Elston v Dore [1982] HCA 71

High Court of Australia Gibbs C.J. Murphy, Wilson and Brennan JJ. Elston v Dore [1982] HCA 71

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 14 Gibbs C.J., Wilson and Brennan JJ.

This is an appeal from a judgment of the Full Court of the Supreme Court of Queensland affirming a judgment given by Kneipp J. in favour of the respondent, the defendant in the action. The appellants are respectively the first and third plaintiffs in the action. There were other plaintiffs, but they have ceased to be parties to the proceedings.

The appellants and the respondent are the owners and occupiers of lands near Euramo, a few miles south of Tully in North Queensland. The area is low-lying and comparatively level and the annual rainfall is very high. The learned trial judge described the nature of the area as follows:

The subject lands and surrounding lands are drained by numerous watercourses but, because of the flatness of the country, any gradients are likely to be short, watersheds are likely to be formed by very low ridges, and watercourses which are quite close to each other are apt to flow in quite different directions. In addition, the whole area is from time to time completely inundated by flood waters from the Murray, or the Tulley, or both, and the flow of floodwaters when they recede can result in scouring or other intereference with the surface of the country and with the watercourses which carry water away in times of normal rainfall.

There was a dispute as to some of the features of the land in its original state, and particularly as to the natural direction of the flow of water from the appellants' lands, but there is now no challenge to the findings of fact made by the learned trial judge and accepted as correct by the Full Court. We shall briefly describe the situation as it was before 1964, and in doing so shall refer to the lands in question as the lands of the parties, although at that time none of the parties had yet become owners of the lands. To the east of the lands in question was Bedford Creek, which flowed in a south-easterly direction until it joined the Murray River. Another creek, Orchard Creek, was comprised of two arms, which, after their confluence, flowed in a southerly direction to the Murray River. The eastern arm of Orchard Creek had its source some distance to the north of a swamp which was the source of Bedford Creek. It flowed in a westerly direction through the respondent's land (Portions 13V and 14V) and then through part of the land of the first plaintiffs, which was immediately to the southwest of the respondent's land and was downstream of the respondent's land. The western arm of the creek flowed through the land of the third plaintiffs, which is to the west of the other lands mentioned, but not contiguous with them. The eastern arm of the creek did not flow through the land of the third plaintiffs. The two arms of the creek joined at or near the southeastern boundary of the land of the third plaintiffs. According to the unchallenged findings, when the lands were in their natural state water did not flow from the appellants' lands on to the respondent's land.