The Rochdale Canal Company v King

270 ROCHDALE CANAL COMPANY V. KING 2 SIM. (N.S.) 78. [78] the rochdale canai company v. king. July 17, 18, August 6, 1851. [S. 0. 20 L. J. Ch. 675; 15 Jur. 962. See Attorney-General v. Mid-Kent Railway Company, 1867, L. E. 3 Ch. 104; Eardley v. Granville, 1876, 3 Ch. D. 832; ^Ims v. Griffith, 1878-79, 8 Ch. D. 525; 4 App. Cas. 454. Distinguished, Cooper v. Crabtree, 1882, 20 Ch. D. 590. See London, Chatham and Dover Railway Company v. Mil, 1882, 47 L. T. 416. See also other proceedings, 16 Beav. 630; 51 E. E. 924.] / Injunction. Establishment of Plaintiff's Title at Law. Acquiescence. The Defendants, the owners of a cotton mill on the banks of a canal belonging to the Plaintiffs, were authorized, by the Act of Parliament under which the canal was made and the Plaintiffs incorporated, to draw water from the canal for condensing steam, but not for any other purpose: nevertheless, they used the water for other purposes. In consequence of which the Plaintiffs brought an action and obtained a verdict against them, but only for nominal damages. The Defendants moved to arrest the judgment in the action, but without success; and afterwards the judgment was affirmed on a writ of error in the Exchequer Chamber. The Defendants, however, continued to use the water as before. Whereupon the bill was filed for an injunction to restrain them from so doing. The answer stated a case of acquiescence on the part of the Plaintiffs. Held, that the Plaintiffs had sufficiently established their title at law, and that, but for their acquiescence, they would have been entitled to the injunction, notwithstanding they had recovered only nominal damages in the action. In 1830 James King, a cotton manufacturer, erected a cotton mill within twenty yards of the canal; and, as the Act of Parliament under which the Canal Company was incorporated and the canal made (34th Geo. III. c. Ixxviii.) authorized the owners of land within twenty yards of the canal to draw water from the canal for condensing the steam used in working the steam-engines in their mills (provided they returned daily an equal quantity of water on the same level, the inevitable waste by consuming the steam excepted), he laid down metal pipes for the purpose of conveying water from the canal to his steam-engines. In 1840 he took his son, the Defendant James King, into partnership with him; and in 1844 they took the other Defendant, Holdsworth, into partnership. In May 1848 the Plaintiffs brought an action against the firm for having, as the Plaintiffs alleged, drawn more water from the canal than was sufficient for condensing the steam used in working their engines and applied it for generating steam and other purposes, and for not having returned an equal quantity to the canal, the inevitable waste by condensing the steam ex-[79]-cepted. Messrs. King pleaded to the action, first, not guilty, and, secondly, leave and licence. At the trial in August 1848 a verdict was taken for the Plaintiffs by arrangement between the counsel, with one shilling damages; with leave for Messrs. King to move for a new trial or a non-suit, or to enter up judgment for themselves notwithstanding the verdict. In November 1848 Messrs. King obtained a rule for the Plaintiffs to shew cause why the verdict should not be set aside and a non-suit entered, or why the judgment should not be arrested, or why a venire de novo should not issue. The rule was discharged, after argument, in June 1849; and thereupon judgment was entered up for the Plaintiffs. James King, the father, retired from business in September 1849; after which the Defendants carried on the business in co-partnership together: and, as they continued to commit the grievance complained of in the action, the bill was filed in February 1851, praying for an injunction to restrain them from drawing water from the canal for any other purpose than the condensing of steam used in working their engines, and from drawing it for that purpose without returning an equal quantity daily on the same level; the inevitable waste by condensing the steam excepted. The answer stated that, in 1830, metal pipes were laid down by James King, the father, after notice given by him to the Plaintiffs of his intention to make a 2 SIM. (N.S.) 80. BOCHDALE CANAL COMPANY V. KING 271 communication between the water in the canal and the steam-engines in his mill ia order to draw from the canal such quantities of water as should be sufficient to supply the engines with water for the purpose of condensing the steam used for working the engines, raising steam...