Nelson v Walker [1910] HCA 27

Nelson v Walker [1910] HCA 27

No right exists at common law requiring the lower landowner to receive the natural flow of surface water from higher land, nor does such a right arise by implication on transfer of part of land unless necessary for the reasonable enjoyment of the granted land and within the parties' clear contemplation. Here, the appellant was entitled to erect a barrier to prevent water flowing from the respondent's land, as no grant (express or implied) of an easement or similar right over the appellant's land was established, and the common law does not recognize an obligation to receive such water. The decision of the lower courts was reversed.

Parties
Appellant; Defendant: Mary Nelson; Defendant: Charles Nelson; Respondent; Plaintiff: George James Walker
Jurisdiction
Australia
Judgment Date
06 June 1910
Procedural Posture
Appeal / On Appeal From Supreme Court of Victoria to High Court of Australia
Outcome
Appeal allowed. Judgment for the appellant; County Court judgment set aside.
Legal Topics
Easements, Natural Rights to Water, Derogation From Grant, Transfer of Land, Surface Water Rights
Property Law Easements Natural Rights to Water Derogation From Grant Transfer of Land Surface Water Rights

Case Brief

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Parties

Mary Nelson

Appellant; Defendant

Charles Nelson

Defendant

George James Walker

Respondent; Plaintiff

Procedural Posture

Appeal / On Appeal From Supreme Court of Victoria to High Court of Australia

Legal Issues

  1. 1 Whether the owner of lower land is under a legal obligation to receive natural surface water from higher adjoining land as an incident of property law at common law in Australia.
  2. 2 Whether the vendor, upon transfer of a parcel of land, is precluded from obstructing flow of water from land sold to land retained (derogation from grant/implied grant of a quasi-easement).
  3. 3 Effect of altered (artificial) land surface on surface water rights between adjoining owners.

Ratio Decidendi

No right exists at common law requiring the lower landowner to receive the natural flow of surface water from higher land, nor does such a right arise by implication on transfer of part of land unless necessary for the reasonable enjoyment of the granted land and within the parties' clear contemplation. Here, the appellant was entitled to erect a barrier to prevent water flowing from the respondent's land, as no grant (express or implied) of an easement or similar right over the appellant's land was established, and the common law does not recognize an obligation to receive such water. The decision of the lower courts was reversed.

Court Disposition

Appeal allowed. Judgment for the appellant; County Court judgment set aside.

Orders

  • Order appealed from discharged.
  • Appeal from County Court allowed with costs, including costs of settling the case.