Pen Rumints v The State and Western Highlands Provincial Government

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 05 March 1993
• Citation: [1993] PNGLR 94
• Court: National Court
• Year: 1993
• Judgement Number: N1141

National Court: Woods J

Judgment Delivered: 5 March 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PEN RUMINTS

V

THE STATE

AND THE WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

Mount Hagen

Woods J

21 August 1993

27 August 1993

14 December 1992

1 March 1993

WATER — Nuisance — Drainage of swamp upstream and increase of flow — Reasonable and natural use of land — Erosion to land by river flow.

REAL PROPERTY — Erosion to land by river flow.

Facts

The plaintiff owned some land at the junction of two rivers. This he farmed for many years with cash and subsistence crops. Owing to drainage work in some swamp areas carried out by the government, the rate of the flow of water down the rivers increased, causing the erosion and flooding of the plaintiff's land, which ceased to be productive.

The plaintiff claimed compensation for damage to his land caused by the actions of the officers of the State and Provincial Government in effecting the drainage work.

Held

1. The law has always recognised that, in the case of water coming onto the lower land from land higher up, consideration must be given to what is the normal flow and normal expectations. A flood of water from higher up, if it is not created by the positive intervention of people living higher up, cannot lead to any liability.

2. This case is not a situation where a defendant has introduced onto his land something which has escaped and done damage, such as an artificial obstruction like a dam which breaks and causes an artificial flood. It is a case where the State exercised its natural right to drain the land for productive farming and to tidy up the flow of a river in the vicinity of a bridge. The water was natural, it was always on or coming onto the land by the work of nature. The State was merely assisting its flow by digging better drains and ensuring the free flow of the river. Where the water naturally accumulating is allowed to flow freely, in its natural state it would eventually flow down the rivers. There is nothing artificial or unnatural about the draining of a swamp or repairing the banks of a river to ensure a safer flow.

Cases Cited

Bell v Pitt [1956] Tas SR 161.

Gibbons v Lenfestey (1915) 84 LJPC 158.

Rouse v Gravelworks Ltd [1940] 1 All ER 26.

Vinnicombe v MacGregor (1902) 28 VLR 144.

Counsel

S Norum for the plaintiff.

M Maladina for the second defendant.

1 March 1993

WOODS J: This is a claim for damages to land caused by the actions of officers of the State and the Western Highlands Provincial Government in doing drainage works in some swamp area and work affecting the flow of water in some streams upstream from the plaintiff's land. The work changed the rate of flow of water down the Poli and the Gumanch Rivers such that the traditional land owned by the plaintiff at the junction of the said two rivers was so seriously eroded that he lost the use of his land, which he had been using for his subsistence and cash crop farming.

The plaintiff's evidence is that he owned some land at the junction of the Poli and Gumanch Rivers and had been farming it for many years with coffee and banana trees and subsistence agriculture. He recalls there was some drainage works being carried on upstream from his land in the vicinity of the Poli River in the early 1980's. By 1985, he realised that soil and sand had been washed down the river and had settled near the junction and this and the increased flow of the Poli River had affected the flow of the Gumanch River such that there was severe erosion and water damage on his own land. Much of his land was being flooded, and that had never happened before. Eventually, his land either became completely waterlogged or eroded away and he lost all his trees and the use of his land. The plaintiff consulted with the appropriate district officers and agriculture officers to seek some recourse. In due course, his complaint was investigated and Peter Numdi, a field officer with the Department of Agriculture, cam and assessed the situation. Mr Numdi agreed with his complaint and found that the plaintiff had lost the use of his land, approximately 17.5 hectares, and 3,280 coffee trees and 230 banana trees. Mr Numdi submitted his report on 25 November 1985 to the Provincial Government authorities and recommended that the plaintiff should be compensated.

Various other witnesses came and gave evidence about their knowledge and understanding of the situation. John Yama, who was the Provincial Secretary between 1978 and 1982, said he recalls work being done in the area of the Poli River to assist the drainage of the swamp, which was State land, and also to improve the flow of the river. He recalls that about that time the land was leased for the Rui Plantation. He also recalls some complaints being made about the effect of the changes to the flow of the river. He recalls that the work was done by the Local Government Engineering Unit.

Pol Goimba, a patrol officer at the time, recalls work being done by the Hagen North Development Authority to help drainage in the swamp and to tidy up the flow of the Poli River.

Korowa Kump, a rural development officer in the area at the time, recalls inspecting the complaint of the plaintiff. He...