Hanks v Cribbin and Others

• Jurisdiction: Ireland
• Judgment Date: 29 April 1857
• Date: 29 April 1857
• Court: Court of Common Pleas (Ireland)

Common Pleas.

HANKS

and

CRIBBIN and others.

Yard v. Ford 2 Wms. Saund., note 2.

Fenwick v. ReadENR 5 B. & Al. 232.

Daniel v. North 11 E. 370.

Regina v. Bliss 7 Ad. & Ell. 550.

Wood v. VealENR 5 B. & Al. 454; S. C., 1 Dowl. & Ryl. 20.

Davis v. Stephens 7 Car. & Pay. 570.

Gray v. Bond 5 Moo. 527; S. C., 2 Bro. & Bing. 667.

Rex v. BarrENR 4 Camp. 16.

Hillary v. Waller 12 Ves. 266.

Howard v. WrightENR 1 Sim. & Stu. 190.

Bulston v. BenstedENR 1 Camp. 463.

Mason v. HillENR 5 B. & Ad. 1.

Davis v. Stephens 7 Car. & Pay. 570.

Tucker v. Newman 11 Ad. & Ell. 40.

Gray v. Bond Supra.

Cross v. Lewis 2 B. & Cr. 686.

Harper v. Charlesworth 4 B. & Cr. 574.

Rex v. Barr Supra.

Finch v. Resbridger 2 Ver. 396.

Bain v. The Whitehaven & Furness Railway Co. 3 H. Lds. 16.

Daniel v. North 11 E. 392.

Wood v. VealENR 5 B. & Al. 454.

Davis v. Stephens 7 C. P. 570.

Gray v. BondENR 2 Brod. & Bing. 667.

COMMON LAW REPORTS. 489 E. T. 1857. Common Pleas. HANKS v. CRIBBIN and others. (Common Pleas.) April28, 29. Tuts was an action brought by the plaintiff, who was a mill-owner, A millrace had been made against the defendants, for diverting the supply of water from his about forty years before mill. the present action, leading The defendant Peter Cribbin, upon whose defence the question to the mill of the plaintiff, before the Court was raised, pleaded that the stream in the sum- from an an- cient water- mons and plaint mentioned had been wrongfully brought through course through his land in a new channel, different from that in which it had which the mill had been pre- originally flowed, by means of a cut leading from the old channel, - viously suppli ed. The lands above the place where the act complained of had been done by the through which the cut defendants ; and that from an accumulation of gravel and weeds in was made had been demised the original channel, the water had been wrongfully continued in under freehold leases, by the the new cut, and had thereby flooded and injured the defendant's owner of the inheritance, in lands, who did therefore sink the original channel of the stream, , b hi 1746, and representatives for the purpose of preventing such injury. He also pleaded that representay tive,s in , t the the old stream was an ancient watercourse, which ought of right same796pero son, to flow at a certain level ; but that from an accumulation of mud, in pursuance of a covenant . gravel and weeds, its level had been raised, and that the water for renewal in the former flowed over the defendant's lands, thereby injuring them; to prevent lease. The lessee died in 1841, and in 1843 a lease of the lands in question was made for twenty-one years to the defendant, by the heir-at-law of the lessor in the lease of 1796. At the time of the making of the new cut, the lands were in the occupation of a sub-tenant, under the lease of 1796, to whose possession the defendant succeeded. The water had flowed continuously in the new cut, from the time of its being made, up to the time of the interference of the defendant; but within the preceding six years an artificial dam, made for supplying the new cut, had been frequently removed by the occupying tenants. -Held (in an action for diverting the water in the new cut, the issue in which was, whether it was wrongfully flowing in that cut), that the question to be left to the jury upon these facts was, whether these acts (viz., the making of the new cut), were done with the knowledge and assent of the owner in fee ; and, if so, whether it was such knowledge and assent as that a grant by deed might be presumed? held also, that the presumption of such a grant was necessary, in order to entitle the plaintiff to a verdict. • Held also, that there was evidence to go to the jury, of such knowledge and assent on the part of the inheritor. A party objecting to a Judge's charge must state specifically the question which he requires the Judge to leave to the jury. VOL. 7. 62 L 490 COMMON LAW- REPORTS. E. T. 1857. the continuance of which, the defendant had sunk the bed of the CommonPleas. ancient stream to its original depth. The issue material to the HANKS present case was, whether the water in the new channel mentioned v. CRIBBIN. in the defence was wrongfully flowing through the defendant's land at the time of the committing of the alleged grievances ? This case came on for trial before the CHIEF JUSTICE of the Court of Common Pleas, at the Nisi Prius Sittings after last Michaelmas Term ; and the fact that the defendants had sunk the bed of the old channel, below the place where the new cut had been made, and thereby diminished the volume of water in the latter channel, having been proved, the defendant Cribbin, in support of the affirmative upon the above issue, read in evidence an indenture of lease of the 13th of June 1746, whereby James Earl of Kildare did demise to one Paul Steele the lands now in the occupation of the defendant Peter Cribbin (and through which the new cut had been made), for the lives of Paul, "William and John Steele, and the survivor of them, with a covenant for a new lease of one life upon the expiration of the lease then granted. Another lease was also given in evidence, bearing date the 3rd of June 1796, and made between William Robert Duke of Leinster and Robert Steele, whereby, after a recital that the three cestui que vies in the lease of 1746 were dead, the lands in question were demised to Robert Steele for his own life. Robert Steele died in the year 1841, up to which time the rents had been received by one James Moody, an agent of the lessees, from the occupying tenants, out of which he paid the rent reserved in the above...