Fletcher and Fletcher Appellant Bulawayo Waterworks Co Ltd Respondent

1915 AD636 Bulawayo Waterworks Co Ltd Appellant v Fletcher and Fletcher Respondent
1915 AD636

Appellate Division, BLOEMFONTEIN --- CAPE TOWN.

1915. September 6, November 4.

INNES, C.J., SOLOMON, J.A, and C. G. MAASDORP, J.A.

Flynote

Land. --- Compensation for improvements. --- Enhanced value. --- Bona-fide occupier. --- Jus
retentionis. --- Fruits of improvements. --- Trespass. --- Proof of damage. --- Costs.

Headnote

The defendant company leased from one S a piece of ground for a term of three years renewable
for two successive similar periods, the lease entitling the lessee to sink wells, lay pipes and erect
buildings and machinery upon the property. Thereafter the defendant company sunk a well
within what it believed to be the boundary of the land leased and erected plant by means of
which it pumped water for the use of the town of B for a period of some months. In fact the well
and portion of the plant fell just beyond the boundary of the leased property and within the limits
of plaintiffs' adjoining land. The defendant company had continued to pump water from the well
after it had discovered this fact, but it had made no profit from the sale of the water.

1915 AD at Page 637

The plaintiffs having instituted an action for ejectment and damages and for an account of all
water taken from the well and payment of profits the defendant company claimed to be entitled
to retain possession of the land until compensated for improvements.

Held, that the defendant company was entitled to be compensated for the improvements to the
extent to which the value of plaintiffs' land had been enhanced thereby and to retain possession
of the land until such compensation had been paid.

The case of Rubin v Botha (1911 AD 568) discussed and applied.

Held, further, that the plaintiffs were not entitled to an account of the water taken from the well
and payment of profits.

Held, further, that in the absence of proof of actual damage the plaintiffs were not entitled to
damages for trespass.

The decision of the High Court of Southern Rhodesia in Fletcher and Fletcher v Bulawayo
Waterworks Co., Ltd. fixing the amount of compensation at £100 and refusing to order an
account of the water taken or payment of profits affirmed, but the decision awarding the
plaintiffs £50 damages for trespass and directing the defendant to pay the costs of action
reversed.

Case Information

Appeal and cross-appeal from a decision of the High Court of Southern Rhodesia. (HOPLEY, J.)

The appellants sued the respondent company for an order of ejectment and damages and for an
account of all water taken from a certain well upon appellants' property, and payment of profits.
The respondent company pleaded in effect that it was willing to give up possession of the
property from which the appellants sought to eject it upon payment of £500 as compensation for
improvements, but it resisted the claim for damages, and the claim for an account and payment
of profits.

The Trial Court (HOPLEY, J.) gave judgment as follows: ---

Judgment

HOPLEY, J. The plaintiffs own a small portion of land of about 50 acres (being one-half or
thereabouts of one of the "100-Acre Lots") at the junction of the Umgusa and the Little Umgusa
Rivers about 5 or 6 miles from this town. They were not farming upon this land nor utilising it in
any way but had bought it in 1898 as a speculation or investment and were simply keeping it
either for sale or for any purpose which might arise and might tend to their advantage.

The defendants, who have the monopoly of supplying water to this town, are also under
obligation to do so and liable to penalties and loss should they fail to do so. In April last they
found themselves in the third year of a prolonged drought, and in danger of a very serious
shortage of water, difficulties in keeping up a satisfactory or adequate supply having already
arisen. In these circumstances they looked about in every likely direction for places whence they
might increase their supply. At the junction of the two rivers it appears that two valleys drained
by them met and that there is in normal seasons, even when the river has ceased to run, a pool of
water of considerable size and of such a nature that it would be valuable for anyone living upon
or

1915 AD at Page 638

utilising the plaintiffs' small holding as a dairy farm or something of that nature. It occurred to
Mr. Ward, the manager of the defendant company, who has naturally had much experience in
such matters, and who was keenly interested in the situation with which his company was faced a
year ago, that there ought certainly to be underground water at the point where the two valleys
meet at right angles to each other. He accordingly tried to get rights at that spot so that his
company might sink a well, which he hoped might augment the waning supply of water.
Amongst those approached by him were the plaintiffs, who, however, made considerable
difficulties about giving any facilities, refused at first to sell at all and finally on being pressed
mentioned £500 as the lowest price they would take for their land. Mr. Ward not liking these
terms, made efforts in other directions and finally came to an agreement with one Slot, who
owned a small portion of the farm "Marvel," lying on the plaintiffs' eastern boundary, and as far
as is material in this case between such eastern boundary and the Little Umgusa River. This
agreement was made verbally about the 25th April, 1914, and was subsequently on May 9th
reduced to writing, its effect being that Slot in consideration of certain watering facilities for his
stock and certain rental reserved agreed to lease to the defendants a narrow strip of land 100 feet
long lying between plaintiffs' eastern boundary and the Little Umgusa River for a term of three
years with rights of renewal for two further periods of three years each, with sole rights of
possession during such term or terms and with the right to sink wells, erect machinery and
buildings and generally to exercise all rights in pursuance of their undertaking as a Water
Company. A few years earlier a fence had been erected by the Government in connection with
combating cattle disease, which fence was thought by Slot, and as far as I can gather by all
parties, to run on the boundary between his holding and that of the plaintiffs. I have no reason to
doubt Mr. Ward when he says that Slot told him that the said fence was his boundary, though
Slot now states that he has no recollection of having done so. The point, however, is not very
material as I find as a fact that the defendants genuinely and honestly believed that the ground
they had so hired was bounded on the west by the said fence and on the east by the middle of the
bed of the Little Umgusa. As soon as they had come to an understanding with Slot the defendants
set about operations on their leasehold and sent out contractors whom they engaged to sink a
well as near as they possibly could get to the Little Umgusa. This well was not made without
some difficulty and expense owing to the hard nature of the shale and the meeting with water in
the course of the work and it was of a nature more expensive and extensive than any farmer or
owner of such a plot as the plaintiffs would have undertaken for his own needs. A farmer would
probably not have gone lower than about 20 feet and the cost would probably have been not
more than £25. The defendants, however, requiring for their purpose a more deep-seated and
plentiful supply sank down 43 feet through hard shale and the cost to them (including the lining
of the well with galvanised iron, cementing round its surface circumference and making two
considerable tunnels at the bottom in order to tap as much of the underground supply as possible)
was about £500. They finished their well on August 28th, and got a supply of underground water
by these measures, from which they took in all about 2½ millions gallons of water before the
rains set in towards the end of the year. In October the plaintiffs, who had up to then apparently
shared the general belief that the defendants had operated on Slot's ground (where besides the
well they had

1915 AD at Page 639

erected an engine house and pumping machinery and laid pipes and electric cables), found out
that the well was almost wholly on their ground. This was due to the fact that the Government
fence had not been accurately placed on the boundary which was some feet nearer the river than
had been supposed. Plaintiffs thereupon wrote a letter of demand on October 5th, pointing out
these facts and claiming evacuation of their ground, a claim which was met by a denial of any
trespass, the defendants at that period still believing that they were on Slot's ground. Summons
was issued on November 6th, and declaration filed on November 12th. These claimed ejectment,
an account of all profits obtained by the sale of the water so acquired and £100 as damages for
trespass. The plea filed on November 23rd set forth the facts of defendants' occupation of the
ground, and further set forth that they had discovered since the issue of summons that portion of
the well and of their buildings and machinery were on plaintiffs' ground, but claimed the right to
remain thereon until they were paid the sum of £500, such being the amount by which they had
improved plaintiffs' property. They also denied that they had in way damaged the plaintiffs by
the trespass, or that they had drained the plaintiffs' pool in the river as alleged in the declaration.
To this plea there was a replication which, however, was not filed until February 8th, 1915, and
eventually pleadings were closed by a rejoinder filed on February 25th.

I have no difficulty in finding as a fact that the defendants were bona fide occupiers or
possessors of this piece of ground over which their operations extended and that they thought
they were sinking on Slot's ground. I am also of opinion that such of their work as was of a
permanent nature was done pro domino in the genuine belief that it would be theirs for the term
of their lease and would at its expiration, or of its renewals as stipulated, revert to Slot as was
agreed upon by the terms of the lease. I cannot follow Mr. Longden's argument that because they
were not actually the owners of the land, but only tenants for a term that therefore they must
have lacked the animus dominorum. They clearly operated intending that their works should
belong to them for 3, 6 or 9 years, according as they wished, and that thereafter they should
revert to the registered owner Slot in terms of their contract. There is greater difficulty in other
aspects of the case --- and first as to the point whether the plaintiffs have in fact sustained any
damage. Their land was lying practically derelict and the plaintiffs have not attempted to prove
that they were in any way actually deprived of anything of any value in consequence of what the
defendants did, with one exception which I shall deal with in a moment. They admitted that the
temporary erection of the engine house and any buildings and machinery would not in any sense
damage their ground when such things were removed, that they had not required the ground for
any purpose whatever and the only thing that was claimed for them to prove damages was that
the pool of water had been dried up owing to the proximity of the well and rendered less water-
tight or continent of water owing to percolations through the fissures in the shale (which is the
natural formation there) into the well. It is true that such a body of water as the pool in question
(capable of holding about 250,000 gallons of water) is of considerable value on a small holding
like the one in question. It would serve as a drinking place for cattle, and if necessary, a certain
amount of irrigation could take place therefrom by comparatively simple pumping processes. It
is only in times of scarcity that such a pool is very valuable, that is when the river has stopped
running, and though the body of water is not very considerable it would be useful. It is likewise
true that the pool became dry last year before the rains came and after

1915 AD at Page 640

pumping from the well had been in operation: but I am by no means satisfied that the drying up
had any connection with the pumping. Theory says that there would be almost certainly a
connection by way of cause and effect, the process being that already described. But the fact
remains that 1914 was a very dry year, the third of three dry years, and that both in 1912 and
1913 the pool had dried up long before there was any well of defendants' there. It had also been
dry in 1905. Having regard to the nature of the 1914 season, it seems to me almost certain that it
would that year have dried up in any case. It is, of course, at present after copious rains full of
water and the river is running. It is said that it will lose its water more easily than in times past.
That remains to be seen, and I cannot conjecture whether it will or will not. If one looks at the
amount it can hold (about a quarter of a million gallons) and compares that with the 2½ millions
got from the well that season, it will be seen that a much larger quantity than the total contents of
the pool came from elsewhere and when one compares the levels of the pool and the
neighbouring wells including the defendants' at the present date all the wells stand higher than
the pool --- a fact which certainly tends to shake one's faith in the idea of their connection
through underground fissures or other channels. I therefore cannot find as a fact that the pool is
injured for all time and that the plaintiffs have in consequence a claim for damages. As to what
happened last year, even if the well did drain the pool there was not a particle of actual damage
to the plaintiffs, who did not require the water for any purpose whatever. Thus I cannot find that
plaintiffs have sustained any actual damage. There was, however, undoubtedly a trespass on their
property, which was at first strenuously denied; moreover a very large demand was made on the
plaintiffs, and failing compliance therewith the defendants claimed to be entitled to retain
possession indefinitely. This was a serious state of affairs and I think that the plaintiffs are
entitled to damages for such an infraction on their rights and also that they were practically
forced into Court to assert their rights of property. It is true that in the plea a partial admission of
the trespass was made, but no tender of a reasonable nature was made-only a very extravagant
demand which no reasonable person could imagine would be accepted as embodying a fair
measure of useful expenditure incurred by the defendants whereby they had increased the value
of the plaintiffs' property to that extent. For these reasons I think that the damages should be
more than nominal, and I think that the fact that the defendants resorted to the not very creditable
expedient of procuring a sham pegging of claims all round their well-as they now say to protect
it, which was probably the reason-thus committing a further trespass certainly inclines me not to
be too astute to cut down damages, but rather leads me to increase them somewhat. For though
probably the gold law would give any prospector the right to peg, that must naturally be a
genuine pegging of claims and I should imagine that wherever it could be proved that the
pegging was done for a bogus, sinister or ulterior purpose not justified by law it would certainly
be considered to be a tort of the nature of a trespass. In these circumstances I think that the
plaintiffs should have damages in the sum of £50.

As to whether the well has or has not increased the value of the plaintiffs' property I am of
opinion that it has. Though it is not well situated in that it is below flood level that is an objection
which I should say could be remedied by some protecting structure and the result is a fine well,
with two feeding tunnels which is capable of producing a very fine water supply of a wholesome
nature

1915 AD at Page 641

in the driest season when the pool in the river is quite useless. I cannot adopt some of the
extravagant figures which have been laid before me by both sides, but I think that the small plot
has been enhanced in value by at least £100. I do not think that the defendants have lost their
right to say that they will retain possession until that sum is paid. They were in actual possession
when the action was started, they remained there in active work and actual possession while
declaration and plea were filed and when the issue on this point was raised. In December heavy
rains came, and their actual occupation was disturbed by floods, which covered the ground,
overflowed the' well, and damaged buildings and machinery. These latter have been moved away
to be repaired, but the well has been covered in, and a caretaker, who cannot live on this small
strip without danger to his life in the rainy season keeps an eye on the property. He lives 1½
miles off, has two other of defendants' properties to see to as well as this one, and he is intended
to keep alive his employers' claims until such time as a shortage of water will necessitate a resort
to this well or until the sum of compensation for useful expenditure shall be paid. I think the jus
retentionis has not been lost in the circumstances.

As regards the claim for an account, I cannot see on what principle it is made. That water which
the defendants won from underground was not the plaintiffs' water and the fact that it was got
through the misplaced well did not make it theirs. It was something like an animal ferae naturae
captured or shot by a trespasser which does not by such act become the property of the owner of
the land on which it was captured or killed: or the water might be likened to fruits won by a bona
fide possessor trespassing on another's ground --- the law on that point being that all fruits
gathered by a bona fide possessor before litis contestatio are acquired by him for himself (see
Maasdorp's Institutes, vol 2, p. 52). In this case litis contestatio took place in February this year,
and all the water was won and distributed long before that date, and none has been taken from
that well since. That claim must in my opinion fail.

There will be judgment for the plaintiffs for £50 damages for the trespass and an order that the
defendants do vacate the property of the plaintiffs upon their paying to the defendants the sum of
£100 --- the well to be left as it is without removing any part of its structure --- or in other words
after striking a balance the defendants are to vacate the property upon payment by the plaintiffs
to them of the sum of £50.

The defendants should, in my opinion, pay costs of suit.

Postea: As I understand that the defendants are appealing against my ruling in the matter of
costs, I think it advisable to state my reasons for making them pay such expenses. They were
careless in sinking as they did without a survey to assure them that they were working upon their
leasehold, and were not justified in taking it for granted that the Government fence accurately
defined the boundary; so that they were really responsible for the whole imbroglio which arose
between the parties. Moreover when they did eventually discover their mistake they persisted in
an exorbitant demand and claimed an indefinite right of retaining occupation until such demand
was satisfied. Furthermore, they made no tender for the trespasses, which they had committed,
and for which judgment was given against them.

The plaintiffs now appealed against the award of compensation and the refusal of the Court to
direct an account of water and

1915 AD at Page 642

profits, and the defendant company cross-appealed against the order as to damages and costs.

J. Stratford, K.C. (with him G. Brebner), for the appellants: I assume for purpose of argument
that the whole well was on the appellant's ground. The respondents were not entitled to pump
and sell water from the well from the date on which they discovered that the well was in
appellant's ground. I submit that no order as to ejectment was given by the Court below. The
respondents had no jus retentionis. As regards a bona fide possessor it is admitted he has a jus
retentionis. But it has always been laid down that bona fide possession must be that of a
possessor. See Oosthuizen v Oosthuizen's Estate 1903 TS 688, in which the meaning of the term
as used in the authorities is explained. That case is in accord with subsequent cases and with the
Roman Law. See Acton v Motau. (1909 TS at p 845). The intention to hold pro domino is
essential to constitute a bona fide possessor. This rule is only subject to certain specific
exceptions such as that of a holder precario and the holder of emphyteusis. See Moyle on
Justinian's Institutes (3rd edit p. 337), See Voet (41, 2, 1) as to definition of possession for
purpose of usucapio. Voet is in accord with the Roman Law. I submit that civilis possessio is
necessary to support jus retentionis. See Meyer's Trustee v Malan (1911 TPD at p 564)). As to
Rubin v Botha 1911 AD 568, that case is only against me in that it decided the measure of
compensation to be applied in the case of a bona fide possessor. It was held that the measure of
compensation was applicable to an occupier. The jus retentionis was not referred to in that case.

[SOLOMON, J.A: Are not the right of compensation and the jus retentionis closely connected?]

Take the case of the lessee. A lien is a special right given by law. The failure to have a lien does
not affect compensation. A lien is merely security. It provides a special remedy. If the
respondents had given up possession they could have sued by the condictio sine causa. The order
should have been for ejectment and an account. The respondents could only have claimed for
compensation in another action.

In Rubin v Botha (supra.), in dealing with the jus retentionis, LORD DE VILLIERS, C.J., relied
on Groenewegen, who does not limit the right. That is the only authority that does not decide

1915 AD at Page 643

that jus retentionis is only applicable to a possessor. See Groenewegen de leg abr. Inst. (2, 1,
30).

Even if the question of compensation was relevant, the measure arrived at was incorrect. The
amount of compensation was irrelevant as there was no claim in reconvention. I admit the Court
might allow an amendment on that point.

As to the amount of compensation fruits must be deducted, though fruits of improvements need
not according to Voet (6, 1, 39). But see Meyer's Trustee v Malan. (supra at p. 567), and
Donellus, Vol. V, p. 892, No. 12 et seq.

[INNES, C.J.: Is not Rubin v Botha against that?]

That case only deals with the measure to be applied in the case of bona fide possessorship.
Deduction of fruits of improvements is not allowed in the case of a bona fide possessor, though I
admit there are conflicting authorities.

The maxim "No one shall be enriched at the expense of another" (i.e., to the extent of the
detriment to the others) is applicable.
The water, once having reached the well, belonged to the appellants. The onus was on the
respondents to show the quantity of appellants' water taken.

If the Court holds that equitable relief should be granted it may be on a different basis in this
case from that in Rubin v Botha (supra). If an equitable rule is applied, the respondents holding
as pro lessees merely lost the value of the bare materials at the end of the lease and the remaining
portion of their lease.

The claim for an account is at the worst based on the fact that the respondents continued to pump
from the well after they knew they were not entitled to it because from that time they became
mala fide possessors as regards the fruits. See Campbell v Golden Crescent Gold Mining Co.
(1885-1888 (3) SAR 248).

H. F. Blaine, K.C. (with him C. A. Beck), for the respondents The respondents are regarded in
law as having the rights of bona fide possessors. They had possessio naturalis. It is clear from
Groenewegen (supra) that a mala fide possessor has the right of retention. It extends to a bona
fide occupier, see Bellingham v Blommetje (1874, Buch. 36) and Rubin v Botha (supra), Grotius
(2, 10, 8). Grotius extends the right to a life usuary. Though the Court in Rubin v Botha was
directly dealing with compensation, by referring to Bellingham's case and bona fide occupiers it

1915 AD at Page 644

must be taken inferentially to have been dealing with the question of retention.

Blaine, K.C., applied for an amendment of the pleadings by inserting a claim in reconvention for
compensation.

Stratford, K.C., consenting, the amendment was allowed, subject to argument on the question of
costs.

As to the basis of arriving at the amount due, that depends on whether the compensation was due
on the enhanced value of the land or not. The cases show that compensation may be granted on
the basis of the enhanced value of the property. See Voet (6, 1, 39) and Burge on Colonial Laws,
Vol. III, p. 34. The fruits derived from improvement should not be deducted. The authorities in
regard to compensation in the case of bona fide possessors should be extended to the case of a
bona fide occupier because the ground for compensation is the same in both cases.

As to the account, it cannot be claimed because it really amounts to a claim for damages over
again. See Wolfaardt v Colonial Government (16 SC 250). That case is distinguishable because
there were two actions though otherwise the facts are very similar.

The water did not constitute fruits as it only became available owing to the work performed by
the respondents in sinking the well. The respondents were entitled to the water till the litis
contestatio.
On the cross-appeal, no damages should have been awarded to the appellants. The title to the
property was not contested after the plea. It is well established that for a mere trespass the
plaintiff is not entitled to damages unless e.g. contumelia is present.

As to costs, the order was incorrect. A successful litigant is entitled to costs. See Insolvent Estate
of Neilson v Rasmusson (27 NLR 579) and Fripp v Gibbon & Co. 1913 AD 354.

Stratford, K.C., in reply: As to Bellingham's case and Groenewegen, in regard to jus retentionis,
there was nothing to show the position in Bellingham's case. There may have been a lease in
longum tempus or emphyteusis. Groenewegen only deals with the case of possession. In all the
authorities it is clear, except in the passage from Groenewegen, that jus retentionis only applies
in the case of possession.

As to Grotius, the rights of a usuary or usufructuary are quite different from those of a lessee.

1915 AD at Page 645

If there was no defence on the ground of jus retentionis appellants were entitled to an account. It
stands on a different footing from compensation. If there was jus retentionis, compensation could
not be tendered till the account was rendered.

[INNES, C.J.: A claim for an account is only competent when a man uses property knowing that
it belongs to another.]

I submit that knowledge is irrelevant.

This is a case of vindication. In Rubin v Botha (supra) it was decided that compensation is
subject to deduction of fruits of improvements. Apart from compensation, where a person has
bona fide built his house on another's ground, and has let it, the latter is entitled to claim rent.

Assuming that the amount of compensation is the enhanced value of the land, less the benefit
derived by the respondents, it would have been impossible to tender without getting an account
showing the extent of the benefit.

From the time that the respondents knew the land belonged to the appellants, their action became
mala fide in using the water. See Voet (41, 1, 31).

As to the cross-appeal, there was in effect no judgment for damages in favour of the appellants. I
admit I cannot find authority for an order for damages if there is no aggravation of the trespass. I
admit there would be no claim for ejectment if the respondents had jus retentionis.

As to costs, I admit costs should have followed on the reasons given by the Court below, but on
the ground that the appellants could not tender without an account they were entitled to costs.

Cur. adv. vult.

Postea (November 4th).

INNES, C.J.: On May 9, 1914, the defendant company leased from one Slot a piece of ground
upon the bank of the Little Umguza River for the purpose of obtaining water to augment the
supply which it was under an obligation to furnish for the use of the town of Bulawayo. The
lease, which was for a term of three years renewable for two successive similar periods, entitled
the lessee to sink wells, lay pipes and erect buildings and machinery upon the property. Intending
to exercise the rights thus conferred the company sank a well, within what it believed to be

1915 AD at Page 646

the boundary of Slot's land, and placed certain sheds, machinery and piping thereon. From this
well and by means of this plant water was pumped for the use of the township from August till
towards the end of last year. In truth, the well and portion of the plant fell just beyond the
boundary of the leased property and within the limits of the plaintiff's adjoining land. This action
was brought in the High Court of Southern Rhodesia to settle the disputes which arose in
consequence. Upon the pleadings as filed the points raised were the plaintiff's right to an order of
ejectment and damages, and to an account of all water taken from the well, and payment of
profits; and the defendant's right to retain possession until compensated for the improvements
made upon the property. These were put at £500, being the alleged cost of the well; the shed and
machinery were removed before the suit came to trial. The trial Court found for the plaintiff for
£50 damages and costs, and ordered the defendant to give up possession on payment of £100 in
respect of improvements. With this order both parties are dissatisfied. The plaintiff appeals
against the award of compensation and the refusal to direct an account of water and profits; and
the defendant appeals against the order as to damages and costs.

The main appeal falls into two parts; the one is concerned with the question of compensation, the
other relates to the claim for an account of the water taken and of the profits made thereon. The
former again resolves itself into three questions: (a) is the defendant company entitled to
compensation for improvements? (b) if it is, should the assessed amount be interfered with? (c) is
the jus retentionis available in respect of it? Dealing with these points in their order, the only
improvement which we have to consider is the well sunk on plaintiff's land; the plant has been
removed, and does not enter into the present dispute. In sinking that well the company thought
that it was doing so in terms of a lease which would have entitled it to the benefit of the
improvement for a definite number of years, at the end of which period the well would have
reverted to Slot. But it was mistaken; the well was sunk upon land not covered by the lease, and
the owners of that land sited for ejectment. Clearly the company was not in law a possessor of
the ground upon which it trespassed; it did not hold the land or effect the improvement pro
domino, but as a mere

1915 AD at Page 647

occupier, entitled to do what it did but laying no claim to the ownership of the soil. Under these
circumstances careful inquiry would have been necessary into the legal position of the company
with regard to compensation, were it not for the decision of this Court in Rubin v Botha. The
plaintiff in that case had erected certain buildings upon the defendant's land, under what he
believed to be a binding contract of lease. That document cast upon him the obligation of
erecting the said buildings upon the leased property; he was to pay no rent, and at the expiration
of the term the buildings were to become the property of the defendant. As a fact, the so-called
contract was wholly invalid and of no effect in law, and the plaintiff was ejected after he had
occupied the property for three years. It was common cause that compensation was payable. The
dispute was as to the amount. And in order to decide that issue it became necessary to settle the
basis of calculation, and therefore the legal rights of the claimant. It was laid down by the
considered judgment of the majority of the Court that the plaintiff, though not possessor but a
mere occupier, was entitled to be paid for the improvements to the extent to which they had
enhanced the value of the property --- less a deduction for his three years' use and occupation. In
other words, the plaintiff was placed in the position of a bona fide possessor, save that his
compensation was equitably reduced in view of the particular circumstances. That was, no doubt,
a very special case; and its operation is not likely to be extended. But it certainly did decide that
a person who had made improvements upon the land of another, not as possessor, but under the
mistaken idea that he was a lessee was entitled to compensation on the same basis as a possessor,
subject to an equitable deduction necessitated by the special circumstances. And that principle is
conclusive of the company's right to compensation in this case, unless there is some reason to the
contrary which was not present in Rubin v Botha. Because here, as there, the improvements were
made by a bona fide occupier who believed that he had rights under a lease; and here as there the
lease upon which reliance was placed was found to have no operation on the property improved.
True the exclusion of such operation was due to different causes in the two cases. But that cannot
alter the principle. And the decision in the earlier case must in principle apply to the present
dispute. So that the

1915 AD at Page 648

company is entitled to compensation, unless there is some ground, which did not exist in Rubin v
Botha, for depriving it of that right.

Now the civil law allowed a very wise discretion to a Judge dealing with relief of this nature.
And the Courts of Holland proceeded on the same lines. The general basis, in regard to useful
expenditure, was the extent to which the property had been enhanced in value thereby. But in the
case of costly improvements it is obvious that a rigid application of that general test might
sometimes involve very considerable hardship. And the authorities recognising that an equitable
principle should not be so applied as to produce inequitable results, indicated the lines upon
which a Court should proceed in order to obviate such results (see Gluck, Vol. 6, sec. 592; Voet,
6, 1, 36). The measure of enhancement would generally be less than the expenditure actually
incurred; but if in any instance it proved to be greater, then only the lesser amount was to be
awarded as compensation. If the improvements could be separated from the property without
damage to the latter, and if in the opinion of the Judge they were such as the owner would not
have effected himself, then he was to be allowed to remove them and permit their removal.
Where from the nature of things such separation could not be effected, the improvement
automatically enured to the benefit of the owner of the property; but he might be released from
liability to compensate, if the improvement were not useful to him and the expenditure excessive,
regard being had to his means and position. But the owner would not escape the obligation to
compensate even under the circumstances last mentioned if he intended to sell the property, and
could obtain a substantially higher price by reason of the improvements. Such were some of the
principles (not always easy of application in practice) which were indicated for the guidance of
Courts in dealing with claims for compensation; but they were not exhaustive, and much was
left, as already pointed out, to the discretion of the Judge (see Meyer v Trustees Malan, 1911,
T.P.D., p. 559). Only one of them calls for consideration in this case. The improvement with
which we have to deal was inseparable from the property improved; and the trial Court was
satisfied that it was one which the owner would not have effected himself. But he was holding
the land with a view to selling it,

1915 AD at Page 649

and the Court found that the price which it would fetch in the market had been enhanced to the
extent of £100 at least by reason of the improvement. That can hardly be considered an unduly
excessive amount, and, under the circumstances, it is impossible to interfere with the conclusion
of the Court that compensation was payable. There is nothing in the general rules referred to
which could take the case out of the decision in Rubin v Botha.

The next question relates to the quantum of the compensation. We were asked by appellants to
reduce the amount awarded. As already remarked the award is not excessive on the face of it.
But reliance was placed on the circumstance that an ordinary owner would probably have been
satisfied with a shallow well at a cost of about £25. No doubt there was evidence to that effect,
but the plaintiff has obtained the benefit of an exceptionally good well yielding a large and
permanent supply. It cost the company £500, and after a careful perusal of the evidence on this
point I am not prepared to interfere with the learned Judge's estimate of enhancement. Regarded
as a matter of calculation, therefore, it must be allowed to stand. Nor do I think that there should
be any special reduction founded, on the provisions of the company's lease. The equitable
principle on which the law awards compensation for improvements is that no man should be
allowed to enrich himself at the expense of another. Both elements must concur, benefit to the
claimant and detriment to the improver, and both must be borne in mind in assessing the amount.
In Rubin v Botha the occupier had erected the buildings intending that after a term of years they
should become the free property of the owner of the land. And though he was dealt with by the
Court on the same general basis as if he had been a possessor, it was held that there should be a
reduction of amount proportioned to the period of his occupation. The reasons for this deduction
were not elaborated, but they must have had their origin in the special, but invalid agreement,
which governed the intention of the occupier in compliance with which the improvements were
effected. In the present case the company contemplated the enrichment of Slot at the termination
of the lease because it intended that the well should thereafter become his free property. But
there was no intention to enrich Fletcher. Nor can the latter, if he must

1915 AD at Page 650

pay compensation, avail himself of the agreement between the company and Slot, in reduction of
the amount. The company had no advantage from the lease so far as the use of the well was
concerned; it sustained detriment in the expenditure incurred, and it found itself without any of
the rights of user upon which it had relied. So That Fletcher can claim no reduction which he
could not have claimed had the well been sunk by an ordinary bona fide possessor. There
remains the inquiry whether the compensation should not be reduced by the value of the water
used by the company, at any rate from the date when it was ascertained that the well was actually
upon Fletcher's ground. But that point will be more conveniently dealt with under the second
branch of the appeal. So far as the first branch is concerned, it only remains to consider whether
the company was rightly allowed the benefit of a jus retentionis in respect of its claim for
compensation. We were asked to hold that this was a special protection given to a bona fide
possessor, and nowhere in terms extend it to a mere occupier. But here again, we are met by
Rubin v Botha. That case obliterated (save in one minor respect) the distinction between a bona
fide possessor and a bona fide occupier who mistakenly believed that he was occupying under a
lease, in so far as concerned the right to claim compensation for improvements. True, no jus
retentionis was in question, but the effect was to place the two classes of improvers on the same
footing; and, if we are now bound so to regard them, then I can see no reason for withholding
from the latter the remedy of enforcing his rights which our law accords to the former. The
reasoning of the Court in Rubin v Botha is as applicable to identity of remedy as to identity of
right.

Passing now to the second branch of the appeal, the question is whether the prayer for an account
of all water taken from the well, and for payment of all profits shown to have resulted from its
disposal, should have been granted. As a fact the plaintiff was not cultivating the property, and
had no use for the water upon the land. That, however, would afford no answer to the demand for
an account if he was on general grounds entitled to it. And the object of the claim doubtless was
to enable him to set off the profit, if any, on the water taken, against the compensation which he
might be adjudged to pay. Now, again, treating the defendant, on the authority of Rubin v Botha,
as a bona fide possessor

1915 AD at Page 651

the rule, where a claim for improvements is set up, is that the fruits derived from the property
occupied must go against such claim; the value thus obtained must be set off against the
expenditure incurred (Voet 6, 1 38). But, assuming that the water taken may rightly be regarded
as a fruit, it seems to me to have been a fruit of the improvement itself and not of the property
generally. It was the direct result of the work done, and must be regarded as the produce of the
well. And with regard to fruits of improvements the correct principle seems to be that they
cannot be set off against a claim for compensation in respect of the improvements which
produced them. That is the view taken by Voet (6, 1, 39). Sande (Decis. Fris, 3, 15, 3) is of a
different opinion, but the reasoning of Voet, with whom Burge (Vol. 3, p. 34) agrees, seems to
me conclusive on the point. But then it was urged that the company ceased to be a bona fide, and
became a mala fide possessor from the date (before the close of pleadings), when it ascertained
as the result of survey that the well had been sunk upon the plaintiff's land. From that time, it was
said the produce or fruits of the well should be accounted for and applied in reduction of the
amount awarded for compensation. Assuming that to be so, however, it must be borne in mind
that fruits in this connection mean fruits less the expense of gathering them (see Voet 7, 1 31).
And the evidence shows that the cost of making this water available was greater than the price
obtained for it from the public. There were doubtless reasons which made it advantageous to the
company to secure this additional supply even at a loss; but these reasons cannot alter the fact
that the water yielded no profits for which the plaintiff could call upon the company to account.
Under these circumstances, the second branch of the appellant's case is in no better case than the
first, and the main appeal must fail.

I now come to consider the cross-appeal which is concerned with the questions of damages and
costs. The plaintiffs claimed £100 as damages, because the sinking of the well had drained a
permanent pool of water upon their property. Upon this part of the case the evidence was
conflicting, and the trial Court came to the conclusion that the pumping from the well, and the
drainage of the pool had not been connected as cause and effect; and that, in any event, no actual
damage had been caused to the plaintiff by

1915 AD at Page 652

the company's trespass. But, in spite of that finding, which there is evidence on the record to
support, an award of £50 was made. The reasons given by the learned Judge for ordering
damages when none had been sustained were that the company made an extravagant demand for
compensation, and claimed to be entitled to retain possession indefinitely; also that it had
committed a further trespass by what is called "a sham pegging" round the well in order to
protect it. But the claim for compensation, though not allowed in full, was sustained in part, and
the company was upheld in its contention as to a right of retention pending payment. In any
event, the fact that such a claim was made is no ground for awarding damages where none were
otherwise sustained. As to the pegging, there is nothing to show that it was complained of, or that
it caused any damage to the plaintiff, and it certainly was not a trespass relied upon in the
declaration. Under these circumstances, I can see no justification for giving damages, and the
order awarding them should be set aside.

Then there remains the question of costs. The matter stands in this way although the contention
of the company as to its jus retentionis was upheld, and although the balance as between
damages on the one side and compensation on the other was substantially in its favour, it was
nevertheless condemned in the costs of the action. Some special reason would be required to
justify so marked a departure from the general rule that costs follow the result. The
considerations which influenced the learned Judge were that the company was careless in sinking
without a survey, and was not justified in accepting the Government fence as the boundary
between the two properties; that it persisted in an excessive demand for compensation and in
retaining occupation until it was satisfied; and that it made no tender in respect of damages. In
view of our conclusion as to damages, the last reason falls away; and it does not seem to me that
the others are sufficient to support the order as to costs. The company adopted in good faith the
boundary indicated by the lessor, and had no reason to think that the Government fence thus
indicated was not correctly placed; as already remarked its claim for compensation though
excessive was genuine, and its right of retention has been justified in law. I cannot, therefore,
think that the discretion of the trial Court as to costs has been exercised along proper lines. The
costs

1915 AD at Page 653

of the trial should have fallen upon the unsuccessful party. The result is unfortunate for the
plaintiff; but when the learned Judge found upon the evidence that he had sustained no actual
damage, and that the selling price of the property had been increased by £100, his action failed.
The order of ejectment made in his favour was one which the defendant did not dispute, provided
only that compensation for improvements was paid. It was for the plaintiff to tender such
adequate and reasonable amount as the circumstances showed to be due.

The result is that the appeal fails and the cross-appeal succeeds. The first portion of the order
relating to damages must be struck out, and the costs in the Court below must be directed to be
paid by the plaintiff, who will also bear the costs of appeal.

SOLOMON, J. A: This appeal raises important questions of law, chiefly on the subject of
compensation for improvements made by one person on land belonging to another. There are a
number of reported cases on this branch of the law, but no one of them is exactly in point, so as
to be decisive of the issues raised in this case. The facts are so fully set out in the judgment of the
Court below that it is unnecessary to repeat them. And the questions of law, which arise on this
part of the case, are as follows: First, was the defendant company entitled to receive
compensation from the plaintiff for the expense to which it was put in sinking a well upon his
ground? Secondly, upon what basis is that compensation to be assessed? And, thirdly, has the
defendant company the right to retain possession of the land upon which the well is situated until
such compensation has been paid?

A series of decisions in our Courts has accepted the general principle of the Roman-Dutch law
that a bona fide possessor of land, who has made improvements upon the property of another, is
entitled to be compensated for the useful expenses incurred by him. In nearly all the reported
cases the improvements have taken the form of buildings erected upon the land, but in principle
there is no reason for limiting the rule to such cases. In the case of Bellingham v Blommetje (B.
1873, p. 38) the improvements consisted in part of a dam, and in Campbell v The Crescent Gold
Mining Company (1885-1888 (3) SAR 248) in part of shafts and drives effected upon certain
claims, but it was not questioned that compensation

1915 AD at Page 654

was payable in respect of these. In the Cape Courts the result of the earlier decisions is stated in
the judgment in the case of the De Beers Consolidated Mines v London and South African
Exploration Company (10 J 359). It is true that the case itself was one in respect of buildings
erected not by a possessor in the legal sense of the term but by a lessee, but in his judgment the
late CHIEF JUSTICE set forth what in his opinion was the general law on the subject, and,
although so much of the judgment as deals with the rights of persons other than lessees, may be
regarded as obiter dicta, it is useful as giving a correct summary of the previous decisions on the
subject. It was there laid down that "after the owner has appeared to demand possession, the
bona fide possessor may retain possession until he is compensated for his improvements to the
extent of the enhanced value of the land, and, failing payment of such compensation, he may
remove the materials if he can do so without serious damage to the land, or he may surrender
occupation and recover the compensation by action." After dealing with the case of the bona fide
possessor the judgment then proceeds to state the law regarding improvements made by a mala
fide possessor and by a lessee, but nothing is said with respect to an occupier who is neither a
possessor nor a lessee. And it was not until the case of Rubin v Botha (1911, A.D.) that this
branch of the subject was specifically considered. It is true that in Bellingham v Blommetje the
defendant, who was held to be entitled to receive compensation, was not a possessor in the legal
sense of the term, but a bona fide occupier. The case was not, however, considered from that
point of view, the defendant being treated throughout in the judgment as if he had been a bona
fide possessor. In Rubin v Botha, the plaintiff had obtained from the defendant a lease of a piece
of ground for 10 years without payment of rent, but on the condition that he was to erect a
building upon it, which, at the expiration of the lease was to become the property of the
defendant. The agreement, however, not being notarially executed as required by the Transvaal
law was null and void, and it was terminated by the defendant after three years. The plaintiff
accepted the notice to quit given him by the defendant subject to his right to be compensated for
his improvements, and then brought his action to recover such compensation. Upon these facts it
will be seen

1915 AD at Page 655

that the plaintiff was neither a lessee nor a possessor within the legal meaning of that expression,
but was merely a bona fide occupier, and the case was dealt with upon that basis. It is true that in
the plea it was admitted that the plaintiff was entitled to compensation and the sum of £300 was
tendered; but in considering the question of the amount of compensation, the law on the subject
of improvements made by a bona fide occupier was considered and definitely dealt with. And it
was there expressly decided by the majority of the Court that the equitable rule of the Roman-
Dutch law that no one should be enriched at the expense of another, applied to the case of a bona
fide occupier equally with that of a bona fide possessor. And, although the present CHIEF
JUSTICE differed from the other two members of the Court as regards the basis upon which
compensation was to be calculated, he did not dissent from the conclusion that the maxim in
question was applicable in the circumstances of that case. We " are justified, therefore, in
regarding Rubin v Botha as definitely deciding for the first time that a bona fide occupier, who is
not a lessee, is entitled to be compensated for buildings erected by him on the land of another. In
the later case of Hauman v Nortie (1914 AD 293) it was held by the full Court that the maxim
already referred to applied also to the case of a building contractor, who, though he had acted in
good faith, had failed to carry out a portion of the work in terms of his contract. It was there
decided that the general principle applicable to bilateral contracts that the party who calls upon
the other party to perform his contract should perform his part is subject to the application of the
equitable doctrine that no one should be unjustly enriched at the expense of another.

Now the present case is in certain respects very similar to that of Rubin v Botha. In both the
person who made the improvements believed that he was the lessee of the land, whereas, in fact,
he was not, and the improvements were made with a view to a temporary and not to a permanent
enjoyment of them. In these circumstances I am of opinion that we should recognise the
authority of that case, and apply the equitable doctrine to the circumstances of the present
dispute. But it was contended on behalf of the appellants that Rubin v Botha did not decide nor
does it follow that a bona fide occupier is entitled also to retain the

1915 AD at Page 656

property in his occupation until compensation has been paid. A perusal, however, of the
judgment of the majority of the Court in that case makes it clear that, if that question had been
raised, it must have been decided in favour of the occupier having the jus retentionis. For the
reasons of the late CHIEF JUSTICE, based as they are mainly upon the passage in Groenewegen
(Inst. 2, 1, 30), apply equally to both rights. And that being so, and accepting the decision in
Rubin v Botha, I think we are bound to follow it to its legitimate conclusion, and to hold that in
the present case the defendant company as a bona fide occupier is entitled not only to be
compensated for the improvements which it has made, but also to retain the land until such
compensation has been paid.

And that brings me to a consideration of the question upon what basis should the compensation
be made. In the case of the De Beers Consolidated Mines v the London and South African
Exploration Company it was laid down that the bona fide possessor is entitled to be compensated
for his improvements to the extent of the enhanced value of the land, and that is the principle
upon which, in most of the reported cases, the amount has been assessed. From the case of
Meyer's Trustee v Malan 1911 TPD 559 it will be seen, however, that this is not a hard and fast
rule to be applied indiscriminately in every case, but that all the circumstances must be
considered by the Court, which is to decide what is fair and equitable between the parties. The
doctrine upon which the right to compensation is based is an equitable one, and it must not be
applied in such a way as to produce inequitable results. Probably in the majority of cases it will
be found that it is fair and equitable that the owner of the land should pay for the improvements
to the extent to which the land has been enhanced in value, subject, of course, to this limitation
that, inasmuch as the possessor is to be compensated for the expense to which he has been put,
he can in no circumstances recover more than the amount of such expenses. At the same time it
is easy to suggest cases in which the application of the rule would be most unfair to the owner of
the land. Accordingly, we find it laid down in the Digest (6, 1, 36) that "the order made by a wise
Judge will vary according to the circumstances of the parties and the facts." Celsus, in the
passage referred to, gives examples to show how the order should vary in different cases. And
these

1915 AD at Page 657

cases, it is clear, were not intended to be exhaustive, but merely illustrative. And the same
observation applies, I think, to the cases put by Voet (6, 1, 36), his conclusion being thus
expressed "so that much here has been left to the discretion of the Judge, who is enjoined in the
Digest to decide according to the circumstances of each person and case." In Rubin v Botha the
same principle was recognised by the present CHIEF JUSTICE, who, in his judgment, says:
"The civil law recognised a very wide judicial discretion in the assessment of equitable relief in
these matters, and the Courts of Holland would assuredly have exercised a similar discretion in
dealing with any case not covered by statute, precedent or practice. The case before us is such a
one, and I do not think that we need hesitate to adopt that basis of computation which in the
present and in all similar instances will produce the most equitable results." And in the case of
Meyer's Trustee v Malan, the JUDGE-PRESIDENT, after discussing a number of authorities on
the subject, concludes thus: "From this it will appear that there are certain minor differences
amongst the authorities, but in effect it seems to me that they all, broadly speaking, come to this,
that the Judge has to take all the circumstances into consideration and decide what is fair and
equitable between the parties."

Accepting, then, that principle, it remains to consider whether in this case it is fair and equitable
to apply the ordinary rule that the bona fide possessor should receive as compensation the
amount by which the property has been enhanced in value. The learned Judge found that the
increase in value was £100, by which I understand him to mean that if the property were now
sold it would fetch at least £100 more than it would have realised before the well was made. He
does not explain in his judgment how he arrives at that amount, but I do not think that we are in a
position to question the finding. Accepting it then and assuming for the present that the
defendant company was in the same position as a bona fide possessor, would it be fair to compel
the plaintiff to pay that amount as compensation for the sinking of the well? Now, there is no
doubt something to be said for the contrary view, but on the whole I any of opinion that the
equities of the case would best be met by such an order. It is true that the improvement is not one
which they themselves would have made, but at the same

1915 AD at Page 658

time they have obtained the benefit of it at a cost far less than the amount expended upon it, and
it may very well be that they would have been prepared to expend £100 if by so doing they could
have secured such a well as this. Voet (6, 1, 36), after laying down the general rule that a bona
fide possessor may recover the amount to which the property has been enhanced in value adds:
"unless the expense was immoderate and beyond what the owner would himself have incurred:
in which case he either removes the improvement as far as he is able, or only recovers from the
owner as much as the material would be worth after removal." The present case, however, is not
covered by the terms of this exception. It is impossible to say that the amount of £100 is
immoderate in the circumstances, and, moreover, the case which Voet had in view was not such
an improvement as the present, which is incapable of being removed, so that the alternative right
given to the possessor would not be of the slightest value. Nor does the present case fall entirely
within any of the examples cited in the Digest (6, 1, 36). There is no authority, therefore, to assist
us in coming to a decision, and we are thrown back upon the consideration of the question
whether or not it is fair to apply the general rule that the amount of compensation should be that
by which the property has been enhanced in value. And in doing so it appears to me that the very
important fact to be regarded is, as found by the learned Judge, that "the plaintiffs were not
farming upon the land or utilising it in any way, but had bought it in 1898 as a speculation or
investment, and were simply keeping it either for sale or for any purpose which might arise and
might tend to their advantage." This is not the case, therefore, of an owner who is attached to his
land and has no desire to sell it, but of one who has bought for the purpose of sale, and who,
upon the finding of the Judge, can to-day obtain for it £100 more than he could have obtained if
there had been no well upon it. If the plaintiffs prefer to hold the land on the chance of getting a
better price in the future, that is his affair, but seeing that they can by selling at once recover the
sum of £100, I can see no hardship in requiring them to pay that sum toward the far larger
amount spent by the defendant company in sinking the well in the belief that they would have the
benefit of it for a term of years. But, then, even if that be so, this further question arises, In fixing
the amount
1915 AD at Page 659

of compensation does it make any difference that the defendant company was not a bona fide
possessor, but only a bona fide occupier of the land? In the former case the occupier might be
regarded as making a gift of the improvements to the owner after a certain term of years, and that
fact might well be taken into account in fixing the compensation to be paid. But in the latter case
no such presumption arises: the transaction was one between the defendant company and Slot;
why, then, should the plaintiff have the advantage of it? Moreover, though the defendant
company has had some benefit from the use of the improvement, it has not recovered by such use
anything like the amount of the expense to which it was put. It expended £500 in order to obtain
the water of the well for a term of years: in fact, it has been drawing water for only rather more
than three months, which is a very poor return for the money spent. The plaintiff's property has,
therefore, been enhanced in value to the extent of £100, and the detriment of the defendant
company has been considerably more than that sum. On the whole, therefore, I do not think that
we should be justified on the authority of Rubin v Botha in making any deduction from the
amount of compensation fixed by the learned Judge in the Court below.

I am of opinion, therefore, for the reasons set forth that, in so far as the plaintiff appeals against
the order that he should pay to the company the sum of £100 upon its vacating his property, the
appeal fails.

And that brings me to a consideration of the second ground of appeal, viz., that the defendant
company should have been ordered to render an account of all sums of money and profits made
by the defendants by sale or disposal and use of water from the well, and to pay to the plaintiff
the ascertained value thereof. Now, in this part of the case the facts as found by the Judge are
that the well was finished on the 28th August, 1914, and the defendant company obtained from it
about 2½ millions of gallons before the rains set in early in December. After about the 5th
December no more water had been taken from the well at the time of action. On the 5th October
the defendant company learned for the first time that the land on which the well had been sunk
was claimed by the plaintiff, and, after inquiring into the matter, it appointed a surveyor to make
a survey of the ground. He appears to have finished

1915 AD at Page 660

his work about the middle of November, and as his report was adverse to the defendant
company, it follows that after that date it knew that the land on which the well was sunk
belonged, not to Slot, but to the plaintiffs. On the 5th November, summons was issued by the
plaintiff, and the pleadings were closed on the 25th February, 1915. Now, this is not the case of a
possessor appropriating the ordinary fruits of the land belonging to another. The water which
was taken from the well was the produce of the improvement made by the defendant company,
for unless the well had been sunk there would have been no water to draw. There is some
conflict among the authorities as to whether such produce falls within the general rule that the
fruits of the land consumed by the bona fide possessor should be set off against the expenditure
which he has incurred in making the improvements. This subject is discussed at length by Voet
(6, 1, 39), and he gives his reasons for preferring the opinions of those who hold that it would be
unfair to set off such fruits against the expenses. His reasons for that conclusion are so cogent
that I think we may be content to accept his view, and to hold that a bona fide possessor cannot
be called upon to account for the produce of the improvement itself. And for the reasons given in
the earlier part of this judgment it would follow that a bona fide occupier such as the defendant
company would be in the same position. But then it is said that as soon as the defendant
company ascertained that the land belonged to the plaintiff it immediately became a mala fide
possessor. In the passage cited by the learned Judge from Maasdorp's Institutes (2, 52), it is
stated that by the litis contestatio a bona fide possessor is converted into a mala fide possessor,
and authority is given for that statement. If that is correct, then it follows that the plaintiffs must
fail in their claim for an account, since no water was taken after the date of litis contestatio. Voet,
however, in the chapter on an action to recover an inheritance (5, 3, 15) says that there is no
doubt that a person who, even before any dispute arises, finds out that the inheritance does not
belong to him, is thereafter to be regarded as a plunderer, "because as far as the acquisition of
fruits is concerned not the commencement of possession, but each moment of it is to be
regarded." And if that he correct, and there is much to be said for the view, then the same rule
should apply to any bona fide possessor or occupier. Assuming

1915 AD at Page 661

then, without determining the legal question upon which there is a difference of opinion, that the
defendant company in so far as the acquisition of fruits is concerned, cannot he regarded as a
bona fide possessor after the middle of November, when it ascertained that the land upon which
the well was sunk belonged to the plaintiffs, it remains to consider whether it should be ordered
to account for the water taken after that date. Now, assuming that the defendant company is
liable to render such an account, it would be entitled to deduct from the price paid for the water
the expenditure incurred in obtaining the water. Voet (5, 3, 22) is clear that not only the bona
fide possessor, but also the mala fide possessor is entitled to deduct the amount of the expense to
which he has been put in acquiring the fruits, seeing, as he says, " that in the nature of things
there cannot be said to be any fruit unless the expense of producing, collecting and preserving it
has been deducted, as such expense ipso jure diminishes the fruit." And that apparently is all that
is claimed in this prayer of the declaration, viz., an account of the profit made by the sale or
disposal of the water. The evidence, however, of the general manager of the defendant company
is that there was no profit, but a loss, on the water obtained from the well. It is not suggested that
his evidence on this point was not to be accepted, and if it be correct, it follows that there are no
fruits to be accounted for. The plaintiff clearly has sustained no loss by the water being taken
from the well by the defendant company, so that on every ground the appeal on this part of the
case also fails.

It remains then, lastly, to consider the cross-appeal, which is against the order made by the
learned Judge that the defendant company should pay to the plaintiffs the sum of £50 as damages
and against the order that it should pay the costs of the suit. The plaintiff claimed damages partly
for the trespass committed by the defendant company upon his land and partly because he
alleged that the sinking of the well had drained a large pool of permanent water on the said land.
The learned Judge, however, was not satisfied on the evidence that the pool had been drained by
the well, and as the plaintiff had clearly not sustained any loss by the mere trespass, he came to
the conclusion that it had not been proved that the plaintiff had sustained any actual damage.
Nevertheless, he gave judgment on the claim for the sum of £50 as
1915 AD at Page 662

damages. If no damage was sustained, it is difficult to understand why substantial damages

should have been given. Nor do the reasons given by the learned Judge elucidate the matter. He
says that there was undoubtedly a trespass on their property which was at first strenuously
denied. That is true, but it is clear that the trespass was perfectly bona fide, and as soon as the
defendant company ascertained by survey that the property belonged to the plaintiff it offered to
vacate the property on payment of compensation, and the learned Judge himself held that it was
justified in retaining possession of the property until compensation had been paid. But then he
says that "a very large demand was made upon the plaintiffs and failing compliance therewith the
defendant company claimed to be entitled to retain possession indefinitely." But then in answer
to that demand, it was open to the plaintiffs to tender reasonable compensation such as was
actually awarded, and if that had been done, the defendant company would have continued to
remain in possession at their peril. But it is difficult to see how the attitude of the defendant
company can make up for the failure of the plaintiff to prove that they had sustained any damage.
The same may be said regarding the observation "that the defendant company resorted to the not
very creditable expedient of procuring a sham pegging of claims round their well, thus
committing a further trespass." Moreover, this is not the trespass complained of and in respect of
which damages were claimed.

In my opinion, inasmuch as the plaintiff failed to prove actual damage, the learned Judge was not
justified in awarding them damages, and the cross-appeal on this part of the case should,
therefore, be allowed.

The result, therefore, is that the appeal fails and the cross-appeal regarding damage succeeds.
The order made in the lower Court must, therefore, be amended by striking out that part of it
which orders the defendant company to pay to the plaintiffs the sum of £50 as damages. With
regard to the order as to costs, as the plaintiff is now taken to have failed in his claim for
damages, and as it is held both here and in the Court below that the defendant company is
entitled to retain possession of the plaintiff's land until it has been paid £100 by way of
compensation, it follows that the plaintiff must pay the costs of the action in the Court below.
The appellant must also pay the costs of the appeal.

1915 AD at Page 663

C. G. MAASDORP, J.A: In determining the issues raised in this case, we must, it seems to me,
follow the principles laid down in the cases of Bellingham v Blommetje (1874, Buch. 36) and
Rubin v Botha (1911 AD 568). The former case was one of the earliest in which the question of
compensation for improvements made by one person on the land of another was considered, and
the latter is one of the latest cases. In the interval between these two cases we have a series of
cases in which the principles involved are explained and developed. It will be found on studying
all these cases that such of them as are concerned with the legal relations existing between
landlord and tenant have been decided with reference to the contractual relations existing
between the parties, and they have proceeded on different lines to those followed in cases where
one person has made improvements on the land of another irrespective of rights resting upon
contract between the owner and occupier of the land. It is quite clear that in the case of Rubin v
Botha, the plaintiff's right to compensation did not spring from the contract which the parties had
entered into, although it was considered that the measure of the compensation should be
determined by reference to the mental attitude of the parties as evidenced by their contract. It
would seem that where a person occupied the land of another under contract with the owner he
cannot impose burdens upon the owner not contemplated in the agreement, and in accordance
with this principle the rights of a tenant in respect of improvements effected by him on his
landlord's property have been defined in a number of decisions of the Courts in South Africa.
The case of Bellingham v Blommetje was not one between landlord and tenant, nor was that of
Rubin v Botha; in fact, the former case resembles the present one, in that the improvements were
effected upon the land of a third person by one who believed it to belong to his landlord, the
landlord himself being under the same impression. In that case the CHIEF JUSTICE said: "I am
of opinion that the appellant had not sufficient reason to believe he was building on another
man's ground, but that be was a bona fide occupier of the land. The Roman-Dutch authorities are
agreed that, where a bona fide occupier has built upon land belonging to another he is entitled to
compensation for the useful expenses incurred by him, that is to say, for the expenses to the
extent to which the value of the land has been enhanced by the building, and that he cannot be
compelled to relinquish possession

1915 AD at Page 664

of such building until such compensation has been tendered or paid to him." This case amounted
to a decision that compensation for improvements was not confined to the case of a bona fide
possessor of land, that is, of one who held the land in the belief that he was the owner, and this
view was approved in the case of Rubin v Botha, where the CHIEF JUSTICE said: "The
defendant in the case of Bellingham v Blommetje had constructed a house and dam on a portion
of the plaintiff's farm in the belief that such portion formed a part of the land held by the
defendant on lease from the Crown. The defendant knew that be was not the owner of the land,
but, inasmuch as he honestly believed that he was the lessee thereof and entitled to erect the
buildings for use during his tenancy, it was held that the owner should not be enriched at his
expense." These two cases not only lay down that where the bona fide occupier of land makes
improvements on the land of another, be is entitled to compensation for the expense he has
incurred to the extent to which the land has been enhanced in value by such improvements, but
also that he is entitled to retain possession of the land until the compensation has been paid. The
Judge in the Court below was of opinion that in the present case the value of the land was
enhanced to the extent of £100, and to that extent the defendant was entitled to compensation for
his expenses, which amounted to £500. It is pointed out by some of the writers, who are regarded
as great authorities on our law, that there are many considerations which should influence a
Judge in protecting the owner of land from claims made for improvements by bona fide
occupiers, but none of those considerations enter into the present case, so as to modify the
measure of damages laid down above. As I have already pointed out, it was considered only
reasonable in the case of Rubin v Botha that the claim of the occupier should be dealt with as
affected by the considerations which the parties in the first instance intended should pass from
one to the other, and the reciprocal benefits they had in contemplation. But such considerations
do not enter into the present case. In this case the defendant, being a bona fide occupier of the
plaintiff's land, and believing that he had a right to make the improvements in question for his
own benefit, spent about £500 upon these improvements. The sum of £500 therefore represents
the extent of the detriment suffered by the defendant through losing

1915 AD at Page 665

the benefit of his work, and inside that amount he is entitled to recover any sum in which the
value of the land has been enhanced by the improvements.

I, therefore, come to the conclusion that the Judge in the Court below was right in his decision
upon the first prayer of the plaintiff's declaration. Upon the other branches of this case, I only
wish to say that I fully concur in the conclusions arrived at by the CHIEF JUSTICE and my
brother SOLOMON.

Appeal accordingly dismissed, and cross-appeal allowed.

Appellants' Attorney: J. C. Coghlan, Bulawayo; Respondent's Attorneys: Coghlan & Welsh,

Bulawayo.