Moore v Great Southern and Western Rly Company
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1859 |
| Date | 28 May 1859 |
| Court | Exchequer |
Queen's Bench.
Exch. Cham.
Chichester v. LethbridgeENR Willes, 71.
Dobson v. BlackmoreUNKUNK 9 Q. B. 991; S. C., 11 Jur. 556; 16 L. J., Q. B., 233.
Rose v. GrovesUNKUNKUNKUNK 5 M. & G. 613; S. C., 6 Scott, N. R., 645; 7 Jur. 951; 12 L. J., C. P., 251.
The London and North Western Railway Company v. SmithENRUNK 1 Mac. & G. 216; S. C., 13 Jur. 417.
The East and West India Docks and Brimingham Junction Railway Company v. GattkeENRUNK 3 Mac. & G. 155; S. C. 15 Jur. 261; 20 L. J., Chan., 217.
The London and North Western Railway Company v. BradleyENRUNK 3 Mac. & G. 336; S. C., 15 Jur. 639.
The South Staffordshire Railway Company v. HallUNK 1 Sim, N. S., 373; S. C., 15 Jur. 322.
Regina v. The Eastern Countries Railway Company 2 Q. B. 347.
Watkins v. The Great Northern Railway CompanyUNKUNK 16 Q. B. 961; S. C., 15 Jur. 1127; 20 L. J., Q. B., 391.
Little v. The Dublin and Drogheda Railway CompanyIR 7 Ir. Com. Law Rep. 82.
The Caledonian Railway Company v. Ogilvy 2 Macq. H. L. Cas. 229.
Regina v. The Eastern Countries Railway Company Supra.
Galgay v. The Great Southern and Western Railway CompanyIR 4 Ir. Com. Law Rep. 456.
Tanner v. The South Wales Railway CompanyENRUNK 5 El. & Bl. 618; S. C., 1 Jur., N. S., 1215; 26 L. J., Q. B., 7.
Attorney-General v. The South Western Railway CompanyENR 3 De G. & S. 439.
Regina v. The South Eastern Railway Company 4 H. L. Cas. 471.
Pilgrim v. The Southampton and Dorchester Railway CompanyENR 7 C. B. 205.
Watkins v. The Great Northern Railway Company Supra.
Regina v. ScottUNK 3 Rail. Cas. 187.
Tanner v. The South Wales Railway CompanyENR 5 El. & Bl. 618.
46 COMMON LAW REPORTS.- T. T. 1858. M. T. 1858. Queen's Bench. June 15. Nov.18, 24. Exch. Chem. E. T. 1859. T. T. 1859. (In the Queen's Bench and Exchequer Chamber.) May 4, 7, 28. The plaintiff ACTION for injuries to the plaintiff's house and premises by the occupied a cot defendants, in the execution of the works of their Railway. tage and a small piece of First count.-That the defendants, on the, &c., cut through, sunk land, on a level with and abut- and used a certain public road, leading from, &c., to, &c., opposite ting on a pub lic high road, to the messuage of the plaintiff hereinafter mentioned ; and thereby from which a short way or rendered the said public road impassable for, dangerous and extra passage over the plaintiff's ordinarly inconvenient to, passengers and carriages, and to the land afforded access to his plaintiff, being one of the persons entitled to the use thereof, in cottage. A the manner herein mentioned ; and that the defendants did not, Railway Com- pany, in. the before the commencement of such operations, cause a sufficient execution of the works of road to be made instead of the road so interfered with ; and did not their Railway, lowered the maintain any such substituted road in a state as convenient for public high road sevenfeet, passengers and carriages as the road so interfered with ; and the leaving the plaintiff's land plaintiff saith that he was, at the time of the committing of the said and cottage on the edge of a grievances by the defendants, and thence hitherto hath been, and precipice of that height, and thereby obliging the plaintiff to make use of a step-ladder in order to obtain access from the public high road to the way or passage leading over his land to his cottage. An action having been brought by the plaintiff against the RailÂÂway Company, under the Railways Clauses Consolidation Act 1845 (8 & 9 Vic., c. 20), ss. 53, 55 Held, by the Exchequer Chamber (affirming the judgment of the Queen's Bench), that the action was not maintainable, the injury complained of by the plaintiff being an injury of a permanent nature to his land ; and, therefore, the subject of compensation by the arbitrator, pursuant to the Railway Clauses ConÂÂsolidation Act 1845, s. 6, and the 14 & 15 Vic., c. 70.-[PICOT, C. B., dissenÂÂtiente]. A plaint contained three counts for special damage, alleged to have accrued to the plaintiff, by reason of a breach of duty on the part of the defendants, and also three counts in trespass quare clans. freg. Issues were knit upon all the counts. " The trial proceeded, mainly, if not entirely, on the counts for special damage. The jury found generally for the plaintiff, with 50 damages. There was some eviÂÂdence to sustain the counts in trespass. The Court of Exchequer Chamber decided that the action was not maintainable on the counts for special damage ; and, although satisfied that the damages were given principally, if not entirely, in respect of those counts, yet, not being able to apportion the damages, awarded a new trial. COMMON LAW REPORTS. 47 still is, lawfully possessed of a certain messuage and premises, with the appurtenances, situate and being in the county of Tipperary, adjoining the said public road ; and by reason thereof the plaintiff, during all the time aforesaid, ought to have had, and still ought to have, a certain right of way over the public road so interfered with ; that is to say, a way over, from and out of the said public road into the said messuage and premises of the plaintiff, with the appurtenances, and from and out of the said messuage and premises of the plaintiff, with the appurtenances, unto and over the said public road, for the plaintiff, his family and servants, on foot, and with carts and horses, to go, return, pass and re-pass at all times ; and the plaintiff saith that he hath suffered special damage, by reason that the defendants have made said way broken and impassable, by digging across same, and by sinking same and said public road, to wit ten feet, and have not caused another sufficient road to be made before they interfered with the said public road by so sinking it opposite to the said messuage of the plaintiff, and have not yet caused any sufficient road to be made ; whereby the said way from the plaintiff's messuage and premises, with the appurtenances, into and over the said public road, has been made dangerous and extraordinarily inconvenient to the plaintiff, his family, and servants, and the plaintiff has been unable to bring turf to his house, or manure to his farm-yard, and the plaintiff has been deprived of his previous mode of access to the said messuage and premises : and the plaintiff avers that he hatli susÂÂtained such special damage by the interruption of said way, and by the premises, to the amount of 100. Second count-That the defendants, on the, &c., in exercise of the powers granted by the Railways Clauses Consolidation Act 1845, and other the statutes in that case made and provided, cut through, sunk and used a certain public road leading from, &c, to, &c., opposite to the house and messuage of the plaintiff herein mentioned, and thereby rendered the said public road extraordinarily inconÂÂvenient to passengers and carriages, and to the plaintiff, being one of :the persons entitled to the use thereof ; and the defendants did not, :before the commencement of any such operations, cause a sufficient ',road to be made instead of the road so interfered with; ,and,the 48 COMMON LAW REPORTS. plaintiff, at the time of the committing of the said grievances by the defendants, and thence hitherto, hath been and still is lawfully possessed of a certain house, messuage and premises, in the county of Tipperary, adjoining said road ; and by reason thereof the plainÂÂtiff, during the the time aforesaid, ought to have had, and still of right ought to have, a certain right of way into and over the said public road so interfered with ; that is to say, a way over, from and out of the said public road into the said messuage and premises of the plaintiff, with the appurtenances, and from and out of the said house, messuage and premises of the plaintiff, with the appurteÂÂnances, into and over the said public road, for the plaintiff, his family and servants, on foot and with carts and horses, to go, return, pass and re-pass at all times ; and the defendants, by sinking the said public road, to wit, of the depth of fourteen feet, have destroyed said way of the plaintiff, and the said way remains broken and impassable, and the plaintiff hath suffered special damage, by reason that the defendants have left said way broken and impassable, and did not cause another sufficient road to be made before they interfered with the said public road, by so sinking it opposite the said messuage of the plaintiff, whereby the said way from the plaintiff's messuage and premises, with the appurtenances, into and over the said public road, hath been made dangerous and extraordinarily inconvenient to the plaintiff, his family, and servants ; and the plaintiff thereby has had been deprived of his previous mode access to the said messuage and premises, and has been obliged to procure a step-ladder in order to obtain access to his house, and has been unable to bring the manure of his farm to his dunghill and farm-yard, and has been unable, except at great expense, to bring turf for fuel to his house aforesaid : and the plaintiff avers that he has suffered such special damage by reason of the premises, to the amount of 200. The third count stated that the plaintiff was possessed of a house, messuage and premises, &c., and by reason thereof was entitled to a right of way over a public road, 41m.; and that the defendants had sunk such public road, and had broken and interrupted said way, by sinking and digging, and had rendered it broken and COMMON LAW REPORTS. 49 impassable, and had not caused any sufficient road to be made M. T. 1858. whereby the plaintiff could obtain access to his prey ses as afore- . Queen'sB ench said: it also averred the same special damage as 41 the second MOORE count. GT. S. & The fourth, fifth and sixth counts were in trespass rare elausuna RAILWAY. fregit. The first and second defences to the first count of he plaint traÂÂversed the rendering...
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