Ware v Regent's Canal Company

JurisdictionEngland & Wales
Judgment Date15 November 1858
Date15 November 1858
CourtHigh Court of Chancery

English Reports Citation: 44 E.R. 1250


Regent's Canal Company

S. C. 28 L. J. Ch. 153; 5 Jur. (N. S.), 25; 7 W. R. 67.

[212] ò ware v. regent's canal company. Before the Lord Chancellor [Chelmsford]. Nov. 4, 5, 6, 15, 1858. [S. C. 28 L. J. Ch. 153 ; 5 Jur. (N. S.), 25 ; 7 W. E. 67.] Where there has been an excess of the statutory powers granted to a company, but no injury has been occasioned to any individual, and there is none which is imminent or of irreparable consequence, the Attorney-General alone can obtain an injunction to restrain the exorbitance. There is a presumption of intention that the plans and sections referred to in an Act conferring powers over the property of individuals should be adhered to. An occasional flooding of lands, caused by a proper execution of Parliamentary powersj is within the 68th section of the Lands Clauses Act. Effect of delay on suit for injunction. This was an appeal from the dismissal by the Master of the Rolls of the bill of a landowner for an injunction to restrain the Regent's Canal Company from constructing or continuing certain erections beyond the height authorized by the company's Acts of Parliament, so as to damage the Plaintiff's lands. The following statement of the facts of the case is taken from the Lord Chancellor's judgment. The Plaintiff was the lessee of closes of land near Hendon, containing 30 acres 3 roods and 1 3 perches, held under a renewable lease from All Souls College, Oxford, and which lease was renewed on the 16th of December 1852, for the term of twenty years from the 10th of October preceding. The Defendants were incorporated under an Act of Parliament passed 52 George the 3d, for the purpose of making and maintaining a canal to be called "The Regent's Canal, from, the Grand Junction Canal to the Thames at Limehouse." The Regent's Canal, prior to 1851, was supplied with water principally from a portion of the Grand Junction Canal known as the Long Level, and the Long Level itself was fed with water from a reservoir upon the river Brent, called "The Brent Reservoir." This reservoir was formed by means of an embankment or dam, constructed across the valley through which the River Brent flows, the effect of which was to pen back the waters of [213] the Brent, so, that if not checked, they would overflow the lands in the valley according to their levels. In this dam there were two overfalls, which prevented the water rising beyond a certain height in the reservoir, and discharged the surplus water into the channel of the Brent below. The lands in the valley adjacent to the stream of the Brent were peculiarly liable to be flooded in heavy rains, owing partly to the nature of the country, but more especially to the tortuous course of the Brent, and the numerous obstructions by bushes or otherwise which exist upon its bank ; the channel itself of the river being insufficient to carry off the flood waters before the adjacent lands are overflowed. The supply of water obtainable for the Regent's Canal, from the Long Level and from other sources, being insufficient for the increased and increasing trade of their canal, the company were desirous at their own cost to enlarge the Brent reservoir, and to obtain the sanction of Parliament to enable them to do so. For this purpose they gave the different preliminary notices which are required by the Standing Orders of the Houses of Parliament, and they deposited with the clerk of the peace plans and sections of the intended enlargement of the reservoir. The plan shewed the line in òwhich the enlargement was to take place and the proposed limits of lateral deviation, and also indicated a difference between the then present line of top-water and the intended line of top-water in the reservoir. The section referring to the plan assumed a datum line ten feet below the top of a fixed iron gauge across the canal feeder next an outlet from the reservoir, and shewed the then present top-water level 3 DE G. 4 J. a*. WARE V. REGENT'S CANAL COMPANY 1251 to be 29 feet 9 inches, [214] and the then present surface of the bank to be'33 feet 3 inches above this datum line, and that the intended top-water level was to be 35 feet 9 inches, and the intended surface of the bank was to be 38 feet 9 inches above this line. The Defendants, having obtained their Act (which received the Royal assent on the 5th of June 1851), gave notice to the Plaintiff of their intention to take for purposes of the Act certain portions of his lands, which were specified in the Parliamentary notice. The question of compensation payable by the Defendants to the Plaintiff was under the provisions of the Lands Clauses Consolidation Act referred to an arbitrator, who (in addition to a sum of £2730 for certain freehold lands of the Plaintiff, which he required the company to purchase under a provision for that purpose contained in their Act), awarded the sum of £180 for the taking and purchase of the lands required and taken under the statutory powers, and also for the damage to be sustained by the execution of the works. This compensation did not extend to every possible damage which might accrue to the Plaintiff's lands. The Court of Exchequer upon an application to them to set aside the award on this, amongst other grounds, that the arbitrator had not decided the question of òcompensation in respect of certain of the Plaintiff's lands, which, in the judgment of witnesses, would of necessity, if the works were executed by the company, be, in flood time, flooded, and thereby greatly injured, considered that the arbitrator could not with propriety have included any compensation in respect of these lands in his award, and added, that "if any injury should hereafter arise, Mr. Ware will be entitled to compensation under the 68th section, which is expressly provided to meet such a case as this." [215] The reservoir was finished in November 1853. The top of the present òembankment of 41 feet 3 inches above the datum line, being 2 feet 6 inches higher than was shewn in the deposited section, and the Defendants, substituting one overfall for the two former ones, constructed it in such a manner that, by means of moveable stop planks inserted in grooves, they were enabled to raise the top-water level to the height of 36 feet 9 inches above the datum line. It appeared by the evidence that if the water was kept up in the reservoir to the height of 35 feet 2J inches above the datum line, it did not flow over any land of the Plaintiffs, except that which had been purchased by the company, but that if the level were kept up to the maximum height of 35 feet 9 inches, mentioned in the deposited section, it would necessarily flow over other lands of the Plaintiff which the compauy had not taken. The extent of land flooded under these circumstances, however, was not stated with any precision in the Plaintiff's evidence. The witnesses for the Defendants said that on the 15th of April 1855, when the water stood at the Parliamentary height of 36 feet 9 inches, the quantity of the Plaintiffs lands not purchased and taken over which the water was spread would have...

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