M'Evoy v The Great Northern Railway Company

• Jurisdiction: Ireland
• Judgment Date: 01 January 1900
• Date: 01 January 1900
• Court: King's Bench Division (Ireland)

M'Evoy

and

The Great Northern Railway Company (1.)

Q. B. Div.

Appeal.

(1898. No. 3994.)

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1900.

Easement — Watercourse — Prescription — Railway company — Claim 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 which 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

for damages caused to him by certain works on the defendant company's line at Loughhill, in county Armagh, whereby the plaintiff was deprived of the flow of a certain stream to the use of which he was entitled in connexion with his adjoining farm and dwelling house.

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 Railway Act, 1845, a railway company, subsequently incorporated with the defendant company, was empowered to construct a line past the lands in question, and for that purpose to acquire certain necessary lands; that in making the railway certain springs were opened on lands acquired by the company for the purposes of 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; (c) 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 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 river below? 5. Has the plaintiff used the water of the stream for 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 and judgment so entered, relying on the findings of the jury: or, in the alternative, for a new trial on the ground of misdirection, the rejection of legal evidence, and the refusal of the learned Judge to submit to the jury questions proper for the trial of the action.

Serjeant Dodd and Cuming, for the plaintiff:—

The findings of the jury show that the company's works, in 1849–1850, were not a mere interference with an undefined underground channel or source, or with a particular well or wells, but with an existing stream flowing on the surface of the land, for which the company caused the present stream or channel to be substituted. Cases therefore like Chasemore v. Richards (1), &c., are not in point here. The jury have further negatived the suggestion that the diversion of the water into the new channel was intended to be for the company's own temporary accommodation, or “until they should require to use the water for the purposes of the railway.” Cases therefore of which Arkwright v. Gell (2) and Wood v. Waud (3) are types, do not govern the present.

That substitution for the former watercourse (which was the subject of an undoubted right in the plaintiff) of a new permanent (though artificial) stream, as has been found by the jury, must by necessary inference have taken place—in the absence of any compensation given to those whose rights were injuriously affected—with the consent of the then occupiers of the land (including the plaintiff's predecessor). That consent implied and involved a contract between the parties that the then occupiers and their successors should have the like easement in the new watercourse that they had in the old; and the new channel must be regarded

as an accommodation work within section 16 of the Railways Clauses Act, 1845 (8 & 9 Vict. c. 20).

Would such a contract he illegal, or contrary to public policy, or ultra vires? We submit not. No doubt the railway company could not legally enter into a contract which was not in conformity with the purposes of their incorporation; no doubt it would not be competent to them to bind themselves to refrain from exercising the statutory powers given to them for certain quasi-public purposes: Ayr Harbour...