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Nelson v Walker (1910) 10, CLR 560 (HC of Australia)
Property Law – Easement – Vendor and purchaser – Derogation from grant – Implied grant
The parties were owners of two contiguous allotments of land (allotments 13 and 12). In 1873, before the owners purchased their respective lands, the government made an excavation over parts of lots 13 and 12 to build an embankment. This made the bottom of the excavation lower at the southeast side which was later owned by Walker. Nelson found that rain water would fall and accumulate on lot 12 and then run off her lower lying lot 13. She made a bank of earth on her own side of the boundary line to keep it off. Walker brought an action against her in a County Court, claiming an injunction restraining her from keeping the embankment.
Whether the building of an embankment was inconsistent with the enjoyment of Walker’s land.
The appeal by Nelson was allowed and the embankment was able to stay. It was held that if an owner receiving rain water that naturally flowed over the surface of adjourning higher land was entitled to prevent it, the same principle applied to the case where land had been physically altered by the construction of a manmade embankment to prevent his or her land from being affected by the water flowing from adjourning land. Further, it is considered to have been contemplated by the parties that the grantor should not use that land inconsistently with the enjoyment of the other. The building of the embankment was necessary for enjoyment of Nelson’s land. It was held that the proposed order to remove the embankment could not stand as it did not constitute any known grounds for an injunction.
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