Carriers by Railway-Carriage of Cattle -Cattle-Plague Order-Cleansing Truck -Right to Charge for Cleansing.

By the Consolidated Cattle-Plague Order of August, 1867, made under the 11 & 12 Vict. c. 107, it was ordered that " every carriage truck required to be cleansed and disinfected should be cleansed and disinfected once in every twenty-four hours during the time when it is used for any animal” in a prescribed manner; and by a clause in their Railway Act a railway company were empowered to receive a certain rate as a maximum rate of carriage for the conveyance of animals, inclusive of every expense incidental to such conveyance, except for any extraordinary services performed by the company, in respect of which they might make a reasonable extra charge:-Held, that the railway company who had carried a cow on their railway for the owner had no right to charge him, in addition to the charge for carriage, with the cost of cleansing the truck, as such cleansing was not a service performed for the owner of the cow within the meaning of the said clause of their Railway Act.

This was an appeal from the decision of the Judge of the County Court of Suffolk, holden at Ipswich.

The case stated that the action was brought to recover 20l. for the conversion of a cow belonging to the plaintiff, and that it was tried by a jury. The plaintiff was a cattle salesman residing at Ipswich. The defendants were railway carriers, subject to the provisions of the Railways Clauses Consolidation Act, 1845, and also governed by a private act of the 25 & 26 Vict. c. ccxxiii.

On the 18th of November, 1867, the defendants carried a cow from Diss to Ipswich for the plaintiff, and upon its arrival at Ipswich gave notice thereof and of their charge for the same by an order note, in which it was stated that the animal had arrived at the Ipswich station, and that the company's charges were, for the carriage of the animal 5s. 8d., and for cleansing the truck 18., making altogether 68. 8d.

By the regulations of the Board of Trade, as set forth in the London Gazette of the 23rd of August, 1867, the truck-cleansing was required to be done and was done by the and it was to be taken that company, 18. was a reasonable sum to charge for such cleansing.

The plaintiff objected to pay the 1s., but tendered the 58. 8d. to the company, who, however, refused it, and then detained and sold the cow under the 97th section of the Railways Clauses Consolidation Act, 1845.

Upon the above trial, the Judge of the county court directed the jury to find a verdict for 187., being of opinion that the defendants were not entitled to charge the plaintiff for cleansing the truck; or, if so entitled, that the defendants were not entitled to detain and sell the cow for the same, and gave leave to either party to appeal against such direction by virtue of the County Court Act, 1867, s. 13.

The questions for the opinion of the Court were first, whether the defendants had a right to charge the plaintiff with the cost of the cleansing? secondly, whether, the defendants having a right to charge the plaintiff such costs, they had a right to distrain?

Kemp, for the defendants (the appellants). The cleansing of the truck was required to be done by rule 54. of the Consolidated Cattle-Plague Order of the 20th of August, 1867, made under the 11 & 12 Vict. c. 107, as amended by the 29 Vict. c. 15. That 54th rule is as follows: "Every pen, carriage-truck, horse-box, vehicle, or boat required to be cleansed and disinfected, shall be cleansed and disinfected once in every twenty-four hours during the time when it is used for any animal in manner following: by sweeping out and effectually removing all dung, sawdust, litter or other matter from the pen, &c., and then by thoroughly washing," &c. This cleansing was a service which was beyond the ordinary duty of a carrier to perform, and was therefore an extraordinary service for which the railway company were entitled to make a reasonable extra charge by virtue of section 230. of their private act-25 & 26 Vict. c. ccxxiii. (1).

(1) The following are the words of such 230th section: "And with respect to the conveyance of goods, minerals and things, carriages and animals,

[MONTAGUE SMITH, J.-It does not appear when the cleansing was done. If it was done after the truck had been used by the plaintiff's cow, how could that be for his benefit?]

It is submitted that it must be taken that the cleansing was before the cow was put into the truck. It could not be intended that the expense of this cleansing and disinfecting, which really was for the benefit of the owners of animals using the trucks, should fall entirely on the railway company. By the prior orders of 1866 the railway company or persons who carried animals for hire were expressly required to cleanse and disinfect the trucks after the animals had been taken out of them. But these orders have been repealed, and this direction is omitted in the order of 1867, which is in favour of what is contended, that the service of so cleansing is for the benefit of the owners of the animals.

J. Brown (Blofield with him) appeared for the plaintiff (the respondent), but was not called on.

KEATING, J.-It is unnecessary to refer to the second question stated in the case, as I am of opinion that the defendants clearly had no right to charge the plaintiff with the cost of the cleansing of the truck, it not being in respect of a service done for him in particular. The Order in Council makes it necessary to cleanse the trucks when used in order to prevent the spread of the cattle plague. It does not appear from what is stated in the case whether the truck in

the company may lawfully demand and receive, as a maximum rate of carriage for the conveyance thereof along the railway, including the tolls for the use of the railway, and waggons or trucks, and locomotive power, and every expense incidental to such conveyance, except a reasonable sum for loading, covering and unloading of goods at any terminal station of such goods, and for delivery and collection, and any other services incidental to the service or duty of a carrier, where such services, or any of them, are or is performed by the company, and except a reasonable sum for warehousing and wharfage, or for any other extraordinary services performed by the company (in respect of which the company may make a reasonable extra charge), any rates or sums not exceeding the rates or sums following, viz.," &c.

question was cleansed just before or after the plaintiff's cow was put into it, but in either way I do not think that the cleansing can be a service rendered to the plaintiff individually as contradistinguished from the rest of the public. The object of the statute and of the Orders in Council made under it was to prevent the spread of the disease generally; and I cannot see how the defendants, acting under such Orders, would have any right to make this charge. Therefore, I am of opinion that the county court Judge was right, and that his judgment should be affirmed.

MONTAGUE SMITH, J.—I am of the same opinion. I am not satisfied that the cleansing of the truck was a service performed by the defendants for the plaintiff within the meaning of the 230th section of the defendants' Railway Act, 25 & 26 Vict. c. ccxxiii. The case does not find whether the service was performed before or after the cow was put into the truck, and if it was afterwards I cannot see how causing the truck to be disinfected can possibly be said to be a service done for the plaintiff. It is, however, to be observed that the order in question does not say that the railway company are to cleanse the truck for every animal that uses it, but that they are to do so once in every twenty-four hours in which it is so used. That clearly gives the company no right to charge the owner of any particular animal that may be put into the truck with the expense of cleansing.

BRETT, J.-It seems to me that the cleansing of the truck is a duty cast on the railway company for the benefit of the public generally in order to prevent the spread of the cattle disease, and not for the benefit of any individual in particular; consequently the plaintiff ought not to be charged with the expense incurred by the company in the performance of that duty. Judgment affirmed.

Attorneys-Patteson & Cobbold, agents for Cobbold & Yarington, Ipswich, for plaintiff; W. H. Shaw, for defendants.

1869. Jan. 15.

SAXBY V. THE MANCHESTER,
SHEFFIELD AND LINCOLN-
SHIRE RAILWAY COMPANY.

Watercourse-Obstruction-Liability of Owner of Land for Wrongful Act of Strangers.

In an action for obstructing the flow of water from a stream to certain works of the plaintiff the evidence shewed only that the defendants were owners of the soil of the stream, and that the obstruction had been placed there in order to use the water for certain works before it came to the plaintiff's works, but without the sanction of the defendants and by persons who were strangers to the defendants, and between whom and the defendants there was no connexion by title or otherwise. The defendants derived no advantage from the continuance of the obstruction, and offered to allow the plaintiff to enter and remove it, but they declined to do so themselves :-Held, that there was no evidence of a wrongful continuance of the obstruction by the defendants, and that under these circumstances the plaintiff was rightly nonsuited.

The first count of the declaration alleged that the plaintiff was possessed of certain print-works, land and premises, and by reason thereof was entitled to the flow of a stream or watercourse for working the said works and for the more beneficial use and enjoyment thereof, and the defendants obstructed and diverted, to wit, by means of a weir and planks and other obstructions, the water of the said stream away from the said print-works, land and premises, and the plaintiff was thereby injured.

The second count was abandoned at the trial; and the third count merely alleged that the plaintiff was possessed of certain land, and was entitled to the flow of a stream or watercourse through the said land, and that the defendants obstructed and diverted the water of the said stream or watercourse from the said land of the plaintiff.

Plea-Not guilty. Issue thereon.

The cause was tried, before Channell, B., at the Chester Spring Assizes for 1868. It appeared that a canal company, incorporated in 1794, by 34 Geo. 3. c. xxvi, for making the Peak Forest Canal, made a cutting in NEW SERIES, 38.-C.P.

the bed of a natural stream called Todd's Brook, which had since by statute been united with and become the property of the defendants. Todd's Brook flowed into

the river Goit, and below the point where Todd's Brook joined it some print-works, called the Furness Print-Works, were situated, which were worked by the water of the Goit. In 1854, a Mr. Welch, who was then the proprietor of these print-works, erected some other print-works, called the Whaley Bridge Print-Works, on land of his higher up the Goit and between the Furness Print-Works and the junction of Todd's Brook with the Goit. Welch, being also the occupier of the adjoining land, placed a dam or weir across the artificial cutting which had been made in Todd's Brook, and conducted the water of the brook to the Whaley Bridge works. The water, after it had been so used and fouled at these works, was then discharged into the Goit, about a mile above the Furness works. In 1858, Welch, who had thus occupied and used both works together, sold the Furness Print-Works to the plaintiff, without reserving any right to divert the water of Todd's Brook; and he subsequently sold the Whaley Print-Works to Messrs. Grave & Co. The plaintiff, insisting upon his right to have the water from Todd's Brook as it had formerly flowed, required the defendants to remove the weir and restore the watercourse to its original state. The defendants, though owners of the soil of the cutting across which the weir had been put, were not the owners of the adjoining land; and in the correspondence which took place between their attorneys and those of the plaintiff they stated that they wished to be neutral in the matter, and that though they declined to remove the weir themselves, as they were unwilling to be involved in a lawsuit with those who had put it there, they would make no objection to the plaintiff sending any one to remove it. The plaintiff did remove it, but it was shortly afterwards restored, though it did not appear by whom, only that it was not done by the defendants; and the plaintiff, declining to remove it again, although offered every facility for that purpose by the defendants, brought this action. Under these circumstances the learned Judge, being of opinion that there was no evidence

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to go to the jury in support of the action, nonsuited the plaintiff.

A rule nisi was afterwards obtained, on behalf of the plaintiff, to set such nonsuit aside, and for a new trial, on the ground that there was evidence to go to the jury of the defendants' liability.

Against this rule

M'Intyre now shewed cause.-The nonsuit was right. The diversion of the water had been effected by a riparian proprietor when the two works were united and worked by the same proprietor. The defendants did not claim under the person who had made the obstruction, nor did they adopt his act or derive any benefit from it. They were willing to permit the plaintiff to enter on their land to remove the obstruction, and if he should be improperly prevented by anybody from doing so he would have a right of action against the person who should so prevent him, and therefore there was no necessity for the present action in order to ascertain and enforce the plaintiff's rights, if he had any. There was, however, no evidence of any wrongful act by the defendants. On moving the rule the case of Reedie v. the London and NorthWestern Railway Company (1) was cited, for the observations of Rolfe, B., in delivering the judgment of the Court, as to the liability of the owner of real property for nuisances arising from the mode in which his property has been used by strangers. Such observations might apply if there had been evidence to shew that the defendants in the present case had adopted the wrongful act complained of, as is the case where a person lets a house or land with a nuisance on it, although that nuisance had been created previously by some former occupier. The strongest instance of this is in the case of Gandy v. Jubber (2), where the owner, who continued a yearly tenant after a nuisance had been created by the yearly tenant, was held liable for the continuance of the nuisance, although he had no knowledge of the existence of such nuisance.

[Mellish, for the plaintiff, informed the Court that that case had been in effect reversed on appeal, but he stated that as the

(1) 4 Exch. Rep. 244.

(2) 5 B. & S. 78; s. c. 33 Law J. Rep. (N.S.) Q.B. 151.

defendant had consented to a stet processus, the case in the Exchequer Chamber had not been reported, although the Judges there had said that the judgment of the Court of Queen's Bench ought to be reversed.]

There is the case of Fletcher v. Rylands (3), which, however, is very distinguishable.

[MONTAGUE SMITH, J.-That case does not touch the present one.]

There really is no reported case in which a person has been held liable for a trespass or wrong committed against his will, unless he has been a party to its wrongful continuance. The defendants here never did either the one or the other of these things, nor had they any interest in either creating or continuing the diversion of the

stream.

Mellish and Bowen, in support of the

rule. The question is whether, if there be something on land which causes a continuing nuisance, the owner and occupier of such land is not legally liable to the person who sustains a damage from such nuisance. There is, no doubt, very little authority to be found on the subject where the act causing the nuisance has been done by a stranger and wrongdoer. It was settled by Penruddock's case (4) that a nuisance created by the dropping of water was a new wrong each time it occurred, so that if not reformed after request made to the person who came in afterwards as feoffee of the premises from whence the water dropped, an action was maintainable in respect of it, but that, without such request, it was not maintainable against such feoffee. Therefore, that case drew a distinction between the person who did the wrong and the person who allowed it to continue.

[KEATING, J.-There the feoffee was a party claiming the premises under the person who had done the nuisance.]

That is true. The case of The Queen v. Watts (5) decides that an indictment lies against a tenant for suffering a house to remain ruinous and likely to fall down.

[BOVILL, C.J.-That was founded on the duty to prevent an injury to the public.]

(3) 35 Law J. Rep. (N.S.) Exch. 154; s. c. Law Rep. 1 Ex. 265.

(4) 5 Rep. 100 b. (5) 1 Salk. 357.

But there was no obligation beyond what arose from being the occupier of the property. In The Queen v. the Bradford Navigation Company (6), a canal company empowered by statute to take the water of certain brooks and use it for their canal, were held liable to be indicted for a nuisance arising from the water becoming polluted by drains before it reached the canal; and, though the decision in Gandy v. Jubber (2) was questioned by the Court of Exchequer Chamber, there has been nothing to diminish the effect of the observation of Crompton, J. in that case, that "In the earliest times it was held that the owner of land, if the occupier, was bound to keep his land free from nuisance." And, in Reedie v. the London and North-Western Railway Company (1), Rolfe, B., in delivering the judgment of the Court, said, "It is not necessary to decide whether, in any case, the owner of real property, such as land or houses, may be responsible for nuisances occasioned by the mode in which his property is used by others not standing in the relation of servants to him, or part of his family. It may be that in some cases he is so responsible. But then his liability must be founded on the principle that he has not taken due care to prevent the doing of acts which it was his duty to prevent, whether done by his servants or others. If, for instance, a person occupying a house or a field should permit another to carry on there a noxious trade so as to be a nuisance to his neighbours, it may be that he would be responsible though the acts complained of were neither his acts nor the acts of his servants." The defendants in this case had notice of the wrongful obstruction, and the fact of their saying that they desired to be neutral shews that they sanctioned the continuance of it. At all events, there was evidence to go to the jury of such continuance, and the authorities apply which shew the liability of the owner of land to be indicted for a nuisance to the public, as in such a case an individual who has sustained a personal damage would have a right of action.

BOVILL, C.J.-I am of opinion that my Brother Channell was right in directing a nonsuit to be entered, on the ground that

(6) 34 Law J. Rep. (N.s.) Q.B. 191.

there was no evidence for the jury on which they might find a verdict for the plaintiff. With regard to the act itself which the plaintiff complains of, that act was not the act of the defendants, nor was it ever adopted by them, nor did it cause any benefit to their property. In truth, the act was done by other persons against the will of the defendants, and was an act which they had neither ordered nor adopted, but which had placed them in the greatest difficulty. It is said, however, that the defendants ought to be held responsible for the continuance of this wrongful act. If, after it had been done, it had appeared either that they had adopted it or had had some benefit from it there might, perhaps, have been some evidence of their liability to go to the jury. But this was not so, and it is simply the case of an act done by others which has not been approved of by the defendants. It is said that the defendants might, at least, have removed the obstruction, but it seems that the plaintiff had also power to do the same; for the defendants gave him leave to come on their land for that purpose. Therefore there were two parties, namely, the plaintiff and the defendants, who had power to remove it, but the consequence of removing it was serious, for it involved a conflict with those who had put it there; and, further, it subjected the party so removing it to the liability of an action at the suit of the persons who had placed it there. Under these circumstances it is impossible, I think, to say that there was any evidence on which a jury could properly be allowed to find a verdict for the plaintiff.

BYLES, J.-I am of the same opinion. If the defendants had created the obstruction they would, undoubtedly, have been liable in this action, but that was not so, for the act here had been done by strangers. The defendants did not know by whom or under what right the act had been done, and they did not continue the obstruction, but were willing to have it removed, only they would not incur the expense or responsibility of such removal.

KEATING, J.-I do not understand that the Court, by what they are now deciding, are interfering with the general rule which imposes a liability on the owner of land in respect of creating or continuing a nuisance