Harrington (Earl) v. Derby right (a). If what is complained of is of such a permanent nature that the reversion may be injured the reversioner may sue and obtain an injunction without joining the tenant in possession (b). When the right and its violation are clearly established (c), one is, in general, entitled as of course to a perpetual injunction to prevent the recurrence of the injury (d); and in the case of an injury to riparian rights by pollution, the Courts will not, except in special cases, award damages in lieu of an injunction (e). Where the mischief complained of is an injury to a private right the balance of convenience and inconvenience cannot be considered, the question being simply, whether such private rights exist, and, if so, whether the Court, in the exercise of its judicial discretion, can interfere to protect them (f). In Harrington (Earl of) v. Derby Corporation (g), the river Derwent was polluted Corporation. by sewage from (1) old sewers into which householders of Derby had for more than twenty years discharged their sewage; (2) sewers inherited by the defendants, the Corporation of Derby, from their predecessors, into which householders had by virtue of their statutory rights made connections; (3) sewers laid by the defendants themselves; (4) additional sewage arising from the conversion of privies into water-closets under directions given by the defendants. The plaintiffs owned Elvaston Castle and estate situated on the river above five and a half miles below Derby, and brought this action for an injunction to restrain the defendants from polluting the river so as to cause a nuisance; damages for the silting up of a lake fed from the river by a watercourse which had to be stopped up in 1902; the loss of a water-wheel which had been worked by the watercourse, and the expenses of replacing it by an engine; pollution to a well into which water percolated from the lake; depreciation of a house on the bank of the river and to the castle; the expense of obtaining a new water supply; and for injury to the fishing. In 1898 an order was made in the (a) Young v. Bankier Distillery Co., [1893] A. C. 691; 69 L. T. 853; 58 J. P. 100, H. L. (Sc.); Swindon Water Co. v. Wilts and Berks Canal, L. R. 7 H. L. 705; Goldsmid v. Tunbridge Wells, L. R. 1 Ch. 349; Crossley v. Lightowler, L. R. 2 Ch. 478; Harrop v. Hirst, L. R. 4 Ex. 43. See also cases post, pp. 259 et seq.; as to injunctions generally, see post, Chap. XI. (b) Jones v. Llanrwst Urban District Council, [1911] 1 Ch. 393; 80 L. J. Ch. 338. (c) A Court of Equity will not exercise its jurisdiction by injunction at the instance of an individual against an alleged nuisance, without a previous trial at law or without its being clearly proved that the plaintiff has sustained such substantial injury as would have entitled him to a verdict for damages in an action at law: Elmhirst v. Spencer, 2 Mac. & G. 45; dist. Goldsmid v. Tunbridge Wells, supra. (d) Wood v. Sutcliffe, 2 Sim. (N.S.) 166; Imperial Gas Co. v. Broadbent, 7 H. L. 612; see Kerr on Injunctions, p. 44, and post, Chap. XI. (e) Pennington v. Brinsop Hall Co., 5 Ch. D. 769. (f) Att.-Gen. v. Birmingham, 4 Kay & J. 528. (g) [1905] 1 Ch. 205; 74 L. J. Ch. 219. Derbyshire County Court, in an action brought by the County Council, that the defendants should abstain from polluting the river contrary to the Rivers Pollution Prevention Act, 1876 (h). By the Derby Corporation Act, 1901, the defendants obtained the necessary powers, and they had commenced to construct sewerage works for the whole of their area:-It was held, that, inasmuch as the householders had obtained in the first two classes of sewage prescriptive rights which could not be interfered with by the defendants, and an order had been made under the Rivers Pollution Act of 1876, and the defendants were taking steps to remove the nuisance, no injunction ought to be granted. It was also held that the action would not lie against the defendants for non-feasance or neglect of duty under the Public Health Acts; that the plaintiffs' remedy against them in that respect was by complaint to the Local Government Board under section 299 of the Public Health Act, 1875; that section 17 of that Act must be read only as a proviso; and that section 19 did not apply to the present case. It was, however, held that the action would lie against the defendants for damage caused by acts which they had done themselves, but that this did not make the defendants liable for the whole of the damage; that the plaintiffs could recover damages for the expense of procuring a new water supply and engine, and for the injury to the house and the fishing; but that they could not recover for injury to the amenities of the castle, nor for the silting up of the lake, for they ought to have excluded the water when they found it was polluted. It was further held that continuance of injury under section 1, sub-section (a) of the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), does not mean damage inflicted once and for all which continues unrepaired, but a new damage recurring day by day in respect of an act done, it may be, once and for all at some prior time, or repeated, it may be, from day to day; that under that sub-section an action may be instituted within six months of the ceasing of the continuing injury; and that therefore the plaintiffs were entitled to recover for a greater period than six months and up to the six years limited by the Statute of Limitations. Even where a prescriptive right has been acquired to discharge sewage into existing sewers an injunction may (notwithstanding Harrington (Earl) v. Derby Corporation) be granted to restrain a nuisance arising from the sewage, if on the facts of the case it does not appear that any interference with such rights will result from the injunction (i). (h) See post, pp. 192 et seq. (Hobart v. Southend-on-Sea Corporation (1906), 75 L. J. K. B. 305; 94 L. T. 337. In Stollmeyer v. Petroleum Development Co., Ltd. (k), where upper proprietors had allowed pollution of the waters of a lower proprietor the Court of first instance awarded £50 damages, but refused an injunction, although it was established that the rights of the lower proprietors had been infringed. On appeal to the Privy Council, Lord Sumner said: "The grant of an injunction is the proper remedy for a violation of right according to a current authority, which is of many years' standing and is practically unbroken (Imperial Gas Light & Coke Co. v. Broadbent (l), Pennington v. Brinsop Hall Coal Co. (m)). In English v. Metropolitan Water Board (n) there is a mere dicta to the contrary. The discretion of the Court in the grant of such injunctions is regularly exercised in this sense. Their Lordships see no reason to depart from so uniform a practice, and although they fully appreciate the reluctance expressed by the Courts of Trinidad, in view of the special circumstances of the petroleum industry, they do not think that they differentiate the present from other cases. There must be an injunction." Where the plaintiff has proved a right to an injunction, it is no part of the duty of the Court to inquire how the defendant can best remove the nuisance. The plaintiff is entitled to an injunction at once, unless the removal of the cause of injury is physically impossible; and the defendant must find his way out of the difficulty, whatever the inconvenience and expense may be (o). Where the difficulty of removing the injury is great, the Court will suspend the injunction for a time, to render its removal possible (p). Where the state of things existing at the date of a judgment has been changed and the nuisance removed an injunction granted may be discharged (q). Where an injunction was granted to restrain defendants from pouring sewage into a river, and execution of the order was stayed till July 1st, and defendants did not, subsequently to July 1st, stop the nuisance, alleging that they had not yet found a way of deodorizing it, and that compliance with the order was physically impossible, it was held to (k) [1918] A. C. 498; 87 L. J. P. C. 83. (1) 7 H. L. C. 600, 612. (m) 5 Ch. D. 769. (n) [1907] 1 K. B. 588, 603. (0) Goldsmid v. Tunbridge Wells, L. R. 1 Ch. 163; 1 Eq. 349; 35 L. J. Ch. 382; 14 L. T. 154; Att.-Gen. v. Birmingham, 4 K. & J. 528; Att.-Gen. v. Sheffield, 3 D. M. & G. 304; Att.-Gen. v. Leeds, L. R. 5 Ch. 583; Att.-Gen. v. Halifax, 39 L. J. Ch. 129; 17 W. R. 1088; Cator v. Lewisham, 11 Jur. (N.S.) 340; Att.-Gen. v. Hackney, L. R. 20 Eq. 631. As to balance of convenience where important public interests are involved, see Att.-Gen. v. Birmingham, post, p. 175, and cases cited post, pp. 179 et seq. (p) Att.-Gen. v. Colney Hatch, L. R. 4 Ch. 146; Att.-Gen. v. Halifax, 29 L. J. Ch. 129; Pennington v. Brinsop Hall Coal Co., 5 Ch. D. 769; Att.-Gen. v. Birmingham, 4 K. & J. 328. (q) Att.-Gen. v. Birmingham Drainage Board (1909), 26 T. L. R. 93, C. A. be a gross and wilful contempt of Court, and sequestration was ordered to issue (r). In granting an injunction to restrain pollution by sewage matter, it is the practice to grant an immediate injunction restraining any new communications with the river, and to suspend the operation of the order for a time to enable defendants to comply with the order by altering their works (s). In the case of Pennington v. Brinsop Hall Coal Co. (t), the plaintiffs, as Pennington v. Brinsop riparian owners, sought a perpetual injunction to restrain defen- Hall Coal Co. dants, the owners of a colliery, from polluting the waters of a stream with sulphuric acid and other deleterious matters; and the defendants pleaded that their operations caused no appreciable injury to the plaintiffs; and further, that if the injunction was granted, they would have no means of getting rid of the water from their mines, and would have to shut up their colliery, and that the water would still find its way into the stream by natural causes; and that the closing of the colliery would cause a loss of £190,000 and the ruin of their company. They further urged that in lieu of an injunction damages ought to be awarded (u). Fry, J., however, held, that the plaintiffs had a good cause of action, though the injury to their riparian rights was unaccompanied by damage, and awarded a perpetual injunction. In delivering judgment he says: "The plaintiffs claim both as riparian proprietors, and also as having a prescriptive right to the use of the water of the stream for the purposes of their mill. These rights are not denied by the defendants. The plaintiffs allege that the defendants pollute the stream so as to create an injury to the plaintiffs' rights; and they say, first, that this injury is accompanied by damage; and, secondly, that if it be unaccompanied by damage, they have nevertheless a good cause of action. This second proposition of the plaintiffs is, in my judgment, well founded, and has scarcely, if at all, been contested by the defendants. The injury alleged by the plaintiffs is denied by the defendants, and the first question which I have to decide is, do the operations of the defendants cause an injury to the plaintiffs? may observe, in passing, that the case of a stream affords a very clear illustration of the difference between injury and damage; for the pollution of a clear stream is to a riparian pro I (r) Spiker v. Banbury, L. R. 1 Eq. 42. (8) Goldsmid v. Tunbridge Wells, L. R. 1 Ch. 163; 1 Eq. 349; Att.-Gen. Birmingham, 4 K. & J. 528; 19 W. R. 561; Pennington v. Brinsop Hall Co., 5 Ch. D. 769; Att.-Gen. v. Halifax, 17 W. R. 1088; 39 L. J. Ch. 129; Att.-Gen. v. Leeds, L. R. 5 Ch. 583; Att.-Gen. v. Colney Hatch, L. R. 4 Ch. 146. (t) 5 Ch. D. 769. (u) As to this, see Aynsley v. Glover, L. R. 10 Eq. 544; L. R. 10 Ch. 283; Embrey v. Owen, 6 Ex. 353, 368; Wood v. Sutcliffe, 2 Sim. (N.S.) 163, 165; Dent v. Auction Mart, L. R. 2 Eq. 238; Leech v. Schweder, L. R. 9 Ch. 463. prietor below both injury and damage, whilst the pollution of a stream already made foul and useless by other pollutions is an injury without damage, which would, however, at once become both injury and damage on the cessation of the other pollutions." (His Lordship then reviewed the evidence, upon which he came to the conclusion that it proved that the water pumped by the defendants into the stream caused both injury and damage to the plaintiffs. He continued:) "It has, in the next place, been urged upon me that in lieu of an injunction I ought to award damages in this case. The argument has assumed this form. It has been said, and the case of Embrey v. Owen (x) has been referred to as an authority, that the cases of rights to running water, and of rights to air and light, are analogous; that in the case of injury done to the right to air and light the Court has frequently granted an inquiry as to damages in lieu of an injunction, and that it would be right and proper to follow the same course in this case. I am of opinion that I ought not to accede to this argument. In the first place, it is to be observed that the injury to air and light proceeds in almost all cases from a permanent structural obstruction; whereas the injury to water in the present case proceeds from a cause which varies from day to day, and may cease or may increase at any time. Hence follows a difference in the measure of damages in the two cases. In the case of an obstruction to light and air, the damages would represent the depreciation in value of the injured property, and so would be in the nature of a compensation for the injury done; whilst in the case of injury to the right to running water, the damages given only represent the past injury to the plaintiffs' right, and are, consequently, no compensation for the future injury. Again, the rights of the plaintiffs, as riparian owners, are not limited to their present modes of enjoyment; and a new mode of enjoyment gives a right at once to sue for the injury done in respect of such new use, as was determined in Holker v. Porritt (y), and the cases there cited. It is impossible to foresee what modes of enjoyment the plaintiffs, or their successors in title, may resort to, or the extent of damages which would be a compensation for the injury which the continued pollution might cause to such new modes of enjoyment. I shall not, of course, say that, in no case of injury to riparian rights, damages should be awarded in lieu of an injunction; but I know of no case in which it has been done. In the case of Clowes v. Staffordshire Potteries Waterworks Co. (z), the point was considered by Lord (x) 6 Ex. 353; 20 L. J. Ex. 212. (y) L. R. 10 Ex. 59; 44 L. J. Ex. 52; 33 L. T. 125. |