Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10

Refd Refd to VanSonv 'ily Deptof E Land & Water i335 108-" 8, : Seam ios LOPRA 35°

92 C.L.R.] OF AUSTRALIA. 317

[HIGH COURT OF AUSTRALIA.]

THORPES LIMITED - a % A 5 APPELLANT ;

DEFENDANT, AND GRANT PASTORAL COMPANY PROPRIE- Re : TARY LIMITED 3 : ; } : ESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Water, Water Supply and Watercourses—River—Riparian owners—Rights and liabilities Common law—Statute—Harth works—Oonstruction along banks of tributary and flood alveus—Interference with natural flow—Flood waters— Damage—Water Act 1912-1946 (N.S.W.) (No. 44 of 1912—No. 35 of 1946), 3. 4a.

Appeal—Submission—Made late in address to High Court—Not made at trial of action, nor during appeal to State court—Not allowed.

1955, A river flowed through certain lands owned and occupied by P. and also MzrnourNe, through D.'s lands opposite thereto. D. had constructed certain earth works March 15.

along the banks of a creck, a tributary of the river, and across a flood alveus yy. Gy. of the river, which in time of flood formed an escape channel for water which McTiernan, overflowed the banks of the river. During 1950, waters from theriverinundated Fullagar'and P's lands, leaving as they subsided a deposit of sand, silt and debris which"! 7¥- caused considerable damage. In an action P. alleged that D. was negligent

in the construction and maintenance of the earth works and was guilty of

nuisance in interfering with the natural flow of the river and diverting its

water on to P.'s land. A jury found for P. on both counts.

Held that the Water Act 1912-1946 (N.S.W.) had not deprived a land- owner of his right to complain that water silt and debris had been thrown on his land by an obstruction made to the channel or natural flood channel of a stream without lawful justification or excuse.