NATURAL FLOW OF WATER
General principles – limitation on ownership
General rule = Water must be allowed to follow the typography of land from higher
lying land to lower lying land (owned by different people).
- owners of higher lying land cannot interfere with natural flow.
- owners of lower lying land cannot deflect water from its drainage.
Exceptions & qualification of general rule
Change of natural flow of water is allowed in the normal and reasonable use of land.
Barklie v Bridle - owner of higher lying land can interfere with natural flow
in the process of improving normal agricultural
exploitation on land.
- Specific improvements to make a better harvest (not
general).
Meyer - Exception in B v B pertains exclusively to reasonable
and proper cultivation of agri land.
- DOES NOT INCLUDE relocation of marsh or swamp
from higher to lower lying land.
Van Schalkwyk - Exception to interfere with natural flow to improve
cultivation of land is restricted to the creation of
necessary furrows.
- WITHOUT allowing them to become streams or rivers.
Application to rural tenements
Redelinghuis - CL principle on natural flow is only applied to rural land in
its natural state.
- Principles applying to urban tenements:
> Owners of higher lying land have no right to let water
flow on lower land.
> Owners of lower lying land may refuse to accept flow
of water on their land and may divert IF it causes
significant damage.
, Pappalardo - In urban tenements you must discharge water directly
onto street or in public water systems (unless impractical
bcs of typography of land).
- ‘natural flow’ = volume and concentration.
- Where local authorities say that its impractical for storm
water to be drained from higher lying land to street >
owners of lower lying land are obliged to accept passage
of water over earth:
> Owner of higher lying land is liable to pay
proportionate share of pipeline which owner of lower
land needs to drain storm water.
Statutory mandate of local authorities
You can interfere with the natural flow of water is statute allows it
Chubb & Sons - If local authority establishes its statutory authority to act in
Lock & Safe Co. a way that would interfere with private rights > onus of
proof rests on plaintiff to prove that authority was carried
out negligently and the damage could have been avoided
if authorities took reasonable and practicable measures.
Redlands - Regulations of National Building Regulation and Building
Development Standards Act applied to stormwater disposal.
Projects - Same guidelines were used for both properties.
Remedies
Actio aquae pluviae arcendae = terminates inference with natural flow.
- ONLY APPLICABLE TO RURAL LAND.
AIRHU
- Plaintiff must prove –
1. Artificial interference with natural flow.
2. Building works caused water to flow in increased concentration,
volume/velocity/power.
3. Water involved was rainwater or mixed water.
, 4. Plaintiff must suffer from or be threatened by harm as a result of the
interference.
5. Unlawfulness – where interference doesn’t fall within the scope of normal and
reasonable use OR statutory authority of municipalities.
- Affected owner OR servitude holder against the offending neighbor can institute
action.
Interdictum quad vi aut clam = claims damages in general for any interference with
natural flow EDA
- Plaintiff must prove –
1. Defendant erected construction that changed natural flow.
2. This was to plaintiffs detriment.
3. Defendant acted with force OR stealth
Thormahlen v - Force = any action taken in conflict with explicit
Gouws prohibition.
- Stealth = any action taken with knowledge or
suspicion that it would be resisted by plaintiff.
- Affected owner can institute this action against offended landowners or person
who constructed interference.
Answer to a question:
1. General rule for natural flow of water – what is the natural flow?
2. Exceptions
a. Normal and reasonable use of agricultural land (Barklie v Bridle, Meyer
and Van Schalkwyk).
b. Statutory exception (Padca and Chubb & Sons).
3. Remedies to terminate interreference
a. Actio aquae pluviae arcendae OR interdictum quad vi aut clam.
, Original Acquisition (treasure troves)
Original vs derivative acquisition
- Original acquisition –
> Unilateral act.
> No cooperation from previous owner.
> Ownership vests in acquiror by operation of law (when all reqs met).
> New owner does not derive rights from previous owner.
> New ownership vests in new owner.
> No obligations or benefits involved in the process.
- Derivative acquisition –
> Bilateral act.
> Cooperation from previous owner.
> Ownership transferred from 1 owner to another through ex contractu.
Treasure trove
History of treasure trove principles
Roman Law Roman Dutch Law SA Law
Owner finds treasure Follows Roman Law.
on his land > belongs Germanic Principles:
to him All treasure discovered Archeological,
is forfeited to state. paleontological
Find (not owner of objects and
land) > finder owns ½ meteorites are
and owner owns ½ forfeited to the state
For the finder to become ½ owner – reqs must be met.
MUCH
1. Treasure must be movable and valuable.
2. Treasure must be hidden in land or elsewhere (this can be on purpose or by a
natural force).
3. Treasure must be hidden for such a long time that the owner is unknown.
4. Treasure must be discovered by chance – NOT as a result of a concerted
effort to find it.
**if entering into a contract (eg to go look for treasure on somebodies land)
these rules don’t apply**
General principles – limitation on ownership
General rule = Water must be allowed to follow the typography of land from higher
lying land to lower lying land (owned by different people).
- owners of higher lying land cannot interfere with natural flow.
- owners of lower lying land cannot deflect water from its drainage.
Exceptions & qualification of general rule
Change of natural flow of water is allowed in the normal and reasonable use of land.
Barklie v Bridle - owner of higher lying land can interfere with natural flow
in the process of improving normal agricultural
exploitation on land.
- Specific improvements to make a better harvest (not
general).
Meyer - Exception in B v B pertains exclusively to reasonable
and proper cultivation of agri land.
- DOES NOT INCLUDE relocation of marsh or swamp
from higher to lower lying land.
Van Schalkwyk - Exception to interfere with natural flow to improve
cultivation of land is restricted to the creation of
necessary furrows.
- WITHOUT allowing them to become streams or rivers.
Application to rural tenements
Redelinghuis - CL principle on natural flow is only applied to rural land in
its natural state.
- Principles applying to urban tenements:
> Owners of higher lying land have no right to let water
flow on lower land.
> Owners of lower lying land may refuse to accept flow
of water on their land and may divert IF it causes
significant damage.
, Pappalardo - In urban tenements you must discharge water directly
onto street or in public water systems (unless impractical
bcs of typography of land).
- ‘natural flow’ = volume and concentration.
- Where local authorities say that its impractical for storm
water to be drained from higher lying land to street >
owners of lower lying land are obliged to accept passage
of water over earth:
> Owner of higher lying land is liable to pay
proportionate share of pipeline which owner of lower
land needs to drain storm water.
Statutory mandate of local authorities
You can interfere with the natural flow of water is statute allows it
Chubb & Sons - If local authority establishes its statutory authority to act in
Lock & Safe Co. a way that would interfere with private rights > onus of
proof rests on plaintiff to prove that authority was carried
out negligently and the damage could have been avoided
if authorities took reasonable and practicable measures.
Redlands - Regulations of National Building Regulation and Building
Development Standards Act applied to stormwater disposal.
Projects - Same guidelines were used for both properties.
Remedies
Actio aquae pluviae arcendae = terminates inference with natural flow.
- ONLY APPLICABLE TO RURAL LAND.
AIRHU
- Plaintiff must prove –
1. Artificial interference with natural flow.
2. Building works caused water to flow in increased concentration,
volume/velocity/power.
3. Water involved was rainwater or mixed water.
, 4. Plaintiff must suffer from or be threatened by harm as a result of the
interference.
5. Unlawfulness – where interference doesn’t fall within the scope of normal and
reasonable use OR statutory authority of municipalities.
- Affected owner OR servitude holder against the offending neighbor can institute
action.
Interdictum quad vi aut clam = claims damages in general for any interference with
natural flow EDA
- Plaintiff must prove –
1. Defendant erected construction that changed natural flow.
2. This was to plaintiffs detriment.
3. Defendant acted with force OR stealth
Thormahlen v - Force = any action taken in conflict with explicit
Gouws prohibition.
- Stealth = any action taken with knowledge or
suspicion that it would be resisted by plaintiff.
- Affected owner can institute this action against offended landowners or person
who constructed interference.
Answer to a question:
1. General rule for natural flow of water – what is the natural flow?
2. Exceptions
a. Normal and reasonable use of agricultural land (Barklie v Bridle, Meyer
and Van Schalkwyk).
b. Statutory exception (Padca and Chubb & Sons).
3. Remedies to terminate interreference
a. Actio aquae pluviae arcendae OR interdictum quad vi aut clam.
, Original Acquisition (treasure troves)
Original vs derivative acquisition
- Original acquisition –
> Unilateral act.
> No cooperation from previous owner.
> Ownership vests in acquiror by operation of law (when all reqs met).
> New owner does not derive rights from previous owner.
> New ownership vests in new owner.
> No obligations or benefits involved in the process.
- Derivative acquisition –
> Bilateral act.
> Cooperation from previous owner.
> Ownership transferred from 1 owner to another through ex contractu.
Treasure trove
History of treasure trove principles
Roman Law Roman Dutch Law SA Law
Owner finds treasure Follows Roman Law.
on his land > belongs Germanic Principles:
to him All treasure discovered Archeological,
is forfeited to state. paleontological
Find (not owner of objects and
land) > finder owns ½ meteorites are
and owner owns ½ forfeited to the state
For the finder to become ½ owner – reqs must be met.
MUCH
1. Treasure must be movable and valuable.
2. Treasure must be hidden in land or elsewhere (this can be on purpose or by a
natural force).
3. Treasure must be hidden for such a long time that the owner is unknown.
4. Treasure must be discovered by chance – NOT as a result of a concerted
effort to find it.
**if entering into a contract (eg to go look for treasure on somebodies land)
these rules don’t apply**
