Cylaw

ELENI GR. HJI NICOLAOU ν. MARICCOU ANTONI GAVRIEL AND ANOTHER (1965) 1 CLR 421

(1965) 1 CLR 421

1965 November 11

[*421]

[ZEKIA, P., VASSILIADES AND JOSEPHIDES, JJ.]

ELENI GR. HJI NICOLAOU,

Appellant-Plaintiff,

MARICCOU ANTONI GAVRIEL AND ANOTHER,

Respondents-Defendants.

(Civil Appeal No. 4533)

Immovable property-Easement-Water rights-Right to conduct water across a servient to a dominant land-Right of laying pipes through a servient land for the purpose of conducting water to a dominant land, a kind of easement different in nature from the right to conduct water across a servient land through a defined water course-Only trifling alterations in the course of a water course or little variations in the enjoyment of the easement, being neither more onerous to the servient land nor more restrictive of the rights of the servient land owner, permitted-Replacement of a water channel by pipes not a trifling alteration in the course of a channel-Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, sections 2, 11, 15 (1), 16 and 40.

Water-Water rights-Claim, by cross action, for a declaration regarding rights in the water of springs-Claim not maintenable, as there was no other legal owner as party contesting the issue- Civil Procedure Rules, Order 9, rule 10.

Water-Water rights- Water rights are included in the definition of immovable property and as such unless registration is effected cannot be transferred orally or otherwise.

Practice-Costs-Appeal against order disallowing costs to successful party-Trial Court could not be considered as unjustified, in the circumstances of the present case, in making the order.

Injunction-Mandatory injunction granted for the removal of water pipes laid in land without authority and notwithstanding the protestation of the owner thereof.

Practice-Delays in hearing of cases and in the delivery of reserved judgments-Previous observations deprecating piecemeal hearing of cases and delays in the delivery of reserved judgments reiterated-Delays highly undesirable.

Adjournments-Piecemeal hearings and adjournments of a case make the task of the trial Judge more difficult and are to the prejudice of the fair administration of justice and may amount [*422] to a complete denial of justice-A Court may adjourn the hearing of a case only “if it thinks it expedient for the interests of justice”-Civil Procedure Rules, Order 33, rule 6.

The litigants in the instant appeal, who are close relatives, are owners of two irrigable and adjoining pieces of land appellant-plaintiff of plot No. 1440 and respondent-defendant No. 1 (who is the wife of respondent-defendant No. 2) of plot No. 1437. The, aforesaid two plots were partly or wholly irrigated from certain springs situated outside the said plots which are known as the springs of “Pefkos” and “Platanoudhia”, and respondent No. I was entitled to conduct water from the said two springs through a channel crossing the eastern boundary of the adjoining plot No. 1440, for the purpose of irrigating her plot No. 1437.

Respondent No: 1 in July 1961 entered plot No. 1440 and placed pipes along the channel through which she was admittedly entitled to conduct water to her land, plot 1437, from the said two springs ; her intention being to conduct the same water through the pipes instead of the existing water course. Hence the present action by appellant-plaintiff, claiming for a mandatory injunction to remove the pipes placed, and a counterclaim by respondent-defendant No. 1, for a declaration that she was entitled to. a greater share in the water coming from the said two springs.

The trial Court dismissed appellant’s-plaintiff’s prayer with regard to the removal of the pipes and decided that respondent No. 1 was entitled to place the pipes in question for the purpose of conducting water to her property from the afore-raid two springs for certain hours every week. The trial Court further dismissed the action against respondent-defendant No. 2 and awarded no costs to the parties.

The plaintiff appealed against the said decision and respondent-defendant No. 2 cross appealed complaining for not being allowed costs.

The issues before the Court of appeal were three namely:-

1. Whether respondent No. 1 was entitled to lay pipes across the land of the appellant for the purpose of con- ducting water to her (respondent’s) land from the two springs in question.

2. Whether respondent No. 1 was entitled to a declaration as to the share of the water in the said two springs, for certain hours per week, as indicated in the judgment of the Court, and [*423]

3. Whether the Court was wrong in law or in principle in disallowing costs to the parties.

Held, (1) we are of the opinion that the right of laying pipes through the land of another person for the purpose of conducting water to one’s own land, if authorised to do so, would constitute a kind of easement different in nature from the right to conduct water across the land of another man through a defined water course. Laying pipes entails entering the property of the other for installing the pipes, digging and burying the same and keeping them on the land on a permanent basis. This is altogether a different matter than allowing a dominant land owner to take the water along a channel or furrow existing on a servient land. As far as the English authorities, which we have been able to trace, go, they indicate that trifling alterations in the course of a water course or little variations in the enjoyment of the easement, being neither more onerous to the servient land nor more restrictive of the rights of the servient land owner, are permitted and only such alterations or variations do not destroy the right of easement. (See Hall v. Swift (1838) 132 English Reports, 834).

(2) Replacement of a channel by pipes is not a trifling alteration in the course of a channel and it may be that the servient land owner’s rights are more restricted in not having the benefit of the channel for his own land and not having the right to change the water course as provided under section 15 (1) of the Immovable Property Law, Cap. 224.

(3) Regarding the second point, that, whether respondent No. 1 is entitled to a declaration as to the share of the water in “Pefkos” and “Platanoudhia” springs for certain hours per week, it is clear from the record that persons other than the litigants, are interested in the water of the springs of “Pefkos” and “Platanoudhia” (See evidence of Panayiotis Kanaris at p. 41 of the record); and, what is more, the appellant is not the legal owner of any share in the water of the said two springs. As it was explained in Ioannides and another v. Rodothea Ioannides, 22 C.L.R., 225, water rights, under section 2 of the Immovable Property (Tenure, etc.) Law, are included in the definition of Immovable property and as such, unless registration is effected, cannot be transferred orally or otherwise (see section 40 of the said Law).

(4) In this case the respondent No. 1 became the owner of plot 1437 in 1928, that is, before 1946, and therefore the water rights attached to the said plot 1437 followed the registration effected in her name. But the registration in the name of the [*424] plaintiff-appellant took place only in 1960, that is, after 1946 when the Immovable Property Law, Cap. 224, came into force, and the transfer of the land by itself could not cover the transfer of water rights attached to the same land. The result is that by her cross-action respondent No. 1 is claiming a declaration of water rights where there was no other legal owner as party contesting the issue and in such a case such a cross-action was not maintenable: See the case of Performing Rights Society v. London Theatre of Varieties (1924) A.C 1; and Harmer v. Armstrong (1934) 1 Ch. 65, which cases are given in relation to English Order 16, rule 11, which corresponds to our Civil Procedure Rules, Order 9, rule 10.

(5) In the surrounding circumstances of this case we are of the opinion that the appellant-plaintiff is entitled to a mandatory injunction against respondent-defendant No. 1 for the removal of the pipes. Respondent No. 1 proceeded to the laying of the pipes notwithstanding the protestation of the land owner and in such circumstances respondent No. 1 cannot be heard to plead oppressiveness if an injunction for the removal of the water pipes was granted.

(6) With regard to costs, from the perusal of the record, it appears that almost no extra expenses or costs were incurred in the action for joining defendant No. 2 (respondent No. 2) as a party and the Court could not be considered as unjustified in not awarding costs to defendant No. 2, husband of defendant No. 1 (respondent).

(7) The judgment of the trial Court will, therefore, be varied as follows:-

1. A mandatory injunction is granted in favour of the appellant as against respondent No. 1 for the removal of the water pipes laid across her property, plot 1440, locality “Pera Livadhi”, Prodromos Village. The said water pipes shall be removed within two months after service of an office copy of this judgment on her;

2. That the declaration made as to the share in the water of, “Pefkos” and “Platanoudhia” is set aside.

3. Cross-appeal dismissed.

Respondent No. 1 ordered to pay half of the costs of the plaintiff-appellant here and in the Court below. Court, having taken into account the course the proceedings have taken, is of opinion that appellant should receive only half of her costs.

Appeal allowed. Judgment of

trial Court varied accordingly.

Cross-appeal dismissed. Respondent

No. 1 to pay half of

the costs of the Appellant here

and in the Court below. [*425]

Observations by the Court regarding delays in the hearing of cases, adjournments, piecemeal hearings of cases and delays in delivering reserved judgments; previous observations made in the cases of Nicola v. Christofi and another (reported in this volume at p.324 ante) and Tsiartas and another v. Yiapana 1962 C.L.R. 198, deprecating piecemeal hearings of cases and delays in the delivery of reserved judgments reiterated. The Court may adjourn the hearing of a case only if it thinks it expedient for the interests of justice between the parties and not for any other reason The cases of Maxwell v. Keun and others (1928) 1 K.B. 645; (1927) All E.R. Rep. 335; Hinckley and South Leicestershire P.B.S. v. Freeman (1941) Ch. 32; (1940) 4 All E.R. 212; Re Yates’ Settlement Trusts (1954) 1 All E.R. 619; Efstathios Kyriacou & Sons Ltd. v. Mouzourides (1963) 2 C.L.R. 1 cited with approval.

Cases referred to:

Hall v. Swift (1938) 132 English Reports, 834;

Wood v. Waud (1849) 3 Ex. 777;

Ioannides and another v. Rodothea Ioannides, 22 C.LR. 225;

Performing Rights Society v. London Theatre of Varieties (1924) A.C. 1;

Harmer v. Armstrong (1934) 1 Ch. 65;

Coils v. Home and Colonial Stores (1904) A.C. 193;

Nicola v. Christofi and another (reported in this volume at p. 324 ante);

Tsiartas and another v. Yiapana 1962 C.L.R. 198 at p. 207;

Maxwell v. Keun and others (1928) 1 K.B. 645; (1927) All E.R. Rep. 335;

Hinckley and South Leicestershire P.B.S. v. Freeman (1941) Ch. 32; (1940) 4 All E.R. 212;

Re Yates’ Settlement Trusts (1954) 1 All E.R. 619;

Kyriacou and Sons v. Mouzourides (1963) 2 C.L.R. 1

Appeal.

Appeal against the judgment of the District Court of Limassol (Malachtos, D.J.) dated the 5.6.65 (Action No. 1600/61) whereby plaintiff’s claim for (a) an order directing the defendants to remove the water pipes they have installed in his (plaintiff’s) garden land and (b) an order restraining the defendants from interfering with plaintiff’s said land was dismissed and a declaration was made in favour of defendant-respondent [*426] No. 1 that she is entitled inter alia to irrigate her garden land by using pipes passing through plaintiff’s land.

A. Triantafyllides, for the appellant.

J. P. Potamitis, for the respondents.

Cur. adv. vult.

The Judgment of the Court was delivered by:

ZEKIA, P.: Plaintiff-appellant is the owner of an irrigable piece of land, bearing plot No. 1440, in the locality “Pera Livadhi” in the, village of Prodromos. Defendant-respondent No. 1 owns an adjoining piece of land, plot 1437, which is also irrigable. The parties are close relations. The mother of the plaintiff, Myrianthi, and defendant No. 1 are the daughters of a certain Eftychia Hji Yianni who was the previous owner of these two plots. The said Eftychia transferred in 1928 plot 1437 to her, daughter, respondent No. 1, and plot 1440 to her daughter Myrianthi, mother of the appellant, who, in turn, in 1960 registered the said plot, 1440, in the plaintiff-appellant’s name. These two plots were partly or wholly irrigated from certain springs situated outside the said plots. Those springs are known as the springs of “Pefkos” and “Platanoudhia”. In addition, there were two springs within plot 1440 called “Pano” and “Kato” “Karydhi” the water of which was admittedly used for irrigating part of plot 1440. Although it was contended by respondent No. 1 that the water coming, out from one of the said springs after being diverted into a channel was used for irrigating part of plot 1437, this contention was not supported by evidence to the satisfaction of the trial Court and it was rejected. That decision was not challenged before this Court.

Admittedly, respondent No. 1 is entitled, in respect of plot 1437, to conduct water from the spring of “Pefkos” and “Platanoudhia” through a channel crossing the eastern boundary of plot 1440, bordering neighbouring plot 1439.

Respondent No. 1 in July, 1961, entered plot 1440 and placed pipes along the channel through which she was admittedly entitled to conduct water to her land, plot 1437, the water corning from “Pefkos” and “Platanoudhia” springs; her intention being to conduct the same water through the pipes instead of the existing water course. Plaintiff (appellant) objected to this and brought the present [*427] action claiming a mandatory injunction to remove the pipes placed. Respondent No. 1 counterclaimed for a declaration that she was entitled to a greater share in the water coming from “Pefkos” and “Platanoudhia” springs than it was accepted by plaintiff.

The trial Court dismissed the prayer of the plaintiff-appellant as to the removal of the pipes and decided that respondent No. 1 was entitled to place the pipes across the land of the plaintiff-appellant with view to conducting water to her property, plot 1437, the water coming from the springs of “Pefkos” and “Platanoudhia” for certain hours every week. The action against defendant-respondent No. 2 was dismissed and no costs were awarded to the parties. The plaintiff appealed against the said decision and defendant-respondent 2 also cross-appealed for not being allowed any costs.

The points involved in this appeal are three:

(1) Whether respondent No. 1 was entitled to lay pipes across the land of the appellant, plot 1440, for the purpose of conducting water to her (respondent’s) land, plot 1437; the water coming from “Pefkos” and “Platanoudhia” springs.

(2) Whether respondent No. 1 is entitled to a declaration as to the share of the water in “Pefkos” and “Platanoudhia” springs, for certain hours per week, indicated in the judgment of the Court.

(3) Whether the Court was wrong in law or principle in disallowing costs to the parties.

(1) Laying pipes.-Some 15 years prior to the hearing of the action, as found by the Court, the water channel on the eastern side of plot 1440, through which the water was conducted to plot 1437, was at a higher level with an inclination towards the latter plot and the water falling into the channel was flowing more easily to the said plot. The bed of the channel was cultivated and lowered. The solidity of the ground of the water course had gone and a soft soil constituted the bed of the new water channel; against such interference, however, the respondent did not take any action. As a result, the water which ran through the new channel was more readily absorbed by the soil and could hardly reach plot 1437. The water flowing, however, from “Pefkos” and “Platanoudhia” springs was collected in a pool, dug in plot 1441, the property of appellant, and from that pool the water was diverted [*428] to the channel in plot 1440. This device, it appears, enabled the flowing of the water into plot 1437 for a number of years.

Respondent No. 1, after the lapse of 15 years from the opening of the new channel or furrow, without the consent and authority of the owner of the servient land, the appellant, installed two-inch pipes all along the said channel and buried them.

Learned counsel for respondent No. 1 contended that, in the circumstances, she was justified in laying the pipes across the land of the appellant as being less onerous to the servient land and even advantageous to its owner. He referred to section 16 of Cap. 224, The Immovable Property (Tenure, Registration and Valuation) Law, which prevents the owner of the servient land from cultivating a space of five feet on each side of the channel. It was further submitted that a mandatory injunction for the removal of the pipes, if granted, would cause great hardship to the dominant land owner beyond proportion compared with the inconvenience, if any, to be caused to the appellant if the pipes were allowed to stay on her land.

It was stressed that if the pipes were not allowed to stay on the land of the appellant then the respondent would be deprived of irrigating her property altogether. It was also contended that there was no change in the easement; there was only change in the method, of conducting the water to the dominant land.

Reference was made to a number of cases by both counsel but no authority on-all-fours was quoted by either side. We have given full consideration to the points and to the authorities our attention has been invited to. We must confess that little assistance could be derived from the authorities cited. We are of the opinion that the right of laying pipes through the land of another person for the purpose of conducting water to one’s own land, if authorised to do so, would constitute a kind of easement different in nature from the right to conduct water across the land of another man through, a defined water course. Laying pipes entails entering the property of the other for installing the pipes, digging and burying the same and keeping them on the land on a permanent basis. This is altogether a different matter than allowing a dominant land owner to take the water along a channel or furrow existing on a servient land As far as the English authorities, which [*429] we have been able to trace, go, they indicate that trifling alterations in the course of a water course or little variations in the enjoyment of the easement, being neither more onerous to the servient land nor more restrictive of the rights of the servient land owner, are permitted and only such alterations or variations do not destroy the right of easement (See Hall v. Swift (1838) 132 English Reports, 834.

Although section 11 of the Immovable Property (Tenure etc.) Law, governs the recognition and creation of the easement some of the English cases might be usefully referred to. In Wood v. Waud (1849) 3 Ex. 777 it was stated that the right to artificial water courses as against the party creating them surely must depend upon the character of the water course, whether it is of a permanent or temporary nature and upon the circumstances under which it was created.

Replacement of a channel by pipes is not a trifling alteration in the course of a channel and it may be that the servient land owner’s rights are more restricted in not having the benefit of the channel for his own land and not having the right to change the water course as provided under section 15 (1) of the Immovable Property Law, Cap. 224.

(2) Regarding the second point, that is, whether respondent No. 1 is entitled to a declaration as to the share of the water in “Pefkos” and “Platanoudhia” springs for certain hours per week, it is clear from the record that persons other than the litigants, are interested in the water of the springs of “Pefkos” and “Pladanoudhia” (See evidence of Panayiotis Kanaris at p. 41 of the record) and, what is more, the appellant is not the legal owner of any share in the water of the said two springs. As it was explained in Ioannides and another v. Rodothea Ioannides, 22 C.L.R., 225, water rights, under section 2 of the Immovable Property (Tenure etc.) Law, are included in the definition of immovable property and as such, unless registration is effected, cannot be transferred orally or otherwise (see section 40 of the said Law).

In this case the respondent No. 1 became the owner of plot 1437 in 1928, that is, before 1946, and therefore the water rights attached to the said plot 1437 followed the registration effected in her name. But the registration in the name of the plaintiff-appellant took place only in 1960; that is, after 1946 when the Immovable Property Law, Cap. 224, came into force, and the transfer of the land [*430] by itself could not cover the transfer of water rights attached to the same land. The result is that by her cross-action respondent No. 1 is claiming a declaration of water rights where there was no other legal owner as party contesting the issue and in such a case such a cross-action was not maintenable: see the case of Performing Rights Society v. London Theatre of Varieties (1924) A.C. 1; and Harmer v. Armstrong (1934) 1 Ch. 65, which cases are given in relation to English Order 16, rule 11, which corresponds to our Civil Procedure Rules, Order 9, rule 10. Reference was made to this rule by learned counsel of the respondent during the hearing of the appeal. The rule reads:

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”

English Order 16, rule 11 (now Order 15, rule 6(1) ), corresponds to our Order 9 rule 10. In the Annual Practice 1963, at page 345, the following appears:

“This rule, however, in no way qualifies the necessity for having before the court the proper parties necessary for determining the point at issue (Performing Rights Society v. London Theatre of Varieties (1924) A.C. 1). For instance, where rights to properties are in dispute the legal title must be represented.”

Lord Cave in his judgment in the above quoted case, at p. 14, stated:

“Under Order 16 rule 11 no action can now be defeated by reason of the misjoinder or non-joinder of any party but this does not mean that judgment can be obtained in the absence of a necessary party to the action. The rule is satisfied by allowing parties to be added at any stage of the case.”

(3) With regard to costs, from the perusal of the record, it appears that almost no extra expenses or costs were incurred in the action for joining defendant No. 2 (respondent No. 2) as a party and the Court could not be considered as unjustified in not awarding costs to defendant No. 2, husband of defendant No. 1 (respondent No. 1).

Having found that respondent No. 1 was not entitled to place the pipes in the land of the appellant we have to consider whether a mandatory injunction would lie against respondent No. 1 for the removal of the pipes. [*431]

In the surrounding circumstances of this case, we are of the opinion that the appellant-plaintiff is entitled to such an injunction. Respondent No. 1 proceeded to the laying of the pipes notwithstanding the protestation of the land owner and in such circumstances respondent No. 1 cannot be heard to plead oppressiveness if an in junction for the removal of the water pipes was granted. In Coils v. Home and Colonial Stores (1904) A.C. p. 193, it was stated that if the defendant, has himself acted with wilful and high-handed disregard of the plaintiff’s rights an injunction will be granted even in cases which would otherwise have been denied as being too trifling for the remedy.

The judgment of the trial Court will, therefore, be varied as follows:

(1) A mandatory injunction is granted in favour of the appellant as against respondent No. 1 for the removal of the water pipes laid across her property, plot 1440, locality “Pera Livadhi”, Prodromos Village. The said water pipes shall be removed within two months after service of an office copy of this judgment on her;

(2) That the declaration made as to the share in the water of “Pefkos” and “Platanoudhia” is set aside;

(3) Cross-appeal dismissed.

Finally we desire to express once more our disapproval for the delays in the hearing of cases. In a recent judgment (Nicola v. Christofi and Another, (reported in this vol. at p. 324 ante) we had occasion to reiterate our previous observations deprecating the piecemeal hearing of cases and the delays in the delivery of reserved judgments. We also expressed the view that adjournments should, as far as possible, be avoided except in unusual circumstances, and that once a trial was begun it should proceed continuously day in and day out, where possible, until its conclusion (see also Tsiartas and another v. Yapana, 1962 C.L.R. 198, at page 207).

In the present case, although the evidence covers 41 typed pages (11/2 space) in all, yet over 18 months elapsed from the day when the first witness for the plaintiff gave [*432] his evidence (3rd November, 1962) to the close of the defendants’ evidence (23rd May, 1964), and the case was adjourned no less than 14 times. After the close of the evidence the case was adjourned for six weeks for addresses and the judgment was delivered some 11 months after the addresses, namely, on the 5th June, 1965. The appeal was lodged with the District Court on the 6th July, 1965.

These delays are highly undesirable and we are satisfied that it is possible for a Judge to have his work arranged in such a way as to avoid them altogether or reduce them to the very minimum. Piecemeal hearing and adjournments of a case make the task of the trial Judge, who has to weigh the oral evidence, more difficult and are to the prejudice of the fair administration of justice and, sometimes, they may amount to a complete denial of justice.

In the present case owing to the delays in the haring of the case, the trial Judge had to weigh the evidence of the one side against that of the other, which he heard over a period of 18 months with long gaps in between, after the lapse, of that time, and he delivered his judgment 31 months after he heard the first witness. We need say no more about it except express the hope that we shall not have to revert to this matter again.

In fairness to the judge, however, it should be stated that counsel in the case were mainly responsible for a number of adjournments by consent for their convenience (even though without costs). We note that there is a tendency on behalf of counsel to apply for adjournments for reasons unconnected with the interests of justice. It should be borne in mind that the Court may adjourn the hearing of a case only “if it thinks it expedient for the interests of justice” that is, in order to do justice between the parties and not for any other reason: see Maxwell v. Keun and others (1928) 1 K.B. 645; (1927) All E.R. Rep. 335; Hinckley and South Leicestershire P.B.S. v. Freeman (1941) Ch. 32; (1940) 4 All E.R. 212; Re Yates’ Settlement Trusts (1954) 1 All E.R. 619; Efstathios Kyriacou & Sons Ltd. v. Mouzourides (1963) 2 C.L.R. 1; and Civil Procedure Rules, Order 33, rule 6.

Appeal allowed. Judgment

of trial Court varied accordingly.

Cross-appeal dismissed.

Respondent No. 1 to pay half

of the costs of the appellant

here and in the Court below.

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