Devery v The Grand Canal Company

• Jurisdiction: Ireland
• Judgment Date: 07 May 1875
• Date: 07 May 1875
• Court: Common Pleas Division (Ireland)

Exch. Cham.

Before WHITESIDE, C. J., PALLES, C. B., O'BRIEN, J., FITZGERALD, B., FITZGERALD, J., BARRY, J., and DOWSE, B.

DEVERY

and

THE GRAND CANAL COMPANY.

Bicket v. Morris 2 L. R. 1 Sc. App. 60, 61, per Lord Westbury.

Waterworks CompanyELR L. R. 9 Ch. App. 451.

Earl of Norbury v. KitchenUNK 15 L. T. (N. S.) 501.

Spoor v. GreenELR L. R. 9 Ex. 99.

Harrop v. HirstELR L. R. 4 Ex. 43.

Gillon v. Boddington R. & Mood. 161.

Clegg v. Dearden 12 Q. B. 576.

Lawrence v.The Great Northern Railway CompanyENR 16 C. B. 643.

Broadbent v. Imperial Gas Company 26 L. J. Ch. 276, 280, 282.

Smith v. ThackerahELR L. R. 1 C. P. 564.

Roberts v. Read and othersENR 16 East, 215.

Thompson v. GibsonENR 7 M. & W. 456.

Whitehouse v. FellowesENR 10 C. B. N. S. 765.

— Fresh damage — Fresh cause of action — Statute of Limitation —

THE IRISH REPORTS. {I. R. (EXCHEQUER CHAMBER) (1). DEVERY v. THE GRAND CANAL COMPANY. Continuance of wrongful act-Fresh damage-Fresh cause of action-Statute of Limitation-Plaint complaining of the wrongful act, but not, in terms, of its continuance. 1. Where the continuance of a wrongful act causes fresh damage, the conÂtinuance of the wrongful act which caused the damage constitutes a fresh cause of action : The Defendants, in 1866, wrongfully obstructed a stream flowing by the Plaintiff's lands, and continued the obstruction down to 1873, when it caused the flooding of his lands :-Held (affirming the decision of the Common Pleas, but on a different ground) that the continuance of the wrongful obstruction causing fresh damage in 1873 constituted a fresh cause of action in 1873 ; and that, therefore, the Statute of Limitation applicable to the case began to run from the time of the damage in 1873. 2. The plaint relied upon the obstruction of the stream as the cause of action :-Held, that, having regard to s. 81 of the Common Law Procedure Act, 1853, it was open to the Plaintiff to rely upon the continuance of the obstruction as the cause of action. APPEAL by the Defendants against an order of the Court of Common Pleas discharging a conditional order obtained by the Defendants, that the verdict had for the Plaintiff should be entered for them pursuant to leave reserved. See the report, Ir. R. 8 C. L. 511, where a summary of the pleadings and the facts are set out. Armstrong, Serjt., Battersby, Q. C., Dames, Q. C., and French, for the Defendants, in support of the appeal, relied upon the 32 Geo. 3, c. 15, s. 6 ; 55 Geo. 3, s. 1; 5 & 6 Vict. c. 97, s. 5, and, in addition to the authorities cited in the Court below, cited Bicket v. Morris (2) ; Wilts and Berks Canal Company -v. Swindon (1)BeforeWErrEsnE, C. J., PALLES, Down, B. C. B., O'BEIEN, FrnGEBALD, B., (2) L. R. 1 Sc. App. 60, 61, per FrrzumusiD, J., BIBBY, J., and Lord Westbury. VOL. IX.] COMMON LAW SERIES. 195 Waterworks Company (1) ; Earl of Norbury v. Kitchen (2) ; Spoor Exch. Cham. v. Green (3) ; Harrop v. Hirst (4) ; Gillen v. Boddington (5) ; Clegg 1875. v. liearden (6). DEvER-r v. GEÃND Byrne, Q. C., and. _Molloy, contra, cited Lawrence v. The Great CANAL Co. Northern Railway Company (7) ; Broadbent v. Imperial Gas ComÂpany (8) ; Addison on Torts (4th Ed.), 737 ; Smith v. Thackerah (9) ; 3 Com. Dig. " Nuisance," 802 ; Roberts v. Read and others (10) ; Thompson v. Gibson (11). Judgment reserved. PALLES, C. B. :- May 7. The Defendants are the owners of a canal, which was conÂstructed many years since under various Acts of the Irish LegisÂlature. At Derrynealy, in the King's County, the canal is carried upon an embankment across a small stream, the Oughter, a tributary of the Brosna. Prior to 1866 the Oughter was conveyed through or under this embankment by two wooden tunnels, the vertical section of each of which was four feet square. In August, 1866, the Defendants inserted in each of these wooden tunnels a circular metal pipe, the internal diameter of which was three feet. These metal pipes were thenceforth the only conduit through which the Oughter flowed under the embankment. The Plaintiff was the occupier of a riparian farm higher up the stream. The farm was flooded by the waters of the stream at various times during the year 1873, and the action was brought to recover damages for the injuries he sustained through those floodings. His case was, that the power of the metal pipes to discharge the waters of the Oughter was less than the discharging power of the wooden tunnels, and insufficient in fact, and that the damage was caused by the absence of sufficient discharging power. The only defence to which. it is material to refer is the Statute of Limitations. The Acts 36 (1) L. It. 9 Ch. App. 451. (7) 16 C. B. 643. (2) 15 L. T. (N. S.) 501. (8) 26 L. J. Ch. 276, 280, 282. (3) L. R. 9 Ex. 99. (9) L. R. I C. P. 564. (4) L. R. 4 Ex. 43. (10) 16 East, 215. (5) & Mood. 161. (11) 7 M. & W. 456. (6) 12 Q. B. 576. 196 THE IRISH REPORTS. [I. R. Exch. Chain. Geo. 3, c. 15 (Irish) and 55 Geo. 3, c. 90 (Irish) contained clauses 1875. limiting the time within which actions might be brought for any DEVERY thing done in pursuance of the Acts under the authority of which GRAND the canal was constructed. The statutable period of limitation ap CANAL Co. plicable to the case is, therefore, that prescribed by the 5 & 6 'Wet. c. 97, s. 5, which enacts that " the period within which any action may be brought for anything done under the authority or • in pursuance of any such Act or Acts shall be two years" (1). At the trial before my brother DEASY, the Defendants applied for a. direction upon this plea. With this requisition the learned Baron refused to comply, but reserved liberty to the Defendants. to move to have the verdict entered for them if he should have so directed. The Court of Common Pleas having refused to enter the verdict pursuant to the leave reserved, the present appeal has. been brought from their decision. It seems clear that the insertion of the metal pipes, in the wooden tunnels-which constituted the former, and as we must assume the rightful, channel, of the Oughter-where it flowed under the embankment, narrowed the channel ; and, to an appreciable extent, interfered with the theretofore usual and accustomed flow of the stream. It must also be assumed, upon the finding of the jury, that the insertion of the metal pipes diminished the disÂcharging power of the old tunnels, and that the insufficiency of such diminished discharging power caused the injury...