that when a surveyor has devised a scheme of drainage work it is for the corporation simply to construct it as designed without incurring any responsibility in so doing. In effect the judgment of the Court of Appeal was that the evidence disclosed no wrongful act, neglect or default of the corporation subjecting them to an action at suit of the plaintiff, whose only remedy, if any she had, was confined to an arbitration under the Municipal Institutions Act. Mr. Justice Ferguson had expressed the opinion that if a municipal corporation passed a by-law for the construction of drainage work upon a report of an engineer or surveyor employed by them under the statute to examine a proposed work, and constructed the work thereunder, and if the effect of such drainage work should be to deposit the waters carried off from one man’s land upon another man’s land and there leave them without providing any outlet, or means of carrying the waters from the land upon which they were so deposited, this would constitute such wrongful conduct as would render the corporation liable in an action for damages at the suit of the person injured by such conduct. From this proposition the Court of Appeal expressed their unqualified dissent.

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The question raised by this difference of opinion seems to be simply: Do the drainage clauses of the Municipal Institutions Act require or authorize municipal corporations to carry off the waters on lands proposed to be drained under the statute and to deposit such waters upon lands in a lower position belonging to other persons from which they cannot be removed at all, unless it may be by evaporation, or at least at great cost for which no provision is made? If the drainage sections of the statute do not require or in any express terms authorize that to be done the proposition as stated by Mr. Justice Ferguson seems to me to be well founded in law, and applying it to the present case the only question would be whether the evidence establishes that what was done in the present case was equivalent to the condition of things stated in the proposition of Mr. Justice Ferguson. Now it is to be observed that the drainage clauses under consideration do not require the corporation or its municipal council to do anything whatever for the purpose of draining drowned lands. They simply empower the council of the corporation to employ an engineer or surveyor to make an examination of the lands proposed to be drained, and to make a plan and to report as to whether, and in what manner, in his opinion, the lands proposed to be drained can be drained; and if the council shall be of opinion that the work as proposed by such engineer or surveyor is desirable they may pass a by-law for the purpose. There is no compulsion whatever imposed upon the council to adopt the plan as proposed by their engineer or surveyor. The person so employed is their servant. He may be an ignorant and unskilled person, and if he be, or whether he be or not, the council cannot shirk the responsibility cast upon them of exercising their own judgment in determining whether they shall

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or shall not adopt the plan as suggested by their servant. If they do adopt it it is their own work for all the consequences attending which they must be responsible, except in so far as they are protected by the statute authorizing them to use their discretion in the matter. I cannot concur, therefore, in the opinion expressed by the Court of Appeal to the effect that when the surveyor suggests the scheme of a drainage work it is for the corporation simply to carry it into execution. They must distinctly exercise their judgment as to adopting or refusing to adopt the scheme suggested, and if they do adopt it it becomes their work and scheme and not their servant’s. We must, I think, in the language of Lord Watson in Metropolitan Asylum District v. Hill^[18] hold that:

Where the terms of a statute are not imperative but permissive, when it is left to the discretion of the persons employed to determine whether the general powers committed to them shall be put into execution or not, the fair inference is that the legislature intended the discretion to be exercised in conformity with private rights, and did not intend to confer a license to commit nuisance in any place which might be selected for the purpose.

And again:

The justification of the defendants depends upon their making good these two propositions: In the first place that such are the imperative orders of the legislature:

That they should do what they have done and is complained of:

And in the second place that they could not possibly obey those orders without infringing private rights

of the plaintiff as they have done.

If the order of the legislature can be implemented without nuisance they cannot plead the protection of the statute, and it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance unless they are also able to shew that the legislature has directed it to be done.

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As laid down also by Lord Blackburn in the same case^[19] we must hold that:

What was the intention of the legislature in any particular act is a question of the construction of the act.

Now what is the plain inference to be drawn as to the intention of the legislature in enacting the drainage clauses of the Municipal Institutions Act? The clauses are permissive, not imperative. They do not require or direct any works to be executed at all; whether they shall be executed or not is left to the untrammelled judgment and discretion of the municipal councils. The object of the clauses is to enable lands to be drained for the purpose of cultivation and to provide means of paying the expense of doing so, and of preserving and maintaining them when constructed in an efficient state of repair to perform the purpose for which they designed. There is nothing whatever in any of those clauses to justify the inference that the legislature contemplated or countenanced the idea that water taken from the lands of one person should be so conducted as to be deposited upon the lands of another person. The rational and natural inference is that the intention of the legislature was that the water taken from the lands proposed to be drained should be conducted either directly into some lake, or into some natural or artificial water course having an outlet in some lake which the waters taken from the drained lands could reach without any injury being done to the lands of anyone. Such, as I think, being the manifest intention of the legislature to be gathered from there drainage clauses, if a municipal corporation while professing to act under the provisions of the statute should, by a drain or drains constructed by them, conduct such a body of water and at such a rate of speed into a natural or artificial water course that

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such last mentioned natural or artificial water course could not resist the rush of the extra water so brought into them and had not sufficient capacity to retain such extra waters so brought down, and to carry them off, and if the consequence should be that the sides of such artificial or natural water courses into which such extra waters should be so conducted should be broken down or overflowed by the rushing waters and adjacent lands should be thereby flooded with water which there were no means of carrying off, doing thereby injury to owners of the lands so flooded, I cannot doubt that such conduct would constitute a private nuisance not at all warranted by the statute, and would be an actionable wrong which could not be justified under the statute.

In the present case the plaintiff’s right of action stands, as it appears to me, upon a still firmer foundation for the statute imposed an imperative duty upon the defendants to preserve, maintain and keep in an efficient state of repair the said drain no. 1 and the Raleigh Plains drain into which they conducted the waters brought down by the several drains constructed by them since 1875. For the purpose of keeping these drains, no. 1 and Raleigh Plains drain, in a thoroughly efficient state they were given most ample power annually to levy upon the lands and roads benefited by these respective works a sufficient sum to discharge the imperative duty so imposed upon them. We have seen that to prevent damage to adjacent lands they were empowered, if they should deem it expedient, to change the course of any drain whether constructed under 33 Vic. ch. 2, or under the Ontario Drainage Act of 1873, or under any other act, or to make a new outlet, or otherwise improve, extend or alter any such drain (on the report of the engineer appointed by them under sections 569 to 582 of the said ch. 184,

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R.S.O. of 1887), without the petition required by said section 569, and the deepening, extending or widening of a drain in order to enable it to carry off the water it was designed to carry off was, by sub-section 4 of section 586 of the said ch. 184, declared to be a work of preservation, maintenance and keeping in repair of the drains which the statute made it the imperative duty of a municipality, making a drainage work within their own limits without benefiting lands or roads in an adjoining municipality, to discharge. Now the finding of the learned County Court Judge, and the evidence upon which that finding proceeds, establish beyond all controversy that the drain no. 1, and the Raleigh Plains drain, which the defendants were by statute imperatively bound to preserve, maintain and keep in repair, had by the mere neglect of the defendants to discharge such their imperative duty been suffered to fall into and continue in such a state of disrepair and inefficiency to do the work required of them that they had respectively lost about two-thirds of their original capacity and were utterly incapable of carrying off the quantity of water brought down to them respectively by the drains constructed by the defendants. This was the cause of the injuries sustained by the plaintiff on her lands, and not the mere construction of the said last mentioned drains by the defendants since the year 1875, and this conducting by the defendants into the drain no. 1 and the Raleigh Plains drain so become inefficient, and deprived of their original capacity by the utter neglect of the defendants to discharge the statutory duty imposed upon them, of a greater body of water than the said drains in such their inefficient condition had capacity to retain was, in my opinion, an unlawful act not at ail warranted by the statute, and constituted an actionable wrong for the injuries resulting from which

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the plaintiff is entitled to recover in the present action. To injuries arising from such a cause the arbitration clauses of the statute have, in my opinion, no application; they apply only to injuries consequential upon the mere construction of drains authorized by the statute and not to injuries which, as in the present case, as already shown, arise from acts in themselves unlawful which constitute a private nuisance, and which the statute has not only not directed but has not authorised to be committed. The defendants have not attempted to excuse themselves nor can they excuse themselves on the ground of ignorance of the fact that drain no. 1 and Raleigh Plains drain had become quite incapable of receiving and carrying off the waters conducted into them by the drains or some of the drains constructed by them since 1875. As to drain no. 1 the contention of the defendants is that they did repair it annually, but the evidence is that they did not, and that whatever work they did upon it was done in such an imperfect and inefficient manner as to be quite useless; moreover, it was not pretended that the defendants had done anything to remove the obstruction and damage done to either of the above drains by reason of their being filled up, choked and incapacitated by silt and dirt brought down to them by the other drains constructed by the defendants, and by earth from embankments washed away. That the defendants were, in point of fact, made aware of the utter inefficiency of the drains from such causes there was abundant evidence to show; there was also abundant evidence to show that the drains could have been made efficient and at reasonable cost, (“that” says G.H. Dolsen, who has been a member of the council almost every year since 1871, “is a fact generally conceded”;) and that the drains are wholly inadequate, in the condition into which they have fallen by reason

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of the neglect of the defendants to discharge their statutory duty, to carry off the extra waters brought down into them by the defendants, was clearly established. J.C. McNab, a surveyor employed by the defendants to examine Raleigh Plains drain and drain no. 1, says that both of them are altogether inadequate to the work now required of them; that the Raleigh Plains drain is in a very bad condition, and that it should be very much improved. In 1887 the defendants employed their surveyor McGeorge to make an inspection and report upon that drain, and he reported to them that the improvement and enlargement of the Raleigh Plains drain was a pressing necessity and demanded the best attention of the council. They, however, did not act upon his report.

The liability of the defendants in the present case cannot, in my opinion, be held to depend upon their having or not having had given to them the notice mentioned in sub-section 2 of section 583 of ch. 184 R.S.O. of 1887, which is identical with sub-section 2 of section 584 of 46 Vic. ch. 18 as amended by 47 Vic. ch. 32 section 18. The Raleigh Plains drain is a drain coming under the provisions of section 586 of said ch. 184, which is identical with section 587 of 46 Vic. ch. 18, that is to say, a work completed within the limits of the municipality in which it was commenced and which did not benefit any lots or roads in another municipality. To such a case sub-section 2 of section 583 of said ch. 184 is not by the statute made to apply. That sub-section is limited to works constructed within the provisions of the preceding sections from section 575, which are identical with sections from 576 to 583 in 46 Vic. ch. 18, that is to say, works commencing in one municipality and continued into another, or benefiting lots and roads in another municipality. Drain no. 1 was constructed under 33 Vic. ch. 2 which had

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no such clause as sub-section 2 of section 583 of ch. 184, but by section 587 of the latter act section 586 of that act is made to apply to drains constructed under 33 Vic. ch. 2 while no such provision is made as to section 583. So that by this section 587 the legislature seems to me in an unequivocal manner to recognise the fact that that section 586, as its language seems in plain terms to convey, applies to cases quite different from those to which sec. 583 applies. But if sub-section 2 of section 583 did apply to the present case it could not, in my opinion, be construed as divesting the plaintiff of the common law right of action which every one has for injuries occasioned by a plain neglect on the part of the defendants to perform an imperative duty imposed upon them by statute. The section must rather be read as conferring a benefit additional to such common law right, and as providing that any person sustaining injury after such notice shall have a right to the mandamus besides the right to recover pecuniary damages for the injury consequential upon neglect after notice. The happening of such injury after such notice may well be held to be conclusive evidence of negligence, but such a provision cannot be construed as divesting a plaintiff of a right of action theretofore accrued by continued neglect of an imperative duty imposed upon the municipality by statute to preserve, maintain and keep in repair the drain when constructed, of the necessity of repairing which the council may have had abundant evidence while the party injured may have been wholly ignorant. However, for the reasons already given, I am of opinion that the plaintiff is entitled to recover apart from any question as to the notice referred to in said sub‑section 2 of section 583. It was argued that the damages should be separated, namely, those arising from the Raleigh Plains drain having been surcharged from

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those arising from drain no. 1, upon the suggestion that the defendants are entitled to levy any damages recovered against them upon the lands chargeable with the maintenance of the said respective drains. It may be very questionable whether damages recovered by a plaintiff by reason of neglect of the defendants to maintain in an efficient condition the drains constructed by them, or by the wrongful introduction into them of more water than in their neglected and inefficient state they are capable of retaining, can under section 592 of ch. 184, R.S.O., 1887, be levied upon the lots chargeable with assessment for the maintenance of the drains. That section would rather seem to be limited to damage occasioned by proceedings taken under the act and so authorized by the act by the parties engaged in the construction of the work authorized. It would seem to be an unnatural and a forced construction of the section to hold that a person made liable to contribute to the construction and maintenance of a drain authorized by the act, because of the benefit it confers upon him, should also be held to be liable to contribute to recompensing himself for damage and injury occasioned to his land by the illegal, wrongful conduct of the municipality and its officers by proceedings not authorized by the statute, or by negligence in the construction of a work which the statute did authorize, or by neglect to discharge the duty of maintenance in repair imposed by the statute. This, however, is a matter with which the plaintiff is not at present concerned. There is no law which makes it imperatively incumbent on a court or jury, where two causes may have contributed to occasioning the injuries complained of, to say how much they attribute to one cause and how much to the other, or which requires the verdict or judgment to be set

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aside for default of such severance of the damages. In my opinion the appeal must be allowed with costs and the judgment of Mr. Justice Ferguson should be restored; the mandamus is, in my opinion, maintainable, not under section 583 of the Municipal Institutions Act, which, in my opinion, has no application in the present case, but under the provisions of the Ontario Judicature Act ch. 44 R.S.O. 1887.

PATTERSON J.—The government drain no. 1 was constructed between the years 1870 and 1873, and for some years thereafter the plaintiff’s land was greatly benefited by it; but the defendant corporation from time to time during the ten years following the completion of that drain constructed a number of other drains leading into it, and thereby brought down into drain no. 1 immense quantities of water far beyond its capacity to carry off, with the result that drain no. 1 became surcharged and from time to time overflowed the embankment on its west side, particularly in the years 1885, 1886, 1887 and 1889, and frequently several times in each of those years and the water thus brought down flowed on, to and over the plaintiffs land and damaged her land and crops. The defendants provided no sufficient outlet for the additional waters so brought down.

Those are facts found by the learned referee, whose findings of fact were acquiesced in by the High Court and the Court of Appeal, although those courts differed as to the legal result.

Similar facts were found with respect to the Bell drain, viz., that by its construction by the defendants in 1884, and particularly by the construction, as part of the plan of the drain, of an embankment on the westerly side of the drain, a large body of water was brought down to the Raleigh Plains drain that would

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not otherwise have come there; that the Raleigh Plains drain was thereby overcharged with water; and that in time of high water in the years 1885, 1886, 1887 and 1889, and in some of those years several times in the year, the water thus brought down flowed on to and over the plaintiff’s land, or by raising the general level of the water caused other waters to flow on to and over the plaintiff’s land that would not otherwise have gone there, damaging the land and crops; and for the additional waters so brought down the defendants provided no sufficient outlet.

We are not expected to go behind these findings. The same facts were substantially embodied in the following extract from a formal statement agreed upon, for the purpose of avoiding a certain amount of printing, when the case was before the Court of Appeal:

It is now admitted by all parties that the drains so constructed at or after the dates of the respective by-laws put in, since no. 1, have not and never had a sufficient outlet to drain the plains and carry the waters running down in their courses past the plaintiff’s lands and other lands in the plains, so as to protect them and the crops thereon from injury, and that the drains constructed since no. 1 was made have increased the flow of water brought down.

The drainage clauses as now found in the Municipal Act, R.S.O. 1887, ch. 184, do not differ in any respect at present material from those in force when the drains were made. We shall have to glance, though as rapidly as may be, at some of them.

Sec. 569 enacts that in case the majority in number of the owners of the property to be benefited in any part of any township, &c., petition the council for, inter alia, draining the property (describing it) the council may procure an engineer or provincial land surveyor to make an examination of, inter alia, the locality proposed to be drained, and may procure plans and estimates to be made of the work by such engineer or surveyor, and an assessment to be made by such en-

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gineer or surveyor of the real property to be benefited by such work, and if the council is of opinion that the proposed work or a portion thereof would be desirable the council may pass by-laws:

1. For providing for the proposed work, or a portion thereof, being done, as the case may be;

2. For borrowing on the credit of the municipality the funds necessary for the work.

3. For assessing and levying on the real property to be benefited a special rate to pay for the work;

4 to 21. For purposes which we need not now stop to notice.

Section 570 gives a form of by-law which is to recite the prayer of the petition, the examination by the engineer or surveyor of the locality to be drained, or as the case may be, his report thereupon, and the opinion of the council that the work is desirable, and to enact that the report, plans and estimates be adopted and the drain (or as the case may be) and the works connected therewith made and constructed in accordance therewith, and to provide for the borrowing of the money and the levying of the special local rate.

The by-laws for the construction of these drains followed the statutory form. The one that related to the Bell drain has been printed as a specimen of the whole. It recited a petition, not for the draining of a locality in the mode which the council may be advised by its engineer to adopt but for a specified work.

Whereas, a majority in number of the owners as shown by the last revised assessment roll of the property hereinafter set forth to be benefited by the construction of the Bell drain, have petitioned the council of the said township of Raleigh praying that the government drain no. 2 be closed up at a point east from and near to the outlet of the Kersey drain, and that a tap drain be constructed from said government drain no. 2 at or near to the line between lots 10 and 11 in the 6th and 5th concessions to the Raleigh Plains drain. Also, that the Dyke drain he closed up west of said proposed drain.

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The report of the engineer, also recited, states that he has made an instrumental examination over the route of proposed drain, and reports that the work will comprise the making of a tap drain, &c., &c., adding “The tap drain will greatly benefit lands assessed,” and giving estimates, with schedule of lands and roads benefited which are to be assessed for the work.

If the Raleigh Plains drain, into which the council thus, at the request of William Bell and others the petitioners whose property was to be benefited, ran the tap drain called the Bell drain, had been sufficient to carry off the water thus poured into it no harm would have been done. It was not sufficient, and the consequence was the flooding of the plaintiff’s land which lay beyond the Raleigh Plains drain.

I am not able to see on what principle the intervention of the engineer, whose advice as to the propriety of running the Bell drain into the other seems neither to have been asked or given, affects the liability of the council to the persons, strangers to the work, who were injured by it. The engineer’s report merely shows how the waters may most effectually be turned into the Raleigh Plains drain, and takes no account of what is then to become of them. The capacity of the Raleigh Plains drain, and of Jeannette’s Creek into which it ran, to receive the waters and carry them to the Thames, which was the outlet, appears to have been assumed without examination. I do not understand the defendants to contend that upon any construction of their statutory powers they had a right to drain any locality by merely conveying the waters to a lower level, without providing an outlet by which they would ultimately be carried to a river or lake. It is plain that the drainage authorised by the statutes is drainage by way of such an outlet. In the case of

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Malott v. Township of Mersea^[20], the question was incidentally discussed before the Court of Appeal in 1886. The judgment of that court does not appear in the reports but it was before us in Mss. on the argument of this appeal. The council may have honestly taken it for granted that the Raleigh Plains drain afforded a sufficient outlet for the waters brought down by the Bell drain in addition to the waters with which it was already charged. They may be credited with having honestly thought so if they gave any thought to the matter, but all the same they were creating the nuisance from which the plaintiffs suffered. They brought the water there without providing an outlet for it, and it matters little to the plaintiffs whether that was due to miscalculation, or to the assumption without any calculation that the drain would carry the water, or even to simple recklessness. The general rule of law on the subject seems to me to be well expressed by Mr. Justice Denman in Humphries v. Cousins^[21], when speaking of the right of every occupier of land to enjoy that land free from invasion of matters coming from the adjoining land.

Moreover, he said, this right of every occupier of land is an incident of possession and does not depend on the acts or omissions of other people; it is independent of what they may know or not know of the state of their own property, and independent of the care or want of care which they may take of it.

The divisional court (Denman and Lindley JJ.,) considered these rights of an occupier established by the cases of Smith v. Kenrick^[22]; Baird v. Williamson^[23]; Fletcher v. Rylands^[24] and the older authorities there referred to; and the then recent decision of Broder

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v. Saillard^[25]. The first three of these cases were, s seven years earlier, commented on by the late Sir Adam Wilson in his judgment in Rowe v. Corporation of the Township of Rochester^[26], the head note of which case is as follows:—

The defendants, in order to drain a highway, conveyed the surface water along the side of it for some distance by digging drains there, and stopped the work opposite the plaintiff’s land which was thus overflowed. Held that the defendants were liable even without any allegation of negligence.

The facts which are, thus far, in discussion resemble those in the case of Coghlan v. Ottawa^[27] where the city corporation, adopting an existing sewer as part of the drainage system, connected with it two others of greater capacity which brought more water than the first could carry away, in consequence of which water escaped and injured the property of the plaintiff. The city was held liable.

In Furlong v. Carroll^[28] I had occasion to examine the law with more particular reference to fire communicated from one man’s land to that of another man, but the principle of liability is the same when damages are caused by water. I refer to my judgment in that case.

I shall not refer to further authority on the subject of the plaintiffs right of action upon the facts as I have stated them, beyond a quotation, which I may adopt as expressing my own conclusion on this branch of the present case, from the language of the present Chief Justice of Ontario in McGarvey v. Strathroy^[29].

The defendants have in the exercise of their municipal powers caused a larger quantity of water to flow on the plaintiff’s land to her injury than would naturally have flowed thereon. From the early days of our municipal system I think it has been uniformly held that such proceedings give a cause of action.

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What I have said with respect to the Bell drain and its effects applies equally to the various other drains that discharge into and overcharge the government drain no. 1.

The common law right of the plaintiff against these defendants has not, in my opinion, been taken away by anything in the statute.

The argument to the contrary is that when drainage works are authorized by a by-law passed in accordance with the statute the corporation incurs no liability to an action for damage caused by the work unless there has been negligence in the execution of it, but that if damages are claimed the procedure to recover them must be by arbitration. The question is not the soundness of the principle thus relied on, which may be conceded, but its bearing upon the facts of the case. The provision of the statute which enables disputes to be settled by arbitration does not of itself cut off the remedy by action when, as in this case, the right infringed is a common law right and not one created by the statute; but if the act that injures you can be justified as the exercise of a statutory power you are driven to seek for compensation in the mode provided by the statute, or if (as has sometimes happened) no such provision is made you are without remedy. But the justification, if otherwise capable of being established, may be displaced, and the right of action maintained, by proof of negligence which caused the damage. The law is stated in terms at once comprehensive and concise in a passage which I shall read from Lord Blackburn’s judgment in Geddis v. Proprietors of Bann Reservoir^[30].

For I take it, he said, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although

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it does occasion damage to any one; but an action does lie for doing that which the legislature has authorized if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented, it is, within this rule, ‘negligence’ not to make such reasonable exercise of their powers.

I do not doubt that the learned Chief Justice of Ontario correctly applied this principle to the statute before us, considered with reference to the general scope of the drainage provisions, when he said in this case.:

I am of opinion that a corporation, adopting and carrying out a drainage scheme duly presented to them by a surveyor under the statute cannot be held responsible in damages because the scheme may prove erroneous and inefficient in some important particular, e.g., the not providing a sufficient outlet for the waters which it is designed to carry off. They are held responsible by action for negligence in the execution of the work; but having duly executed it according to its provisions it is not negligence in them that it turns out to be wholly inefficient or useless.

In other words, the statute does not make them responsible for the errors or unskilfulness of the drainage scheme duly adopted by them.

But I do not think the facts bring this case within the rule so enunciated. The council has obviously a discretion to exercise with regard to the adoption, rejection, or modification of any projected scheme of drainage. The initiative is taken by the owners of real property who may petition for the execution of the kind of work they desire, within the classes enumerated in section 569, some of which works do not, while others do, involve the diversion of waters from their natural channels. The petition may be for the deepening or straightening of any stream, creek or watercourse, or for the draining of property (describing it), or for the removal of any obstruction which prevents the free flow of the waters of any stream, creek or watercourse, or for the lowering of the waters of any lake or pond for the purpose of reclaiming flooded land

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or more easily draining any lands. The council on receiving the petition may procure an engineer or surveyor to make an examination of the stream, creek or watercourse, or of the lake or pond, or of the locality proposed to be drained, and may procure plans and estimates to be made of the work by the engineer or surveyor, and an assessment of the property to be benefited; and then, if of opinion that the proposed work, or a portion thereof, would be desirable, may pass the by-law.

To what extent or upon what information the discretion of the council as to the adoption of the report of the engineer is to be exercised we need not exhaustively consider. They must at least be satisfied that the scheme is one which the statute authorizes. When the drainage of described property is to be undertaken it is the clear intention of the statute that the waters shall be carried to some river or lake, or to a waterway by which they may reach that destination. Large powers are given to engineers and councils with the object of securing in every case a proper outlet. The corporation may not be responsible for the mistake of an engineer respecting the sufficiency of the outlet designed or selected by him, but the report and plans which may be procured for the information of the council, when the drainage of a described area is proposed, would be incomplete if they did not indicate an outlet which, in the judgment of the engineer, was sufficient.

We know from the Bell drain by-law, which is before us as a specimen of the by-laws relied on, that the petition, though it may have been practically sufficient, was not in terms for any of the works specified in section 569, inasmuch as it asked, not for the draining of certain lands, though that was really the object aimed at, but for doing specified work, viz.:

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making a tap drain from one existing drain to another; and we know further that the engineer’s report merely set out the works that would be required in order to turn the waters from the one drain to the other. We cannot say, from anything that is before us, that the council acted upon any skilled advice of the engineer as to the sufficiency of the Raleigh Plains drain as an outlet for the water proposed to be diverted into it.

Similar remarks may be made concerning the overcharging of government drain no. 1.

I am of opinion that these drainage works cannot properly be held, under the circumstances, to be such a reasonable exercise of the statutory powers of the council as to free the municipality from actions for damages for injuries caused by the waters, but that the action can be maintained on the grounds stated in the passage I have quoted from the judgment of Chief Justice Hagarty in McGarvey v. Corporation of Strathroy^[31].

I am further of opinion that it was undoubted negligence to discharge the waters collected from the areas newly drained into the inadequate waterways, called the Raleigh Plains drain and government drain no. 1, without examination of their condition and capacity.

On these grounds I think the judgment of the court of first instance, sustaining the award of damages for flooding the lands occupied by the plaintiff, was correct.

I have now to consider the other branch of the case, which relates to the embankment on the west side of government drain no. 1, which embankment constitutes the travelled part of the road allowance along which the drain is constructed.

It is found as a fact that the earth taken from the drain when it was first dug was thrown upon the road

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so as to form this embankment as part of the plan of the drain, and not merely by way of making a better road. The embankment has been worn down and perhaps washed away in some places, permitting water to run over which ought to have been kept in the drain. In the High Court a writ of mandamus was awarded to compel the corporation to restore the embankment to its original height, by way of enforcing the duty cast upon the municipality to maintain the drain. The drain is wholly within the municipality in which it is commenced, and does not benefit the lands or roads in any other municipality. Sec. 586 declares that it shall be the duty of the municipality making “such a work” to preserve, maintain and keep in repair the same at the expense of the lots, parts of lots and roads, as the case may be, as agreed upon and shown in the by-law when finally passed.

The question whether the duty of keeping in repair drains which do not extend into, or benefit, the lands or roads of another municipality is created by this section 586, or by section 583, is of importance, because section 583 gives the right to a mandamus to compel performance of the duty it imposes only after a reasonable notice to repair, and also, as I read it, makes the notice essential to the liability of the municipality to pecuniary damages for injuries caused by neglect or refusal to repair, while section 586 is silent on those subjects.

Section 583 is wide enough in its terms to include both classes of drains, those extending into or benefiting more than one municipality and those to which section 586 relates. The language is:—

After such work is fully made and completed it shall be the duty of each municipality, &c.

What is meant by “such work”? I understand those words to mean any of the works authorized by

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section 569. We find the same expression in section 586 which commences thus:—

In any case wherein after such work is fully made and completed, the same has not been continued into any other municipality, &c.

In both sections the term “such work” means the same thing, and that is, as seems to me very evident, any work done under section 569.

Section 583 casts upon each municipality the duty of preserving, maintaining, and keeping in repair the work within its own limits, either at the expense of the municipality or parties more immediately interested, or at the joint expense of such parties and the municipality, as to the council upon the report of the engineer or surveyor may seem just. Now, this discretion as to the apportionment of the cost of maintenance and repair was not considered necessary in the case of works that were entirely local in their effect as well as in their situation. Section 586 accordingly declares by whom the expense of maintaining works of that class is to be borne, giving the council no discretion in the matter.

The office of section 586 I take to be, not to impose the duty or declare what shall be the consequence of neglecting it,—those things being already done by the earlier section,—but to declare at whose cost the duty is to be performed. In the case of White v. Gosfield^[32], in the Court of Appeal, I gave my reasons for so reading the statutes as they stood at the date of that decision, and I do not think the effect of the clauses as now found in the R.S.O., 1887, even with a slight amendment made in 1889, is different from what I then considered it to be, notwithstanding some ambiguities that have been allowed to creep in. The most serious of these ambiguities occurs in sub-section 9 of section 569, in the last part of the sub-section, which

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represents an amendment made, in 1886^[33]. If I am right in my understanding of the effect of those sections 583 and 586, the provision of sub-section 9 to which I refer may perhaps fail in its intended effect, while, if I am wrong, an unexpected and not very creditable anomaly will appear. It would have to be held that a person complaining of the want of repair of a drain lying wholly within his municipality is free from the restrictions prescribed for his neighbor, whose drain is in all respects like the other but happens to benefit some land across the township line, while the first has not that effect.

No such an anomaly can have been intended, nor does it, in my opinion, arise upon the proper reading of the statute.

The duty to repair thus arising under section 583 the plaintiffs are not entitled to their mandamus unless they gave a reasonable notice to repair as required by that section. I cannot agree with the learned arbitrator that the notice given in 1883, and which was at that time complied with, whether sufficiently or not, can support the claim now pressed, and I agree with the Court of Appeal that the mandamus ought not to have been ordered. Other objections to the writ, or to the terms of the order granting it, I need not consider.

Sec. 583, as I understand it, further makes the notice a necessary preliminary to the liability of the municipality to pecuniary damage to any person who or whose property is injuriously affected by reason of neglect or refusal to repair according to the notice, but this does not, in my opinion, affect the right of the plaintiff to the damages now awarded to her.

The work of preservation, maintenance and keeping in repair, under secs. 583 and 586 includes (by the express terms of those sections) the deepening, extending

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or widening of a drain in order to enable it to carry off the water it was originally designed to carry off. A fortiori the duty to maintain according to the original plans and dimensions of the drain is to enable the drain to carry off the waters it was originally designed to carry off. But this Government drain no. 1, which is a work to the cost of which the plaintiff contributed, was not originally designed to carry off the waters that in later years were turned into it. Those are the waters which, if I correctly understand the findings, overflowed from the drain. The duty of the council towards the plaintiff was to prevent those waters from injuring her land. Whether or not that could have been done by clearing out or enlarging or otherwise repairing the drain, the purpose of the repairs not being to enable the drain to carry off the waters it was originally designed to carry off, sec. 583 does not stand in the way of the recovery of the damages in question.

In my opinion the appeal should be allowed and the judgment of the High Court restored as to the award of damages, and the appeal should be dismissed as far as it asks for a restoration of the writ of mandamus.

I think the plaintiff should have her costs in this court and in the Court of Appeal.

Appeal allowed with costs.

Solicitors for appellants: Douglas, Douglas & Walker.

Solicitors for respondents: Wilson, Rankin, McKeough & Kerr.