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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 Defendants, in the usual form, for quiet enjoyment by the Plaintiff of all the demised premises according to the tenor of the demise.

In April 1854 the Defendants erected, a little below the bridge, but above the Plaintiff's mill, a new cotton mill, with a steam-engine and machinery; and near the new mill, and communicating with the brook at a point above the Plaintiff's point of communication, they constructed a new reservoir of the superficial area of 750 square yards, the bottom of which was about twenty-four inches lower than the level of the bed of the brook. Shortly after the new mill commenced working the Defendants, to increase the quantity of water above the weir, placed upon the weir a cap, which raised it about nine inches above its original height. A dispute then arose as to the Defendant's right to place the cap upon the weir; the cap was removed by the Plaintiff ; and, on the day after its removal, the Defendants, who had previously endeavoured without success to supply the Plaintiff with additional water from another source, commenced discharging the heated water, which they had used for their new mill, into the brook, at a point a few feet below the new reservoir, but above the point at which the [266] Plaintiff's reservoir communicated with the brook, so that all such heated water became mixed with the water applicable for the use of the Plaintiff's steam-engine. Previously to the removal of the cap the Defendants were in the habit of discharging their heated water into the brook at a point below the weir.

The bill prayed that the Defendants might be restrained from discharging or returning into the brook at any point above the weir any heated water, or water previously used for the purposes of their new mill, and from diverting or using for the purposes of working their new mill, steam-engine or otherwise, any part of the water of the brook so as to impede, prejudice or affect the free use and enjoyment at all times by the Plaintiff in preference and priority to every other person of a sufficient quantity of such water, for the effectual supplying and working of the Plaintiff's steam-engine; and that the Defendants might also be restrained from permitting the bottom of the new reservoir to remain at its then level, or at any level lower than that of the bed of the brook.

It did not appear from the evidence that the Plaintiff's right to so much of the stream, as was necessary for effectually supplying with water and working the steamengine, comprised in the lease, in the state in which it was demised to the Plaintiff, had yet been actually interfered with, although there was great reason to fear that such right would be interfered with, by the course adopted by the Defendants.

In regard to the heated water, it appeared by the evidence of the Defendants" witnesses that, upon one occasion, at 6 o'clock in the evening, the natural temperature of the water of the river being 57°, the water at the weir, after the heated water bad been poured in, was 70°, and the water in [267] the Plaintiff's jackwell (the receptacle for the water which it was necessary for him to use for the purpose of condensing hisengine) 68°, shewing that the Defendants by their operations had raised the water in the Plaintiff's jackwell 11°. With respect to water below 42° in temperature, there was a slight difference of opinion among the scientific witnesses as to what

is the best temperature for condensing purposes, one saying 32°, another 41°. But it appeared by the evidence of the Defendants' witnesses that every additional degree of heat above 41° has the effect of rendering water less fit for condensing purposes.

As to actual damage, one of the Plaintiff's witnesses deposed that, on another occasion, in consequence of the increased temperature in the Plaintiff's jackwell, the Plaintiff's engine worked "nearly half a stroke per minute less" than the usual rate of twenty-eight strokes per minute.

Mr. Rolt, Q.C., and Mr. Eddis now moved for a decree as prayed by the bill.

This being a case of contract, the sole question was whether there had been a breach. If there had, it was immaterial whether a Court of law would or would not give more than nominal damages. A case in which the Plaintiff would get merely nominal damages was a case for an injunction: Rochdale Canal Company v. King (2 Sim. (N. S.) 78), Attorney-General v. The Sheffield Gas Consumers Company (3 De G. M'N. & G. 304). Here the contract was in effect that the Plaintiff should have a prior right to the use of the water of the stream, in preference and priority to every other person; and of that prior right the Defendants had deprived him.

[268] Mr. James, Q.C., and Mr. Cairns, for the Defendants.

The bill should be dismissed, or, at all events, the Court will put the Plaintiff upon terms of bringing an action.

All

The Plaintiff is entitled to what the lease gives him, and to nothing more. the lease gives him, in respect of quantity, is the use of so much of the stream as is necessary for his steam-engine. To that he has a prior right. To more than that it is idle to say he has a prior or any right. The Defendant might put 100 mills above the Plaintiff's mill, and might so work those mills as to give rise every night to serious apprehension that on the following morning the Plaintiff would not have water sufficient for his engine; but until the Plaintiff is deprived of water sufficient for his engine the contract is not broken, and the Court cannot interfere. Thus interpreted, the contract has not been broken.

Then, as to the quality of the water, all the lease gave the Plaintiff was such use of the stream which usually flowed as was necessary for his steam-engine. All the Defendants contracted was not to prevent his effectually working his engine. Of such a contract (unlike a contract not to exercise a trade) to shew breach, the Plaintiff must shew damage.

THE VICE-CHANCELLOR. Suppose these were dyeing mills, and some (whether a prejudicial amount or not) of the dyeing material reached the Plaintiff's mill, would it be necessary for him, under a demise like the present, to shew actual damage? Would it not be sufficient if he deposed that he believed it would prove prejudicial? The Defendants have demised the free use and enjoyment not merely of so much water, but of so much "of the stream of water which usually flows down the brook." Does not that mean the water in its natural state?

[269] Mr. Cairns. That, at the highest, does but place the Plaintiff in the position of an ordinary riparian proprietor, every riparian proprietor having a right to the free use and enjoyment of the stream in its natural state. In the case put by the Court the owner of the lower dyeing mill would have to shew actual damagenot possibly in a gross instance, e.g., where large quantities of rank poison were mixed with a small stream just above his mill, but at least where, as here, it is a question of extreme nicety, and witnesses of the highest scientific character differ as to the effects produced. In such a case damage ought to be proved, and that by proof of what effects were produced inside the mill. Here the Plaintiff has adduced no evidence except as to what effects would follow if water were used of a temperature to which this stream, at the point where it reaches the Plaintiff, has never been and will never be heated: and as to what is the best temperature, there is a conflict of testimony.

Mr. Eddis, in reply.

In regard to the question of quantity, the covenants, first to keep up the weir below the Plaintiff's mill, and, secondly, never to erect any other weir or dam above that mill, amount, in effect, to a covenant that there shall always be a certain pool or storage, of which nothing shall ever interfere with the Plaintiff's prior right of user,

and that right has been as effectually violated by the new mill as it would have been by a second weir or dam.

As to the question of heated water, if the Plaintiff has omitted to prove that the temperature of the water in his jackwell has been increased by reason of the course adopted by the Defendants the Defendants have supplied that omission. And the Plaintiff's witnesses have deposed to actual damage inside the mill, in consequence of the increased temperature.

[270] VICE-CHANCELLOR Sir W. PAGE WOOD. There are two distinct branches to this case. The indenture of demise containing a covenant for quiet enjoyment according to the tenor of the demise, the first question is, what is the effect of that instrument with reference to the quantity of water to be supplied by the Defendants to the Plaintiff? The second question is whether, under the terms of the instrument, the Defendants were at liberty to interfere in any way whatever with the quality of the water to be so supplied?

Upon either branch of the case, if the construction of the instrument be clear and the breach clear, then 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 injunetion. And I apprehend the Court may so interfere whether the Defendant has or has not actually committed the breach, in respect of which the interference of the Court is sought. For, in a case of contract, it is enough if the Defendant claims and insists on a right to do the act, although he has not already done it, modo et formá, as alleged. In such a case I should have no difficulty in granting an injunction.

With regard to the first branch, the quantity of the supply, I do not think it by any means clear that the construction for which the Plaintiff contends is the right construction of the demise, or that the Plaintiff has a right, under that instrument, to what he calls the prior use of the water. What he has a clear right to is the free use and enjoyment of so much of the stream as is necessary for effectually supplying with water and working the steam-engine mentioned in the demise. But if he gets this he has no cause to complain.

It was argued in the reply that, there being a demise of [271] half the brook, and a covenant on the part of the Defendants to keep up one weir, and not to erect any other weir on the brook, there is, in effect, a covenant by way of implication that the usual flow of the river shall not be interfered with, but there shall always be a certain pool or storage, of which there shall never be anything to interfere with the Plaintiff's prior right of user; and that the Defendants, by drawing off water above the Plaintiff's mill, interfered as effectually with his rights under the lease as they would have done by erecting a second weir. The usual flow of so much of the river as is necessary for the Plaintiff's use, I admit, is not to be interfered with; and, inasmuch as the erection of a second weir, in the manner supposed, might produce such an interference, the Defendants would, even in the absence of the negative covenant, have been precluded from erecting it. But that negative covenant, at the utmost, amounts only to this, that the Defendants will not put up anything which shall intercept the usual flow of so much of the stream as is necessary for the Plaintiff's steam-engine. It is far from being a covenant not to draw off what may not be necessary for that purpose. And all that the Defendants contend under this branch

of the case is that, if they allow so much of the stream according to its usual flow to reach the Plaintiff as will give him all they covenanted to give him, they are at liberty under the demise to draw off what is wanted for their own purposes.

one.

Without determining the question of construction upon this branch of the case, it is sufficient that I think it far from clear that the Plaintiff's construction is the correct I do not even entertain such a doubt in favour of the Plaintiff's construction as might lead me to desire to call in the assistance of a Common Law Judge. On this branch of the case the Plaintiff must rest on what I conceive will ultimately prove to be the true construction of the instru-[272]-ment, viz., that he is entitled to so much of the stream as will effectually work his engine, and to no more.

[His Honour then, after examining the evidence upon the first branch of the case, stated as his conclusion that, although the Plaintiff had reason, and he thought great reason, to fear that his right to so much of the stream as would effectually work his engine would be interfered with by reason of the course adopted by the Defendants,

still it was not shewn that such right had ever yet been actually interfered with. On that part of the case, therefore, he was satisfied he ought to do nothing before the action was tried.]

The second branch of the case is of a different complexion. The day after the cap was removed the Defendants, who had previously attempted in vain to get a supply of water from another quarter, shewing a feeling on their part that it was somewhat of a measuring cast what quantity of water would be stored up in dry seasons-finding that difficulties would be raised as to their right to replace the cap on the weir, adopted a course which up to that time they had not taken, and which, from their own proceedings, it is evident they had not thought it right, morally speaking, to take: To meet a possible deficiency in the supply, they discharged into the river above the weir, but below their own reservoir, the heated water which they had used for their own mill. And the question is whether, according to the true construction of the demise, the Defendants had a right thus to deal with the water of the river.

The demise was of (inter alia) "the free use and enjoyment of so much of the stream of water which usually flowed down the brook adjoining the land thereby demised as should be necessary for effectually supplying with water and working the said steam-engine." The quantity demised is defined by the words "so much as should be necessary [273] for effectually supplying with water and working the said steam-engine." But the words "the stream of water which usually flowed down the brook" define a specific thing, and the demise is a demise of the free use and enjoyment of so much of that specific thing-of that identical stream which usually flowed down the brook. The Defendants are the owners of the whole of the stream of water in its natural state. They demise the free use and enjoyment of so much of that stream in its natural state as it usually flowed to the Plaintiff. Have they a right afterwards to interfere with that natural state?

It was argued for the Defendants that the words in question, giving them their fullest effect, do but place the Plaintiff in the position of an ordinary riparian proprietor, every riparian proprietor having a right to the free use and enjoyment of so much as he requires of the stream in its natural state. But in a case like the present, where a party, being the sole owner of the stream, says, "I give you so much of this actual stream as it is now flowing down," I cannot agree that the rights of the donee as against the donor are to be restricted to those of a common riparian proprietor.

at once.

It was admitted-and it could scarcely be otherwise-that had the deed contained a covenant on the part of the Defendants not to pour hot water into the brook, the question of the degree of heat would have been immaterial, the question of damages would have been one not necessary to be tried, and the Court would restrain The question is whether this covenant is not identical; whether, if I demise a given portion of a given thing, and covenant for the free use and enjoyment of it, in the state in which it exists at the time of the demise, I do not covenant, in effect, that I will not interfere or intermeddle in any way with the state of that thing as then existing. To recur to the case I put [274] during the argument, trying perhaps idem per idem: suppose these were dyeing mills, would the Defendants, under this instrument, have a right to deal with the stream in any manner which could possibly interfere with or alter it from the state in which it existed at the date of the instrument? The question is not a mere question of damage, but whether an act is done which is in any way contrary to or at all affects the Plaintiff's right.

It was argued that this view might be reduced to a palpable absurdity; that if the Defendants had poured but a kettleful of hot water into the brook above the Plaintiff's mill the Court must interfere. But, in this case, I find upon the evidence of the Defendants themselves and certainly it is singular that it should come from their affidavit, and not from the affidavits of the Plaintiff's witnesses-that there was one instance when, at six o'clock at night, the natural temperature of the water being 57, the water at the weir, after the heated water had been poured in, was 70°, and the water in the Plaintiff's jackwell, which the Plaintiff was to use for the purpose of condensing, 68°. This, as it seems to me, is a material interference with the quality of the water; and the question whether that interference is such as to give the Plaintiff a right to damages is precisely a question that the Plaintiff is not obliged to try. His right under the demise is the free use and enjoyment of the natural stream. The

Defendants, by operations of their own, have taken that stream out of the course of nature, have heated it to this degree of heat, and given him, for the condensing purposes of his engine, water 11° higher in temperature than the water which, according to the demise, he should receive.

On that part of the case I do not think it right that the Plaintiff should be put to the expense of trying, by engineering evidence, how far an increase of 11° in temperature [275] would injure him, when I am quite satisfied by the engineering evidence of the Defendants' own witnesses. [His Honour investigated the evidence of the engineering witnesses.] Every witness admits that, whether you can measure the precise degree of damage likely to be done or not, it is better for the Plaintiff's purposes to have water at a lower degree of temperature. One says the best temperature would be 41°, another 32°. But above 41°, I am at liberty to take it on the Defendants' own evidence that every additional degree of heat renders the water somewhat less fit for condensing purposes; and when it is said that no positive injury is proved (although, in fact, one witness has spoken to the point as to the increased temperature of the water in the Plaintiff's jackwell having produced some injury), it seems to me that the injury, however trifling, is that to which the Plaintiff, under this demise, is not bound to submit, his rights under that demise being to have so much of the stream as is wanted for his works in its natural state.

The result is that I shall grant a perpetual injunction, restraining the Defendants from discharging or returning, or causing or permitting to be discharged or returned, into the brook at any point above the weir any heated water, so as to cause an increase in the temperature of the water in the Plaintiff's jackwell. That is the only injunction I can give at the present hearing. As to the rest of the motion, I shall direct it to stand over; the Plaintiff to proceed to bring such action as he may be advised in respect of the matters complained of in the bill, other than the discharge of such heated water, at the next Assizes.

In regard to costs, as a considerable portion of this case has been occupied with the question of quantity, I should grant the injunction without costs if the Plaintiff does not bring the action. If he does bring the action the rest of the motion will stand over, and the question of costs also.

[276] LAFONE v. THE FALKLAND ISLANDS COMPANY AND OTHERS. THE FALKLAND ISLANDS COMPANY v. LAFONE. Jan. 10, 1856.

Cross-Suit. Time to Answer. "Full and sufficient Answer." Exceptions.

Where the Plaintiff in the original suit had obtained the usual order, giving him time to answer a cross-bill, after the Plaintiff in the cross-suit should have put in a "full and sufficient answer" to the original bill: Held, that, for the purpose of computing the time so given, the answer must be considered sufficient from the time of its being put in, unless proved insufficient upon exceptions.

These were an original and cross-cause.

The bill in the original cause was filed on the 28th of April 1855, and the cross-bill was filed on the 1st of May following. The Defendants in the original suit were the company and some of their officers, who were made Defendants for the purpose of discovery. All these Defendants appeared by the same solicitor before the 23d of May 1855, on which day the Plaintiffs in the original suit obtained and served the usual order for time to answer the cross-bill after the Defendant company should have put in "full and sufficient answer" in the original suit, all the Defendants to the original suit, except one, put in their answers on the 14th of December 1855. The other Defendant changed his solicitor, and had not yet answered. On the 9th of January 1856 the company obtained a writ of attachment against Lafone for want of an answer in the cross-suit.

This was a motion, dated January 10, 1856, to discharge the attachment for irregularity, or to suspend it, until Lafone should have made default in answering the cross-bill within six weeks after all the Defendants should have filed sufficient answers to the bill in the original suit, or until default should be made by Lafone in

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