Howard v Wright
| Jurisdiction | England & Wales |
| Judgment Date | 19 February 1823 |
| Date | 19 February 1823 |
| Court | High Court of Chancery |
English Reports Citation: 57 E.R. 76
HIGH COURT OF CHANCERY
S. C. 1 L. J. Ch. (O. S.) 94. See Wilts and Berks Canal Company v. Swindon Waterworks Company, 1874-75, L. R. 9 Ch. 453 (n.); L. R. 7 H. L. 697.
Specific Performance. Right to River Water.
[190] wright v. howard. howard v. wrkiht. Feb. 4, 5, 8, 19, 1823. [S. C. 1 L. J. Ch. (O. S.) 94. See Wilts and Berks Canal Company v. Swindon Waterworks Company, 1874-75, L. R. 9 Ch. 453 (n.); L. R. 7 H. L. 697.] Specific Performance. Bight to River Water. The Court refused to decree the specific performance of an agreement to purchase the fee-simple of certain lands, and also the right to impound the water of a river, and to divert from it a stream of water ; because the vendor, though seised in fee of the lands, had only a lease for ninety-nine years of the other subjects of the contract, and had not, as against some of the proprietors of land on the banks of the river, a right to divert the water; and because the purchaser had entered into, the contract for the purpose of erecting a manufactory to be wrought by the water,, and twelve years had elapsed between the time of the agreement and the hearing of the cause. Every owner of land on the banks of a river has, primd facie, an equal right to use-the water, and cannot acquire a right to throw the water back on the proprietor above, or to divert it from the proprietor below, without a grant, or twenty years' enjoyment, which is evidence of a grant. Qu. To what extent time is of the essence of a contract, where the purchase is intended with a view to commercial purposes, as the erection of a manufactory 1 The original bill in this case was filed by the vendor, and prayed for the specific performance of an agreement, contained in three several memorandums in writing, for the purchase of land, and of the right of using the stream of the river Goit by impounding the water. The cross-bill was filed by Howard, the purchaser, and prayed that the agreements might be delivered up to be cancelled; because they had been obtained by fraud arid misrepresentation, as well as because the vendor could not make a good title. Before the agreement in question was made, Nathaniel Wright, the Plaintiff' in the original suit, was in possession of land situated on the bank of the river Goit, and had erected a weir on that river to divert the stream into his land, with a view to erect a mill, which was to be wrought by this stream. He had also made a sluice and two reservoirs for the water diverted by the weir, to secure a constant supply to the stream which was to be used for the mill. By the agreement in question Wright agreed to sell to Jesse Howard, the Defendant in the original suit, the land, the weir, the sluice, and the reservoirs [191] for the purpose of erecting a cotton manufactory, together with the right to turn the water, after it had been used in the manufactory, through a piece of land called the Woodheys into the river Mersey, below the junction. 1 KM. ft ST. MS. WRIGHT V. HOWARD 77 of the Goit with that river. By turning the water in at this place and in this direction, a fall of twenty-three feet was obtained. But between the weir and the point where it was thus agreed that the water should be turned in, there were three proprietors on the banks of the river: namely, the Duke of Norfolk (then Mr. Bernard Howard), Mr. Arden and Mr. Tatton. The only question of title was as to the right to the water and to the reservoirs. The first memorandum of agreement was dated the 6th of September 1809. It recited that the Plaintiff had a waterfall on the river Goit, upon which he had erected a weir, and made a goit (sluice) to other his lands, called Woodhead and Woodheys; and it then contained an agreement to sell the waterfall, weir and goit, and the land and buildings, to the Defendant, reserving a yearly rent of 330; and the Defendant was to covenant that he would, within five years, erect buildings to the value of 7500 on the land. The second memorandum was dated the 15th of September 1809, and was made for the purpose of stating the agreement more distinctly. It was expressed as follows : " Mr. Wright to convey to Mr. Howard at his expense, the fee-simple of and in a messuage," &c. (describing the land, buildings, and other particulars), " also the weir, culvert and stop-gates erected by Mr. Wright across the river Goit, and the privilege of impounding the stream of the river Goit thereby, as high towards Marple Bridge as Mr. Wright has power to do ; and also of using the goit (sluice) lately made by Mr. Wright through his field, called the Ridge-eyes-fold into [192] the Woodhead, with the intention of diverting the said stream; also the use of the reservoirs made by Mr. Wright for preserving the stream of water." The third memorandum was dated the 25th of May 1810 ; and, after reciting the agreement, it provided that, in lieu of the yearly rent of 330, Howard should pay the sum of 6600 in two payments, 3000 on the 24th June 1810, and 3600, without interest, on the 24th June 1813 ; for which last sum Howard was to give his bond; and it then stated that Howard should have full power, right and title to turn and discharge the water into the river Mersey, through any part of the Woodheys which he should think proper. Soon after this last memorandum was executed some difficulties suggested themselves to Howard as to the power of the Plaintiff, Wright, to make a title to the privileges thus agreed to be sold ; and, as these difficulties seemed to him insurmountable, on the 16th of July 1810 he sent a notice in writing to the Plaintiff, stating that, in consequence of the defects in the title, he relinquished and gave up the agreement, and required that that part of the purchase-money which he had paid should be returned to him. When Wright produced his title, it appeared that he had not a fee-simple interest in the right to use the water; and that part of the land which formed one of the reservoirs was leasehold for a term of years. His title to the water was by a lease from Mr. B. Howard (now the Duke of Norfolk), dated the 30th of October 1809. By this lease, which was for the term of ninety-nine years, the land, of which a part was covered by one of the reservoirs included in the agreement, was demised to Wright, his executors...
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