M'Glone v Smith

• Jurisdiction: Ireland
• Judgment Date: 21 June 1888
• Docket Number: (1887—H. No.67.)
• Date: 21 June 1888
• Court: Exchequer (Ireland)

Ex. Div.

(1887H. No.67.)

M'GLONE

and

SMITH

Flitters v. AllfreyELR L.R. 10 C. P. 29.

Outram v. MorewoodENR 3 East. 346.

Nelson v. Couch 15 C. B. (N.S.) 99

Bickett v. Morris L. R. 1 Sco. App. 47.

Wood v. WaudENR 3 Ex. 748.

Mason v. HillENR 3 B. & Ad. 304; 5B. & Ad. 1.

William v. MorlandENR 2 B. & C. 910.

Embrey v. OwenENR 6 Ex. 353.

Routledge v. HislopENR 2 E. & E. 549.

Wright v. HowardENR 1 Sim. & St. 190.

Chasemore v. Richards 7 H. L. Cas. 349.

Liggins v. IngeENR 7 Bing. 682.

Water rights Riparian owners Obstruction Injuria sine damno County Court Dismiss Estoppel.

Vol,. XVII.] Q. B. & EL DIVISIONS. M'GLONE v. SMITH. ' (1887-H. No. 67.) Water rights-Riparian owners-Obstruction-Injazia sine damno-County Court-Dismiss-Estoppel. In an action for wrongfully obstructing the flow of a certain river by increasing the height of a weir, whereby the plaintiff's lands, abutting on the river, were flooded, the Judge at the trial instructed the jury that if the effect of the acts complained of was to raise the water of the river as it flowed past the plaintiff's land above the height at which it ought of right to have flowed, such raising would be an actionable wrong, and would entitle the plaintiff to a finding in his favour with nominal damages, and declined to direct the jury that actual damage was essential to maintain the action : Held, that the learned Judge's direction was right. Williams v. Morland (2 B. & C. 910) overruled. The dismiss by a County Court Judge of an action brought under the jurisÂÂdiction as to questions of title is not an estoppel, unless it be alleged in the civil bill, and proved at the hearing, that the annual value of the land in question is within the statutable limit. MOTION on behalf of the plaintiff for liberty to enter judgment. The action was brought by the plaintiff to recover 200 damages for wrongfully obstructing the flow of the river Callan, in the county Monaghan, and thereby causing the plaintiff's lands, abutting on the river, to be flooded, and ,the said lands and the crops thereon to be injured. The defendant delivered his defence traversing the several allegations" in the statement of claim, and pleaded (par. 6) he was possessed of a mill, the occupiers of which had, for 20 years before action brought, enjoyed, as of right, and without interruption, the right of diverting and using the water of the river for working the mill, as to the said mill appertaining, and the alleged grievances were a user of the said right. Par. 7 repeated the allegations in par. 6, substituting " 40 years" for " 20 years"; par. 8 repeated the allegations in paragraph 6 by substituting " penning back and using" for the words "diverting Ex. Div. and using" ; par. 9 repeated the allegations in par. 8 by substiÂÂ1888. tuting "40 years" for "20 years " ; par. 10 alleged that W. F. M'GLoNi, Cardwell was seised in fee of a mill, and that he and all whose SMITH. estate he had therein, from time immemorial, enjoyed the right of penning back, by a weir, the said water, and of diverting and using same for working the mill, and for repairing and maintaining the said weir for the purposes aforesaid, and that the said. W. F. Cardwell, being so seised before the accrual of the causes of action, demised the said mill, with its appurtenances, unto the defendant, to hold the same from year to year, so long as the said W. F. Cardwell and the defendant pleased, and by virtue of which demise, and before the said. accrual, as aforesaid, the defendant entered into possession thereof, and so continued therein, and was entitled to the said rights, and the alleged grievances respectively were users of the said rights ; par. 11 alleged, that at the time of the service of a civil-bill process (hereinafter mentioned) he resided, and still continued to reside, and the lands and river \ ere situate in the Civil Bill Division of Armagh, and county of Armagh; and Neal KG-lone caused him to be served with a civil-bill process, to appear before the County Court Judge for said county, sitting at Armagh for the said county and division, on the 25th October, 1880 (which Court had jurisdiction to determine the said claim), for 50 damages for loss, by reason of the defendant having obÂÂstructed the water of the same river at Tullyelmer, whereby the said lands of Lurgyvallen were flooded and injured, and the crops thereon destroyed, and the said N. APC+lone, having caused said process to be duly entered for hearing, the said complaint was heard, and the said County Court Judge dismissed same on the merits, whereupon the said County Court Judge, on the 25th October, 1880, duly signed the said dismiss and awarded the costs thereof against the said N. M'Glone, and the said dismiss still remains in full force, and unreversed, and no appeal was taken therefrom, and after the granting of same, and before action brought, all the estate of the said N. M'Glone became and, during all the time referred to in the statement of claim, was vested in the plaintiff, and that the acts complained of were the maintenance of the obstruction in the civil bill and dismiss complained of, and the grievances therein complained of were, and continued to be, °ma VoL. XXII.] Q. B. & EX. DIVISIONS. 561 sioned thereby, and not otherwise, and that the causes of action in Ex. Div. the said civil-bill process were the same as in the statement of claim 1888. alleged, and prayed judgment that the present plaintiff ought not, 11,GLoxE v. against the said dismiss on the merits, be allowed to say that the SMITH. defendant penned back the said waters, or flooded or damaged the plaintiff's lands, or the crops thereon, or did the other acts comÂÂplained of, or that the plaintiff suffered any of the damage in this action complained of ; and par. 12, by counterclaim, pleaded that the plaintiff wrongfully diverted the flow of the said waters to the said mill, and diminished the said flow, in consequence of which he (defendant) was unable to work the said mill, and he claimed 200 damages and an injunction. The plaintiff delivered his reply, whereby he joined issue on the defence, and traversed the allegations in the defence, save those concerning the civil-bill dismiss, and pleaded (par. 5) that, at the time of the service of the civil-bill process therein mentioned, he resided, and still continued to reside, and the said lands and river in said process mentioned were situate in the Civil Bill Division of Armagh, and county of Armagh, and before this action said defendant caused him to be duly served with a civil-bill process to appear before the County Court Judge of said county, at Armagh, at the sittings of said Court, on the 6th June, 1887, then being a Court duly constituted, and having jurisdiction to hear and determine the same, to answer the defendant's claim for 20 for...