Sedleigh-Denfield v O'Callaghan and Others

CourtHouse of Lords
JudgeViscount Maugham, Lord Atkin, Lord Wright, Lord Romer, Lord Porter
Judgment Date24 Jun 1940
JurisdictionEngland & Wales

[1940] UKHL J0624-1

House of Lords

Viscount Maugham

Lord Atkin

Lord Wright

Lord Romer

Lord Porter

Sedleigh-Denfield (Pauper)
and
O'Callaghan and Others

After hearing Counsel as well on Thursday the 18th, as on Monday the 22d, Tuesday the 23d and Wednesday the 24th, days of April last, upon the Petition and Appeal of Gerald Reginald Sedleigh-Denfield, Pauper, of Mon-Reve, Court-leigh Gardens, Brent, in the County of Middlesex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 23d of February 1939, except so far as regards the words "other than the said Lilian Hillman", 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 Petitioner 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 Very Reverend Stephen O'Callaghan, The Very Reverend Thomas McLaughlin, The Very Reverend Richard Turner and the Very Reverend Alfred Fink, the Trustees of the St. Joseph's Society for Foreign Missions, 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, of the 23d day of February 1939, so far as complained of in the said Appeal, be, and the same is hereby, Reversed, and that Judgment for damages to be assessed be entered for the Appellant: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Courts below, except such Costs as were ordered by the Judgment of Mr. Justice Branson, of the 22d day of June 1938, to be paid by the Appellant to Lilian Hillman, and also the Costs incurred by him in respect of the said Appeal to this House, such last-mentioned Costs to be taxed in the manner usual when the Appellant sues in formâ Pauperis, and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Viscount Maugham

My Lords,

1

This is an appeal from an order of the Court of Appeal affirming the decision of Branson J. which dismissed with costs the action of the Plaintiff who is the Appellant on this Appeal. The Respondents (the Defendants) are the trustees of the St. Joseph's Society for Foreign Missions.

2

The facts are very clearly stated in the judgment of the Court of Appeal delivered by Mackinnon L.J. and substantially they are as follows:—

3

The Appellant is the owner and occupier of a house and garden called I, Victoria Road, Mill Hill. To the north of his plot of land is a field which is owned by the Respondent. On the southern edge of that field is a hedge, and to the south of the hedge there is a ditch. There was evidence that periodically this ditch had been cleaned out by the Respondent's servants or helpers. Upon this, and upon the presumption that the area of a ditch alongside a hedge belongs to the owner of the hedge, there was ground for inferring that the area of the ditch was the property of the Respondents, though no other evidence of their title was given. The Trial Judge dealt with the case on the basis that the area of the ditch was owned by the Respondents. The Court of Appeal took the same view, and in the absence of evidence to the contrary, I think it is clear that we must come to the same conclusion.

4

To the west of the Respondents' plot of land was another plot on which stands a block of flats called Holcomb Court. Before 1934 the ditch, as an open watercourse, flowing from east to west, continued along the northern edge of Holcomb Court, to a roadway called Lawrence Street, running from north to south on the western side of Holcomb Court. In 1934 the then owner of Holcomb Court made an agreement with the Middlesex County Council under which the latter undertook to substitute a pipe or culvert, 15 inches in diameter, in the line of the ditch along the north side of Holcomb Court. She had no right to do that, as the ditch was not her property, but was the property of the Respondents. The County Council, however, did the work, made the culvert, and covered the top of it with earth. At the western end, the culvert was connected with a manhole and sewer in Lawrence Street. The eastern end of the culvert was carried to a point about 2 feet to the east of the fence dividing the Appellant's plot from the Holcomb Court plot. To prevent the possibility of wood, leaves or other refuse carried down by the stream, blocking the opening of the 15-inch pipe, it would have been proper practice to fix a grid or grating in the ditch a little to the east of the opening of the pipe, since there are a number of trees in the hedge and sticks and leaves would be apt to fall into the ditch. Moreover the County Council recognised the necessity for a grating and provided one; but their workman instead of fixing it in the ditch some couple of feet from the opening of the pipe or culvert where it would intercept leaves and other refuse, placed it on the top of the culvert where it was completely useless. The mouth of the culvert is on land belonging to the Respondents.

5

This state of things continued till April, 1937, the Respondents' helpers or servants continuing periodically to clean out the ditch. On the 20th April, 1937, a heavy storm of rain occurred, the culvert became blocked with refuse and the Appellant's premises were consequently flooded by water coming down the ditch which could not get away down the 15-inch pipe. The Appellant suffered substantial damage.

6

Expert evidence was given on behalf of the Appellant that a grating or grid placed properly in the ditch at a proper distance from the culvert would have intercepted débris, rubbish or foreign matter in the ditch and would have prevented such a blockage or stoppage of the flow of water as caused the ditch to overflow. This evidence was accepted by the learned Judge who came to the conclusion, as I understand his judgment, that the ditch alongside the Appellant's premises and running to the 15-inch culvert unprotected as the mouth of the culvert was by any grid or grating, was of the nature of a nuisance, giving to the Appellant on damage being caused by the nuisance a primâ facie right to recover damages. The Court of Appeal agreed.

7

Two points should here be mentioned. The first is that the Respondents did not set up as a defence that the rainfall, admittedly a very heavy one, was so exceptional in amount that no reasonable man could have anticipated it or that it amounted to an act of God. (See as to such a defence ( Nitro-phosphate & Odam's Chemical Manure Co. v. London & St. Katharine Docks Co. 1877, 9 Ch. Div. 503); Greenock Corporation v. Caledonian Railway, 1917 A.C. 556.)

8

The second point, which was raised as a defence, was that the Respondents never consented to the making of the culvert as a substitute for a part of the ditch and were ignorant of its existence. It was, however, admitted by a witness for the Respondents, one Brother Dekker, who at the time when the work was done was the person responsible for cleaning the ditch, that he saw the work in progress at the time and that he assumed that it was being done with the consent of the Respondents, but did not report the matter to his Superior. Branson J. accepted the contention that the Respondents did not become aware of the construction of the culvert (with its unguarded entrance) until after the flood of the 20th April, 1937. There is no doubt that the placing of the culvert was an act of trespass and that the Respondents in the circumstances might not have become aware of it for some time after the work was completed; but nearly three years elapsed before the flood of April, 1937, and Brother Dekker or some other person was in charge of the ditch and cleaned it out on behalf of the Respondents twice a year. It was an agricultural ditch of which the purpose was to act as a land drain and to take away surplus water from the adjoining fields of the Respondents. An owner or an occupier of land constantly leaves such a matter as the cleaning out of ditches and drains on his land to persons employed by him to look after such things, and he would generally not expect, nor would he receive, detailed reports in regard to them. The culvert opening and the ditch were perfectly open to view for most of the time. In these circumstances I have formed the opinion in which I think all your Lordships agree that before the flood of April, 1937, the Respondents must be taken to have knowledge of the existence of the unguarded culvert which for nearly three years had been the means by which the water coming down the ditch on the Respondents' land had flowed away to the sewer in Lawrence Street. All that is necessary in such a case is to show that the owner or occupier of the land with such a possible cause of nuisance upon it knows or must be taken to know of it. An absentee owner or an occupier oblivious of what is happening under his eyes is in no better position than the man who looks after his property including such necessary adjuncts to it in such a case as we are considering as its hedges and ditches.

9

On this view as to the knowledge or presumed knowledge of the Respondents the first question is as to their legal position in relation to the Appellant, or to put the matter more precisely were they under a primâ facie liability as regards the Appellant if the ditch overflowed owing to the culvert becoming blocked with the...

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