Coe against Wise, Clerk to the Middle Level Drainage Commissioners
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 1864 |
| Date | 24 May 1864 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 894
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Reversed, in Exchequer Chamber, L. B. 1 Q. B. 711; 7 B.& S. 831; 37 L. J. Q. B. 262; 14 L. T, 891; 14 W. R. 865 observations adopted, Mersey Docks v. Gibbs, 1866, L. R. H. L. 107; 11 H. L. C. 707. Followed, Worral Waterworks Company v. Lloyd, 1866, L. E. 1 C. P. 721. Applied, Birch v. St. Marylebone Vestry, 1869, 20 L. T. 701. Eeferred to, Gibraltar Sanitary Commissioners v. Orfila, 1890, 15 App. Cas. 408. Jersey v. Uxbridge Sanitary Authority, [1891] 3 Ch. 191. Applied, Wheeler
[439] cases argued and determined in the queen's bench, 1t\ rt 3?^. in trinity term, XXVII. victoria. 3-Ji' _/3.fALf', The Judges who usually sat in Bane in this term were:-Cockburn C.J., Cromptou J., Blackburn J., Shee J. [440] coe against wise, Clerk to the Middle Level Drainage Commissioners. Tuesday May 24th, 1864.-Public body. Negligence. Agent. Damage. Middle Level Drainage Commissioners.-The Middle Level Drainage Commissioners were empowered and directed by statute to make a cut, atid make and maintain at or near its opening a sluice to exclude the tidal waters. They were trustees for a public purpose, and acting without reward. The sluice was properly made, but owing to the absence of due care and skill in the persons employed by them to maintain it, the sluice burst, whereby the tidal waters came in and flooded the neighbouring lands. There was no proof that the Commisaioners had negligently or improperly employed unskilful or incompetent agents. Held, that the Commissioners were not liable to an action at the suit of the owners of the neighbouring lands: per Coekburn C. J. and Mellor J., dissentiente Blackburn J. [Reversed, in Exchequer Chamber, L. B. 1 Q. B. 711 ; 7 B. & S. 831; 37 L. J. Q. B. 262; 14 L. T, 891; 14 W. E. 865. Observations adopted, Mersey Docks v, Gibbs, 1866, L. E. 1 H. L. 107; 11 H. L. C. 707, Followed, Worral Waterworks Company v. Lloyd, 1866, L. E. 1 C. P. 721. Applied, Birch v. St. Marylebme Vestry, 1869, 20 L. T. 701. Eeferred to, Gibraltar Sanitary Commissioners v. Orjila, 1890, 15 App. Cas. 408. Jersey v. Uxbridge Sanitary Authority, [1891] 3 Ch. 191. Applied, Wheeler SB. ft S. 441. COB V. WISE 895 v. Public Works Commissioners, [1903] 2 Ir. E. 226. See Tozeland v. West Ham Union, [1907] 1 K. B. 928.] This was an action against the defendant, as clerk to the Drainage Commissioners for carrying into execution stat. 7 & 8 Viet. c. cvi., for improving the drainage and navigation of The Middle Level of the Fens. The declaration, dated the 24th October, 1862, alleged that the plaintiff was possessed of lands in the parishes of Tilney All Saints, Tilney cum Islington and Tilney St. Laurence, in the county of Norfolk, within a certain district called Marshland Fen, and that by the said Act it was enacted that the Drainage Commissioners should make and maintain a cut for conveying the water from the Middle Level into the river Ouse, and which cut should commence at the sixteen feet river, about half a mile above the lower end of the said river, and should terminate at the river Ouse, southward of a sluice called The Marshland New Sluice, atid the bottom of the cut at the lower end thereof should not be less than fifty feet in width, nor less than three feet below the datum line of the several plans and sections of the cut deposited with the clerks of the peace of the counties of Norfolk, Cambridge, Huntingdon and the Isle of Ely; and [441] the sides of the cut should be made with gradient and proper slopes from the bottom thereof to the surface of the land, and the Drainage Commissioners should also, where necessary, make and maintain in a substantial manner, a bank on each side of the cut, with front and back forelands thereto; and each of the banks should be constructed with a good and sufficient puddle clay wall in or near the centre thereof, of a proper depth, width, height and dimensions, and bo as effectually to defend the lands lying on each side of the drain from the passage of the water through the bank at all times, and the puddle wall and banks should be so formed and maintained as effectually to prevent the water of the cut from passing over or making through the same into any of the adjoining lands; and that by the said Act it was further enacted that the Drainage Commissioners should make and maintain a good and substantial sluica of brick and stone at or near the entrance of the cut into the river Ouae, with two or three openings, the waterways of which should not altogether be less than fifty feet, and with doors to each of the openings of sufficient height to exclude the tidal waters, and the sill sluice should be placed not less than six feet below the aforesaid datura line in the Act mentioned ; and that after the passing of the said Act the Drainage Commissioners did make a cut for the purpose aforesaid, commencing and terminating as by the Act is directed (to wit) in and through Marshland Fen aforesaid, and did also make a sluice of brick and stone at or near the entrance of the said cut into the river Ouse : Yet the Drainage Commissioners so carelessly, negligently, unskilfully, and wrongfully conducted themselves in and about making and maintaining the cut, banks and walls thereof, and in and about making and maintaining [442] the said sluice good and substantial, that by means of such their careless, negligent, unskilful, wrongful arid improper conduct the tidal waters burst, ran and broke through the sluice and into the cut, and broke down and passed over and through the banks of the cut into Marshland Fen and overflowed and submerged the same aud the lands of the plaintiff; and by reason of the premises the plaintiff, who then was seised in his demesne as of fee in certain part of the lands, and possessed for an unexpired term of years of certain other part of the lands, not only was and for a long space of time would be expelled from and deprived of the use of his lands, but certain crops then on the lands were destroyed, and the plaintiff lost the gains which otherwise he would have made of the same, and also by reason of the premises the lands of the plaintiff became saturated with the waters of the sea, and made unfit for bearing crops, and the fertility of the same has been destroyed : claim, 40001. Fleas. First. That the Drainage Commissioners were not guilty. Second. That the plaintiff was not seised or possessed as alleged. Issue on both pleas. On the trial, before Erie C.J., at the Norfolk Spring Assizes of 1863, the following facts were proved. The defendants, the Middle Level Drainage Commissioners, were constituted by stat. 50 G. 3, c. 125 (local and personal), and 7 & 8 Viet. c. cvi. The cut and sluice mentioned in the declaration, and directed to be made by the 137th and 138th sections respectively of stat. 7 & 8 Viet, c, cvi., were made from the 896 COE t . WISE 5B. 4S. 443. designs and under the superintendence of the late Mr, Walker, an eminent civil engineer, and completed in [443] 1848; and from that time until the present the cut had been used as the channel for conveying the waters from the Middle Level into the river Ouse, and thence by the Ouse to the sea. The Commissioners contracted for the making of a puddle wall on the banks of the cut in the very terms of atat, 7 & 8 Viet. c. cvi. The cut passes right through Marshland to the river Ouse, which it enters at the above New Sluice, but Marshland is notdrained by the cut, and it has, and for a long time has bad, a system of drainage of its own (except as hereinafter stated), wholly separate and distinct from that of the Middle Level, but it drains into the Ouse. In pursuance of stat. 7 & 8 Viet. c. cvi. s. 170, certain lands in Wiggenhall, consisting of about 300 acres, within Marshland, have been from the opening of the cut, and still are, drained by the same. Marsbland contains about 40,000 acres, and extends from the Middle Level to the river Ouse. The plaintiff is an owner and occupier of lands in Marshland, adjoining to the cut. From the completion of the works in 1848 till after the failure of the sluice after mentioned, William Bond was the sluicekeeper at a salary of 501. a year, with a house and garden, and the only person who lived at the sluice. Previously to having the charge of this sluice he had been sluieekeeper at the Tongs Sluice, the outlet of the cut through Marshland, by which the Middle Level drained previous to the making of the cut in the declaration mentioned. He was brought up with his father who was a sluicekeeper, and his whole life had beeti spent in such work. He had to euter in a book the height of high and low water at every tide as [444] denoted by the gauges fixed at the sluice, and it was his duty, if he observed anything unusual, to report it to the superintendent or resident engineer of the Commissioners, in order that he might inspect the matter and do what was necessary to keep everything in proper order. From 1853 until after the fall of the sluice Robert Lunn was the superintendent or resident engineer of the works of the Commissioners, and lived at March, which ia about the centre of the Middle Level district, and is about 16 miles distant from the aluica. He bad not gone through a regular scientific education, but before his appointment had had considerable experience in engineering works, and had been concerned in the construction of the cut, banks and bridges as agent to Mr. Thornbury, the contractor for making the same, and had alao superintended those branches of the works for Mr. Thornbury from their commencement in 1845 till their completion in 1848. He was sole superintendent of the works of the Middle Level, which are very extensive. He had not the custody of the drawings of the sluice, which were retained by the principal engineer, Mr. Walker, and which Lunn in fact saw for the first time...
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