Clegg v Dearden
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1848 |
| Date | 01 January 1848 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 986
QUEENS BENCH
S. C. 17 L. J. Q. B. 233; 12 Jur. 848.
cleqg and others against deakden. 1848. The owner of a coal mine excavated .3&.B8 far as the boundary (which he was by custom entitled to do), and continued the excavation wrongfully into the neighbouring mine, leaving an aperture in the coal of that mine, through which water passed into it and did damage. Held that the party excavating was liable in trespass for breaking into the neighbouring mine, but not in an action on the case for omitting to close up the aperture on his neighbour's soil; though a continuing damage resulted from its being unclosed. And therefore that, on an issue joined upon not guilty, the facts being proved as above stated, the defendant was entitled to the verdict. Quaere, whether, under such circumstances, a legal obligation attaches on the trespasser to use means on his own land for preventing the flow of water. But, if it does, and an action is brought for not using such means, the declaration must allege the duty specifically ; and the plaintiff cannot recover on a count stating merely that the defendant wrongfully made the aperture and omitted for an unreasonable time to close it, whereby, &c. Nor can he recover at all for damage occasioned by the flow of water in consequence of the aperture remaining unclosed, if an action on the case has already been brought for making the aperture and letting in the water, which action was referred to arbitration, and the plaintiff, being made party to the reference in respect of any injury to him by any of the matters alleged in the declaration in such action, has had damages awarded and paid to him for such injury : although the damage last complained of is subsequent to the award and payment. [S. C. 17 L. J. Q. B. 233; 12 Jur. 848.] Case. The declaration stated : that defendant at the time of the committing, &c., was possessed of and entitled to a certain coal mine lying and being under certain land in the county of Lancaster, and contiguous and next adjoining to a certain other coal mine in the said county formerly in the possession and occupation of one James Starkey, but at the time of the committing, &c., and now, in the possession and occupation of the plaintiffs under a demise heretofore to [577] them thereof made by the said James Starkey : and that, while the last mentioned coal mine was in the possession arid occupation of the said J. S., to wit on 31st December, 1838, the defendant broke and entered the said last mentioned coal mine, and dug out of the same divers large quantities of coal, to wit, &c., and took and carried away the same, and thereby then made and caused a large, wide and extensive aperture and excavation into the said last mentioned coal mine from the said coal mine of the defendant: and, although defendant, after plaintiffs became possessed of the said coal mine, Sic., to wit on 1st August, 1841, was requested by plaintiffs to fill and stop up the said aperture and excavation so made by defendant as aforesaid, yet defendant, well knowing, &c., but contriving, &c., to wit on 8th August, 1841, and on divers other days, &e., and while the said coal mine was in the possession and occupation of plaintiffs as aforesaid, UQ B. B7S CI-EGG V. DEARDEN 987 wrongfully and injuriously kept and continued, and caused to be kept and continued, for a long and unreasonable time, to wit thence hitherto, the said aperture and excavation open and unfilled up, and, during all the time aforesaid, has neglected and refused, and still neglects and refuses, to fill and close up the same: whereby, and by reason of the continuing and keeping by the defendant the said aperture and excavation so open and unfilled up as aforesaid, divers large quantities of water which had gathered and collected, and were then standing, in the said coal mine of defendant next immediately adjoining to the said coal mine in the possession and occupation of plaintiffs, afterwards and after plaintiffs became possessed of the said last mentioned coal mine, to wit on the day and year last afore-[578]-saicl, burst through, and then ran and flowed from and out of, the said coal mine of the said defendant through the said aperture and excavation, in and upon, into and over the said coal mine then in the possession and occupation of plaintiffs, and inundated and greatly damaged and injured the same; and the said large quantities of water have, thence hitherto, run and flowed, and still continue to run and flow, from and out of the said coal mine of defendant, through the said aperture and excavation, in, upon, into arid over the said coal mine in the possession and occupation of plaintiffs as aforesaid : whereby, and by reason of the said large quantities of water inundating, &c., and still continuing to run, &c.; damage, that plaintiffs and their servants have been hindered from working the mine, &c., and plaintiffs have been forced to expend, and have expended, money, to wit, &c., in pumping out the water and putting the mine into a fit state for working, &e. Pleas. 1. Not guilty. Issue thereon. 2. That the causes of action did not accrue within six years. Verification. Replication, that the causes of action did accrue within, &c.: conclusion to the country. Issue thereon. 3. That the mine secondly above mentioned was not, at the time of the committing, &c., in the possession or occupation of plaintiffs, in manner, &c. : conclusion to the country. Issue thereon. 4. That defendant was not requested by plaintiffs to fill and stop up the said aperture, &c., in manner, &c. : conclusion to the country. Issue thereon. 5. That, heretofore, to wit on 16th February, a.d. 1841, one Hugh Hornby, clerk, in the Court, &c. (Exchequer), impleaded defendant in an action of trespass on the case, and therein declared that, before and at [579] the time of the committing of the grievances therein after mentioned, one James Starkey held and enjoyed a certain close, &c., called the Holmes, &c., and a certain other close, &c., parcel of the bed of the river Roach, &c., as tenant to the said Hugh Hornby, the reversion thereof in his demesne as of fee, &c. then belonging to and vesting in the said H. H.; and that defendant did, whilst the said J. S. held, &c., as tenant, &c. as aforesaid, and whilst the said reversion thereof belonged to and was vested in H. H., to wit on 1st January A.D. 1820, and on divers other, &c., wrongfully and unjustly, without the leave, &c., and against the will, of H. H., break and enter into the said closes, &c., and then made divers to wit 100 holes and 100 excavations in the strata and mines by and in the said closes, under the surface thereof, and then dug and excavated divers to wit 100,000 tons of coal and 100,000 cart loads of earth and soil from and out of the said closes in, under and below the surface thereof, and then carried away the same, and thereby caused divers, to wit two, acres of the roofs and earth, soil and coal and laud of the said two closes, immediately above, about and around the said holes and excavations, to fall in, upon, about and in the said closes, and then and thereby choaked up, damaged and spoiled divers to wit 500,000 tons of coal and 500,000 tons of earth and soil of and in the said closes, and thereby caused divers drains and water courses and quantities of water to empty themselves, run, escape and flow unto and into the said two closes under and below the surface, flooding, injuring and spoiling the coal, strata, earth and soil of the said two closes in, under and beneath the surface thereof, and thereby also then injured the said closes, and greatly [580] thereby also then weakened and undermined and rendered insecure the surface of the said closes and permanently injured the reversionary estate and interest of the said Hugh Hornby of and ill the said two closes and the mines, &c.; by reason of which, &c. (averring damage to Hornby's reversionary estate): that defendant pleaded not guilty and other pleas, and issues were thereupon joined : and such proceedings were thereupon had that afterwards, &c.: the plea then alleged that Hornby's action came on for trial at the Liverpool August Assiaes, 5 Viet.; and thereupon, by a rule then made at the said assizes with the. consent of Hornby and defendant, &c., and of Starkey, who thereby 988 CLEGG V. DBARDBN 12 Q. B. Ml. consented to become a party to the rule, it was ordered that the jury should find a verdict for Hornby, damages 10,0001., subject to be reduced, &c., or a verdict for defendant, or a nonsuit, entered, according to the award after mentioned; and that the cause, and all matters in difference between Hornby and defendant, and between Starkey and defendant, should be referred to the award, &c. (reference, in ordinary form, to a barrister): and that the persons composing a joint partnership or mining company, called the Hey wood Colliery Company, or the Captain Fold Colliery, might, if they should think fit, and certify their desire by writing, &c., become parties to the rule, as to any alleged injury to them or any of them by any of the matters alleged in the declaration. The plea then averred that the persons composing the aaid partnership, who are the now plaintiffs in this suit, certified their desire accordingly : that the arbitrator took upon him the arbitration, and made and published his award, and thereby ordered the damages to be reduced to [581] 4361. 19s. 3d., and awarded that Starkey had sustained damages by the matters in the said declaration alleged, and assessed such damages at Is., and further awarded that the said persons composing the said partnership had suffered damages in respect of certain injuries to them by the matters in the said declaration alleged, to the amount of 2041. Bs,: and he awarded that...
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