Shea v The River Bride and Kilcrea Drainage Board

• Jurisdiction: Ireland
• Judgment Date: 26 February 1880
• Date: 26 February 1880
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before O'BRIEN, FITZGERALD, and BARRY, JJ.

SHEA

and

THE RIVER BRIDE AND KILCREA DRAINAGE BOARD

Hole v. The Sittingbourne & Sheerness Railway CompanyENR 6 H. & N. 488.

Gray v. PullenENR 5 B. & S. 970.

Blake v. ThirstENR 2 H. & C. 20.

Bower v. PeateELR 1 Q. B. Div. 321.

Ellis v. Sheffield Gas CompanyENR 2 E. & B. 767.

Angus v. DaltonELR 4 Q. B. Div. 162.

Overton v. FreemanENR 11 C. B. 867.

Allen v. Hayward 7 Q. B. 960.

Knight v. FoxENR 5 Exch. 721.

Peachy v. RowlandsENR 13 C. B. 182.

Butler v. HunterENR 7 H. & N. 826.

Overton v. FreemanENR 11 C. B. 873.

Angus v. Dalton and The Commissioners of Public WorksELR 3 Q. B. Div. 85.

Angus v. DaltonELR 3 Q. B. Div. 85.

Allan v. Hayward 7 Q. B. 960.

Hole v. Sittingbourne Railway CompanyENR 6 H. & N. 486.

Nichol v. Mulkear Drainage Board 6 L. R. I. 45.

Geddis v. Bann NavigationELR 3 App. Cas. 430.

Employer and contractor — Drainage works ——

Von. VI.] Q. B., C. P., & EX. DIVISIONS. no doubt is not to be exercised until default, but a mortgagee may be, and in fact frequently is, entitled to enter into possesÂsion long before he can exercise his power of sale. The case, therefore, appears to me to raise the simple question whether a mortgagor has, without payment or tender of the amount due, an equity to restrain the mortgagee from entering into possession beÂfore default has been made in payment ; and I take it as settled law that he has no such equity, in the absence of an express or implied agreement to that effect. It was said that the allegation in the statement of claim, that considerable arrears of interest were due on the mortgage, was traversed and disproved. The answer to that objection is, that upon the construction of the mortgage deed the allegation was immaterial. Upon the whole, we are of opinion that the direction of my brother FITZGERALD was right, and. that the verdict for the PlainÂtiff must stand. FITZGERALD and DOWSE, BB., concurred. Solicitor for the Plaintiff : P. Doyle. Solicitor for the Defendant : A. IrClelland. SHEA v. THE RIVER BRIDE AND KILCREA DRAINAGE BOARD (1). Employer and contractor-Drainage works-Liability of Drainage Board for unlawful acts of contractor-Drainage Ad, 1863 (26 ty 27 Vict. c. 88). A Drainage Board, constituted under the provisions of the Drainage Act, 1863 (26 & 27 Vict. c. 88), employed a contractor to execute drainage works, consisting of the deepening of a river and the construction of a new bridge. In the execution of these works the contractor erected a temporary dam across the river, and made certain loop drains, in order to carry off the water so penned back ; but, in consequence of the insufficient dimensions of these drains, and of there being no sluice-gate in the dam, the adjacent lands, and amongst others those of the Plaintiff, were flooded and injured. The construction of the dam (1) Before O'BRIEN, FITZGERALD, and BARRY, JJ. LAW REPORTS (IRELAND). [L. R. I. and loop drains was not part of the drainage works mentioned in the plans and specifications of the Board, nor were they included in the contract ; but it was absolutely necessary for the execution of the works in the contract that the river should be temporarily dammed up, and the dam was erected with the knowledge and sanction of the Board. Held, that the Drainage Board were liable to the Plaintiff for the flooding of his lands so occasioned. Bower v. Peate (1 Q. B. Div. 321) followed and approved of. Per FITZGERALD, J. :-A Drainage Board cannot escape responsibility to those within the district by transferring the execution of works to a contractor. If they employ a contractor, they are bound to see that every reasonable preÂcaution is taken to prevent injury to local proprietors from the execution of the drainage works ; and the absence of such precaution on their part is negliÂgence, for which they are responsible. SPECIAL CASE. The facts are fully stated in the judgment of O'BRIEN, J. The Defendants were a Drainage Board, constituted under the 26 & 27 Viet. c. 88, for the drainage of the River Bride and Kilcrea district. William O'Brien, Q. C., and Lawrence, for the Plaintiff, cited Hole v. The Sittingbourne 81. Sheerness Railway Company (1); Gray v. Pullen (2) ; Blake v. Thirst (3) ; Bower v. Peate (4); Ellis v. Sheffield Gas Company (5) ; Angus v. Dalton (6). They also relied on 26 & 27 Viet. c. 88, ss. 12 and 14. O'Hagan, Q. C., and G. F. 3r, C artie , for the Defendants, contra, cited Overton v. Freeman (7) ; Allen v. Hayward (8); Knight v. Fox (9) ; Peachy v. Rowlands (10) ; Butler v. Hunter (11). Cur. adv. vult. Feb. 26. O'BRIEN, J. :- In this ease the Plaintiff sued the Defendants by civil bill to recover damages for the loss he sustained by the flooding of cerÂtain lands, to the grazing of which he was entitled (and which may be referred to as Plaintiff's lands). And he alleged that such (1) 6 H. & N. 488. (2) 5 B. & S. 970. (3) 2 H. & C. 20. (4) 1 Q. B. Div. 321. (5) 2 E. & B. 767. (6) 4 Q. B. Div. 162. (7) 11 C. B. 867. (8) 7 Q. B. 960. (9) 5 Exch. 721. (10) 13 C. B. 182. (11) 7 H. & N. 826. VOL. VI.] Q. B., C. P., & EX. DIVISIONS. 181 flooding was caused by the negligent manner in which the Defen- Q. B. Div. . 1880 dants, by themselves and their servants, executed certain works _ which they were authorised to do under the Drainage Act of 1863 SITI (26 & 27 Viet. c. 88). THE BRIDE. At the hearing of the civil bill before the Recorder of Cork, it DRAINAGE was admitted that the Plaintiff had suffered loss in consequence of BOARD. said lands having been flooded by water from certain drains which the contractor (employed by the Defendants) had made in the course of executing certain works connected with the drainage of River Bride and Kilcrea district. And it was also admitted that the sum of £15 was a fair compensation for such loss. The DeÂfendants, however, contended that (upon legal grounds) the Defendants were not liable for such loss and damage, but that the contractor employed by them to execute said drainage works was alone liable for same. The Recorder, on the facts before him, gave Plaintiff a decree for £15, from which decree the Defendants appealed, and the appeal was heard before Mr. Justice Lawson at the last Spring Assizes for Cork. On the hearing of said appeal it was stated by Defendants' counsel that several other persons had also suffered loss, in consequence of their lands having been flooded during the execution of said works, but that they deferred proÂceedings until the result of the present civil bill should be ascerÂtained, as those other cases would involve a similar question of law. Under these circumstances, it was suggested by Judge Lawson that a Special Case should be stated for the opinion of one of the Courts of Common Law, and that the counsel on both sides who had heard the evidence given before the Recorder should furnish a statement Of the facts of the case. This suggestion was agreed to, and the present Special Case was accordingly prepared, the legal question for consideration being, whether, upon the facts stated in the Special Case, the Drainage Board are liable for the loss and damage caused to the Plaintiff by reason of his lands having been flooded in manner therein mentioned. The Special Case states the constitution of the drainage district-the appointment of the Drainage Board-and certain articles of June, 1876, whereby the Board appointed Mr. Walsh as their contractor, to execute, in a proper and workmanlike manner (to the satisfaction of their engineer) the several works particularised LAW REPORTS (IRELAND). [L. R. I. in certain specifications and plans therein...