Sutton v Clarke

JurisdictionEngland & Wales
Judgment Date01 February 1815
Date01 February 1815
CourtCourt of Common Pleas

English Reports Citation: 128 E.R. 943

Common Pleas Division


S. C. 1 Marsh. 429. Referred to, Mersey Docks v. Gibbs, 1866, L. B. 1 H. L. 112; 11 H. L. C, 713; Fletcher v. Rylands, 1866-68, L. R. 1 Ex. 286; L. R. 3 H. L. 330. Dictum discussed, East Freemantle Corparation v. Annois, [1902] A. C. 217.

/la/ '3.232 - 6 TATIIIT30. SUTTON V. CLARKE 943 Judgment for the Defendant, subject to the arbitrator's award on the amount of the average costs. SUTTON v. CLARKE. Feb. 1, 1815. [S. C. 1 Marsh. 429. Referred to, Mersey Docks v. Gibbs, 1866, L. R. 1 H. L. 112 ; 11 H. L. C, 713 ; Fletcher v. Rylands, 1866-68, L. R. 1 Ex. 286 ; L. It. 3 H. L. 330-. Dictum discussed, East Freemantle Corporation v. Annois, [1902] A. C. 217.] Several tort feasors who unite in an injurious act, may be sued, each one singly.ùIf a trench cut in the county of N. causes the plaintiff's lands to be overflowed in the county of W., although a statute requires all actions to be brought and tried in the county where the cause of action arises, the action may be brought and tried in W. ùIf a statute directs that an action shall be commenced within six months after the matter or thing for which such action shall be brought, and in consequence of the cutting of a trench a fall of rain causes the Plaintiff's land to be overflowed, first within six months, and again after six months from cutting the trench, whether the action must be brought within six months from the cutting of the trench, or within six months from the perception of the first prejudicial effect, or whether it may be brought within six months from the last injury, quatre.ùOne who in the exercise of a public function without emolument, which he is compellable to execute, acting without malice, and according to his best skill and diligence, and obtaining the best information he can, does an act which occasions consequential damage to a subject, is not liable to an action for such damage.--The trustees of a turnpike road, empowered to make watercourses to prevent the road from being overflowed, directed their surveyor to present a plan for carrying off the water of an adjacent brook: he recommended, and on that recommendation they adopted, and caused him to make, a wide channel from the road, gradually narrowing, and conducting the water into the ordinary fence ditches of the plaintiff's land, which were insufficient to discharge it, and his land was consequently overflowed. Held that no action lay against the chairman of the trustees who signed the order for cutting this trench. This was an action upon the ease. The Plaintiff declared, that by an act, 5 G. 3, for repairing and widening a road from Banbury to Lutterworth, any five or more trustees, or their surveyors, were empowered to cut any watercourses, in, through, or across any lands or grounds, in order to drain, or prevent the roads from being overflowed, making &Iola reasonable [30] satisfaction to the owners or occupiers of such lauds or grounds for the damages they should thereby sustain, as to any seven or more trustees should seem reasonable; and that the Plaintiff was possessed of divers closes near to a road in that act mentioned, in Hill-morton, in the county of Warwick, and he being so possessed, on the 10th of June 1812, a certain watercourse bad been made and diig lay the Defendant from that road into certain land near to the Plaintiff's land, under colour of powers and authorities given by that act, but of so insufficient breadth, depth, and length, that by means of the narrowness and insufficiency thereof, and of the same not having been continued a sufficient distance from the road, large quantities of water from time to time flowing to the same, on 1st October 1812, and on divers days afterwards, had run and flowed in and upon the Plaintiff's lands, and damaged the same, and thereby the Plaintiff had sustained damage : yet the Defendant, being one of the trustees, knowing the premises, but contriving, and wrongfully and injuriously intending to injure the Plaintiff, on 1st June 1813, and from thence for a long time, wrongfully and injuriously kept and continued that watercourse or drain of such insufficient breadth, and depth, and length, and by reason thereof, and of the watercourse not having been continued a sufficient distance, on 1st June 18134 and on divers days afterwards, water which had flowed unto and into that insufficient watercourse, overflowed the same, and flowed unto, into, andover the Plaintiff's land, and continued thereon a long time, and thereby damaged the Plaintiff's coin, turnips, grass, and herbage, and thereby the Plaintiff sustained damage, whereof the Defendant afterwards had notice; and although the Defendant, as such trustee, was requested by the Plaintiff so to do, yet he had not as yet made reasonable satisfaction to the Plaintiff for the damages, but had re-[31]-fused so to do, contrary to the statute. The second count stated that the watercourse was wrongfully and injuriously male so insufficiently, that by means of the insufficiency 944 SUTTON V. CLARK1 6 TAUNT. 32. thereof, water from time to time flowing to the same, on divers days had run and flowed in and upon the Plaintiff's lands, and that the Defendant, being a trustee, and knowing the premises, wrongfully and injuriously continued the watercourse so insufficiently made, and by reason thereof the water which had flowed to the insufficient watercourse, overflowed the same, and ran over the Plaintiff's land, and occasioned the damage. The third count stated, that the Plaintiff was possessed of closes, and that the Defendant wrongfully and injuriously continued near to them a watercourse so insufficiently and improperly made, that by reason thereof large quantities of water which bad run thereto, overflowed the same, and flowed into and over the Plaintiff's closes, and occasioned the damage. The fourth count alleged the Plaintiff's possession of three closes, and that the Defendant wrongfully and injuriously caused and procured large quantities of water to run and flow in, upon, and over those closes, and to continue in and upon the same for a long time, and thereby injured the crops. The Defendant pleaded the general issue. The act contained the power alleged in the declaration, to cut watercourses, and also powers enabling the trustees to purchase lands for widening, turning, or altering any road, and directed the mode in which, when the owners were incapacitated to treat, or neglected to treat on the terms of sale, a jury should be impannelled to enquire what damages would be sustained by, and what recompence or satisfaction should be made to such owners, occupiers, or other persons interested, for, or upon account of the taking of such land, grounds, or hereditaments into the roads, or of turning such road into or through any such lands, grounds, or beredits,[32]-ments ; and after the jury should have enquired and ascertained such damage and recompenee, the...

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