Attorney General (Down County Council) v The Lagan Navigation Company

 
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[1924] UKHL J0530-1

House of Lords

Viscount Finlay.

Lord Atkinson.

Lord Sumner.

Lord Blanesburgh.

Lord Darling.

Attorney General for Ireland (at the Relation of County Council of County of Down) and Others
and
Lagan Navigation Company.

After hearing Counsel, as well on Thursday the 1st, as Friday the 2d, days of this instant May, upon the Petition and Appeal of His Majesty's Attorney-General for Ireland (at the relation of the County Council of the County of Down) and the said County Council of the County of Down, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal in Northern Ireland, of the 20th of February 1923, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of the Lagan Navigation Company, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled. That the said Order of His Majesty's Court of Appeal in Northern Ireland, of the 20th day of February 1923, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Viscount Finlay .

My Lords,

1

These proceedings were taken in the Chancery Division by the Attorney General for Ireland at the relation of the County Council of the County of Down, and the County Council itself was joined as a co-plaintiff. The Defendants are the Lagan Navigation Company, a Company which was created by statute to own and manage a canal known as the Lagan Canal, Which runs from Loch Neagh to the City of Belfast.

2

The case was tried before Mr. Justice Wilson. No evidence was called on either side, the following admissions of fact having been made:

"(1) The bridge known as Lady Bridge and the retaining and other walls connected therewith were constructed prior to the passing of the Act, 6 & 7 Vict. cap. civ. (Local).

(2) The said bridge and also all retaining and other walls were at the date of their construction and at the date of the passing of the said Act adequate to carry the ordinary traffic of the district served thereby.

(3) The ordinary traffic of said district has, since the construction of the said bridge and since the date of the passing of the said Act, increased in amount and varied in character, particularly as to motor traffic.

(4) The said bridge, and also the retaining and other walls connected therewith, have been since their construction maintained in a good and sufficient state of repair adequate to carry the traffic of the said district as existing at the date of the passing of the said Act.

(5) The said bridge, and also the retaining and other walls connected therewith, have for several years prior to the year 1919 not been adequate to carry the ordinary traffic over the county roads in the said district as increased and varied in character, particularly as to motor traffic, since the date of the said Act.

(6) In the year 1919 portion of one of the retaining walls of the said bridge collapsed, and such collapse was caused by ordinary traffic, now greater in amount than, and varied in character, particularly as to motor traffic, from that prevailing at the date of the passing of the said Act."

3

And at the trial it was further agreed that the only questions to be decided were the following:

" (a) Are the Respondents bound to keep the bridge, known as Lady Bridge and referred to in the Pleadings, and also all retaining and other walls, fences and embankments upon or connected with the county road passing over the said bridge, in good and substantial and serviceable repair for, and in an efficient state for, all the present day ordinary traffic thereon; or

(b) Are the Respondents only bound to keep the said bridge and also all retaining and other walls, fences and embankments upon or connected with the said road in good and substantial repair for, and in an efficient state for, all the ordinary traffic at the date of the passing of the Act, 6 & 7 Vict. cap. 104?"

4

On the 9th November, 1922, Mr. Justice Wilson gave judgment in favour of the Appellants, that the Defendant Company were bound to keep the bridge in repair for all the ordinary present day traffic thereon. But on appeal by the Company, this decision was reversed by His Majesty's Court of Appeal in Northern Ireland, and the action dismissed, and it was declared that the Defendants are not compellable to do more than maintain and keep the bridge in such good, substantial and serviceable repair as sufficed for the traffic thereon in the year 1843. Since 1843 motors have come into general use and there has been a great increase of traffic over the bridge. The question in the case is whether the burden of keeping up the bridge in a condition adequate for the traffic of the present day is to be borne by the Company.

5

In dealing with this question not much help is, in my opinion, to be derived from the authorities. Two cases have been particularly referred to, the Sharpness case ( 1915 Appeal Cases 654), and the Pickford case ( 1916, 2 Appeal Cases 356). Each of these cases was decided on the construction of the Statute under which the bridge in question had been constructed, with the result that it was held that in neither case was there a liability to make provision for new and increased traffic beyond that with reference to which the bridge had been originally designed and built.

6

In like manner, for the purpose of deciding the present case, what we have to do is to consider the construction of the relevant Statutes.

7

The Company dates from 1843. The special Act is 6 & 7 Vict. cap. civ. The bridge had been constructed long before the passing of this Act. The period of duration of the Act was expressed to be 31 years (Section 223), but by Statute 51 & 52 Vict. cap. cxxxvii. this was extended to 99 years. Section 62 of the Act provides that "the said Company shall, at all Times, during the Continuance of this Act, maintain and keep the said Navigation, and every Part thereof, and all Bridges, Sluices, Drains, Locks, Weirs, Banks, Dams, Roads, Towing Paths, and other Ways belonging or appertaining thereto, and all Works, Bridges, Viaducts, preservation, retaining, and other Walls, Fences, and Embankments upon or connected with all County or other Roads made and constructed by the said Company, and all Works to be hereafter executed for the Improvement thereof, in good and substantial and serviceable Repair, and in an efficient State for all the Purposes thereof, and of the Traffic on the same respectively."

8

Section 63 is also material:

"63. And be it enacted, That the several Works, Improvements, and Repairs hereby required and authorized to be made shall be performed and executed under the Inspection and to the Satisfaction of the Commissioners of Public Works in Ireland appointed under the Authority of an Act passed in the Session of the First and Second Years of the Reign of His late Majesty King William the Fourth, intituled An Act for the Extension and Promotion of Public Works in Ireland; and that, before the Commencement of such Works and Improvements as are hereby required and authorized to be executed between the passing of this Act and the First Day of August One Thousand eight hundred and forty-eight, the said Company shall lay before the said Commissioners of Public Works Copies of the Plans, Specifications, and Estimates according to which it is intended to perform such Works and Improvements respectively."

9

Section 64 gave power to the Commissioners of Public Works to inspect the state of repair and efficiency of the said Navigation and the said bridges, etc., belonging thereto.

10

Section 65 provides that the works are to be performed to the satisfaction of the Commissioners, and power is given to the Commissioners to require the performance of any repairs or works which they consider necessary.

11

Section 66 provides that if any difference arises as to the manner in which such works, improvements and repairs are to be executed, the decision is to be left to an engineer to be appointed by the Treasury.

12

I cannot find anywhere in this Act any trace of a requirement that the bridge should be altered or rebuilt so as to be fit for traffic increased in amount and of a different kind from that which prevailed when it was constructed and when the Act 6 & 7 of Queen Victoria was passed. No distinction is drawn in the Statute, and particularly not in Section 62 as regards upkeep between the works which had been executed before 1843 and the works required to be executed in the Statute of that year. The Commissioners had power to require any necessary works, and provision is made for arbitration in case of difference by an engineer to be nominated by the Treasury. It seems to me impossible to say that there is to be any difference in the standard of repair required for the old works as compared with those executed under the Act 6 & 7 Vict. They are all lumped together.

13

Mr. Justice Wilson states his reasons for the conclusion at which he arrived as follows:—

"I was of opinion that the rule that local and private Acts of Parliament should be construed more strictly against the promoters, together with the express words of futurity in this Action, put on the Defendant Company the obligation of maintaining and keeping this...

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