Wallace v M'Cartan

• Jurisdiction: Ireland
• Judge: Barton J.
• Judgment Date: 16 May 1917
• Court: Chancery Division (Ireland)
• Docket Number: (1916. No. 741.)
• Date: 16 May 1917

Wallace

and

M'Cartan.

Barton J.

(1916. No. 741.)

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.

1917.

Nuisance — Sewer — Sewage — Stream — Unreasonable and negligent exercise of Statutory Power.

The plaintiff was owner and occupier of pasture and meadow lands, which adjoined S. Street, in the outskirts of the town of D. A stream passed under S. Street into plaintiff's lands, and was the watering-place for his cattle. Defendant was the owner of some old houses in S. Street. They had no w.c. accommodation; but the surface-water from their yards was carried into a surface-water roadside drain which flowed into the stream before it entered plaintiff's lands. This drain was held to be a “sewer” within the meaning of the Public Health Acts, but it was admitted that it was unfit for carrying fæcal sewage, and that it would be insanitary and improper to use it for that purpose. The defendant built on the site of the old houses four new houses with w.c. accommodation. The defendant was a member of the local sanitary committee which was appointed to advise the sanitary authority upon sanitary questions. In that capacity he joined in advising the sanitary authority that there was no “main-sewer in S. Street,” and that it was absolutely necessary to construct a new sewer for the drainage of defendant's house. The sanitary authority invited tenders for a new sewer, but did not proceed with the work. The defendant did not resort to his statutory remedy of complaint to the Local Government Board, but proceeded to connect his new w.c.'s with the surface-water sewer, and to let his houses to tenants. The necessary and obvious result of his doing so was that the fæcal sewage, within four minutes of leaving his premises, passed through the surface-water sewer into the plaintiff's stream and pasture lands, and caused a serious and injurious nuisance. The defendant claimed an absolute right to cause his house-drains to empty into any sewer of the sanitary authority regardless of the consequences to third parties.

Held, that the defendant had exercised his statutory right of causing his drains to empty into the sewer of the sanitary authority in an unreasonable and negligent manner, and without haying reasonable regard to the rights of third parties; and that he should be restrained by injunction from discharging faecal sewage into the surface-water sewer so as to cause it to flow or pass into plaintiff's land, and so as to pollute plaintiff's stream.

Trial of Action.

The action was brought claiming an injunction and damages in respect of trespass and nuisance by the defendant by the discharge of fæcal sewage into the plaintiff's stream, and upon the plaintiff's meadows and pasture lands.

The material portions of the statement of claim were as follows:—

1. The plaintiff is the owner of certain pasture lands situate on the west side of Stream Street, Downpatrick, in the County of Down, through which there runs a natural stream, and is entitled to the flow of the stream through his land, pure and unpolluted, for the watering of cattle, and for other purposes.

2. The defendant is the owner of certain lands on the east side of Stream Street, separated by the County Road from the pasture lands of the plaintiff.

3. The defendant recently built on his lands four dwelling-houses with water-closets, and connected the drains of the water-closets with a surface-channel or drain which runs under the street, and is used for the purpose of conveying surface water only into the stream.

4. The houses of the defendant have been let to tenants by the defendant, and since the date of the lettings the tenants have discharged all the sewage of the houses and other foul and impure matter into or through the surface channel or drain and thence into the stream, which thereby became polluted and foul, rendering it unfit for watering cattle.

The plaintiff claimed an injunction and damages.

The defendant by his defence denied the averments of the plaintiff, and alleged that the plaintiff's stream was foul and polluted, and a sewer within the meaning of the Public Health (Ireland) Acts, and that the surface channel or drain was also a sewer within the meaning of the said Acts, and that any of the acts complained of were done under and in pursuance of the statutory authority in that behalf conferred on him by the said Acts.

The following statement of facts is taken from the judgment of Barton J.:—

The plaintiff was the owner and occupier of valuable meadow and pasture lands which adjoined a road or street called Stream Street, in the outskirts of the town of Downpatrick. A natural stream flowed under and across the road, and thence into plaintiff's lands, where it constituted the watering-stream for his cattle. Before entering plaintiff's lands it constituted a public watering-place on the roadside, used by the inhabitants for watering their cattle. It was part of the defendant's case that this stream had become a sewer; but it was held by the Court, on the evidence, that this was not so. The defendant was the owner of some old houses in Stream Street, which had no w.c.'s or other sanitary accommodation. The surface-water from the yard of these houses was carried into a roadside drain, which ran along Stream Street, and flowed into the stream just before it entered plaintiff's land. It was held by the Court that this roadside drain was technically “a sewer” within the meaning of the Public Health Acts, because it carried away the surface-water of several premises. But it was admitted by defendant's witnesses that it was not made, or intended, or fit, for carrying away more than surface-water, and that it would be “insanitary and improper” to use it for carrying fæcal sewage.

The defendant in 1914 built, on the site of the old houses, four new houses with w.c. accommodation. He employed Mr. Nolan, C.E., the architect and engineer to the local sanitary authority, as his architect and engineer. The defendant was a member of the Downpatrick Sanitary Committee, which was appointed by the local sanitary authority to advise them on sanitary affairs. Mr. Nolan, who was superintending the building of defendant's houses, reported to the local sanitary authority that these new houses had been built with a w.c. attached to each house. He added, “I am aware that there is no main sewer in Stream Street, and would suggest that the local sanitary committee be asked to report on the question of providing a new sewer.” The matter was referred to the sanitary committee, which met on February 14th, and had before them Mr. Nolan's report, and a letter from him suggesting to them to consider, and to report upon, the question of providing a new sewer at Stream Street. The defendant was present at the meeting of the sanitary committee, at which a sub-committee was appointed to visit the locus in quo and to report. The sub-committee visited the place with Mr. Nolan. The defendant was present. On the following day the sanitary committee met, the defendant being present. The report of the sub-committee was received and considered. It was to the effect that a new sewer in Stream Street for the drainage of the new houses was “absolutely necessary and should be made.” This report was adopted by the sanitary committee, and was forwarded by them to the sanitary authority. The sanitary authority adopted the report, and instructed Mr. Nolan to prepare specifications and to invite tenders for...