The Birr (No. 1) Rural District Council v The Birr Urban District Council

• Jurisdiction: Ireland
• Judgment Date: 21 July 1915
• Date: 21 July 1915
• Court: Chancery Division (Ireland)

The Birr (No. 1) Rural District Council

and

The Birr Urban District Council.

M. R.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1915.

Local Government — District Council — Sanitary Authority — Water Supply Supply and Sale of Water to Persons in Adjoining District — Injunction — Consent — Acquiescence — Infringement of Statutory Right — No Special Damage — Right of Action of Party aggrieved — Injunction which would prevent Supply of Water to Troops — Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52), ss. 61, 71 — Public Health (Ireland) Act, 1896 (59 & 60 Vict. c. 54), s. 2.

By sect. 61 of the Public Health (Ireland) Act, 1878, an urban or rural sanitary authority may provide its district with a supply of water for public purposes, and for such purposes may construct and maintain waterworks, and may contract with any person for a supply of water. By sect. 2 of the Public Health (Ireland) Act, 1896, any sanitary authority may, with the consent of the sanitary authority of any adjoining district, supply and sell water to any person in an adjoining district.

The defendants, an urban sanitary authority, had constructed waterworks for the supply of their district, and in the year 1907 they entered into a contract with the Secretary for War for the supply of water to military barracks in an adjoining district of which the plaintiffs were the rural sanitary authority. No formal consent, under seal, to this had been given by the plaintiffs, but they had full notice of the defendants' intention to supply the water to the barracks, and acquiesced in its being supplied, on the faith of which acquiescence the defendants incurred expenditure. The plaintiffs now brought an action claiming an injunction to restrain the defendants from supplying water to persons within the plaintiffs' district without the consent of the plaintiffs.

Held, that the effect of the Public Health (Ireland) Acts, 1878 and 1896, is to give to each sanitary authority a monopoly in the supply of water to its own district, and that the violation of this monopoly by another sanitary authority is actionable without proof of special damage.

But held, that in the present case there was acquiescence by the plaintiffs amounting to consent, and that, therefore, the action was not sustainable.

Held, also, that even if the action had not been unsustainable on this ground, the Court would not, under present circumstances, grant an injunction which would have the effect of depriving His Majesty's troops of a good and wholesome supply of water.

Trial of Action.

The following statement of facts is taken from the judgment of the Master of the Rolls:—

“The plaintiffs in this action are the Birr (No. 1) Rural District Council, and they claim an injunction against the defendants, who are the Birr Urban District Council, restraining them from supplying water to any person or persons within the district of the plaintiffs without their consent.

Both parties are the respective sanitary authorities of their respective districts, which are adjoining.

In the year 1906, the defendants, for the purpose of supplying their district with water, obtained a Provisional Order enabling them to put in force the powers of the Lands Clauses Acts, as amended by sect. 8 of the Public Health (Ireland) Act, 1896, with reference to the purchase and taking of lands otherwise than by agreement, and this Provisional Order was confirmed by Act of Parliament.

Under this Act the defendants, as they were entitled to do, acquired some land at a place called Ballyshane, within the plaintiffs' district, where they constructed works in connexion with the source of supply, and laid therefrom water-mains through the plaintiffs' district to a reservoir within the defendants' district, from which water is distributed. This was done in accordance with the statutory powers vested in the defendants, and it is not contended that they so far acted illegally.

The plaintiffs have not constructed any waterworks for their district.

There are military barracks situate at some distance outside the boundary of the urban district, and within the plaintiffs' district, and there being great need of water for the troops quartered there, the Secretary of State for War entered into an agreement, dated the 30th November, 1907, for the supply of water to the barracks in consideration of certain payments. The term for which this agreement was to run was fifteen years. In order to give the supply to the military barracks, the defendants constructed a special main from their reservoir within their district to the barracks. This main runs partly through the defendants' district and partly through the plaintiffs' district.

The evidence proved conclusively that the plaintiffs had full notice of the intention of the defendants to supply water to the barracks, and acquiesced in it. In the first place, the deposited plans showed the line of the main to the barracks from the reservoir, and the statutory notices were advertised and served on the plaintiffs' clerk. Apart...