Dawson v Paver

JurisdictionEngland & Wales
Judgment Date01 January 1844
Date01 January 1844
CourtHigh Court of Chancery

English Reports Citation: 67 E.R. 974

HIGH COURT OF CHANCERY

Dawson
and
Paver

S. C. 16 L. J. Ch. 274; 11 Jur. 766. See Lingwood v. Stowmarket Company, 1865, L. R. 1 Eq. 78, 336.

[415] dawson v. paver. Nov.. 29, 1844; March 13, 14, April 1.5, Nm . 7, 8, 10, Dec. 5, 1845; June 12, 1846; Jan. 20, Feb. 20, 1847. [S. C. 16 L. J. Ch. 274; 11 Jur. 766. See Lingwood v. Stowmarket Company, 1865, L. B. 1 Eq. 78, 336.] An Act of Parliament, empowering Commissioners to inclose the common lands in a certain township, reciting the titles of certain landowners, and that it would be greatly for the advantage of the proprietors of the common lands that the same should be divided and inclosed, enacted that it should be lawful for the Commissioners to set out and make such ditches, watercourses and bridges, of such extent and form, and in such situations, as they should deem necessary in the lands to be inclosed; and also to enlarge, cleanse or alter the course of and improve any of the existing ditches, watercourses or bridges, as well in and on the same lands, as also in any ancient inclosures or other lands in the township, as they should deem necessary. Held, that the Act did not empower the Commissioners to alter the drains in the common lands, so as to overload an ancient drain which flowed through the common lands from another township, and thereby to obstruct the drainage of the lands in such other township, to the damage and injury of the owners of such lands. Where an Act of Parliament empowers certain persons to deal with their own property, or with property in a certain place or district, or defined by a certain description, and does not by express words, or by necessary implication, import that the Legislature intended to affect the rights of other persons in other property- Courts of law do not construe mere general words in the Act as affecting the rights 5 HARE, 416. DAWSON V. PAVER, 975 of strangers as to property not within the description of that with which the Act expressly purports to deal. Whether an Act of Parliament is to be deemed a public Act, binding on all the Queen's subjects, or merely a private Act, depends upon the nature and substance of the case, and not upon the technical consideration whether the Act does or does not contain a clause declaring that it shall be deemed to be a public Act. After an injunction had been granted, restraining a Defendant from permitting a certain injurious effect to be produced by a given cause (but not otherwise restraining any definite Act) the apprehended injury took place, but the Defendants denied, to the best of their belief, that it arose from the alleged cause; and the Court, in such circumstances, refused to treat the Defendants as contumacious, until it should have been conclusively determined by a verdict at law that the injury complained of was produced by the cause assigned. The verdict of a jury on the trial of one issue had found that the forbidden cause would produce the effect, but inasmuch as a new trial of the issue had been directed, the Court would not treat the verdict of the jury, on the first trial, as sufficient evidence to connect the cause with the effect, for the purpose of proceeding as upon a breach of the injunction. The Plaintiff was the owner of the manor of Osgodby, and of lands in the township of Osgodby, in the county of York. The township of Cliffe-eum-Lund adjoins the township of Osgodby on the east. An ancient drain or watercourse; in the township of Osgodby, ran from and through the Plaintiff's lands in two branches, which met in Cliffe Common, in the township of Cliffe-cum-Lund, and thence ran in an easterly direction through the latter township, and the adjoining township of South Duffield, continuing for some miles further until it emptied itself into the river Derwent. By an Act intituled "An Act for Inclosing Lands in the Township of Cliffe-cum-Lund, in the Parish of Hemingbrough, in the East Biding of the County of York " (which received the Royal assent on the 31st of May 1843) reciting that there are within the township of Cliffe-cum-Lund divers open and common fields, and divers commons and waste lands and divers inclosed lands and homesteads; reciting also the title or claim [416] of the Lord Bishop of Ripon, and other proprietors of manors and lands within the township; and that the said open and common fields, and the said commons and waste lands, are, in their present state, incapable of any considerabe improvement, and it would be of great advantage to the proprietors thereof, and persons interested therein, to have the same divided and inclosed, and specific parts thereof allotted to the proprietors thereof, to be held in severalty, and all rights of common therein extinguished, but that the purposes aforesaid cannot be effected without the authority of Parliament, and enacting that the General Inclosure Acts, 41 Geo. 3, c. 109, and 1 & 2 Geo. 4, c. 23, shall, so far as they are applicable, be deemed to be a part of this Act, proceeds- sect. 2. " And be it enacted that Christopher Paver, of Peckfield, and Makin Durham, of Thorn, both in the West Riding of the said county, and their successors for the time being to be elected or appointed in manner hereinafter mentioned, shall be Commissioners for carrying this Act and the said recited Acts into execution; and it shall be lawful for the Commissioners, and they are hereby required to divide, allot and inclose the said open and common fields, and the said commons and waste lands, in the said township of ClifferCum-Lund, according to the regulations and provisions contained in the said recited Acts, and this Act." sect. 27. " And be it enacted that it shall be lawful for the Commissioners to set out and make such common ponds, ditches, watercourses, tunnels, banks and bridges, of such extent and form, and in such situations as they shall deem necessary, in the lands to be inclosed, and also to enlarge, cleanse or alter the course of and improve any of the present ditches or watercourses, [417] banks or bridges, as well in and over the same lands, as also in any ancient inclosures or other lands within the said- township, as the Commissioners shall deem necessary (making such satisfaction to the proprietors of such ancient inclosures or lands for the damage done thereby as the Commissioners shall think just), and the expenses of making and enlarging, altering and cleansing, such ponds, ditches, watercourses, tunnels, banks 976 .DAWSON V, PAVER 5 HARE, 418, and bridges, when the same shall be first done in pursuance of this Act, if not otherwise provided for, shall .be raised by the Commissioners in the same manner as the other expenses of carrying this Act into execution; but all such ponds, ditches, watercourses, tunnels, banks and bridges, shall at all times afterwards be repaired, cleansed and maintained by such persons and in such manner as the Commissioners shall by their award direct, provided that no watercourse be diverted or turned without the consent, in writing, of the person from whose lands the same may be diverted, and of the persons into whose lands the same may be turned, or to the prejudice of any person interested in such watercourse, except with his consent in writing." sect. 36. The Commissioners not to interfere with the property of the Hull and Selby Eailway Company. sect. 97. "And be it enacted that if any person shall think himself aggrieved by anything done in pursuance of this Act (except as to the allotments, and except as to such other determinations as are by the said first-recited Act or this Act directed to be final, and except such cases wherein an issue at law shall be tried as hereinbefore is mentioned), he may appeal to the general or quarter sessions of the peace which shall be held for the East Riding of the county of York within four months next after the cause of complaint shall [418] have arisen, on giving to the Commissioners and to the party concerned ten days' previous notice in writing of such appeal, and of the matter thereof (except with respect to the accounts of the Commissioners which notwithstanding the same shall have been examined and published as aforesaid, may be appealed against at any time within one month after the enrolment of the award, on giving to the Commissioners such notice as last aforesaid), and the justices (not interested in the .premises) in such sessions assembled are hereby required to hear and determine the matter of every such appeal, and to make such order therein, and to award such costs and damages as to them shall seem reasonable ; and the costs and damages as to them shall seem reasonable, and the costs and damages which shall be so awarded, shall be levied by distress, and the said justices shall issue their want accordingly; and in case any such appeal shall appear to the said justices to be frivolous, vexatious, or without foundation, they shall award such costs to be paid by the Appellant as to them shall seem reasonable, and such costs shall be levied in manner aforesaid." sect. 98. "And be it enacted that every order and determination of the said justices upon every such appeal shall be final, and shall not be removed or removable by certiorari, or any other writ or process whatsoever, into any of Her Majesty's Courts of Record at Westminster or elsewhere." sect. 100. "Saving always to the Queen's most Excellent Majesty, her heirs and successors, and to the Right Reverend the Lord Bishop of Ripon, and to all other persons, bodies politic, corporate or collegiate, their heirs, successors, executors and administrators, all such estate, right, title and interest, claim and demand [419] (other than and except such as are expressly barred and compensated for, or intended to be barred and compensated for, and extinguished by this Act), which they or any of them could or might have had in, to or in respect of the lands hereby authorized to be divided, allotted and inclosed in case this...

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