1852. THE SHEF GAS CO. V. FIELD GAS stand in this case? I think there are at least twenty witnesses who state, on the part of the defendants, that these works can be done by them without creating any injury, FIELD UNITED except, as it is said in the affidavit of Mr. Clegg, trivial or temporary injury, creating trivial or temporary damage. Now, if there be trivial or temporary injury, creating temporary damage, an application to this Court for an injunction, founded only upon that injury, could not certainly be entertained; therefore the affidavits of Mr. Clegg and the other witnesses, in the same terms, are very decisive, in my view of the case, against the granting of this injunction. I think it is the duty of the Court to take care, that these injunctions, which are, in truth, injunctions founded on trespass, be not extended beyond what they have hitherto been. The Court, I think, has gone quite far enough in granting injunctions in cases of trespass upon the ground of irreparable injury, and I think that these injunctions should not be extended to cases where there is mere trivial or temporary damage. I have myself known injunctions of this description upon trespass applied for, and refused on the express ground that the injury was not of that nature which would induce a Court of equity to interfere. Now, it is said, and it is truly said, that this case in some respects differs from the other cases which have been before the Court, in that the defendants in this case have no legal foundation for the acts they are about to do; but I think that the answer to that argument is that the parties who are complaining of the acts to be done are not the parties who have the legal right to controvert that question. If the parties who had the ownership of the adjoining soil were applying to this Court for the injunction, on the ground that these defendants were disturbing their soil, that would be another and different question. So, if the Attorney-General were coming here, on the ground of public rights, to restrain these parties from taking up the highways, I can conceive that would be also 1852. THE SHEP FIELD UNITED GAS CO. v. THE SHEFFIELD GAS CONSUMERS Co. a case of a totally different description. But here the application is, in truth, no more than this-the plaintiffs in this case, having an easement in the soil, are applying on the ground, not of any public or private right in soil which belongs to them, but upon the ground of injury done to them; and by establishing that case, and that case alone, can they entitle themselves to relief. Now, it is said, that great injury will be done to this Company, in the first place, because they will be put to great expense, on account of the necessity of their watching the proceedings and works of the new Company. Now, no doubt they must incur that expense, and no doubt they must be subject to some inconvenience, as everybody who establishes a great work must necessarily be, of watching for the purpose of preventing injury being done; but in doing that they are only watching for their own interests, and I cannot interpose the extreme power of this Court by injunction, on the ground that they will incur expense in protecting the works which they themselves have created. Then, again, great injury is stated to be likely to occur to the plaintiffs from the loss of gas occasioned by the disturbance of their pipes, and from the necessity of taking up and laying down the streets, and the damage which must be done to the water pipes; and the answer to that is, that this injury may turn out to be of such a description that it may hereafter call for the interference of the Court; but to interfere on the ground that there will be an injury, without knowing the nature and extent of that injury-and upon these affidavits the nature and extent of that injury is stated to be only trivial and temporaryI think it will be carrying the power of the Court beyond what it has been considered right that it should be carried, and beyond what, in my opinion, it ought to be carried. Now, with reference to the observations which have been made on the legal right to break up the ground, I think the answer to that is, that that is a ground for interference on the part of the public; but the parties are coming here, as it appears to me, on the ground of private right; and, with regard to the reasons given by the learned counsel, upon which the interference of this Court in these cases is called for, I apprehend the Court generally, though not universally, if there be any legal question in dispute, does not interfere until the right has been established at law. And I am called on to interfere, on the ground that the question cannot be tried at law, when, if it were one that could be tried at law, I should say I would not interfere until it had been tried at law. Upon all these grounds, and the view I have of this case, I am of opinion, without saying in the least degree that there may not ultimately be a case to call for the interference of this Court, that I must refuse this motion, with costs. On the 11th of June, 1852, the plaintiffs gave notice to the surveyor of highways not to sanction the defendants' proceedings; and, on the 16th of July following, the bill was converted into an information and bill, the AttorneyGeneral being made a party, and the Secretary of the amalgamated Companies being the relator, praying a perpetual injunction in the terms of the first bill. On the 29th of July a motion for an injunction was again made before the then Vice-Chancellor Sir G. J. Turner; which his Honour, by his judgment on the 3rd of August, refused. On the 6th of August following the motion was renewed, by way of appeal, before the Lords Justices. Mr. Rolt and Mr. Amphlett, in support of the appeal, contended, that the acts of the defendants amounted to a nuisance and a recurring nuisance, over which Courts of equity particularly had jurisdiction: That it was not necessary to go to a Court of law in this case to establish any legal right, as the only proper proceedings at law would be by indictment: That the relators would suffer great private injury by the disturbance of their pipes: That the public would be put to great and constant inconvenience 1852. THE SHEFFIELD UNITED GAS CO. v. THE SHEF FIELD GAS CONSUMERS Co. ATT.-GEN. v. THE SHEFFIELD GAS CONSUMERS Co. by the taking up of the pavement and roads: That the Act of Parliament, by which the Company plaintiffs were incorporated, imposed on them certain restrictions and conditions; and that it was never contemplated that a Company could, by mere registration, acquire the powers accorded only by the legislature to those Companies who had applied for and received their sanction, for the public good. That there had been no laches or delay; and that, even if there had been, in case of injury to the public, it would not be considered so rigidly as in the case of proceedings by an individual.—The following cases were cited: Walter v. Selfe (a), Att.-Gen. v. Cleaver (b), Duke of Grafton v. Hilliard (c), Crowder v. Tinkler (d), Rex v. Ward (e), Att.-Gen. v. Johnson (f), Haines v. Taylor (g), Att.-Gen. v. Forbes (h), Elmhirst v. Spencer (i). Mr. Bethell, Mr. Daniel, and Mr. T. H. Terrell for the relators, contended, that the delay in proceeding after the dismissal of the bill was fatal to the granting of an injunction: That there was no public injury to be prevented; but that, on the contrary, the public would be greatly benefited by having the monopoly in gas destroyed: That the laying down the pipes would only cause a temporary obstruction, which would be amply compensated by the more certain supply and the reduction in price of a most necessary article. Mr. Rolt replied. KNIGHT BRUCE, L. J.-The case divides itself into two portions, one relating to alleged public right, the other to alleged private right. (a) 19 L. T. 308. (b) 18 Ves. 210. (c) Ambl. (Blunt's ed.) 160, n. (d) 19 Ves. 617. (e) 4 Ad. & E. 384. (f) 2 Wils. Ch. Rep. 87. (g) 2 Phill. 209. (i) 2 Mac. & G. 45. To take the latter first:-This bill was filed on the 16th of July last. The Company whose acts it seeks to prevent was notoriously proposed to be formed in the autumn of last year. It was then notorious that the Company so proposed meant to do, if they could, the acts which are sought to be restrained by this motion: but, as I have said, the bill was not filed till July. Now, it has been, I think, taken for granted, of late more generally than the authorities warrant, that if there be notice of an objection, it is equivalent, or nearly equivalent to the institution of a suit; and that, whenever a suit is instituted, the time for the purpose of equitable relief ought not to count, for many purposes at least, against the plaintiff, after the time when notice of the objection was given; and it is said that notice of objection to this scheme or undertaking was given as early as the autumn of last year, and has been repeated and continued since. I do not, however, accede to the generality of the proposition. The question must depend very much on the circumstances of each particular case; and instances may well be conceived, in which, after notice of an objection or opposition, the delay to institute a suit founded on that may well count against the plaintiff. It strikes me that the present is one of those cases, more especially as in the spring of this year a bill was filed for the purpose of preventing what was intended. It was filed on the 17th of April, 1852; a motion was made for an injunction accordingly; the motion was opposed, and was refused with costs on the 24th of May. There was no appeal from the order on that motion, and the suit has since been abandoned. The same matter is taken up afresh by the present suit. My opinion is, that, upon the question of private right, without entering into any other considerations to which this part of the case may possibly be open, that delay furnishes sufficient ground for refusing the merely interlocutory application before us. What it may be right to do at the hearing is a different point. The question of public right remains; and though a 1853. ATT-GEN. V. THE SHEF FIELD GAS CONSUMERS Co. |