Gibbings v Hungerford and The Lord Mayor and Burgesses of The City of Cork

• Jurisdiction: Ireland
• Judgment Date: 29 January 1902
• Date: 29 January 1902
• Court: Court of Appeal (Ireland)

Gibbings

and

Hungerford and the Lord Mayor and Burgesses of the City of Cork (2).

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1904.

Nuisance — Sewage — Sewer — Sanitary Authority — Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52), s. 274 — Parties — Injunction — Costs.

By permission of the plaintiff the Corporation of Cork had for many years discharged surface water from a public road, through a drain belonging to the Corporation, into a pond on the plaintiff's land. Subsequently, as the drain became offensive, it was, at the plaintiff's request, diverted into a cesspool made by the Corporation on his land. By direction of the Corporation the defendant H. connected some newly-built houses belonging to him with the drain, and the sewage from these houses was accordingly discharged into the plaintiff's lands through the drain. The plaintiff had given no permission to the defendants to discharge this sewage on his premises:—

Held (affirming the judgment of the Vice-Chancellor), that the plaintiff was entitled to an injunction against the Corporation and the defendant H., restraining them from discharging sewage on his lands, and to a mandatory injunction to disconnect the said houses from the said drain, but that the Corporation should pay the costs both of the plaintiff and of H.

Appeal from an order of the Right Hon. the Vice-Chancellor of Ireland, made the 30th July, 1901, perpetually restraining the defendants from discharging, or causing or permitting to be discharged, from the lands and premises of the defendant W. T.

Hungerford, sewage or water polluted by sewage into or upon the plaintiff's lands, and from discharging, or causing or permitting to be discharged, from the lands and premises of the defendant W. T. Hungerford, sewage or water polluted by sewage into or through the channel or drain running along the centre of the Montenotte-road, and thence into or upon the plaintiff's lands and premises, and from connecting, or causing or permitting to be or remain connected with the said channel or drain any sewer or drain for the discharge from the lands of the defendant W. T. Hungerford, of sewage or water polluted by sewage, and directing the defendants forthwith to remove every such connection for the discharge from the lands and premises of the defendant W. T. Hungerford, of sewage or water polluted by sewage into the channel or drain running along the centre of the Montenotte-road, and directing the defendant W. T. Hungerford to pay to the plaintiff the costs of two orders made in this action, dated, respectively, the 9th July, 1900, and the 10th December, 1900, and directing the defendants to pay to the plaintiff all his other costs incurred in the action.

The action was originally instituted against the defendant Hungerford alone, the writ being indorsed with a prayer for an injunction restraining him from doing the acts which the order appealed from restrained both defendants from doing, and for a mandatory injunction to the same effect as that granted by the order. On July 9, 1900, the Vice-Chancellor granted an interlocutory injunction restraining Hungerford from doing the acts complained of. Hungerford appealed from this interlocutory order, but the Court of Appeal dismissed the appeal, suggesting that the Cork Corporation should be joined as defendants. Liberty to join the Cork Corporation as defendants and to amend the writ of summons was given by the order of the 10th December, 1900.

The plaintiff was the owner of property consisting of private dwelling-houses, with gardens and pleasure grounds attached, in one of which houses he resided, situate on the south side of the Montenotte-road, a residential suburb of the city of Cork. This suburb lies on a strip of ground steeply sloping from north to south, while the Montenotte-road runs from west to east. On the road there is a slight fall from opposite directions, the lowest point being just above the plaintiff's property, so that the surface water flowing from these opposite directions meets just above the plaintiffs ground. A channel or drain runs along the centre of the road constructed to convey surface water only, and there being originally no outlet to this drain, any water running therein made its escape by percolation only through the adjoining soil, or by overflowing at the lowest point of the road.

Some forty or fifty years previous to this action the father of the plaintiff (then the owner of the property), at the request of the city surveyor, and on a representation by him that the channel or drain conveyed surface water only, permitted the Corporation of Cork to connect the channel or drain with a pond formed by surface water in the grounds attached to the house on which the plaintiff now resided. Some time after this connection was made the drain became offensive, and the pond used in wet weather to overflow, and on complaint being made to the Corporation by the plaintiff's father, that the overflow was caused by the surface water coming from the road, the Corporation, in order to induce the owner not to withdraw the license given by him for bringing the surface water into his property, and by his permission, dug a large pit on his lands and connected the channel or drain with the pit, causing the surface water from the road to flow into the pit instead of into the pond. The offensive condition of the drain was, in fact, caused by sewage matter being discharged into it from some houses, one of which was called Rosemount. But it was not proved that the plaintiff's father knew this.

In the year 1889 the Corporation extended the drain running along the Montenotte-road, both east and west, merely lengthening it in both directions. In 1894 the defendant Hungerford procured the Corporation to connect the drainage of some of his houses, which lay on the north side of the Montenotte-road above the plaintiff's lands, with the channel or drain in the centre of the road. This drainage had previously flowed into a cesspool on Hungerford's own property, but the change so made turned it into the pit on the plaintiff's lands. Five years later Hungerford converted some stables on his property into artizans' and labourers' dwellings, and he and the Corporation connected the drainage of these dwellings with the channel or drain, and thus turned the sewage from them also into the pit on the plaintiff's ground.

Prior to the date of these connections being made, all the houses on each side of the road were always drained into cesspools of their own, there being no public system of main drainage for the neighbourhood.

As the result of thus connecting Hungerford's houses with the pit on the plaintiff's ground through the channel or drain on the Montenotte-road, the pit overflowed, and the plaintiff's grounds were covered with sewage matter in the most offensive manner. Having failed to obtain redress by complaint to the defendant Hungerford, the plaintiff instituted this action, and applied for and obtained the interlocutory injunction above mentioned. Hungerford complied with this injunction, and had his houses disconnected with the drain on Montenotte-road.

The plaintiff's statement of claim was delivered after the proceedings had been amended by adding the Corporation as defendants. It set out the several matters above stated, and concluded with a prayer for relief, which was practically granted by the terms of the Vice-Chancellor's order.

Hungerford delivered a defence alleging that the channel or drain on Montenotte-road was a sewer within the meaning of the Public Health (Ireland) Act, 1878, vested in the Corporation as Sanitary Authority of the district, that his houses were connected therewith by the direction and with the sanction of the Corporation, and that the acts complained of were done by the direction and with the sanction of the Corporation as such Sanitary Authority.

The Corporation pleaded that they did the acts complained of by leave and license of the plaintiff, setting out various matters in support of this plea, which, however, the Court on the evidence held was not sustained: the evidence only showing license to discharge innocuous water on the plaintiff's lands, at first, and afterwards only such impurities as could be rendered innocuous by reception into the pit above mentioned, but at no time authorising the defendants to create a nuisance on the plaintiff's lands. The two defences on which the Corporation in the main relied were thus stated by them in the 10th and 12th paragraphs of their defence.

10. The said defendants further say that they are a Sanitary Authority incorporated by the statute The Cork Improvement Act, 1852, and all sewers within the said Borough are vested in them by the said Act, and the Public Health (Ireland) Act, 1878; and the said defendants say that under the provisions of the said statutes the Corporation of the said Borough were, at the time of the happening of the events and the doing of the acts in this action complained of, bound to make such sewers as might be necessary for effectually draining the said Borough for the purposes of the Public Health (Ireland) Act, and the said defendants say that the acts in the statement of claim complained of and alleged to have been done by them, the said defendants, were done by them as such Sanitary Authority acting in pursuance and by virtue of the said Acts; and the said acts were done and the said works were so executed by the said defendants with all reasonable care and skill, and said defendants will submit that by reason of the matters in this paragraph stated this action cannot be sustained.

12. As a further defence the said defendants, for the purpose of brevity and to avoid prolixity, repeat paragraph ten hereof, and they submit that plaintiff's claim for relief, if any, against them should be made under...