Ennor v Barwell
| Jurisdiction | England & Wales |
| Judgment Date | 11 July 1860 |
| Date | 11 July 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 466
BEFORE THE LORDS JUSTICES.
S. C. 7 Jur. (N. S.), 788; 8 W. R. 300. Distinguished, Lamb v. Beaumont, 1884, 27 Ch. D. 356.
[529] ennor v. harwell. Before the Lords Justices. March 2, 1860. [S. C. 7 Jur. (N. S.), 788; 8 W. E. 300. Distinguished, Lamb v. Beamnont, 1884, 27 Ch. D. 356.] An order having been made on motion before the hearing giving the Plaintiff liberty to enter the Defendant's ground for the purpose of inspection, and for the same purpose to break up the soil in the manner therein specified : Held, on appeal, that the latter part of the order ought to be discharged, it not being according to the course of the Court that such liberty should be given on an interlocutory application before the hearing. This was a motion by the Defendants to vary an order of Vice-Chancellor Stuart allowing inspection by the Plaintiff of lands belonging to the Defendants. 1DEO.F.&J.630. ENNOR V. HARWELL 467 The Plaintiff was the occupier of mining property called the Priddy Minery. The Defendants were the occupiers of adjoining property lying to the northward of it. The bill was filed to restrain the Defendants from intercepting the flow of water to the Plaintiffs mine. There was an ancient reservoir on the Defendants' land, and the Defendants had recently repaired the bank on the side adjoining the Plaintiffs land to the height of 1 ft. 10 in. above the ground. The Plaintiff alleged that the effect of this was to prevent a flow of water from the reservoir towards the Plaintiffs land ; and various other acts of the Defendants were complained of as having the effect of preventing water from "coming to the Plaintiffs property. The Defendants denied that the repair of the embankment had at all affected the flow of water from the reservoir, and further set up the case that the geological conformation of the ground was such that there never could have been a natural flow of water from the property of the Defendants to that of the Plaintiff. On the 29th of February 18f 0 the Plaintiff moved for an order that he might be at liberty to inspect the Defendants' land, and dig a trench to ascertain its geological formation, and the notice of motion also asked for leave to do other acts on the Defendants' laud for the purpose of ascertaining the direction of the natural flow of the water. The following cases were cited-East India Company [530] v. Kynaston (3 Bligh, 153); Earl of Lonsdale v. Curwen (Ibid. 168); Ifalker v. Fletcher (Ibid. 172); Attorneti-General v. Chambers (12 Beav. 159); Benni.it v. f-Hiitehouse (28 Beav. 119). The Vice-Chancellor made the following order:-"Order that the witnesses and agents of the Plaintiff N. Ennor be at liberty at all seasonable times, and on giving twenty-four hours' notice, to inspect such part of the soil and ground within the Chewton Minery, in the occupation of the Defendants E. H. Barwell and T. S. Wright, in the pleadings of this cause mentioned, lying to the northward of the Priddy Minery belonging to the Plaintiff N. Ennor, as is between the partition wall of the said Priddy Minery on the south, and the pond head or embankment of the basin or reservoir, in the pleadings of this cause also mentioned, on the north ; anil that the Plaintiff's workmen, servants and witnesses be at liberty to make a trench or trenches in the said yrmtnd or soil for a distance not exceeding ten yards in length northward from the said partition wall, and not exceeding twenty feet in depth, in order to ascertain the nature of the geological formation of the ground there; and also that the said Plaintiffs witnesses and agents be at liberty at seasonable times, on giving twenty-four hours' notice, to inspect and view the old swallet or mine-hole near Htock's house, in the pleadings of this cause also mentioned, and to make sections, models or plans thereof. And in order to enable suclt inspection to be made, order that the Plaintiff be at liberty to remove the mrlh and obstructions lying therein, and at the ends, roads and passages leading thereto; and also that the Plaintiff, his servants and workmen, be at liberty, for a width of [531] tivo yards, to cut dwvn the pond head or embankment of the said basin or reservoir on that side thereof which is next Hie Priddy Minery belonging to the Plaintiff, to the level of the ground there, and to dear out and remove tlu' weeds and obstructions lying in the course or drain which is in or near the centre of the said basin, for the purpose of ascertaining and evidencing in which way the water in such basin would flow if left to do so in its natural state or channel. And it is ordered that the Plaintiff do give to the Defendants twenty-four hours' notice before any inspection or operation under this order, and specify in such notice the names of the persons who ai'& to make such inspection and to perform such operations, the Plaintiff, by his counsel, undertaking to abide by any order of the Court as to making good such damage to the Defendants, if any, as may be occasioned by the operations necessary for carrying into effect this order." The Defendants moved to vary this order. Mr. Bacon, and Mr. F. Webb, for the appeal motion. We do not object to so much of the order as gives a right to inspect. There is no doubt that the Court, in a case like the present, will give the Plaintiff facilities for inspection ; but we contend that it will not, at all events on a mere interlocutory application, give the Plaintiff liberty to break up the freehold for the purposes of inspection. Mr. Malms and Mr. Hanson appeared in support of the order. [THE lord justice turner asked whether there was any reported case in which the Court had before the hearing allowed a Plaintiff to enter upon the Defendant's property and break up the soil for the pur-[532]-poses of inspection. No case to that effect was produced.] the lord justice knight bruce. In my judgment those parts of the order 468 IN RE NORTHUMBERLAND AND DURHAM 1DE Q. F. & J. 838. which allow the Plaintiff to break up the soil of the Defendants' land and to remove the weeds ought to be struck out. The rest of the order, it appears, is not objected to. the lord justice turner. I am of the same opinion. I think it is not according to the course of the Court to make, upon interlocutory application before the hearing, an order authorizing the Plaintiff to break up the soil of the Defendants' property for the purpose of inspection. The order was accordingly varied by striking out those parts which are printed in italics,
English Reports Citation: 66 E.R. 171
HIGH COURT OF CHANCERY
S. C. 6 Jur. (N. S.) 1233. For previous proceedings, see 1 De G. F. & J. 529; 43 E. R. 466.
[410] ennor v. baewell. June 21, 25, 26, July 2, 3, 4, 5, 6, 7, 9, 10, 11, 1860. [S. C. 6 Jur. (N. S.) 1233. For previous proceedings, see 1 De G. F. & J. 529; 43 E. E. 466.] Claim by the Plaintiff to use water which flowed from his land to the Defendant's land, and was there collected in a reservoir, whence it reflowed into the Plaintiff's land. Claim also by the Plaintiff to the overflow into his land of a pond which flowed through the Defendant's land into that of the Plaintiff. The claims being unsupported by evidence of twenty years' user: Held, they could not be maintained. But, Held, that the Plaintiff was entitled to water flowing from surface springs in the Defendant's lands, and which naturally flowed, but not through perfectly defined channels, into the Plaintiffs land; and was entitled to an injunction to restrain the Defendant from diverting it. The Plaintiff was Nicholas Ennor, and the Defendants, Edward Barwell, and, by amendment, T. H. Wright. By an indenture of lease, dated the 8th of February (in pursuance of a previous agreement), the Ecclesiastical Commissioners granted to the Plaintiff the exclusive right to work for ten years the mines and minerals lying under certain lands, consisting of sixteen acres, in the out-parish of St. Cuthbert, near Wells; and also the right to use such water and watercourses arising or running, being or belonging, or which during the said term should arise or run, or be or belong, in, through, upon or into, the said close of land, subject to the estate and interest of one Henry Davis. By an agreement, dated the llth of August 1857, the said Henry Davis agreed to grant a lease of the surface for the same terms, together with all rights-of-way and water of the said Davis. Under these agreements the Plaintiff was in possession of the surface and of the mines. It was said that the [411] minerals were the debris of mines, which had been worked by the Eomans imperfectly, and which contained a large...
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Bennet against Griffiths and Another
...; and seems to us to go far to support, in [477J that respect, the order now complained of. In the recent case of Ennor v. Barwell (1 De G. F. & J. 529) the Lords Justices varied an order of Stuart V.C., in which he had directed that the plaintiff should be at liberty to cut trenches in the......