Water Act

WATER THE WATER ACT ARRANGEMENT OF SECTIONS 1. Short title. 2. Interpretation. PART I. Use of Water 3. Use of private water. 4. All water other than private water vested III the Crown. 5. Use of water for domestic purposes, etc, 6. Right of riparian proprietors. 7. Upper and lower proprietors. 8. Apportioning of water for secondary use. 9. Apportioning of water for tertiary use. 10. Conditions as to use of' water for irrigation, etc, 11. When public water may be taken on to non-riparian land. 12. Riparian proprietor may use water for mechanical purposes, etc, 13. Use of public water may be allowed on certain conditions. 14. Matters to be referred to engineer and to a Water Court. 15. Applications with respect to storing, etc., of surplus or storm water. PART II. Combined Irrigation Schemes Irrigation Boards and Loans 16. Petition may be transmitted to Minister as to irrigation scheme. 17. Enquiry to be made if necessary into subject mailer of petition. 18. Lia bili ty of proprietor. 19. Minister may appoint Irrigation Board. 20. Making of regulations as to election of members of Irrigation Board. 21. Minister may make loans. 22. Hypothecation of land. =::--:--:--::---:--:--------c-----. [The inclusion of this page is authorized by L.~-J, -lXO/ )973J 23. Payment of interest to proprietor. '24. Making of regulations as to application forms, etc. PART III. Water Courts 25. Appointment of Water Courts. 26. Composition of Water Courts: 27. Unofficial members of Water Courts. 28. Decision hy majority. 29. Unofficial members to take oath or make affirmation. Minutes. 30. Prohihition with respect to relationship between member of Water Court and any party to a dispute, etc. 31. Powers of Water Court in respect of matters referred to it under this Act. 32. Payment of travelling allowance. 33. Wa'l'l' Court may make inspections. 34. Cost of proceedings, 35. No action shall be maintainable in court of law which may be referred to Water Court with certain exceptions. 36. General powers and duties of Water Courts. 37. Notice of proceedings. 38. Force of order and decision of Water Court. 39. Appeal to Court of Appeal. 40. Rules of Resident Magistrates' Courts regarding appeals to apply. 41. Making of regulations as to proceedings of Water Courts. 42. Officers of "Resident Magistrates' Courts to be officers of Water Courts. PART IV, Servitude! 43. Persons granted use of public water may divert same on acquiring necessary servitude. 44. Persons having a right to use of water may," subject to certain conditions, claim servitudes. 45. Definition of "servitude of storage". 40. Dct'uition of "servitude of passage of water". [The inclusion of thi. page is authorized by L.N. 480/1973J WATER 3 47. "Servitude of abutment". 48. Liability of persons with respect to construction of irrigation works. 49. Obligations of persons constructing work for passage of water, 50. How a servitude may be claimed. 51. Rights of mortgagees and lessees on hearing of claim. 52. What Water Court may do upon hearing of claim. 53. Conversion of temporary servitude into permanent servitude. 54. Servitude shall lapse if work is not completed within certain time. 55. Servitude shall lapse by non-use. 56. Servitude acquired under this Part binding only on original parries until registered. etc. 57. Registration of Servitude. PART V. General 58. Boundary shall not be changed by reason of change of course of public stream. 59. Rights already acquired and exercised not to be interfered with. PART VI. Powers 0/ the Minister ill regard 10 Public Streams and IVater 60. Governor-General may appoint officers for better carrying out of provisions of Act. 61. Minister may acquire any irrigation work. supervise public streams. etc. 62. Minister or his agents may enter upon any area with men, animals. etc. 63. Service upon person of notices. orders. etc. 64. Validity of notices. orders. etc. 65. Minister may make regulations. PART· VB. Oilences and Pella/lies 66. Penalty on persons guilty of offences under this Act. 67. Punishment for offences under this Act. 68. Fine where no penalty is expressly provided. [The inclusion of this page is authorized by L.N. 480/1973] .. ---- . --------.----- . 69. When Resident Magistrate's Court may conduct enquiry as to 'damage to proprietor. 7Q. Proceedings as to fines, etc., to be taken in Resident Magistrate's Court having jurisdiction. PART VIII. Miscellaneous 71. Enactments repealed. ScHBDULB [The inclusion of this page is authorized by LN. 480/1973] WATER THE WATER ACT [31Sf July, 1922.1 1. This Act may be cited as the Water Act. CUll. 410. Short title. 5 2. In this Act unless the context otherwise requires the Interpreta following expressions shall have the following meanings- uon. "arbitration"-arbitration in accordance with the terms and provisions of the Arbitration Act, or any enact ment hereafter passed in amendment thereof; "irrigation works"-a canal, channel, reservoir, embank ment, weir, dam, borehole or other work constructed for or in connection with the impounding, storage, passage, drainage or abstraction of water, or the development of water power, or the use of water, or the conservation of rainfall; any land occupied for or in connection with the impounding, storage, passage, drainage or any other use of water, and shall include any area occupied or acquired or held for the purpose of being irrigated; and any gauge posts, measuring weirs and other appliances erected or used for undertakings authorized by this Act; "public stream"-a natural stream of water-,' (a) which in ordinary seasons Haws in a known and defined channel (whether or not such channel is dry during any period of the year); and (b) which is' capable of being applied to the common use of riparian proprietors. A stream of water which fulfils these conditions as to part of its course only shall [The inclusion of this page is authorized by L.N. 4S0/ 1~73J WATER be deemed to be a public stream only as regards such part; "riparian land't-e-land through which, or along the boundary of any portion of which, a public stream flows; "riparian proprietor"-the proprietor of riparian land; "normal flow"-the average flow of a public stream other than so much of such flow as may be occasioned or caused by floods due to rainfall; "private water"-all water, not being water of a public stream, which rises naturally on any land or which falls or naturally drains on to any land, so long as it remains on such land and does not join a public st ream: "storm water't-e-any water flowing in a public stream in excess of the normal flow; "surplus water"-any portion of the normal flow of a public stream which, after satisfying the requirements of those persons entitled to use it, would ordinarily run to waste; "public water"-all water, other than storm water, flowing in a public stream; "proprietor" shall, in relation to land, include the person registered in the Registrar of Titles Office or in the Record Office as the owner of the land or in whom the land is vested by law, or the legal representative of any registered owner who has died, become insolvent, is a minor, is of unsound. mind, or is otherwise under disability, and the liquidator of a company owning the land; "Water Court't-e-a Court as constituted under the pro visions of Part III. [The inclusion of this page is authorized by L.N. 480/1973) WATER 7 PART T. Use of Water 3. The sole and exclusive use of private water shall Use of belong to the proprietor of the land on which it is found. ~~.I;:~ca/.e 4. All water, other than private water, is vested for All water . tl C . h . I f I I I I f J . other thunever In ie rown 111 t e fig it a t ie s ant a amarca, private and the Minister may authorize its use, diversion and waler J . \'C,IC 10 apportionment, subject to the terms of this Act and in the Crown. conformity with any regulations framed thereunder. S. Any person shall have the right to use for domestic Use of and drinking purposes, and for watering stock, public ~~,~I,~~:s~f: waters which are found in their natural channels or beds, purpo>cs. etc at such places as access to the same may be lawfully had. . 6. Every riparian proprietor shall have the right of impounding, diverting, and taking any public water for primary use, that is, for domestic use and the watering of stock necessary for ordinary farm and pen-keeping requirements. The Minister shall further authorize in terms of this Act, such proprietor to divert, impound, and take public water (a) for secondary use; that is (i) for the irrigation by such proprietor of his riparian land; (ii) for the watering of stock other than that necessary for ordinary farm and pen-keeping purposes by the use of an amount of water equivalent to that which he would as herein before provided for be entitled wholly to consume by irrigation; (b) for tertiary use, that is, mechanical and industria! purposes. R;KhIOf riparian proprietors, [The inclusion of this page is authorized by L.N. -l~()/ In3] ~~ pper and .wer oprietors. pportion ; of III:r for .ondary .portion of rer for :iary iditions u usc: vater .ation, 1\ i" may I.:c:n nun .an tor uica] .cs, 7. An upper proprietor shall not be granted the secondary use of public water if by so using it he deprives any lower proprietor of the primary use thereof. 8. In apr'l(,~'tinning water for secondary use, regard shall be had '0 the extent of all land irrigable by such' water, and the proposed method or possible methods of user of such water. 9. In apportioning water for tertiary use, regard shall be had to the actual and potential rights of primary or secondary users. ·10. \Vater which has been used for irrigation or mechanical <\r industrial purposes in terms of section 6 shall, if used in the same watershed, be returned at the nearest convenient point to the bed of the public stream from which it was taken, without diminution in quantity save such as i..; caused by such use; provided that a lower proprietor may be allowed to take water from the land of the upper proprietor after such use. 11. The Minister may allow any water of a public stream, which cannot be used by riparian proprietors, to be taken on to non-riparian land within the catchment area of such stream or across the watershed of such stream on to another catchment area where it may be of beneficial use; provided that in the exercise of this right preference shall be given to non-riparian land within the first men. tioned catchment area. 12. A riparian proprietor may use water flowing over or by his land for mechanical or industrial purposes, or may grant to another the right to such use, provided that such usc does not diminish nor interfere with the primary or secondary lise of the water by other proprietors. [The inclusion of this page is authorized by L.N. 480/1973] WATER 13. The Minister may authorize and allow the use of any water in a public stream for the generation of power or the working of mechanical appliances: Provided that the water so used is returned to the stream undiminished in quantity and unaltered in quality except in so far as caused by such use. Us.: of public wuicr t1lil y U.: ,,'IlI\\.:d on l,.",-'I:,dll l,;\.H1I.11(jlJlll. 9 14.-(1) Before proceeding to the exercise of the powers M"ll~r, 1,1 f d b ' 11 d 13 be referredcon erre y sections an ,the matter shall be to enginc.:c.:r referred to a qualified engineer for report, and also, if any ~~.~II~~" riparian owner whose rights are likely to be affected by Court, any such scheme so request, to a Water Court for their investigation and report. (2) Should it be found that the exercise of such powers would result in the carrying out of an undertaking whose advantages would outweigh its disadvantages, then the Minister may authorize the same, subject to the. pay ment of compensation to any persons prejudiced thereby of such amount as may be agreed upon or determined by a Water Court. (3) Any land required for the purposes of such an undertaking HIllI all the necessary works appurtenant thereto may be appropriated by the Minister for and on behalf of the person to whom the right of use is granted, on payment by the said person of such compensation as may be agreed upon with the owner whose land is expropriated, and, failing agreement, as may be determined by a Water Court. 15.-(1) On application being made, the Minister shall Applica , f I' A I' " . tiuns with III terms a t 1/S ct, aut iorize any npanan proprietor to respect III store or divert surplus or storm water on his own land ~:~~I~:i' for such purpose as he may think fit. surplus ur storm (2) Should the applicant desire to obtain protee- W .. tcr, tion for any use of water proposed to be made or for any - ... [The inclusion of this page is authorized by L.N. 4110jlY731 ilion y be »smitred Iuuster II J4lion .me, work proposed to be constructed, the matter shall be referred to a Water Court for enquiry and decision. (3) The Water Court shall be satisfied that all persons interested in the grant of the use or-any such water have had due notice of the enquiry, and shall hear any such person who desires to appear before them and shall not grant the application if such grant would interfere with any right already acquired. (4) Should the Water Court decide that the application should be granted, either in such terms as the applicant may desire or with such modifications as the Water Court may deem necessary, the Minister may grant the application, and upon publication in the Gazette of .the terms and conditions under which the application is granted the applicant shall be secured in such grant. (5) Nothing in this section contained shall relieve the applicant from the necessity of obtaining any servitude necessary to render the grant effective. PART IT. Combined Irrigation Schemes Irrigation Boards and LO{II/s, 16. A petition may be transmitted to the Minister signed by any two or more proprietors of land, stating that in their opinion it is expedient that there should be a combined scheme of irrigation for the area specified in the petition and comprising all such land, and that recourse should be had to artificial means of storing or supplying water in that area, and praying that a combined irrigation scheme be authorized for the said area. Such petition shall set out the boundaries and approximate extent of the area, and the nature of the proposed scheme. WATER II 17. The Minister if satisfied that the persons signing the Enquiry ~o . . . f I I . I f be made Ifpetition are proprietors 0 not ess than one-four: 1 part 0 necessary the land proposed to be irrigated within that area, and if ~~l~~"ct the petition be supported by such evidence as the Minister muucr of may require, shall cause such enquiry to be made into the pcuuon, subject matter of the petition as he may deem necessary. The engineer or other officer appointed shall, in the course of the enquiry, determine the approximate extent of land in the said area irrigable by the proposed irrigation works on the said area and on any other piece of land which, in his opinion, should be included therein. As soon as practicable a report of the result of the enquiry shall be communicated to the Minister, who may, if the proprietors owning three-quarters of the land affected by I he proposed scheme consent thereto, grant the petition. 18. Any proprietor whose land is affected by any general irrigation scheme and for whose land the water from such system may be available, shall be liable to repay a propor tion of the money which may have been expended on such system, and such liability shall, if not at once repaid, be a first charge or mortgage upon the land of the proprietor, unless such land be already mortgaged and the mortgagee does not assent to the scheme, in which case the liability shall rank as a preferential charge next after the said mortgage. The proportion to be paid by each proprietor shall be determined in accordance with the extent and quality of the land of such proprietor which is capable of being brought under irrigation by the said scheme. Any proprietor who considers that the amount for which he is held liable is excessive may ask to have such proportion settled and determined by a Water Court. l.iabilily "I' lll"pri"lvr 19. The Minister may, by notice in the Gttzettc, appoint Miuistc r an Irrigation Board in respect of any combined irrigation ~::;;;"jlll scheme, or in respect of an area ill which a number of Illi~;"lllll Il<l.dd, \Inking of rcgulauons ;1,10 ..lcction of members of Irrigation UUi1rJ. vtinister nay make oans, ypotheca .>1\ of ud. irrigation schemes exist. Such Board shall be selected from proprietors 1'[ land affected by such irrigation schemes. , 20. The Minister may make regulations' providing for the election of members of Irrigation Boards. fixing their qualifications, the manner of their election and the term for which they are elected. and determining their powers and duties. In any election of an Irrigation Board the number of votes which each proprietor shall be entitled to record shall be proportionate to the extent of irrigable land held by him. 21. The Minister may make loans for the purpose of irrigation works from moneys which may be voted on that behalf by the House of Representatives. Repayment of loans may be made by equal instalments spread over a period of years sutlicient to redeem the loan and cover the interest charges not exceeding six per centum per annum. The number of instalments may not exceed twenty, but the period of redemption may be fixed to begin from a date not later than two years from the time at which the works shall have been completed. 22. If a proprietor shall fail to provide suitable security for a liability imposed in terms of section 18. or for a loan made in terms of section 21, the Minister may cause a notice in writing to be sent to the Registrar of Titles or the Deputy Keeper of the Records of the amount due by such proprietor. and the Registrar of Titles or the Deputy Keeper of the Records shall make an entry thereof in respect of the land affected. Such entry shall constitute a hypothecation of the land, ranking from the date on which the entry was made and for the amount therein stated: Provided that the Registrar of Titles or the Deputy .Keeper of the Records may pass a transfer of land so filu~ in~lu~ioll ~f-ihis page is authorized by L.N. 480/1973J WATER hypothecated if the transferee agrees III wruing that any sums due and unpaid shall remain and be registered as a charge against the said land. 13 23. When any land, in respect of which a proprietor is Payment of uucrcs: tLl under a liability in terms of section 1g, is held under lease pruprrctor. or permit of occupation during the term of Stich lease or permit the lessee or permit holder shall pay to the proprietor of such land yearly, during the continuance of the lease or permit of occupation, interest at the rate of twelve dollars per centum upon such sum as the owner is liable for, and such payment shall be made with the rent of the land, and shall be deemed in law to be part of such rent. 24. The Minister may make regulations prescribing-e (a) the form to be used in applying fur irrigation loans; (b) the form and nature of the plans, estimates and other documents to accompany such applications; (c) the nature of the security to be given; (d) such other matters as may be expedient, relative to the making of loans. PART Ill. Water Courts '\ '"k iIIg of rcgllJ~lllUl1S ~n tu application t"UllllS. etc. 25. The Minister may appoint one or more Water Courts, Appoint which shall have jurisdiction to hear and determine disputes ~'~,~,I~~~t in connection with the use, diversion and appropriation at' Courts. water, and such other jurisdiction, powers and authority as are assigned to such Courts by this Act. 26. A Water Court shall consist of a barrister of not Composi 1 1 ' . di I' , !' I S rion ofess t ian ten years stan mg, or a so icitor 0 t 11: . upreme Wa"'r Court of not less than ten years' standing, or or a Resident LUllrts. Magistrate, who shall be president, and of two assessors, . [The inclusion of Ihi3 page is authorized by L.N, 41>0/1973] Unutfici ..1 members 01 W..rer CuUIIS. Decision by majority. Unofficial members to l:t~e 1>.Ilh or m"L." .. ilirmauou. Minutes. Prohibi uon wuh respect to rcluticu ship between member of Waler Court and allY party toa dispute, etc, one of W~10m shall be a qualified engineer and the other a person -;,:l ...·~led from a list of persons nominated by the Minister as Waler Court assessors, and be styled the unoflicia' member. All members of each Water Court shall bc· 'ele~kJ and appointed by the Minister. 27. Unofficial members of Water Courts shall be persons resident in Jamaica of not less than twenty-one years of age and being landed proprietors, holders of leases of land, or in responsible positions and not being members of the Public Service of Jamaica. 28. All questions or matters requiring to be decided by a Water Court shall be decided by a majority. 29. Every unofficial member of a Water Court shall, before entering upon his duties, take an oath or make a solemn allirmutiou before the president that he will well and faithfully perform his duties as a member of such Court. Every such Court shall keep minutes of its pro ceedings which shall be signed by the president. 30. No member of a Water Court shall be related within the third degree of consanguinity or aflinity to any party to a dispute to be determined by such Court or shall have an interest in any question or matter dealt with by such Court, and any member may be required by any party, before beginning or continuing his duties, to make a sworn declaration that he is not so related and that he has no interest in the question or matter before such Court: Provided that any party may expressly waive any right to object to any member on the grounds of his being so related or having such interest: Provided, further, that no decision or award which is just and reasonable shall be invalid only on the ground that a member of the Court was so related or was interested WATER in the question or matter in regard to which sud] decision or award was given. 31. In respect of questions or matters referred to ;: ""wm of under this Act) a Water Court shall have !he powers Of ;'~::l~~; a Resident Magistrate's Court ill the way ()I" 'l!11111110n;I1:' ~~l ~~,~,I:~~I\ parties) witnesses) and the like, but without limit of rct cr rcd (0 jurisdiction. Such powers may, pending the constitution ::l:~ll.~~~. or sitting of a Water Court) be exercised in the name of such Court by a Resident Magistrate authorized thereto by' the Minister. 15 32. Any barrister or solicitor appointed as president and Payment the unofficial member of a Water Court shall be paid a :l/"vdling travelling allowance for each and every day necessarily ,,11011',1111.:':. spent in travelling to and from the place where such Court may be sitting) and shall further be paid a subsistence allowance for such days as may be necessarily occupied in hearing and determining any matter in dispute. 33. The Water Court may make all such inspections CIS Wal.:r I "uri may inay be necessary) and may) and shall if SI) directed hy Ill ...ke the Minister) call and take expert advice in allY matter. lu,pc~lions. The cost of such inspections and such advice, as well as the allowances to be paid to unoflicial members, shall be costs in the proceedings, and shall be subject to any order which the Court may in its discretion make in regard to costs. 34. A Water Court may make such order as it deems !It in regard to the payment of the cost of any' proceedings before it by any of the parties to such procecrinvs. UnlL':;s and until otherwise provided by regular il III, the costs between party and party shall be according 10 the tariff for the time being in force in respect of proceedings in the Resident Magistrates) Courts. [The inclusion 'of ,I.i, ,,·,oc. ; Cost of Jllocccd· lugs. 16 No action shall be maintain able in court <If law which may b.c rcicrrcd 10 Water Court with certain exceptions. General powers and duties of Water Courts, WATER 35.-(1) No action shall be maintainable before any court of law in respect of the questions or matters which may be referred under this Act to a Water Court other wise than under paragraph (c) of section 36, save such action as is mentioned in subsection (2), unless the parties thereto have agreed in writing that such question or matter shall be submitted to a court of law: Provided, however, that in respect of any question or matter which cannot be referred to a Water Court other wise than under paragraph (b) of section 36, an action shall be maintainable, unless such question or matter has been referred by the Minister to a Water Court and notice to that effect has been published in the Gazette before the date at which the action is commenced. (2) An action may be brought in any competent court by any person who is aggrieved by failure to carry out any award, order or decision of a Water Court which has the force of a judgment of a Resident Magistrate's Court, and in such case the Court may enforce such award, order or decision, and may award damages, and may further impose such penalty for wilful disobedience to such award, order or decision as it may consider just and reasonable. 36. The general powers and duties of a Water Court shall be (a) to invest igate any question or matter referred to it under the provisions of this Act by the Minister on the application of any party interested, and to make an order or to give an award or decision thereon; (b) if required to do so by the Minister (i) to investigate, define and record the rights to the use of the water of any stream, channel, reservoir, or other source of supply, .- ----- . ["The inclusion of this pase is authorized by L.N. 480/1973J WATER 17 and to apportion the water for irrigation or other purposes where such right'; have not been defined or such apportionment made by a competent court, or by arbitration, or in any other legal manner; (ii) to determine and fix the place or places, either upon his area or upon the area of another, at which any proprietor shall be deemed to have a right to the use of the water, and to determine the nature and extent of such use at such place or places with due regard to the rights of other proprietors; (c) if required to do so by the Minister, to report for his information (i) on the use or waste of water diverted or abstracted from any stream, or on any matter arising out of the provisions of this Act; (ii) on the removal of or interference with any dam, weir or other construction, in the course of a public stream, including, if the removal or interference is recommended, the compensation (if any) to be paid to any person affected thereby; (iii) upon the merits of any objection under section 10 of the Irrigation Act, to any pro visional irrigation scheme prepared under that Act; (iv) to investigate, define and record, in the case of any - stream whose character has not already been defined by a competent court, whether such stream is a public stream or not. nne inclusion of this page is authorized by L.N. 480/1973] :=--:--:--:----:--:----: Notice of III o.:co:J· Illg~. Force of order and decision of Waler Court, Appeal to Court of Appeal. Rules of Resident Magis trates' Courls re!larding appeals 10 IIpply. Making of regulations as 10 proceed· Ingsof Willer Courts, Officen of Resident Mallis trares' Courts 10 be ulli<;erJ of Waler Courts. It .r1 J J.:..J( 37. Before proceeding to the determination of any question submitted to them, the Water Court shall be sausfie.' that all persons having an interest in the matter to be submitted to them have had due notice of the procee.'ings. 38. An order of a Water Court and any decision of such Court other than a decision contained in a report made under paragraph (c) of section 36 shall have the force of a judgment PI' a Resident Magistrate's Court in matters within the Court's jurisdiction. 39. Any party feeling himself to be aggrieved by any decision of a Water Court may appeal against such decision to the Court of Appeal, and that Court may make such order as may seem meet in the premises. 40. Until rules of procedure shall be made governing and controlling the procedure in such appeals. the rules of the Resident Magistrates' Courts regarding appeals from those Courts to the Court of Appeal shall apply and be followed. . 41. The Minister may from time to time make regula tions controlling and regulating the proceedings of Water COUTts, and for ensuring the recording and carrying out of any decision of such Court. and for the proper service of all necessary notices and process. 42. All officers of the Resident Magistrates' Courts and all con-tables shall be officers of the Water Courts for the purposes of carrying out the instructions and enforcing the decisions of such Courts. PART IV. Servitudes 43. For the purposes of this Part, any person 1.0 W]ln~n the use of water of a public stream at any point 011 :, 'i course has been or might be granted, may h(~ ~'r:lnte(l t~',.: right to divert it for the said lise at any ()I!~':r I)l'\l1t on ",.~ course of such stream, but before exercising such right, h,: must acquire or be granted the servitude necessary ff)r such use. 44. Any person having a right to the lise of water or being entitled to supervise or control the use of WpU'!' may, subject to his willingness to pay co111 pcnsatiou ,IS hereinafter provided, claim temporarily or in perpetuity a servitude of storage of water, a servitude of passage or a servitude of abutment or all such servitudes; provided that (a) the period of temporary servitude shall be a definite number of years or for so long as it is used for the purposes 1'01' which if. is granted, with or without further specifications of the period; (b) no proceedings shall be taken for the acquisition of any such servitude while legal proceedings or proceedings before a Water Court are pending a'i to the right to the use of the water in respect of which the servitude is claimed; (c) no such servitude shall give the person acquiring it a proprietary interest in respect of the areu on, over or through which it is exercised, and no encumbrance attaching to such mea shall be affected thereby: 45.-(1) "Servitude of storage" shall mean the right tn occupy land belonging to another by submerging it wit11 water by means of a dam or weir or by other works, and I' Persons ~~r~III('-'d l r-,c ,,: pu hlic w.ucr may .I.','I"I'[ ').lIlll; on :1I.:qllinllg 11l.:,-~')·,a[ y .... crvuu.!c. Persons having a fight tu lI~C: \11' water may. subject III ccrt.uu cuu.hu ous, '- ~d II" '"1 virudcs. Definition of "servitude of sturagc." Definitiun uf "servitude of passage "i water". It' A 1 etc shall include a right of passage over the land and along the boundary of and through the particular area subject to the ser:.. itude for the purpose of maintaining and cleansing such works, or for any other purpose necessary for the dh.'ct ivc enjoyment of the servitude. (21 :\ servitude of storage shall not, subject to the terms of any award or agreement establishing it, deprive any proprietor of the area subject to the servitude of the use of that part of the area which is not submerged; provided such use is not detrimental to the enjoyment of the servitude. (3) \Vhen a permanent servitude of storage has been acquired, the proprietor of the area over which the servitude has been acquired may, before the commence ment of t he "I oruge work, and on payment of his proportion of the cost thereof (to be determined in the case of dispute hy reference to a Water Court), demand and thereafter shall be entitled to receive the benefit of the storage work in proportion to the share he has con tributed to the cost of the work. 46.-(1) "Servitude of passage of water" shall mean the right to occupy so much land belonging to another as may be necessary for or incidental to the, passage of water and shall include a right to construct irrigation works necessary for such passage on such land and over, under, or alongside another irrigation work or to enlarge and extend an existing irrigation work. (2) The servitude shall include the right of access to any area (after notice to the proprietor thereof) for the purpose of constructing, inspecting or maintaining such works. (3) The proprietor of any area over which the servitude exists may pass along such works any water ... -- . ---- . -- (The inclusion ,\( this page is authorized by LN. 4tlOJl973) WATER to the use of which he is entitled on payment of such proportion of the cost of constructing, e'l!arging a!l(~ maintaining such works and on such other terms as m:1Y be agreed upon or failing agreement as mil>, be decid.: by a Water Court. (4) In exercising such a servitude aLToss il PUh'!C road the holder thereof shall construct such works as will prevent danger or inconvenience to the public, and sha'! keep the same in repair, the manner of construction and repair being prescribed by the Minister or other officer authorized by him. 47.-(1) "Servitude of abutment" shall mean the right to occupy by means of a dam or weir the bed or banks of a public stream or land adjacent thereto belonging to another. (2) The proprietor on whose ground a servitude of' abutment exists may, before the construction of the dam or weir is commenced, or after the construct ion of a weir, demand the right to lead therefrom such wn":r ali he /11:ty be entitled to take from the public stream and may obtu!u such right on paying to the holder of the servitude such proportionate cost of the dam or weir as nwy be agreed upon, or failing agreement as may be determined by a Water Court. (3) For the purposes of this section "weir" shall mean an obstruction placed across the bed or a public stream in order to raise the water level in it, for diverting (without storing) such water' on to the land. 48. Any person who by paying a proport ion of tIle cost of constructing any irrigation work, a" provided in sections 45, 46 and 47, has acquired the ri."I" tll lise the same, shall be liable to pay a like proportion Ill' the cost of its maintenance and repair, IInkss or 1I111il exempted therefrom by agreement or order of Court. [The inclusion of this page is authorized by L.N. -Iso/ln31 Servitude of ;,'lIltmt:nl. I.iability of persons \\1111 I cspcct to \. \ 'II .rruc lion uf 111'1:;idiun works. Obligations of persons construct iog work. for passage of water. Howl servitude /Ilay be claimed. 49. Every person who, under this Part, constructs works for the passage of water, which (a) prevent any proprietor passing freely over or on to any area of which he is the proprietor; or (b) check the circulation of water in the irrigation or' drainage of any area or interfere with the mining thereof, shall construct and maintain in repair (i) such bridges and other works as will make corn munication safe and convenient; and (ii) such culverts, aqueducts and other works as are necessary to secure the free circulation of such water or prevent interference with such mining, unless he shall be exempt from such duty by agreement or other lawful cause. 50.-(1) A servitude may be claimed by serving written notice upon every proprietor of the area on or over which the servitude is desired, demanding the servitude and specifying the following particulars, namely (a) the line of passage along which the water is to be conducted or diverted; (b) the locality on which the water is to be stored; (c) the compensation offered; (eI) the period of the servitude; (e) the quantity and nature of the material required from the said land for the purpose of constructing irrigation works. (2) If such proprietors shall not, within one month after service of such notice, agree to the claim and the particulars spec-fled in the notice, the claimant may apply to have his claim referred to the decision of a Water Court, and shall serve a copy of the application upon such proprietors. [The inclusion of this page is authorized by L.N. 480/1973] WATER (3) If the area over which the servitude is claimed is, subject to registered mortgage or lease, the claimant shall further serve upon the mortgagee or lessee (as the case may be) the notice and copy of application required to be served on the proprietors. 23 51. Every such mortgagee or lessee shall have the right Rights of b f W C he heari mortgageesto appear as a party e ore a ater ourt on t ie leafing and Ic))ccs of the claim and shall if he so appears have all the un hearing , , of claim, privileges belonging to and be subject to all the obligations imposed, or which may be imposed, on a party to pro ceedings before a Water Court under this Act or regula tions made thereunder. 52.-(1) A' Water Court upon the hearing of such claim \~hat . \\ arer may- t 'UIHIIIIIIY ( ) d h . } . } lificati .1'1 UpOIla awar t e same WIt 1 or WIt rout mot I ications I,carlng of and subject to such conditions as they deem just; ,I,lllll. (b) award or refuse to award compensat ion for the right of servitude granted; (c) if the area over which the servitude is claimed is subject to a lease, award compensation to the lessee for any Joss or damage he is likely to sustain by the exercise of the right of servitude; (d) if the area over which the servitude is claimed is subject to a mortgage and the mortgagee claims a share of any compensation awarded, determine the claim of the mortgagee and the amount (if any) of his share of the compensation; (e) dismiss the claim, but on the following grounds only, namely (i) that the servitude claimed does not fall within the provisions of this Act; or [The inclusion of' this page is authorized by L.N. 4S0/1973j Convcnioo of temporary servitude inio permanent servitude, (ii) that the object for which the servitude .is claimed could be better obtained in another manner; or (iii) that the claim is not made in good faith; or (iv) that the objects for which the servitude is claimed are not of sufficient agricultural or other utility to justify the acquisition of the servitude; or (v) that the works appertaining to the servitude will interfere with the development of irrigation in the locality; or (vi) that the damage likely to be caused by the proposed works would be greater than the benefits that would be derived therefrom. (2) Compensation awarded by a Water Court for a temporary servitude shall not exceed an annuity equal to the rental value (as nearly as can be ascertained) of any of the land or portion of the area to be actually occupied by the work contemplated. together with an actual sum for actual inconvenience, or loss likely to be suffered by the exercise of the right of servitude. (3) Compensation awarded by a Water Court for a permanent servitude shall not exceed an amount equal to the average market value (as nearly as can be ascer tained) of the land or portion of the area to be actually occupied by the work. together with an annuity. for actual inconvenience or loss that may be suffered by the exercise of the right of servitude. or in lieu of such annuity an amount not exceeding twenty times such annuity. 53. A person who under this Part holds a temporary servitude may claim an award of a Water Court converting it into a permanent servitude. subject to the payment of such compensation to the proprietor of such area on or rI'he inclusion of this page is authorized by L.N. 480(1973) over which the temporary servitude exists as may be determined by a Water Court. The provisions of sections 50, 51 and 52 shall so far as applicable apply to a claim for conversion under this section, 54. Any servitude acquired under this Part shall lapse Servitude if } k 'f.: d i h . I I' I I' 1. ,hall Ii,,·.~I t ie war specine JI1 t e parucu ars 0 t ie calm oe not it Will>" I, completed within three years from the elate of acquisition ~f~\~~'l1­ by agreement or of the awarel of a Water Court, or within withir ccr tum any extended period that may be agreed or that a Water tilll~, Court may have fixed for the hearing of the claim. 55. Any servitude which has been duly constituted and Servitude bli I d h II I I 1 ,. I I b ,h"III""·.eesta IS ie s a apse anc )e exungurs lee y non-use by nOll:"'':. for a continuous period of two years, if such non-use is due to the default or neglect of the holder of the servit ucle. 56. No servitude acquired or awarded under this Part Servitude shall be binding upon others than the original parties ~~J;I~~~I~lis thereto until registered agai nst the title of the land on or Pari. h ' h it J b ' d bindingover w IC It las een so acqurre or awarded, and, jf only l)1I h I , ,. h h origin ..1t e regu at Ions so require, 111 sue at I er manner as may pilrlic:, be prescribed thereby. unul rcg"tcrc:(I. etc, 57.-(1) The Registrar of Titles or the Deputy Keeper Registru of the Records, upon the production of the agreement ~~:~::~Ide. between the parties, or of the award of a Water Court, or of certified copies of such agreement or award, in either case accompanied by a diagram of a Government Surveyor showing the situation of the servitude, shall register such servitude and diagram upon the titles of the areas in favour of and over which it has been so acquired and awarded: Provided, however. that the Registrar of Titles or the Deputy Keeper of the Records shall not be required under this section to register any agreement unless such agree . . - . -.- .- .. ----- [The inclusion of this page is auihorized by L.N, 480/1973J ltounJllry shall nOI be changed by reason of change of course of public stream. ment is in his opinion reasonably free from ambiguity; 'and) provided further) that the Registrar of Titles or the Deputy Keeper of the Records shalt not register any servitude awarded by a Water Court until after the expiration of the period within which notice of appeal to the Court of Appeal from such award is required to be given under section 40 or under any rules referred to in the said section, or) where such notice has been given) until the award of such servitude has been confirmed on appeal. (2) The proprietors of the areas over which such servitudes have been acquired or awarded shall) on being required so to do by the Registrar of Titles or the Deputy Keeper of the Records) produce their title deeds for the purpose of such registration) and failure to produce such title deeds shall be deemed to be an offence against this Act. (3) A certified copy of an agreement or award shall mean a copy certified as correct by a president of a Water Court) a notary) or attorney. PART V. General 5ft.-(l) Whenever a public stream which formed the boundary between the land of two or more proprietors changes) or has changed its course) the boundaries of such land shall not be thereby changed, nor shalt a change in the course of such stream constitute a riparian proprietor a non-riparian proprietor. (2) A riparian proprietor may apply to the Minister to fix a point or points on the changed course of the stream to which he shalt have access and at which he may take the water thereof) and further to fix the line along which such water may be so diverted and ·taken. The Minister may grant the application on such terms as to him may seem just. [The inclusion of this page is authorized by LN. 480/1973) WATER (3) Whenever a riparian proprietor has been injuriously affected by any such change in the course of a public stream he may make written application to the Minister for permission to construct works necessary to restore the stream to its former course. (4) The Minister shall, if satisfied that the riparian proprietor has been so injuriously affected, and subject to any rights lawfully acquired in respect or the changed course, grant the permission, but may attach thereto conditions as to the nature of the work to be constructed and the time within which it shall be completed. (5) Any of the matters referred to in this section may, instead of being decided by the Minister, be referred by him to a Water Court for investigation HIllI decision. 59.-(1) Nothing in this Act shall interfere with or Rights d f . h I I . d' f' I alreadyerogate rom ng ts a reae y acquire , 111 so ar as aetna ..cquired use has been made of such rights. All such rights, and ~~~Ircised such other rights to the use of water as may be acquired ~ottof be mter ered under this Act, shall lapse and be void if not used for a with, consecutive period of three years, unless the holder of such right shall satisfy a Water Court that he has made reasonable efforts to make usc of such right. (2) Should the holder of any such right desire to have such right determined and recorded, he shall submit the matter to a Water Court for its decision. PART VI. Powers of the Minister in regard TO Public STreams and Water 60. The Governor-General may from time to time Governor appoint such officers as may be necessary for the better ~~~.:ral carrying out of the provisions or this Act, and such officers aPjPoint 01 iccrs shall be subject to the direction and control of the Minister. (or better I ff h II b id I . I I curryingSUC 1 0 icers s a e pal sue j remunerauon as s Hl1 be out of voted by the House of Representatives, The Minister may ~f~~~~on~ [The inclusion of this page is authorized by L.N. 4HO/l'.l73j Minister may acquire any irrigation work. &upervilO public streams, etc. .cause inspection of any irrigation work or the course of any public stream to be made and may order any person to do such acts and execute such repairs with respect to his irrigation works as may be deemed necessary in the public interest, and in default of compliance within the time specified in such order, execute the same and recover the cost of such execution from the person making such default. 61.-(1) The Minister may, where such a course appears to him to be desirable in the public interest (0) with the consent of the House of Representatives construct or acquire any irrigation work which he may think necessary or desirable for the purpose of draining into or conserving or utilizing in any manner whatsoever any public stream or for abstracting, storing or preventing the waste of subterranean water, and may supply or distribute water or power from such work in such manner as may be prescribed by regulation; assess, levy, and recover rates from the proprietors or occupiers of areas irrigated or irrigable or benefiting directly or indirectly by water from works constructed or acquired under this section' or from persons using power from such works;" enter into agreements with proprietors or persons: for the transfer or exchange of any right to land or the use thereof in commutation of the rates< payable by such proprietors or persons under this section; (b) exercise general supervisiou over all public strec\qls in the Island, protect the source of supply of any' public stream, and, if he deems it necessary or expedient, cause the channels of such streams to' be cleansed, deepened, widened, or otherwise, {Tho: inclusion of this page is authorized by LN, 480/1973] WATER improved; prevent the leakage or flow of any public water from the surface into subterraneun channels; prevent any waste or any unluwlul diversion, abstraction, storage or use of r,-,hl;c water; cause to be removed any obstruct :()11 unlawfully placed in the public stream, ~\~1<.! prevent any unlawful act calculated to diminish the quantity of water ill any part of a public stream; (c) supervise and regulate the diversion, storage, distribution and use of water of any public stream, and prescribe a standard showing the area of land which can be effectively irrigated in respect of any particular kind of crop in any particular district or situation by a constant flow of water of one 'hundred cubic yards per hour, and, in such manner as may be prescribed by legislation, assess, levy and recover rates from the proprietors or occupiers of areas benefiting from any action taken under this subsection up to an amount sufficient to meet the expenditure incurred. (2) The Minister may with the consent of the House of Representatives authorize any corporation, person, com pany or partnership to exercise the powers set out in paragraph (a) subsection (1). (3) Full compensation shall be paid from the Treasury to the proprietors of land and any other persons who may suffer loss or deprivation of rights by any action taken by the Minister under the provisions of paragraph (0) of subsection (1). The amount of such com pensation, if not settled by mutual agreement, shall be submitted to arbitration. (4) The Minister may, where such a course appears to .him to be desired in the public interest, sink boreholes [The inclusion of this page is authorized by L.N. 4110/1973] Minister or his ageOls may enter upon liny area with men, animals, c:IC. WAll:.X and wells, and obtain from underground sources supplies of water and conserve the same when required. 62.-(1) The Minister or any person or persons acting under his authority may, after notice to the proprietors, enter upon any area with such men, animals, vehicles, appliances and instruments, and do all such acts thereon as are necessary for or incidental to the exercise of the powers conferred or the performance of the duties imposed by this Act UpOI) the Minister or any other officer: Provided that- (0) no such person shall enter any building or any enclosed yard attached to a dwelling except with the consent of the occupant thereof; (b) as little damage as possible shall be caused to any area by the exercise of the powers of this section, and com pensation shall be paid by the Minister for all damage so caused, the amount thereof, if not mutually agreed upon, being determined by arbitration. (2) The Minister, an Irrigation Board, a Water Court or persons authorized in writing by them shall, to the extent necessary for exercising the jurisdiction of the Minister or Board or Court under this Act have the right of entry upon any area with the power, incidental thereto mentioned in subsection (1), subject to the restrictions and obligations in the said subsection provided. (3) Any person who prevents such entry on any area as is authorized by this section, or who wilfully obstructs or hinders any person so authorized in lawfully carrying out his powers or duties under this Act or the regulations, shall be guilty of an offence. (The inclusion of this page is authorized by L.N. 480/1973] time to time make, alter or Minister may make regulations. WATER 63. Any notice, order or other document required by this Service Act, or a regulation to be given to or served 1I pon any ~~,U,'l~n of person, shall be deemed to be effectually served if delivered ::~:\~~:~. personally to such person or left at his abode or place of ere. business, or sent by registered letter to his address, or if such person is absent from the Island and has left no known representative, by publication in the Gazette ancl in some newspaper published in the Island. Service upon a person authorized to represent another shall be deemed to be service upon the person whom he represents, and, in the case of a company or corporation having no domicile or office in Jamaica, any person in charge of its property shall be deemed to be its representarive : Provided that nothing in this section shall prevent any person who has not been personally served with a notice, document or other order from proving that through no fault of his own or his representative such notice, docu ment or order never came to his knowledge. 64. Any notice, order or document issued by any official Validity of under this Act shall be valid from the date of issue ~~~~cr:~·etc. thereof, notwithstanding any defect of form in the same or want of authority on the part of the otflciul issuing or authenticating the same: Provided that the requisite authority is subsequently conferred upon such official. 65. The Minister may from revoke regulations (a) for dealing with any matter which may by this Act be dealt with by regulation; (b) for prescribing. any forms of procedure to be used or followed for the purposes of this Act; (c) generally for the better carrying out of the objects and purposes of this Act. nne inclusion of this page is authorized by L.N. 480/1973) 31 PART VIT. Offences and Penalties Penalty on persons guilty of otlences under Ihis Act. 66, Any person who, without lawful right or authority (the proof whereof shall lie upon him) ((1) alter", enlarges or obstructs an irrigation work, or destroys, defaces or moves any level mark, beacon, or other structure or appliance erected or made in connection with such work; (b) interferes with or alters the flow of or pollutes or fouls the water of an irrigation work or of a public stream, or interferes with the distribution of such water, or, after notice to refrain from doing so, takes more water than he is entitled to, or uses it in a manner contrary to this Act or the regulations; (c) while using or being liable for the maintenance of an irrigation work, to .the prejudice of others wastes or does not take due precaution to prevent the waste of. water from such work, or fails properly to maintain the work and keep it in repair; (d) wastes the water of a public stream; (e) being the proprietor of an area, after notice from the Minister or other official authorized by him; fails to put an end to waste of water resulting from the act of a tenant or other person deriving rights from such proprietor and no longer present on such area; <I) aids or abets or knowingly permits any such act or default, shall be guilty of an offence, and liable (i\ in the case of a first conviction to a fine not exceeding fifty dollars, or in default of payment to imprisonment with or without hard labour for .... (The inclusion of this page is authorized by L.N. 480/1973J ;::-- ... WATER a period not exceeding six months, or to both such fine and imprisonment; (ji)in the case of a second or subsequent convicuon to a fine not exceeding two hundred dollars, or in default of payment to imprisonment with or without hard labour for a period not exceeding one year, or to both such fine and imprisonment. 67. Any person who wilfully or maliciously commits any Punish of the acts mentioned in paragraph (a) or (b) of section 66 ~~f~~~cf~r shall be liable to a fine not exceeding one thousand dollars, under this or to imprisonment with or without hard labour for a Act. period not exceeding two years. 33 68. Any person who commits an offence against this Fine where A I · dId f I . h 110 penaltyct, or any regu anon rna e t iereun er, or W 11C no is expressly penalty is expressly provided, shall be liable on conviction provided, to a fine not exceeding fifty dollars, or in default of payment to imprisonment with or without hard labour for a period not exceeding six months. : 69.-(1) Whenever any person is convicted by a Resident When M · 'C f If . I ' I Residentagistrate S ourt 0 an 0 ence against t lIS Act or t ie I\la!:is. regulations, and it shall appear that such person has by ttr.,alc's ourt may that offence caused damage to any proprietor, such Court cond~ct • . enquiry as may, at the written request of such proprietor and upon to damage notice before trial to the accused, but in the presence of ~oprietor. the convicted person, enquire summarily and without pleadings into the amount of damage so caused. (2) Upon proof of such amount, such Court shall give judgment therefor in favour of the proprietor and against the convicted person, and such judgment shall be of the same force and effect and be executable in the same manner as if it had been given in a civil action duly instituted before such Court: [The inclusion of this page is authorized by L.N . .JSO/197Jj 'roreell· flg!) i\\ to nes, etc.• tl he taken '1 Resident Inl1is rate's 'ourt aving risdic 011. naet rents .pealed. WATER Provided that judgment shall not be given under this section for a sum exceeding the civil jurisdiction of such Court. 70. All proceedings for an offence against the provisions of this Act. or any regulations thereunder and for the recovery of any fines or penalties imposed thereby shall be taken in the Resident Magistrate's Court having juris diction over the place in which the offence was committed, PART VIII. Miscellaneous 71. So much of ,111y enactment as is repugnant to or in consistent with the provisions of this Act is hereby repealed provided that nothing herein contained shall affect or derogate from the terms and provisions of the enactments mentioned in the Schedule. .-.,---- ' --------::--: [The !'1chhi~'n l,r this page is authorized by L.N. 4110/1973] WATER 35 SCHEDULE (Section il) 1. The Kingston and Liguanea Water Works Law. Omitted. 2. The Rio Cobre Canal Law. ()mitle<f. 3. The Parishes Water Supply Act. 4. The provisions of the following Ads relating t'l rates regula tion: The Parochial Fire Brigade Act. The Electric Lighting Act.