CHARLES SHARPLEY, v EDWARD HORNSBY, Secretary to the Commissioners of Public Works n Ireland

• Jurisdiction: Ireland
• Judgment Date: 31 May 1852
• Date: 31 May 1852
• Court: Exchequer (Ireland)

Exchequer.

CHARLES SHARPLEY,

and

EDWARD HORNSBY, Secretary to the Commissioners of Public Works n Ireland.

Morton v. Mahon 2 Ir. Jur. 238.

Corporation of Waterford v. Newport 11 Ir. Law Rep. 359.

Griffin v. EllisENR 11 Ad. & El. 743.

Sharp v. WarrenENR 6 Price, 131.

Governor, &c., of Cast Plate Manufacturers v. MeredithENR 4 T. R. 794.

Lister v. LobleyUNK 7 A. & E. 124; S.C. 6 Nev. & M. 340.

Fenton v. The Trent ad Mersey Navigation CompanyENR 9 M. & W. 203.

Sutton v. ClarkeENR 6 Taunt. 29.

Jones v. BirdENR 5 B. & Ad. 837.

Hall v. SmithENR 2 Bing. 156.

Rochester v. BridgesENR 1 B. & Ad. 847.

Stevens v. Jeacocke and others 11 Ad. & El. N. S. 731.

Bently v. Hastings 8 Ir. Law Rep. 166.

Collinson and others v. Newcastle and Darlington Railway CompanyENR 1 Car. & Kir. 546.

Morton v. Mahon 2 Ir. Jur. 238.

Sharp v. Warren and anotherENR 6 Price, 131.

Rex v. The Justices of the Borough of LeicesterHRC 9 D. & R. 772.

Corporation of Waterford v. Newport 11 Ir. Law Rep. 362.

The Rochdale Canal Company v. King and others 18 L. J., Q. B. R., N. S., 293.

Leader v. Moxon and others 3 Wil. 461.

Ferguson v. Kinnoul 9 Cl. & F. 251.

Albon and others v. PykeUNK 4 M. & G. 421.

Governor, &c., of Cast Plate Manufacturers v. Meredith Supra.

Boulton v. CrowtherENR 2 B. & C. 703.

Grocers' Company v. DonneENR 3 Bing. N. C. 34.

Leader v. Moxton and others 3 Wil. 461; S. C. 2 Wm. Black. 924.

Sutton v. ClarkeENR 6 Taunt. 42.

Hall v. SmithENR 2 Bing. 158.

Jones v. BirdENR 5 B. & A. 844.

Boulton v. CrowtherENR 2 B. & C. 706.

590 COMMON LAW REPORTS, E. T. 1852. Exchequer. j CHARLES SHARPLEY, v. EDWARD HORNSBY, Secretary to the Commissioners of Public Works in Ireland. Feb. 5, 6. May 28, 29,31. Case, by a mill THIS was an action on the case, against Edward Hornsby, Secretary owner against to the Commissioners of Public Works in Ireland, and sued for the the CommisÂÂsioners of Commissioners of Drainage, pursuant to the statutable enactments Drainage in Ireland. The in such case made and provided. declaration contained five The declaration contained five counts. counts. The first three First count.-" For that before and at the times of committing counts averred that the Com- " the grievances by the Commissioners of Drainage, as hereinafter missioners wrongfully " next mentioned, the said Charles Sharpley was, and from hence and injuri- ously deepened " hitherto hath been, and still is, lawfully possessed of a certain the bed of the plaintiff's " mill, water-wheel, machinery and premises, with the appurtenances, mill stream, "situate and being at Stradermot, in the county of Leitrim, and by removed weirs, sluices " reason thereof, before and at the time of committing said grievances, and dams, and cut than- " of right had and enjoyed, and of right ought to have had and nels above the mill, and " enjoyed, and still of right ought to have and enjoy, the benefit thereby les sened the " and advantage of the water of a certain stream or watercourse, to working water-power " wit the Yellow River, in the county aforesaid, which during all of the mill. The fourth and fifth counts averred that the Commissioners deepened the stream, &c., pursuant to certain Acts of Parliament, but were guilty of neglect of duty in the manner in which they prosecuted the works ; also that certain specified things were not done in a proper and workmanlike manner. The plaintiff having given eviÂÂdence in support of his declaration, the defendant gave in evidence the declaration of the Commissioners, under the 5 & 6 Vic., c. 89; and the Gazette containing the publication of the final notice, and relied on the .5 & 6 Vic., c. 89, s. 52, and 9 Vic., c. 4, s. 18, as ousting the right of action at Common Law. The learned Chief Justice (Blackburne) directed a verdict for the defendant, being of opinion that the right of action at Common Law had been taken away by the 9 Vic., c. 4, s. 18.- Held : that the right of action at Common Law existed, notwithstanding the 5 & 6 Vic., c. 89, or 9 Vic , c. 4, where the Commissioners exceeded their jurisdiction, or acted arbitrarily, carelessly or negligently. Held also, that the 9 Vic., c. 4, s. 18, refers to matters of procedure alone. Semble, per PIGOT, C. B.-That the declaration was insufficient to confer jurisdicÂÂtion on the Commissioners. COMMON LAW REPORTS. 591 " the time of right ought to have run and flowed, and until the " alteration, sinking and diversion thereof, as hereinafter next " mentioned, of right had run, &c., and still of right ought, &c., in "great plenty and abundance, and with great weight, force, power " and velocity, unto, &c., the said mill, &c., of the said Charles "Sharpley, for supplying, and did then and there supply, the same " with water and water power for the working thereof, to wit at, " &c. ; yet the said Commissioners of Drainage, well knowing the ". premises, but intending to injure the said Charles Sharpley, and " to deprive him of the use, &c., of the water of said stream, and to " hinder him from working his said mill in so ample and beneficial " a manner as he had theretofore done, and of right ought to have " done, and to injure him in the way of his trade and business of a " miller, which he during all the time aforesaid exercised, &c., and " still doth exercise, &c., to wit at, &c., whilst the said Charles " Sharpley was so possessed of the said mill, &c., and so carried on " the trade and business of a miller, to wit on the, &c., and on divers " other days, &c., afterwards and before the commencement of this " action, to wit at, &c., wrongfully and injuriously cut, dug, sunk, " excavated and made lower and deeper than theretofore it had " been, and still of right ought to be, and caused to be cut, dug, "sunk, excavated and made lower and deeper than theretofore it had " been, and still of right ought to be, the bed and channel of the " said stream and watercourse, to wit ten feet of greater depth, and " lower than the usual and accustomed bed and channel of the said " stream or watercourse, and kept and continued, and caused to be " kept and continued, the said bed and channel, &c., so as aforesaid " made lower and deeper, for a long space of time, to wit from " thence hitherto ; and thereby during all the time aforesaid unlawÂÂ" fully and wrongfully caused and made the water of the said stream " or watercourse to run and flow in said bed and channel so cut, " dug, sunk, excavated and made lower and deeper as aforesaid, at " a level too low, to wit by ten feet, for the proper and necessary " working of said mill, and for turning and driving the water-wheel " and machinery thereof, and at a level lower, to wit by ten feet, " than the water of said stream or watercourse of right ought to 592 COMMON LAW REPORTS. E. T. 1852. " have run, &c., and theretofore of right had run, &c., and otherwise Exchequer. " of right would have run, &c., and still of right ought to run, &c.; SHARPLEY " and thereby also during all the time aforesaid directed and turned v. "ENSBL " the water of the said stream or watercourse away from, and " rendered the same inaccessible and useless to the said mill, waterÂÂ" wheel and machinery of the said Charles Sharpley, and stopped, " prevented, hindered and diverted the water of the said stream or " watercourse from running or flowing along its usual and accustomed " bed and course, unto the said mill, water-wheel and machinery of " the said Charles Sharpley, and from supplying the same with " water for the necessary working thereof, as the same had thereÂÂ" tofore done, and of right ought, &c., and otherwise would, &c., " and still of right ought, &c.; and also by reason thereof the water " of the said stream, &c., during all or any part of the time aforesaid, " could not, and did not, and still cannot, and doth not, run, &c., " into, &c., the said mill, &c., of the said Charles Sharpley, with " such and so great weight, force, power or velocity as theretofore " it had run, &c., and otherwise would, &c., and of right ought, &c., " and stilt of right ought, &c., whereby the amount of working " water power of the said mill, water-wheel and machinery was " during all the time aforesaid, and still is, greatly lessened and " diminished, to wit at," &c. The count concluded with charges of general and special damage. Second count similar in form to the first, but avers that the Yellow River, " Until the committing of the grievances hereinafter " next mentioned, of right had run and flowed, and still of right " ought to run, &c., in great plenty and abundance, and with great " weight, force, power and velocity, in, into, through and along a " certain weir there situate, and divers, to wit, fifty dams and sluices " of the said Charles Sharpley, and so unto, into, upon and against " the said last mentioned mill, water-wheel and machinery of the said " Charles Sharpley, for supplying, and did then and there supply, the " same with water and water-power for the working thereof, to wit, " at &c. ; yet the said Commissioners of Drainage well knowing, " &c., wrongfully and injuriously cut, dug, sunk, excavated, altered, " demolished and removed the said weir and dams and sluices, and COMMON LAW REPORTS. 593 " kept, and continued and caused to be kept and continued, the said " weir, &c., cut, &c., for a long space of time, to wit, from thence " hitherto, and thereby during all the 'time aforesaid unlawfully and " wrongfully caused, made and permitted the water of the said " stream, &c., to run, &c., at a level too low, to wit, &c. ; and " thereby also during all the time aforesaid directed and turned the " water of the said stream, &c., away from, and rendered the same " inaccessible and useless to the said last mentioned mill, &c., of the " said Charles Sharpley, and stopped, &c., the water of the said " stream, &c., from running, &c., along its usual and accustomed " course in, &c., and by means of the said weir, &c., unto the said " last mentioned...