already forbidden-viz., sinking any well or pit or doing any act or thing whereby the waters of the springs may be drawn off or diminished in quantity-and if the words "in any other manner than they are by law legally entitled are read as modifying all that follows, it makes the section enact that a man is not to do certain specified things except so far as he may lawfully do them; which is making nonsense of it. I do not think the section very happily expressed, and in my opinion the opening provision is intended to preserve against the waterworks company such rights over the waters in question as an upper riparian proprietor has against a lower riparian proprietor in an open stream; permitting a diversion or alteration or even an appropriation to a limited extent, but not a diversion or appropriation by way of a diversion of the whole. I cannot say that this construction gives a clear or satisfactory meaning to every phrase or word used in that section; but it seems to me preferable to a construction which says it is to be illegal to do certain things except so far as it is legal to do them; and perhaps it is not wholly immaterial to observe that when the Act of 1842 was passed the great case of Acton v. Blundell had not been decided, and the difference between the rights in waters flowing in a defined channel and other waters was not so well ascertained as it has since been. Some reference was made to the provisions of the Waterworks Clauses Act. But I think the provisions of section 49 much stronger than anything to be found in that Act. His Lordship considered that sections of that Act particularly cited referred rather to withdrawal of support than obstruction of water, and continued,— Then it was said for the defendant that section 49 is only intended to apply to acts done by the waterworks company or persons claiming under them, or at any rate to acts done upon their land. But I see no ground for this. It would be absurd to say that the section is merely aimed at preventing the plaintiffs from doing acts to their own prejudice, or forbidding such acts being done by trespassers on their land. Its object must be to prevent such acts being done to the injury of the plaintiffs by any other persons. It was also argued by the defendant's counsel that it could not be the meaning of the Legislature that he should be restrained from utilising his stone in the way in which he could otherwise have lawfully done, when no provision is made for compensating him for the loss thus cast upon him, as this would amount to gross injustice; and the observations of Lord Justice Bowen in London and North Western Railway Company v. Evans (1893, 1 Ch., 28) are relied upon. There are many such decisions to be found in the books; and there was especially an important decision by Lord Esher to that effect not long ago which I have been unable to find reported. This is a very weighty argument. At the same time that result must follow if the Act says so, as I think it does in the present case. But I am not satisfied that this does produce any injustice to the defendant, as I do not see how this construction of the Act passed in 1842 does deprive him of anything which was of the slightest value. What appreciable value could possibly have been attributed to the stone which the defendant says he is now prevented from working by such a

construction of the section? Nay, more, there is no evidence before me that at the present moment any person would pay anything for the right to get whatever stone may be found in defendant's land below the level of the Many Wells springs. After shortly referring to the facts in evidence on this point, his Lordship said,-I come to the conclusion that if I had now to say what compensation should be awarded to the defendant in consequence of his not being allowed to make the tunnel I should be unable to say there was any damage entitling him to compensation. But a second ground for relief was put forward by the plaintiffs which gave rise to serious discussion. It was said that, assuming that the defendant could not be restrained from making the tunnel, if it were bonâ fide done for the legitimate purpose of getting the stone under his land, notwithstanding that the result would be to drain the Many Wells springs, still he ought to be restrained, because his object is not to get his own minerals but to injure the plaintiffs by carrying off the water and compelling them to buy him off in order to avert this. This argument was strenuously urged before me, and as the case may go further I feel bound to put on record my view of the facts. I have come to the conclusion that this charge against the defendant is well founded, and that his operations are intended for the drainage of his stone, not in order that he may be enabled to work it, but that the plaintiffs may be driven to pay him not to work it. His Lordship considered the bearing of the facts that led him to this conclusion, and continued,-It remains to consider whether, the facts being as I have just stated, the defendant can be restrained from making the tunnel proposed, on the ground that he is not acting bonâ fide. No case in their favour, directly or nearly in point, was cited to me by the plaintiffs' counsel, and I have not been able, after much research, to find one for myself. Indeed, there seems to me to be great dearth in the law of England of authority upon the point. Going back to the Civil Law from which so much of our law as to servitudes and enactments is derived, a passage often quoted with approval is much in point. In the digest, Lib. xxxix. Tit. 3, I find:-" Denique Marcellus scribit, Cum eo qui in suo fodiens vicini fontem avertit, nihil posse 66 agi; nec de dolo actionem; et sane non debet habere; si non animo "vicino nocendi, sed suum agrum meliorem faciendi, id fecit.'" That passage certainly does indicate that an action might lie, if the act damaging the neighbour was done, not for the improvement of the actor's own property, but for the purpose of levying blackmail upon the neighbour. In Acton v. Blundell, 12 M. and W., Maule, J. quotes that passage during the argument, at page 336, saying, "It appears to "me what Marcellus says is against you. The English of it I take to "be this: If a man digs a well in his own field and thereby drains "his neighbour's, he may do so unless he does it maliciously,'" and the same passage in the Latin is quoted in full at p. 353 in the considered judgment of the Court of Exchequer Chamber in that case. This certainly is an approval and adoption of that passage as an authority, but it must be observed that in that case there was no

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suggestion that the defendant was acting maliciously in working his coal mine, and the citation and approval were with reference to the first part of the proposition as to what might lawfully be done, not with reference to the suggestion what might be unlawful in a state of facts not before the Court. I cannot find any case in the books in which the latter part of the statement has been affirmed, or acted upon, in this country; on the other hand, in Rawstron v. Taylor (11 Exch., 369), where counsel referred to a diversion of water as being for the bonâ fide purpose of drainage only, and not for profit, Martin B. said at p. 378, "The proprietor of the soil has prima facie the right to "drain his land; and unless there is some express authority to show “that his motive in so doing affects the question, in my opinion the "motive is altogether immaterial," and no such authority having been produced, he repeated the same opinion in his judgment. Again, in Chasemore v. Richards (7 H.L.C.), Lord Wensleydale says, at p. 388, "The civil law deems an act, otherwise lawful in itself, illegal if done "with a malicious intent of injuring a neighbour, animo vicino nocendi. "The same principle is adopted in the law of Scotland where an "otherwise lawful act is forbidden if done in æmulationem vicini.” Counsel placed much reliance upon certain observations of Lord Justice Cotton and Lord Herschell in the case of The Midland Railway Company v. Robinson (37 Ch. D., 397, 15 Ap. C. 32), but I do not think they help the plaintiffs. In that case questions arose as to rights depending upon the effect of a notice given by an owner, lessee, or occupier . . desirous of working" mines and minerals under a railway, and the question whether the person giving the notice really did desire to work or was actuated by some other motive went to the very root of the matter, whereas in the present case the motive of the defendant is, according to the cases I have referred to, immaterial. Under the circumstances I come to the conclusion that the plaintiffs are not entitled to relief on this second ground. The plaintiffs also relied upon the case of The Grand Junction Canal Company v. Shugar (L. R., 6 Ch., 483). But, as I read that case, it was one in which subterranean water had passed into a defined channel, from which it was subsequently abstracted, and in that respect greatly differs from the present. Here the water has long flowed in a defined channel from the many wells proper, and from the watering-place; and I think that the plaintiffs' rights are just the same as those of the water company immediately after their purchase in 1843, for the fact that they intercept the springs at their fountainhead is not material. See Dudden v. Guardians of Clutton Minor (1 H. and N., 627), Bower v. Sandford (5 T. L. R., 570). But as the effect of the defendant's acts would be not to take out of any defined channels water which had ever reached them, but to intercept the water before it has reached such channels, the case of The Grand Junction Canal Company v. Shugar does not govern the present. The plaintiffs also make it a great point that the defendant could have drained his stone, if that was his real object, as effectively and much more cheaply by a short drift to the watering-places on the Hewenden

reservoir. But there are considerable difficulties about this view; and I am not satisfied that any conclusion can fairly be drawn from it as to want of good faith on the part of the defendant; and, if I thought he was acting in good faith, and within his rights, I could not restrain him from adopting his own mode of drainage which he preferred merely because other persons considered some other method to be cheaper and more effectual. (After dealing with a subordinate point his Lordship proceeded.) I must therefore grant an injunction to restrain the defendant, his servants, workmen, and agents from making and continuing the drift or tunnel in the pleading mentioned, and from constructing any other works, and from doing any other act, matter, or thing whereby the waters of the many wells, springs, or of the stream flowing at the watering-places may be drawn off or materially diminished in quantity or polluted. I add the word "materially," though it is not found in the Act, because I think the Act does recognize the possibility of some legal appropriation by the defendant of water supplying the springs. Moreover, the principle of de minimis non curat lex applies. The question of costs is a very serious matter; of course the plaintiffs are entitled to the general costs of the action. But a very considerable amount of time and money has been expended upon the question of the bona fides of the defendant, with respect to which the plaintiffs have failed; but the defendant has not been successful. It would be impossible for any taxing master to distinguish or appropriate the costs with any approach to accuracy; and I think, having heard the case, I can deal with them much better myself. I therefore take it upon myself to direct that the plaintiffs' costs shall be taxed, and order the defendant to pay half the plaintiffs' costs. If any authority for such order is required it will be found in Willmott v. Barber (17 Ch. D., 772).—(T. L. R., Ch. D., vol. x., p. 473.)

(605.)

GROSVENOR HOTEL COMPANY v. HAMILTON.

[JUNE 1ST, 1894.]

Landlord and Tenant-Nuisance occasioned by landlord-Vibration by engines-Damages-Cause of action.

This was an action by the Grosvenor Hotel Company for a quarter's rent in respect of certain premises in Buckingham Palace Road, of which the defendant was tenant under a lease dated March 25th, 1887. The defendant's case was that the plaintiff company had placed certain pumping and electric engines on land adjacent to the defendant's premises, and that the vibration caused by the working of the engines had so damaged his premises that they had been condemned by a magistrate as dangerous structures and ordered to be renovated and repaired. In consequence of this order the defendant, who had pre

viously carried on his business of a printer and publisher upon the condemned premises, was compelled to remove his business. The defendant accordingly counter-claimed for damages for the loss which he had sustained by the removal. It was proved at the trial that the premises in question were at the date of the lease in an unstable condition, and were, in fact, 12 in. out of the perpendicular. They were let for a term of 14 years, subject to a proviso enabling the plaintiff company to put an end to the lease at any time upon giving six months' notice to the defendant. The company covenanted that the defendant, his executors, administrators, and assigns, duly paying, performing, and obserying the rent and covenants respectively thereby reserved and thereinbefore contained, might at all times during the continuance of the term thereby granted, quietly enter into, hold, and enjoy and receive and take the rents, issues, and profits of the demised premises without any claim or demand to the contrary by the said hotel company, their successors or assigns, or any person rightfully claiming by, under, or in trust for them. The action was tried before Mr. Justice Grantham and

a common jury on April 23 and 24. The jury found a verdict for the plaintiffs on the claim for £62 (the amount of the rent), and a verdict for the defendants on the counter-claim for £308 58., and judgment was entered accordingly, The plaintiff company now applied for a new trial as to the counter-claim, on the ground that the learned Judge ought to have directed the jury that the plaintiffs would only be liable if the vibration was such as would have affected houses of ordinary stability, and also on the ground of excessive damages.

Lord Justice LINDLEY said that this was an action by a landlord against a tenant for rent. That was met by the defendant by a counter-claim to the effect that the plaintiff company had, by working certain engines in connexion with their hotel, shaken down his house. The vibration was so great that the tenant was obliged to leave, and his case was that he had thereby been put to unnecessary expense. The first question was, Was there any cause of action at all? It was said that the tenant's house was an old and weak house, and that the tenant was seeking to impose on his neighbour a more extensive duty than would be imposed if the parties were strangers. It was said that the vibration would not amount to a nuisance unless it was sufficient to affect a house of ordinary stability. That might be so as between strangers, but here the Court had to deal with the case of landlord and tenant, and the proposition of law which had been contended for assumed a different shape. The house when it was let was an old house and more or less delicate, as it was put by one of the witnesses, and it was several inches out of the perpendicular. That house had been shaken down by the landlord. How could it be said that there was no cause of action? The cause of action was nuisance, arising from the vibration which shook the house down, and one consequence of the relation existing between landlord and tenant was that the landlord was estopped from setting up, as against the tenant, that the house which he had let was a weak house. That would be allowing the landlord to derogate from his grant. The derogation from one's