JOHN WHITE & SONS v. J. & M. WHITE, H.L. abstract the water is the dam of their mill; but it is, in fact, a pool in the river Kelvin, the water of the river moving slowly through the pool owing to a natural obstruction of rock. Owing to this natural storage of the water, this part of the river has served the purpose of a dam for the respondents' mill, and the natural barrier of rock has been a little heightened by a ledge of wood. The central fact in the case, however, is that this pool, while it may be called a dam rightly enough in relation to the respondents' mill, is not the less, in juridical quality, a part of the river, and its water is subject to the common law of rivers. Regarding this stretch of the Kelvin, the respondents' case is stated in condescendence 2 with a frankness which might well have excited the suspicion of the learned Judges, for there the assertion is made that the respondents (whose frontage to the river is only a fraction of the frontage of the pool) have a grant not only of the (so-called) "dam in question" and "solum thereof," but of the "water therein." This proposition is, of course, opposed to elementary ideas about the water of a river, for the water would not be the property even of the exclusive owner of the solum and of both banks at the place in question. And yet, when the present controversy is examined, it will be found difficult to support the respondents' case on any other theory. 66 The claim being one of property, we look to the respondents' titles, and it is unnecessary to refer to more than twothe title of 1738 and the title of 1897. The former is a Crown charter; it grants the mill, which it describes as super aquam de Kelvin "; and then, after granting the thirlage and multures and other things, goes on "cum stagnis lie damms, inlairs et aquæductis, aliisque integris privilegiis et pertinentiis ejusdem, quibuscumque," and so on. The respondents found on the words " cum stagnis lie damms" as embracing a grant of the water of this part of the river Kelvin. It would certainly be strange if so specific and so unusual a right were meant to be described or comprehended in the general plural expression "stagnis," especially when the river Kelvin has, three lines before, been spoken of as a living river. It seems to me that the words in question, occurring as they do in the ordinary parlance of a grant of a Scottish mill, mean nothing more than that the disponee was to have such dams and such rights in those as pertained to the mill (whether in property or by subordinate right), and this construction is justified by the words "and other privileges" which almost immediately follow. They certainly cannot be construed as including a right of property in something essentially and juridically different from ordinary dams or "stagna," as the plural is used of a word which in its ordinary sense applies to other things than rivers. The title of 1897 (an ordinary disposition) gives the property as bounded by a red line, which excludes the river; but then it is added, "declaring, however, that the said red line, so far as bounding the said subjects hereby disponed along the river Kelvin, shall not limit or exclude our said disponees' right in and to the said river, so far as we have power to grant same, nor to the water and water power and dam from which said mill is supplied." It is superfluous to say that this does not advance the respondents' case; and it is substantially an echo of the Crown charter of 1738. The view of the Lord Justice Clerk is that the Crown charter has inade the respondents so completely masters of the situation that they can use the whole of the water if they require it, to the exclusion of the other riparian proprietors. His Lordship does not expressly describe this right as a right of property in the water; but there is no other theory suggested. Yet that theory is so repugnant to the general law of rivers that it is surprising that there is no discussion of this difficulty. If, then, the titles do not support the respondents' claim, they have really no other case. The truth is, that from time immemorial the respondents' mill was in use to abstract water from the river to the extent of the capacity of the sluices of their existing mill; and in law they thus acquired a legal right by prescriptive use to continue that abstraction. This historical fact was crystallised (in the ments with care, and the judgment of the Lord Ordinary convinces me. JOHN WHITE & SONS v. J. & M. WHITE, H.L. later titles, and in the pleadings in various actions) in the expression that they had the first water; and it having been ascertained that the amount per minute actually abstracted was 1,200 cubic feet, that figure was stated as the amount of their rights. Here we are on the solid ground of a predial servitude by possession, and the rule is tantum præscriptum quantum possessum. In this region there is, of course, no room for the maxims about res mera facultatis, which have been applied to rights constituted by grant. On the other hand, it is equally obvious that the conception of a mill as a growing concern, with expand Appeal allowed. Agents-Ingle Holmes, Sons & Pott, agents for Alex. Morison & Co., Edinburgh, for Donaldson & Alexander, Glasgow, for appellants; John Kennedy, W.S., agent for Macpherson & Mackay, Edinburgh, for Brown, Mair, Gemmill & Hislop, Glasgow, for respondents. [Reported by J. Eyre Thompson, Esq., Barrister-at-Law. 1905. Dec. 1. ing requirements, has no place in a dis- Aug. 2, 3. CLOUSTON & Co. v. CORRY.* cussion with other riparian proprietors about a servitude constituted by use; and the discussion of this topic by the learned Judges is, of course, due to their holding the respondents to have a grant of the water of the river. Taking, as I do, the opposite view, I hold that the respondents have no right to abstract the water of this river except to the extent to which they have had prescriptive use. It follows that their present claim wholly fails. Master and Servant Wrongful Dismissal-Plea of Justification-Functions of Judge and Jury-Powers of Court of Appeal in Entering Judgment-Court of Appeal (New Zealand) Act, 1882, Schedule, rule 5. In what has been said, no examination has been made of the rights of the appellants, and this seems to me entirely unnecessary to the argument. It happens that they, too, have abstracted water, and, like their opponents, seemed to have acquired prescriptive right to do so, subject to the earlier and preferable right of the respondents which I have described. But the exact measure of the appellants' servitude rights seems to me immaterial to the present controversy. Their sufficient locus standi is as riparian proprietors, resisting encroachment on their common-law interest in the river Kelvin. I have only to add that the suggestion that the respondents can piece on the rights of the Slit Mill to the rights of the Old Mill was so completely refuted by the Solicitor-General for Scotland that it is unnecessary to refer to it. I am clearly of opinion that the judgment ought to be reversed. LORD LINDLEY.-I am entirely of the same opinion. I have studied these judg There is no fixed rule of law defining the degree of misconduct which will justify the dismissal of a servant. The question is one of fact for the jury. But it is for the Judge to decide whether there is any evidence to justify dismissal, and if there be no such evidence he should not submit to the jury any issue of fact. He may also direct, guide, and assist the jury by informing them of the nature of the acts of the materiality of facts to the issues which in law would justify dismissal, and raised. By rule 5 in the Schedule to the Court of Appeal (New Zealand) Act, 1882, powers are conferred on the Court of Appeal of entering judgment according to the justice of the case similar to those contained in the Rules of the Supreme Court, 1883, Order LVIII. rule 4. The verdict having been held unsatisfactory by the Judge at the trial, but no application having been made on the appeal to enter judgment for the defendants, a new trial was ordered. Appeal from a judgment dated June 28, 1904, of the Supreme Court of New *Coram, Lord Macnaghten, Lord Davey, Lord James of Hereford, Lord Robertson, and Sir Arthur Wilson. CLOUSTON & Co. v. CORRY. Zealand (Stout, C.J., dissenting). The facts are sufficiently stated in the judgment of the Board. Montague Lush, K.C., and G. R. Northcote, for the appellants, cited authorities in which particular instances of dismissal of a servant were or were not held justified. The question whether the evidence was sufficient to justify dismissal was one for the Judge and not for the jury; and the Judge at the trial, being of opinion that the verdict was unsatisfactory, ought to have entered judgment for the defendants-Millar v. Toulmin [1886] Allcock v. Hall [1891].2 and Tyrrell T. Paine (Cohen, K.C., with him), for the respondent, submitted that the question was essentially one of fact for the jury and not for the Judge, and the verdict could not be disturbed unless it was such that no jury could reasonably have found it - Metropolitan Railway v. Wright [1886]3 and Australian Newspaper Co. v. Bennett [1894].4 Montague Lush, K.C., in reply. LORD JAMES OF HEREFORD delivered the judgment of their Lordships: This is an appeal from a judgment of the Court of Appeal of New Zealand, directing judgment to be entered for the plaintiff, the present respondent, for 8757. and costs. The material facts of the case appear to be as follows: Prior to September, 1902, the plaintiff had carried on business in New Zealand as an agent for the purchase of barley and as a dealer in farm produce. He also conducted an insurance office business. The appellant company carried on a similar business in the same district. On September 18, 1902, an agreement was entered into between the plaintiff and the defendant company, whereby the plaintiff undertook faithfully to serve the defendant company for five years as manager of the grain and produce department of the business of the company. He also undertook to obey all commands (1) 55 L. J. Q.B. 445; 17 Q.B. D. 603. and instructions given to him, and to use his best endeavours to bring to the defendants the business agencies and clients of the firm to which he had belonged. In return the defendants undertook to pay the plaintiff 500l. per annum and a percentage on the profits made on business introduced by him. The plaintiff entered upon his duties under this agreement, and continued in the defendants' service until November 17, 1903, when he was dismissed. It is for this dismissal, alleged to be wrongful, that this action was brought. The statement of claim set out the above facts, and contained a claim for 3,000l. damages. The statement of defence justified the dismissal of the plaintiff on the grounds -first, that the plaintiff had disobeyed the orders of the directors of the defendant company; secondly, that the plaintiff had on November 9, 1903, been arrested in the streets of a township called Havelock, on a charge of drunkenness and disorderly conduct, and fined for such offences. The trial took place in March, 1904, before the Chief Justice of the Supreme Court of New Zealand and a jury. In support of the allegations in the statement of defence that the defendants were justified in dismissing the plaintiff, evidence was given to shew that the plaintiff had, as agent for the defendants, made purchases of goods contrary to the orders given him by the directors of the defendant company; and secondly, that the plaintiff had, in the month of November, 1903, grossly misconducted himself at a place called Havelock, and had been convicted by a magistrate of drunkenness. The first ground of justification was during the argument before their Lordships very properly abandoned by the counsel for the appellants (the defendants), inasmuch as the second ground of defence presented facts of a much more serious character than the first. The evidence given by the defendants as to the plaintiff's drunkenness and the use of foul language at Havelock was very strong, and virtually admitted by the plaintiff. His own account is as follows: "I went to Havelock on the 8th November. I stopped on the night of CLOUSTON & Co. v. CORRY. the 8th at Duggan's Hotel. I arrived there at 7.30 p.m. I think I was sober when I arrived, but I am not sure of anything that happened there. I might have got drunk on the night of the 8th. I do not remember, but I misconducted myself on the 9th. I remember Mr. Taylor coming to me on the morning of the 9th. I was not drunk then. He came to me on business. I told him to go to hell because he had accused me of not replying, acknowledging the receipt of money he had sent to me. . . The receipt of the money had been acknowledged. . . ." Question: "Did you use foul and coarse language in a public street when there were ladies in the balcony of the hotel close by?" Answer: "I would not say that I did not. I think I did go to the sergeant of police to ask him to compel the publican to give me more drink. I do not know that I wanted to fight. I do not remember two gentlemen asking me to desist because there were ladies on the balcony. I got out of the lock-up at 11 p.m. on the 9th and started drinking again. I think I was mad when I was in the police court on the 10th. There was a report of the affair in the 'Pelorus Guardian' of what took place in the police court. I cannot say whether or not it is inaccurate. Some of my friends tried to get the paper not to publish it. [Report put in.] I do not say anything in extenuation of my conduct, and it was not fit conduct for any person who held my office. I cannot say how many times a man can so act." He also said, "I have commonly been drunk"; and it was further alleged that the habitual drunkenness was known to certain officers of the defendant company. In respect of this misconduct the plaintiff was charged before and convicted by a magistrate at Havelock, and a report of the proceedings appeared in the Press. At the conclusion of the evidence the counsel for the defendants submitted First, that unless the jury disbelieved the evidence as to the conduct at Havelock they must find a verdict for the defendants. Secondly, that certain purchases admittedly made by the plaintiff were made in direct violation of the orders given to him by the board of directors of the defendant company, and that on that ground also the verdict should be entered for the defendants. The learned Chief Justice declined to accede to this submission, but leave was reserved to the Full Court to enter a nonsuit, or to enter a verdict for the defendant company. The following questions were left to the jury: "(1.) Did the Plaintiff disobey the order and direction of the Defendant Company in the purchase of chaff from Woodward? "(2.) If so, was the Defendant Company justified in dismissing the Plaintiff? "(3.) Was the Defendant Company justified in dismissing the Plaintiff for his conduct at Havelock on November 9th and 10th, 1903 ? 66 '(4.) What damages, if any, is the Plaintiff entitled to recover?" To the first of the above questions the jury answered, Yes. To the second and third No. To the fourth, 875l. After the verdict had been given the learned Chief Justice expressed considerable doubt as to the course he ought to pursue, but in the result allowed the verdict to be entered for the plaintiff for 8751., reserving " full power for the Court to enter a verdict for the defendants if it should turn out that the matter is wholly one of law." The Chief Justice added: "The facts in this case are not in dispute, and if it is the function of a Judge to determine that the dismissal was justifiable, then the Court is to have power to do so and to enter a verdict for the defendants, and also to grant a nonsuit if it should be the opinion of the Court that the plaintiff's conduct justified the defendants in dismissing him." The defendants duly gave notice of motion, pursuant to leave reserved, to enter judgment for them— First, upon the ground that upon the facts admitted by the plaintiff the learned Judge ought either to have entered judgment for the defendant company, or to have directed the jury to find for them, or to have directed a nonsuit. Secondly, upon the ground that the learned Judge refused to direct the jury, CLOUSTON & Co. v. CORRY. as requested by the defendants' counsel, that if they believed the defendants' evidence (which was uncontradicted) they must find a verdict for the defendant company. Thirdly, that the learned Judge misdirected the jury in directing them that, the facts being admitted, the question whether such facts justified the dismissal of the plaintiff was a question for the jury. Fourthly, in the alternative, that there should be a new trial on the ground that the verdict was against the weight of evidence. By consent it was ordered that the motion founded on these notices should be removed into the Court of Appeal for hearing. The case was argued in the Court of Appeal of New Zealand before the Chief Justice and Mr. Justice Williams, Mr. Justice Edwards, Mr. Justice Denniston, Mr. Justice Chapman, and Mr. Justice Cooper. The case was very fully considered, and elaborate and learned judgments were given by the members of the Court. The Chief Justice was of opinion that his direction at the trial was wrong, and that the verdict should have been entered for the defendants. The other members of the Court were of opinion that the case was rightly submitted by the Chief Justice to the jury, and that the verdict they arrived at was correct, and ought not to be disturbed. From that judgment the defendant company obtained leave to appeal to his Majesty in Council. Both in the arguments of counsel and in the elaborate judgments delivered by the Judges of the Court of Appeal very many cases were referred to. Reliance cannot be placed upon all of them, for very much must depend upon the exact words used in the judgments given, and summaries composed by the reporters of trials at Nisi Prius may not always convey the exact ruling of the presiding Judge. It is difficult also to determine whether the words quoted in the reports represent words of advice or of absolute direction. Still there are cases which can be quoted in support of either side of the question involved, and between some of them it is apparently impossible to avoid a conflict. It seems unnecessary to pass all these cases again in review, but their Lordships have fully considered them, and are aided by them in arriving at the conclusion they now express. In an action brought to recover damages for alleged wrongful dismissal from service, a defence which in former days would have been embodied in a plea of justification is set up. Allegations of misconduct, drunkenness, the use of foul language in public, resulting in conviction, are made, supported by strong evidence virtually admitted by the plaintiff to be true. And upon such facts the question arises, What is the power and the duty of the presiding Judge? Ought he to withdraw the case from the jury and with his own hand enter a verdict for the defendant or ought he to leave the case to the jury, asking them if they think the facts proved justified the dismissal of the plaintiff? In the present case the tribunal to try all issues of fact was a jury. Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course, there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal. Certainly when the alleged misconduct consists of drunkenness there must be considerable difficulty in determining the extent or conditions of intoxication which will establish a justification for dismissal. The intoxication may be habitual and gross, and directly interfere with the business of the employer or with the ability of the servant to render due service. But it may be an isolated act committed under circumstances of festivity and in no way connected with or affecting the employer's business. In such a case the question whether the misconduct proved establishes the right to dismiss the servant must depend upon facts, and is a question of fact. If this be so, the questions raised in the present case had to be tried by the jury. |