Lagan Navigation Company v Lambeg Bleaching, Dyeing and Finishing Company
| Jurisdiction | England & Wales |
| Judge | Lord Atkinson,Lord Shaw of Dunfermline |
| Judgment Date | 01 January 1927 |
| Judgment citation (vLex) | [1926] UKHL J1125-1 |
| Date | 01 January 1927 |
| Court | House of Lords |
[1926] UKHL J1125-1
House of Lords
Viscount Dunedin.
Lord Atkinson.
Lord Shaw.
Lord Wrenbury.
Lord Carson.
After hearing Counsel, as well on Thursday the 21st, as on Friday the 22d and Monday the 25th days of October last, upon the Petition and Appeal of the Lagan Navigation Company, having their Registered Office at 80, High Street, in the County of the City of Belfast, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal in Northern Ireland, of the 4th of November 1925, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Lambeg Bleaching, Dyeing and Finishing Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal in Northern Ireland, of the 4th day of November 1925, complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That the Judgment of the Honourable Mr. Justice Wilson, of the 24th day of March 1925, thereby Reversed, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal in Northern Ireland, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice in Northern Ireland to do therein as shall be just and consistent with this Judgment.
My Lords,
This is an appeal from an Order of His Majesty's Court of Appeal in Northern Ireland, hereinafter styled simply the Court of Appeal, dated the 4th day of November 1925, which reversed an Order of the Hon. Mr. Justice Wilson made by him sitting in the Chancery Division of the High Court of Justice in Northern Ireland, dated the 24th day of March 1925, in an action in the said Division wherein the above-named appellants were plaintiffs and the above-named respondents were defendants.
This action was brought by the appellants for, inter alia, an injunction to restrain the respondents from entering on the appellants' undertaking and removing the soil and portion of an embankment at the appellants' Lock 8 and for damages. The respondents justified their acts as being executed in the abatement of a nuisance caused by the appellants in raising embankments on the sides of their canal at Lock 8 thereof. They counterclaimed for an injunction to restrain the appellants from raising these banks so as to cause certain lands and premises belonging to them to be flooded. The questions at issue between the parties resolve themselves into these, namely, whether the respondents were, under the circumstances proved to exist, justified, on the 18th and 21st January, 1924 in digging through and removing certain of the earthen banks built by the appellants on both sides of this Lock No. 8, situate on the Lagan Canal which had been formed by the appellants under the statutory powers conferred upon them. The exact position of the banks so removed is shown on Map No. 1, proved in the action out of which the appeal has arisen, and the description and true position of the different places referred to in the evidence given on the trial of the action, are set out on Map No. 2 similarly proved.
Before referring to the several statutes passed by the Irish and English Legislatures respectively enabling the persons and bodies therein respectively named to make a passage by water from Lough Neagh to Belfast, the River Lagan being utilised for that purpose, it would be well to refer to the respondents' defence and counterclaim to ascertain the grounds upon which they endeavoured to justify their action, especially as the case was decided in the Court of Appeal upon a ground never mentioned in the pleadings or in the notice of appeal, or dealt with at the trial of the action either in evidence or in argument. As well as I understand it the ground was this, that the appellants though by the several statutes hereinafter referred to authorised to do the particular work complained of, did it negligently and that therefore on the authority of Geddis v. Bann Reservoir Company, L.R. 3 App. Cases 430, they had no defence to the respondents' counterclaim. The Lord Chief Justice said, in delivering judgment in the Court of Appeal:
"The Defendants' case really rests on a different footing, it depends not on wrongs flowing from an unauthorised power exercised by the Plaintiffs but on misuse of powers which give the Plaintiffs authority to conduct the navigation,"
and the other Judge who heard the Appeal, Lord Andrews, L.J., at p. 61 of the Appendix, said:
"The sole question to be determined appears to me to be whether the Plaintiffs, who, as I hold, acted within their statutory powers, were guilty of negligence in the execution of the works complained of."
This involves a minute examination of the evidence given before Mr. Justice Wilson in order to discover, if possible, the proof of the negligence relied upon so confidently by the Court of Appeal in Ireland. I think, however, there can be no doubt that it is most unsatisfactory to have a case decided upon a point like this, not raised in the pleadings or apparently dealt with at the trial by the learned Judge who presided there, or by the Counsel appearing for the parties, or by the witnesses who were examined.
The paragraph of the respondents' defence and counterclaim on which they mainly rely ran as follows:—
"The defendants were at the time of the matters alleged in the Statement of Claim and still are the owners and occupiers of certain lands and premises adjoining the said Lagan Canal and the River Lagan.
Prior to the dates of the matters complained of in the Statement of Claim the plaintiff company by their servants agents and workmen wrongfully and improperly constructed and maintained certain mounds of earth on the banks on both sides of the said Lagan Canal adjoining said number 8 Lock, the effect of which was to pen back and raise the level of the water in the part of the said Canal and River Lagan above the said Lock in time of flood, and to throw the water of the Canal and River Lagan upon the said lands of the defendants and to occasion serious flooding of the said lands and to cause the water of the said Canal and River to flow into and contaminate certain spring water dams and filter beds of the defendants situated upon their said lands.
The defendants had before the dates mentioned in the Statement of Claim frequently requested the plaintiff Company to remove the said mounds of earth and to level down the banks of the said Canal at the said Lock to their original level but the plaintiff company neglected and refused to do so.
On or about the dates mentioned in paragraphs 2 and 3 of the Statement of Claim the waters of the said Canal and River Lagan were, by reason of the said mounds of earth, wrongfully constructed and maintained as aforesaid by the plaintiff company, penned and forced back and overflowed and flooded the said lands of the defendants and seriously injured the said lands and damaged and contaminated the defendants' said spring water dams and filter beds and occasioned serious loss and damage to the defendants.
The defendants therefore by their servants and workmen for the purpose of abating the said nuisance and relieving the said flooding and preventing damage to their property removed the said mounds of earth or part thereof on the dates mentioned in the Statement of Claim doing no more than was necessary for the said purpose, and these acts of the defendants are the trespasses alleged in the Statement of Claim."
Many statutes were enacted by the Irish Parliament from the 27 Geo. 2. c. 3 downwards enabling the undertakers therein named to make a passage by water from Lough Neagh to Belfast, the River Lagan being utilised for the purpose. The most important of these statutes is the local Act, 54 Geo. III. c. 231, s. 2. By it the undertakers therein named were incorporated into a company by the name of the Company of Undertakers of the Lagan Navigation. It authorised and empowered this Company to, amongst other things, separate part of the said Lagan Navigation between the 8th and 9th locks thereof from the said River Lagan by carrying the said navigation through certain lands of Tullynacross and by diverting the said River Lagan through certain lands in the parish of Lambeg, and to make and complete and maintain a track road for horses from Belfast aforesaid to Lough Neagh along the banks of the said navigation and further in such places as the said company may think fit to make deeper and wider the bed of the River Lagan of the said navigation, and to repair, maintain, amend and uphold all such work and other things as have already been erected, made or done under and by virtue of the said recited Acts or any of them, and to make, execute, do and perform all such works, matters and things as shall be requisite and convenient for completing and maintaining the several canals by this Act authorised to be made and the navigation thereof, and for supplying the same with water, and the making, completing and maintaining the...
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