Wright v Williams and Williams
| Jurisdiction | Jamaica |
| Judge | Duffus, J. |
| Judgment Date | 14 April 1959 |
| Neutral Citation | JM 1959 CA 2 |
| Court | Court of Appeal (Jamaica) |
| Date | 14 April 1959 |
Court of Appeal
MacGregor, C.J.; Cools-Lartigue, J.A.; Duffus, J.A.
Blake, Q.C. for the appellants.
Coore for the respondent.
Easement - Restrictive covenants - Artificial water course — Nuisance — Registration of Titles Law, Cap.340
This is an appeal by the defendants from the judgment of the resident magistrate for St. Catherine awarding damages to the respondent for the obstruction of the flow of water in an irrigation canal leading to the respondent's land at Bushy Park in St.Catherine. The learned resident magistrate found as a fact that both appellants had obstructed and blocked the canal where it passed through the land of the appellant Albert Williams, which adjoined that of the respondent, thereby depriving the latter's land of water with consequent damage to his growing crops.
The certificate of title for the respondent's land and the respective registered transfers to each of the appellants for their lands were tendered in evidence.
The appellants and the respondent purchased their respective lands from Harold Dayes & Others at about the same time. The respondent's certificate of title was originally issued in the names of Harold Dayes & Others, vesting in them as joint tenants in fee simple the lands described therein, being part of Bushy Park,
“together with the right by themselves and/or their tenants, servants, agents n or licensees and in common with all other persons having the like right:
To utilise existing irrigation canals … on the lands comprised in the Certificate of Title … (which said lands are hereinafter referred to as Bushy Park) for the purpose of conveying water to the land comprised in this Certificate of Title (hereinafter called ‘the said land’) and of taking, using and enjoying the said water PROVIDED that there is in force with the Rio Cobre Irrigation Works a valid agreement for the supply of such water to the said land and PROVIDED ALSO that this right shall not confer any authority on such registered proprietor to take more water than is contracted for in the said agreement.”
Two other rights endorsed on the title give the registered proprietor the right to enter land of any other registered proprietor of lands at Bushy Park for the purpose of inspecting the canals and other works for carrying water to his land, to lead water from such land to his land, and to remove, after due notice, any obstruction preventing theflow of water to his land.
Endorsed also on the certificate were encumbrances which were stated to be binding on the registered proprietor for the time being, and to run with the land. They required the registered proprietor to permit the free and undisturbed flow of water through the canals and other works on his land, to do nothing whereby that free flow is diminished or interfered with, to maintain and keep in good repair the canals and other works, to take all steps to secure the free and continuous flow of water over his land and to permit the registered proprietor for the time being of any part of Bushy Park to enter his land to inspect the canals and other works and, if necessary, to remove any obstruction found therein.
By a transfer registered on September 11th, 1956, the said Harold Dayes & Others transferred all their estate in the land comprised in this certificate of title to the respondent and Blanche Tugman, who subsequently became his wife.
By transfers dated December 18th, 1956, and June 27th, 1957, respectively, and lodged with the Registrar of Titles, Harold Dayes & Others transferred other lands part of Bushy Park to the two appellants and their respective wives. These transfers, which were executed by the appellants, contained similar provisions regarding the water rights to those in the respondent's certificate of title. The relevant covenant reads as follows:
“and in consideration of the said Transfer the Purchasers [i.e. the appellants] for themselves their heirs executors administrators and transferees HEREBY COVENANT with the vendors their executors administrators and transferees that they will not do or cause to be done any act matter or thing whereby the rights and liabilities set out in the Second Schedule hereto shall in any way be infringed or abrogated and that this Covenant shall at all times run with the land.
That the registered proprietors for the time being of the said Lot (more particularly described in the First Schedule hereto and hereinafter referred to as the said Lot) shall have the rights and be subject to the obligation set out hereunder, to wit:
The right by themselves and/or their tenants servants agents or licensees and in common with all other persons having the like rights:
To utilise existing irrigation canals … on the lands comprised in the Certificate of Title … (which said lands are hereinafter referred to as ‘Bushy Park’) for the purpose of conveying water to the said Lot and of taking, using and enjoying the said water PROVIDED that there is in force between such registered proprietor and the Rio Cobre Irrigation Works a valid agreement for the supply of such water to the said Lot and PROVIDED ALSO that this right shall not confer any authority on such registered proprietor to take...
To continue reading
Request your trial