M'Evoy v The Great Northern Railway Company

JurisdictionIreland
CourtKing's Bench Division (Ireland)
Date01 January 1900

M'Evoy
and

The Great Northern Railway Company

Vol. II.] QUEEN'S BENCH DIVISION. 325 M'EVOY v. THE GREAT NORTHERN RAILWAY Q. s. Eh. COMPANY (1.) ]898- Nov 14, 15. (1898. No. 3994.) .-, v ' Appeal. EasementWatercourse PrescriptionEailway companyClaim to the' enjoyment of water flowing in an artificial channel along a railway company's permanent way. Prior to 1849 the plaintiff's predecessors had enjoyed the right to take water from a natural stream flowing near their holding. In 1849, the defendant railway company, in the course of the construction of their line, interfered with or tapped the subterraneous sources of this stream whioh ceased thenceforward to flow, the water that had supplied it finding its way to the surface at a cutting on the company's line. This water the company conveyed along and away from their line in a new artificial channel. The water of this new stream was not until 1898 used by nor was it of any use to the company. In 1898 the company commenced to make use of this water supply for their own purposes, and the plaintiff, who had been taking the water thereof since 1849 for domestic purposes, brought an action for disturbance of a prescriptive right. The jury found that the new stream was substituted for the old, and that the company had not constructed the new channel until they should require to use the water for their own purposes. On new trial motion: Held, that this new artificial watercourse being made for the benefit of the company on the company's own land, no enjoyment of the water thereof while the water was of no use to the company could create a prescriptive right in the plaintiff; and, further, that the existence of such a right would be inconsistent with the purposes of the incorporation of the company, and with the obligations of the company to provide for the security of their permanent way and the safety of the publio; and that, the new artificial stream not being the same as the stream formerly in existence, no contract in regard thereto, as an "accommodation work" within section 16 of the Railway Clauses Act, 1845, could be presumed. New Trial Motion. This action, which was tried before Mr. Justice Johnson and a common jury in Trinity Sittings, 1898, was brought by the plaintiff 1899. Jan. 26. (1) Before Paixes, C.B., and O'Beien and Gibson, JJ. 326 THE IRISH REPORTS. [1900. q. b. Div. for damages caused to him by certain works on the defendant 1898. company's line at Loughhill, in county Armagh, whereby the M'^V0T plaintiff was deprived of the flow of a certain stream to the use of Gr. Nobthn. which he was entitled in connexion with his adjoining farm and Railway Co. dwemng houge The facts, so far as material for the purposes of this report, may be taken to be as follows. Prior to the construction, in 1849-50, of the defendant company's line, a certain natural stream, one of the main sources of which was a large spring (the " Glory well") on adjoining lands, flowed past the holding now in the occupation of the plaintiff; and the plaintiff's predecessor, and other neighbouring occupiers, then used the water of this stream as of right. In 1849-50, in the course of the construction of the railway line, a " cutting," some 30 feet deep in parts, was made, in pursuance of the company's statutory powers, at some short distance from this well or spring. The well dried up, and the water that used to issue therefrom thenceforth found its way, through the porous rock at the side of the cutting, to the surface, and then flowed, along an artificial channel, made by the company at one side of the permanent way, past the plaintiff's holding. From 1849, onwards, the plaintiff's predecessor and the plaintiff, and other adjoining occupiers, made use of this new stream for all purposes for which the former stream had been used by them. The defendant company did not, until 1897, require the flow of water for any purposes of their own, their sole concern being to get rid of the water, as being a possible source of danger to the line, and to conduct it away, along the channel they had made, into a larger stream at some distance. This channel was throughout within the company's limits of deviation. In the year 1897 the company, in order to obviate the necessity of procuring water at heavy rates from the Dundalk Commissioners, commenced to make use of the water flowing in this channel, thereby depriving the plaintiff of its enjoyment. The defendants pleaded (besides traverses) that, having occasion to procure a water supply for their station at Dundalk, they procured same from springs on their own lands, constructing expensive works for that object, and that the plaintiff acquiesced in and consented to what was done by them; that, further, by the Dublin and Belfast Junction Eailway Vol. II.] QUEEN'S BENCH DIVISION. 327 Act, 1845, a railway company, subsequently incorporated with. Q. B. Div. the defendant company, was empowered to construct a line past 1898, the lands in question, and for that purpose to acquire certain ^^voi necessary lands; that in making the railway certain springs were Gt. Norths. opened on lands acquired by the company for the purposes of ^AY * their undertaking; that the waters of these springs, not being immediately required for the undertaking, were conveyed in a channel made for that purpose on the lands of the company to a lower main stream, so as to get rid of such water for the convenience of the railway until required for the use of the railway; and that the defendants, having acquired said railway, required the use of such water and diverted it accordingly. The learned Judge at the trial directed a verdict for the defendants, but, in order that the Divisional Court might have before them the findings of the jury on the matters of fact in issue, left three questions to the jury, which they answered as follows:1. Prior to the making of the railway there was a stream, running on or near the line of the present stream, which supplied the plaintiff, and other adjoining occupiers, with water for their farms. 2. The present stream was substituted for the old stream. 3. The railway company did not construct the trench and convey into it the water off their permanent way until they should require to use the water for the purposes of the railway. Defendants' counsel had asked for a direction on the grounds (a) that the alleged interference was merely interference with artificial water on the company's own land flowing in a channel made by the defendant company for their own purposes merely ; (b) that the interference in 1849-1850 gave no right of action, but a claim at most to compensation; (e) that the railway company, having made their line and constructed this channel within their limits of deviation, became and were absolute owners of the flow of water in such channel; and (d) that the plaintiff could not acquire any of the company's property by prescription against the company. Counsel for the defendants objected to any question being left to the jury ; and both parties objected to the third question. The plaintiff's counsel asked that the following further questions should be left to the jury, but the learned Judge 328 THE IUISH KEPOLITS. [1900. Q. B. Div. declined to do so. 4. Was the present drain made as a permanent drain to carry water from the railway past plaintiff's lands to the M Evoi river below ? 5. Has the plaintiff used the water of the stream for Gt. Noethn. the purposes of his farm since it was made by the company ? The learned Judge directed verdict and judgment for the defendants, with costs, staying execution. The plaintiff moved to change the verdict...

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4 cases
  • R (Newhaven Port & Properties Ltd) v East Sussex County Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 March 2013
    ...into the Commons Act 2006 the qualification for which he contended. 26 Mr George also referred to the Irish case of M'Evoy v The Great Northern Railway Company [1900] 2 IR 325, which concerned a claimed prescriptive right to take water from an artificial watercourse constructed by a railway......
  • R (NHS Property Services Ltd) v Surrey County Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 13 July 2016
    ...where the user founded on would be incompatible with those purposes. That approach is also consistent with the Irish case, McEvoy v Great Northern Railway Co [1900] 2 IR 325, (Pales CB at 334–336) which proceeded on the basis that the acquisition of an easement by prescription did not requi......
  • R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs
    • United Kingdom
    • Supreme Court
    • 11 December 2019
    ...where the user founded on would be incompatible with those purposes. That approach is also consistent with the Irish case, McEvoy v Great Northern Railway Co [1900] 2 IR 325, (Palles CB at pp 334–336), which proceeded on the basis that the acquisition of an easement by prescription did not......
  • R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council
    • United Kingdom
    • Supreme Court
    • 25 February 2015
    ...on would be incompatible with those purposes. That approach is also consistent with the Irish case, McEvoy v Great Northern Railway Co [1900] 2 IR 325, (Palles CB at 334–336) which proceeded on the basis that the acquisition of an easement by prescription did not require a presumption of gr......

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