Page images
PDF
EPUB

1851.

SOLTAU

v. DE HELD.

neighbouring house, requiring the application of a power to prevent, as well as remedy, an evil for which damages, more or less, would be given in an action at law.” That is the ground for interference by injunction, and i at is the ground upon which, I conceive, that I ought to grant an injunction in this case.

Before I conclude I will just make an observation upon a point which was raised by the Defendant's Counsel : namely, that these bells are no more a nuisance than the bells of a parish church are. It is said that, in this parish, there are four parochial district churches or parish churches; they have all their bells; they ring on Sundays; and they ring on Wednesdays and Fridays; and, if this be a nuisance, why is not that a nuisance, or, if that be not a nuisance, why is this a nuisance? Now it seems to be overlooked that the building to which these bells are attached, although called a church by those who have erected it and those who use it, is not a church in the eye of the law. It is no more a church than the chapel or meeting-house of any denomination of Protestant Dissenters is. A church, in law, is that building of which there is but one in the parish, or but one in the parochial district, where the parish has been divided by Act of Parliament. It is a building the freehold of which and of the yard attached to it, is vested in the parson of the parish ; and of which there are churchwardens; to which bells are an appendage recognized by law; the special property in which bells, is, by law, vested in the churchwardens, but for the benefit of the parishioners at large, and, in respect of which bells, it has been held that an action of trover will lie by a succeeding churchwarden, in his official capacity, against the retiring churchwarden, to recover the value of the bells, on the ground of the special property vested by law in the church

1851.

SOLTAU

DE HELD.

wardens; and in which action the property inust be laid as being the property of the parishioners. The law recognizes the bells as an appendage to a parish church, and, by law, the churchwardens are to have the custody and care of the belfry in which the bells are suspended and tolled. Moreover, with regard to churches, unless in special cases of churches founded by the Crown, or special cases of churches founded by Act of Parliament, not parish churches, they are under the jurisdiction of the Bishop of the Diocese. There is but one Bishop of the Diocese. Is it said that this building is under the jurisdiction of the Bishop of Winchester, in whose diocese Clapham is situated ? Certainly not : it is but a chapel; it is no church ; it has no legal privilege of having bells in the same way as a parish church has. I do not mean, in what I say, to intimate, in the slightest degree, that it is unlawful for Roman Catholics to have bells attached to their places of worship. I avoid that question entirely, as I have hitherto done. But it seems to be assumed that this church stands on the footing of a parish church, and, therefore, that it is as much privileged and entitled to have bells, whether they are a nuisance or not, as a parish church is : and, for that reason I have made these observations.

There has been no acquiescence in this case. The Plaintiff has diligently asserted his rights : and I think that he is entitled to an injunction; but not quite in the terms in which it is asked by the notice of motion. The bill asks for an injunction to restrain the ringing of these bells altogether; or, in the alternative, to restrain the ringing of them so as to cause or occasion any nuisance or annoyance to the Plaintiff or any of the members of his family residing in his house : and it appears to me that the latter is very nearly the form in which

VOL. II. N. S.

M

1851.

SOLTAU

DE HELD.

the injunction ought to be granted. Therefore I shall order an injunction to issue to restrain the Defendant and all persons acting under his direction or by his authority, from tolling or ringing the bells in the Plaintiff's bill mentioned or any of them, so as to occasion any nuisance, disturbance and annoyance to the Plaintiff and his family residing in his dwelling-house in the bill mentioned. In thus wording the injunction, I am following what was done, by Vice-Chancellor Knight Bruce, in Walter v. Selfe.

I cannot say that it is absolutely impossible that any one of these bells may not be rung so as not to occasion any nuisance or annoyance to the Plaintiff. It is possible : and, therefore I do not think it right to say

that none of the bells shall be rung again.

WOOD v. SUTCLIFFE.

1851 :

Ist, 3rd, and FOR above twenty years, the Plaintiffs had carried on 4th Dec. the business of worsted-spinners, at mills situate on the Injunction. banks of a beck or stream in Yorkshire, called The Water-right.

Acquiescence. Bowling Beck, and, by long user, had acquired the right of using the water of the stream for washing wool and What condi

tions are requirgenerating and condensing steam; the first two of which ed in order to purposes required that the water of the stream should induce a Court come pure and unpolluted to their mills. The Defend- of Equity to

grant an injuncants were the proprietors of works situate higher up the tion to restrain stream, at which they carried on the business of dyers ; the infringebut the construction of those works was not begun until

ment of a right,

acquired by the year 1844, nor did the Defendants commence busi- long user, to ness in them until February in the following year. At use the water of

a stream for different times between the erection of the Plaintiffs' certain purmills and the construction of the Defendants' works, poses. about sixteen hundred houses, forming a suburb to the town of Bradford, were built on or near to the banks of the stream, between the Plaintiffs' mills and the Defendants' works. In January, 1850, the Plaintiffs brought an action, and in July following obtained a verdict, but with only a farthing damages, against the Defendants, for having polluted the stream by pouring the refuse of the matters used in their business into a drain communicating with the stream. At the trial of the action, the Defendants did not dispute the right of the Plaintiffs, but contended, merely, that the Plaintiffs did not sustain any damage from the acts complained of. In January 1851, the Plaintiffs entered up judgment in the

VOL. II. N. S.

N

1851.

Wood

SUTCLIFFE.

action; and, in the next month, they filed a bill for an injunction to restrain the Defendants from discharging or pouring into the stream, either directly or by means of the drain, any filthy, noxious, or offensive substances or materials, or foul or impure waters, so as to render the water of the stream, above or at the Plaintiffs' mills, foul or unfit for the working of the said mills.

Mr. Bethell and Mr. Daniel moved for the injunction.

Mr. Rolt, Mr. Malins, and Mr. Elderton opposed the motion.

Mr. Daniel replied.

The Rochdale Canal Company v. King (a), and the cases there cited, were referred to in the course of the argument.

The Vice-Chancellor, after stating the facts of the case and observing that the Plaintiffs had established, at law, their right to use the water of the stream for the above-mentioned purposes, indeed, that the Defendants did not dispute that right, and that the Plaintiffs had also established that the Defendants had infringed it, proceeded in these words :

Such being the case, the question which I have to decide, is whether the Plaintiffs are entitled to apply to a Court of Equity for an injunction? It is not my intention to enter into a general disquisition as to the grounds on which Courts of Equity will interfere in all the differ

(a) Ante, p. 78.

« EelmineJätka »