Alliance and Dublin Consumers Gas Company v Dublin County Council

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 21 June 1900
• Court: Court of Appeal (Ireland)
• Docket Number: (1899. No. 1136.)
• Date: 21 June 1901

ALLIANCE AND DUBLIN CONSUMERS GAS CO.

and

DUBLIN COUNTY COUNCIL.

(1899. No. 1136.)

Chancery Division

Appeal

Gas pipes — Repair of roads — Use of steam rollers — Statutable rights — Injury to property in the exercise of such rights.

The Gas Light and Coke Company v. Vestry of St. Mary Abbotts, KensingtonELR 15 Q. B. D.1.

The Metropolitan Asylums District Board v. HillELR 6 App. Cas. 193.

Order accordingly, declaring Thomas McMahon personally liable for the payment of £350, amount of legacy, and directing him to pay same within three months. Solicitor for the applicant : Kelly. Solicitor for the administratrix : Doyle. J. MAC M. 111. R. 1900. March 9, 10, 13,'24. Appeal. Gas pipes—Repair of roads—Use of steam rollers—Statutable rights—Injury June 20, 21. to property in the exercise of such rights. The plaintiffs, a gas company, laid clown pipes under the surface of certain roads, as they were entitled by statute to do, in order to supply gas for public and private purposes. The defendants were charged by statute with the duty of maintaining the roads in the county, and were for that purpose authorised to purchase or hire a steam roller. The defendants used steam rollers for the repair of the roads, but the rollers were so heavy as to frequently injure the plaintiffs' pipes, though they were laid at a depth sufficient to be safe from injury by the ordinary traffic and ordinary mode of repair, if such rollers had not been used : Held, that the plaintiffs were entitled to an injunction to restrain the VOL. I.] CHANCERY DIVISION. 493 defendants from using steam rollers in such a way as to injure the pipes of the III. IL plaintiffs then properly laid under the roads, regard being had to what, at 1900. the time of the laying of the pipes, was the ordinary traffic, and the reasonable A. & D. C. means of repairing the roads. GAS Co. v. DUBLIN TRIAL OF ACTION. Co. COUNCIL. This action was brought by the Alliance and Dublin Consumers Gas Company against the Dublin County Council. The stateÂment of claim alleged as follows : The plaintiff company was incorporated by the Alliance and Dublin Gas Act, 1866 (29 & 30 Vict. c. coy., loc. & pers.), entitled "An Act for incorporating the Alliance and Dublin Consumers Gas Company, formed by the amalgamation of the Alliance and Dublin Consumers Gas Company, and the ComÂmercial Gas Company of Ireland, Limited, and for authorising the acquisition by the Company of gas works and property of the United General Gas Company, and for defining the limits within which the Company may supply gas, and for other purposes." By section 3 of the said Act of 1866 the Gas Works Clauses Act, 1847, is, with other statutes therein mentioned, incorporated therewith, and by section 6 of the said Act of 1847, gas companies (therein referred to as " the undertakers") are empowered to open and break up the soil and pavement of the several streets, in the said Act defined as including " any highway, lane, road, thoroughfare, or public passage or place within the limits of the special Act, and bridges within the limits of the special Act, and to open and break up any sewers, drains, or tunnels within or under the said streets and bridges, and to lay down, and place within the same limits pipes, conduits, service pipes, and other works, and from time to time repair, alter, or remove the same, . . . and for the purpose aforesaid may remove and use all earth and materials in and under such streets and bridges, and they may . . . do all other acts which the undertakers shall from time to time deem necessary for supplying gas to the inhabitants of the districts within the said limits." By section 6 of the said Act of 1866 the limits within which the plaintiff company are authorised to supply gas are defined, inter alia, as follows :—" The townships, parishes, or places of 494 THE IRISH REPORTS. [1901. M. 1?. Clontarf, Artane, Clonturk, and Drumcondra, in the barony of 1900. Coolock ; Glasnevin, Finglas, and Castleknock, in the barony of A. & D. C. Castleknock ; Palmerston, in the barony of Uppercross ; Taney GAS Co. v. Hill, Rathmichael, Kilmacud, Killiney, and Old Connaught, in DUBLIN the barony of Rathdown ; Rathfarnham, er in the baronies of Upp- Co. Colmar,. cross and Rathdown ; all in the county of Dublin." By section 44 of the said Act of 1866 the plaintiff company are authorised within the above limits to exercise certain powers, and do certain acts, and, amongst others, to lay down mains, pipes, and other works and apparatus. For the purpose of supplying gas within the aforesaid townÂships, parishes and places, divers mains, pipes, and other works have been duly and properly constructed, and laid in and under certain roads, streets, and highways, within the said townships, parishes, and places by the said plaintiff company, and in particular in and under certain roads and streets known as Kilmacud-road, in the parish of Kilmacud, and barony of Rath-down ; Cabra-road, in the parish of Grangegorman, and barony of Coolock ; and Harold's Cross-road, in the parish of Rathfarnham, and barony of Uppercross, all within the said townships, parishes, and places. The said mains, pipes, and works are the property of the plaintiff company. The defendants are a corporation, incorporated by the Local Government (Ireland) Act, 1898 (61 & 62 Viet. c. 37), entitled " An Act for amending the law relating to Local Government in Ireland, and for other purposes connected therewith ; " and they execute the office of, and are surveyors of, highways within all the said townships, parishes, and places, and appoint the county surveyor. The defendants in repairing the roads, streets, and highways within the said townships, parishes, and places, have for some time past used, or caused to be used, and still use, and cause to be used, steam and other rollers of very great weight, and in such a manner as in numerous cases to break, and bend, or otherwise damage, the mains, service pipes, and other works of the plaintiff company under the said roads, streets, and highways, and to cause serious escapes of gas and great danger of explosion. The 'plaintiff company contended that such use of the said Tot. I.] CHANCERY DIVISION. 495 rollers by the defendants was negligent and improper on their M. R. part, and they also submitted that, even if such rollers were l 900. . not negligently or improperly used, the defendants had and have Co.. GAS A .t D. C no authority to use, and are not entitled to use, rollers of such a V DUBLIN weight as would, even if properly used, injure the plaintiff Co. COUNCIL. company's mains, pipes, and other works, and that the defendants are liable to the plaintiffs for the damage caused to their property as aforesaid, by the use of such rollers. Such use has already caused very great damage to the plaintiff company, and if conÂtinued will cause still greater and even irreparable damage to the plaintiff company. Five specific instances are then mentioned in which it is alleged that the mains or pipes of the plaintiffs have been injured by the defendants' steam rollers, namely—(a) Close to Sydenham House, the residence of Mr. W. Hamilton, on KilÂmacud-road, in the parish of Kilmacud, and barony of Rathdown, aforesaid, on or about the 30th September, 1899 ; (b) On the railway bridge of the Dublin, Wicklow, and Wexford Railway Company, over which the said Kilmacud-road passes, in the said parish of Kilmacud, and barony of Rathdown, on or about 23rd October, 1899 ; (e) Close to the gate of Overton, on the said KilÂmacud-road, in the said parish of Kilmacud and barony of Rath-down, on or about the 4th of November, 1899 ; (d) Close to the half-way house on Cabra-road, in the parish of Grangegorman and barony of Coolock, on or about the 24th of November, 1899 ; (e) At Kenilworth Park, on the Harold's Cross-road, in the parish of Rathfarnham, and barony of Uppercross, on or about the 27th December, 1899. The plaintiff company repeatedly applied to the defendants to discontinue such use as aforesaid of the said rollers, and to make good the damage caused to the plaintiff company thereby, but the defendants have always refused, and still refuse, so to do, and they threaten and intend to continue, and, unless restrained by order of this Honourable Court, will continue such use. The plaintiffs claimed (1) An injunction to restrain the defenÂdants, their servants, agents, and workmen from using, or causing to be used, any steam or other roller in such a way as to fracture, damage, or injure the gas mains, service pipes, or other works of the plaintiffs ; 496 THE IRISH REPORTS. 11901. M. R. (2) Damages for injuries to the gas mains, service pipes, and 1900. other works of the plaintiffs by reason of the negligence of the A. & D. C. defendants in the use of steam and other rollers upon the streets, 018 CO, v• roads, and highways of the administrative county of Dublin ; or, DUBLIN CO. COUNCIL. in the alternative, (3) Damages for injuries caused to the said gas mains, service pipes, and other works of the plaintiffs by the defendants in the use and management of certain steam and other rollers in the said county ; (4) An inquiry as to the amount of the said damages. Ronan, Q. C., Gordon, Q. C., and Jonathan Pim, for the plaintiffs. 0' Shaughnessy, Q.C., Healy, Q.C., and Clancy, for the deÂfendants. THE MASTER OF THE ROLLS : The defendants admit liability as to the injury at Harold's Cross road, and have paid money into Court...