Tipping v Eckersley
| Jurisdiction | England & Wales |
| Judgment Date | 19 December 1855 |
| Date | 19 December 1855 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 779
HIGH COURT OF CHANCERY
See Pattisson v. Gilford 1874, L. R. 18 Eq. 263; Lord Manners v. Johnson, 1875, 1 Ch. D. 680; Mayor, &c., of Devonport v. Plymouth Tramways Company, 1884, 52 L. T. 162; Shafto v. Blockow, Vaughan & Company, 1887, 34 Ch. D. 729.
Injunction. Contract. Breach of. Damages. Action. Water.
[264] tipping v. eckersley. Dec. 14, 15, 19, 1855.' [See Patiisson v. Gilford, 1874, L. R. 18 Eq. 263; Lord Manners v. Johnson, 1875, 1 Ch. D. 680; Mayor, &c., of Devonport v. Plymouth Tramways Company, 1884, 52 L. T. 162; Shafto v. Bolckow, Faughan & Company, 1887, 34 Ch. D. 729.] Injunction. Contract. Breach of. Damages. Action. Water. Where the construction of a contract is clear, and the breach clear, it is not a question of damage; but the mere circumstance of the breach of covenant affords sufficient ground for the Court to interfere by injunction. And, semble, the Court may so interfere, whether the breach has or has not been actually committed, provided the Defendant claims and insists on a right to do the act which would constitute such breach. Defendants demised to Plaintiff a plot of land, one-half of an adjoining brook, a cotton mill, reservoir and steam-engine of 100-horse power on the plot of land, and the use of a weir below the mill, for the purpose of holding up the water of the brook from the weir to the level of the bed of the brook at a bridge above the mill, " and the free use and enjoyment of so much of the stream of water which usually flowed down the brook adjoining the plot of land as should be necessary for effectually supplying with water and working the said steam-engine, or any other steam-engine of like power and capacity;" and covenanted not to construct any other weir or dam between the weir and bridge, and for quiet enjoyment of the demised premises according to the tenor of the demise. Shortly afterwards the Defendants erected, a little below the bridge but above the Plaintiff's mill, a new cotton mill and steam-engine, with a reservoir, which drew off water from the brook between the Plaintiff's reservoir and the bridge, and they discharged the heated water which they had ased for their new mill into the brook, whereby on one occasion they raised the temperature of the water, which the Plaintiff had to use for condensing his engine, from 57 to 68. All the engineering witnesses agreed that every additional degree of heat above 41 renders water less fit for condensing purposes. It was also deposed that on another occasion, in consequence of the increased temperature, the Plaintiff's engine worked " nearly half a stroke per minute less " than the usual rate of twenty-eight strokes per minute. Upon motion for a decree the Court granted a perpetual injunction, restraining the Defendants from discharging heated water, so as to increase the temperature of the water which the Plaintiff used for condensing; being of opinion that the evidence, exclusive of that as to the actual diminution in the working of the engine, shewed a material interference with the quality of the water to which the Plaintiff was entitled under the demise; and that the question whether such interference was such as to give him'a right to damages was one which he was not obliged to try. But so much of the motion as sought to restrain the Defendants from diverting the water for their new mill was directed to stand over, upon terms of the Plaintiff bringing an action ; the Plaintiff having failed to shew that he had ever yet been deprived by the Defendants of the quantity of water necessary for effectually supplying and working his engine, although it appeared from the evidence that he had great reason to fear that he would be so deprived. 780 TIPPING V. ECKERSLEY 2 K. & J. 265. By an indenture, dated August 1853, the Defendants demised to the Plaintiff, for a term of twenty-one years, a plot of land in Poolstock, in Wigan, one-half of so much of a brook called Poolstock Brook as adjoined the plot of land, a cotton mill and reservoir standing upon the plot of land, and a steam-engine of 100 horses power then erected upon the premises; together also with the free use and enjoyment during the term of a certain weir or dam then recently made on the brook for the purpose of holding up the water of the brook from the point where the weir was then [265] erected to the level of the bed of the brook at Poolstock Bridge, situate above the cotton mill, and the free use and enjoyment of so much of the stream of water which usually flowed down the brook adjoining the plot of land as should be necessary for effectually supplying with water and working the said steam-engine, or :any other steam-engine or steam-engines to be thereafter during the term erected upon the premises of the like power and capacity. And the Defendants covenanted with the Plaintiff to pay half the expenses of maintaining and repairing the weir ; and that the Defendants, their heirs and assigns, would not construct or permit any other weir or dam upon or across the brook, between the said weir and Poolstock Bridge. The indenture also contained an absolute covenant by the...
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