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THE LLANBWST CHANCERY ACTION.

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THE LLANBWST CHANCERY ACTION. ISGOED JONES v. THE URBAN COUNCIL. INJUNCTION GRANTED AGAINST THE COUKC'.L. rrs OPERATION SUSPENDED FOR EIGHTEEN MONTHS. (From Our Loudon Correspondent). In the Chancery Division, on Tuesday, Mr Justice P««?ker delivered his reserved judgment in this ction, by which the plaintiff, as owner of property known as Plasyndre, on the banks of the Conway, claimcd relief against the defendant Council, in resp-cct of an alleged nuisance caused by theJr turnillg eewage into that river. The case was argued by Mr Romer, K.C., i and Mr Hewitt, for the plaintiff; and Mr Macmorr-aia, K.C., and Mr Toniildn, for tho defendants. In delivering judgment, his Lordshap said that the plaintiff in the action was the owner of property known as Plasyndre, situated at Lianrwst, in t.ho County of Denbigh, and it was bounded on t.he west by the Kiver Con- way, which, at that point, flowed from south to north. The land immediately abutting on the river was low-lying fie'ds, which we e eubjeot to floods. At the present time, a.nd for some time past, these fields were in the possession of a. yearly tenant. In the bed of the rivevr for a distance of some 200 yards adjacent to the plaintiff's property was a bonk or thoa-1 of sandstone or gravel, which was uncovered at the time of low water. There was apparently some doubt as to the ownership of the bed of the river, which in- cluded this shoal. The presumption was that the bed of the river up to the middle belonged to the adjoining owner. It was said that the River Conway was a tidal river at this point, and the Earl of Ancaster claimed to be tho owner of the bod right across. He found that the river, where it flowed past the plaintiff's property was influenced by exceptional tidc6, but was not affected by ordinary tides. In that respect it was, therefore, not tidal in the ordinary sense of the word. Further, he d:d not think that the evidence in support of the Earl of Anctu-ter'« claim to the whole of the bed of the river was sufficient to rebut the usual presumption that an adjoining owner was entitled to rights in respect of half the bed. It was true that persons hold- ing licences from the earl fished on both aides of the river, and the earl or his agents have licensed people to fish on both sides. The ownership of several fishery was, however, not conclusive evidence of the ownership of the bed of the stream. The plaintiff had himself licensed people to fish, aud he or his tenant had watered cattle in the river. The ques- tion of the ownership of tho bed of the river, however, he did not think was really im- portant £ or the determination of the action. RIGHTS OF RIPARIAN OWNERS. LLanrwst was a town of between 3000 and 8000 inhabitants. It had a gocd w.atesr sup- ply, and the sewage from these 2000 or 3000 people was taken in its crude state and turned into the river, where it abutted upon the plaintiff's property. The plaintiff complain- ed that the sewage interfered with his rights as a riparian owner, and that the defendants have stated that they were going to continue to infringe those rights. The. matter from the sewers was deposited on the river bed, including the shoal he had mentioned, in such quantities as to cause a nuisance. Further, the plaintiff corn planned that such deposit was ft trespass upon his land. He (the Learned was of opinion that a riparian owner, "Vihether he was the owner of part of the river bed or not was entitled to the flow of the stream past his land in its natural state of purity, undisturbed by noxious matter, and anyone who fouled the water infringed his rights, and therefore he was entitled for damage. With regard to the &ccond com- plaint, he (the learned Judge) was of opinion that anyone who turned noxious matter, or allowed noxious matter to escape into a river in such a manner as to interrupt the natural flow of the river was guilty of trespass. There wis ;n tho present case a most curious conflict of evidence as to whether this river was fouled by sewage or net The plaintiff's wit- nesses for the most part described what they had seen and experienced. The defendants' witnes- ses deposed to what they had themselves seen on different occasions. He had no reason to think that the plaint.ff s witnesses were not telling the truth, and he found it impossible to negative the poa tive evidence given by the plaintiff's witnesses by the negative evidence given by the witnesses for the defence. lie thought that the difference in the evidence could be explained by the con- dition of the Conway at the time of the different vents, the Conway rising and falling with great rapidity. Taking the evidence as a whole, he found that the draining of this sewerage into the river did materially diminish the purity of the river. In his opinion the effect of this discharge of sewage was to render the water of the river extensively lass fit to water cattle and for other p.posoo for which a riparian owner was entitled to use it. Sewage matter was deposited in the bed of the river in close proximity to the plain- tiff's land and partly on the shoal. It was also to a less extent de-posited on the plaintiff's banks, tuither, he found from the evidence that such sewage matter was sufficient to constitute a nu.sar.ee It would not, in his opinion, serve any useful purpose by analysing the evidence of the witnesses in detail, but he had carefully consi- dered the shorthand notes, and he felt that he was justified in finding on the 'facts that if the defendants were private individuals and the plain- tif was in actual possession of the field, there cculd not be any defcnce to the action. But it was said that the plaintiff could not maintain the action because the field was not in his possession and because the defendants were the local sani- tary author:ty having statutory obligations, and they only took a qualified interest in the sewers in question. With regard to the first of these points, it was said that tho plaintiff could not bring sn acton for infringement of his natural rights without alleging and proving injury to tho reversion. If the thing complained of was of such a permanent nature that the reversion could be improved the plaintiff could no doubt bring his action. The question therefore was whether or not it was of a permanent nature. He took "per- manent nature" to mean such as would be con- tinued indefinitely unless something was done to remove it. A building was a thing of a per- manent nature, though no doubt it might be re- moved. The exercise of alleged rights would, in his opinion, not be in their nature permanent in themselves unless it was the intention of those exercising them to go on doing so indefinitely. In opinion, what was contemplated hero was of a permanent nature. The defendants said, "We will continue to have this sewage turned into the Conway unless and until we choose to tako it elsewhere." Further he was satisfied that the plaintiff's reversion was in fact injured and de- preciated in value by what was being done at the present time. THE DEFENDANTS' LIABILITY. The second point was one of greater difficulty. The defendants say that they are in the statutcrv pos.ton described by the authorities and are not liable at all He was, of course, bound by the decision of :he Court of Appeal, but it was by no means easy to arrive at the principle upon which the leading cuse in the Court of Appeal was decided The defendants say that they are not bound m respect of any common jaw nuis- ance or any damage they may do, as they were doing what they were doing on the alleged autho- rity of an Act of Parliament. He thought that the principle of the case cited by the plaintiff would apply to the owners of sewers whether they themselves had made the sewers or not. If the owners of sewage allowed sewage to escape in neglect of their duty it would g-ve any person injured a good cause of action. On the autho- rity mentioned it was not a bona fide action by a private owner to remedy a private wrong. There might m that case have been a good cause ot acton if the wrong being done was being done to property belonging to a private person. defendants, though they might not be as a statutory body with only a united property in the sewers and having statutory duties to per- ioral in respect of the sewers, would be liable for any negtect of duty. There no doubt the Attor- ney General's fiat would be necesarv. He not think, however, that the authorities were in oonflict with the present case. The plaintiff here had a bona fide complaint of a private wrong and was not under the cloak of such a wrong endeavour.ng to attempt to compel the defendants to carry out a statutory duty. The to the passing of the Public Health Act of 18/5 were vested in the Guardians as the sanitary authority for the district, and they continued to be such sanitary authority until 1382. By Section 12 of tho Act of 1382 any pro- perty vested in them under the Public Health Act of 1875 remained vested in them, and there was nothing to show any transfer of the sewers In the year 1873 or 1374 the Guardians com- menced to lay down a system of sewers, and for that purpose came to an arrangement the precise int. of which was unimportant. It was clear, hat over the plaintiff's property they be called sewer No. I. The out- point considerably lower down tho e outfall as it at present existed. sewage from the. district was Wer No. 1. In 1882 the "then tiff's property entered into an defendants' predecessors by was constructed across the No doubt it was the inten- seWQr with sewer No. 1 at < i a point considerably above the outfall, but sewer No. 2 was never connected with sewer No. 1, but was taken straight into the river. There was no evidence that this was done under any further agreement with any person interested in the plaintiff's property. In 1891 No. 1 sev.cr, so far as it was situated on the plaintiff's pro- perty, was being continued to the new outfall, and such sewage as heretofore passed through ;t passed to the S.r W. corner of the plaintiff's land and straight on to the river bed. That sewer for some yards traversed the bed of the river along the plaintiff's land beside the river. All the sewage found its way into the river through the new outfall, and the outfall of sewer No..2, and still does so. Up to this point the Guardians as the sanitary authority would be respons b!e, and as such would be responsible in the same way as any private person for the escape of their sewage, rp to the point there was no room for the application of the case cited by the defendants. The Guardians ceased to be the sanitary authority under the Local Government Act of 1894. These were succeoded by the Rural District Council under Section 25 of the Act. They had transferred to them all the rights and powers of the Guardians as the sanitary authority, and all the property of the Guardians was held by them under their powers. Their dutes were defended by Section 25, and in his opinlon these duties included the duty of the Guardians to dispose of the sewage so as not to interfere with private rights. Though there might be a common law duty and not a statu- tory duty, he was of opinion that the Rural Dis- trict Council constituted under the Act of 1899 were liable for breach of these duties to the same extent as the Guardians were liable had they remained the sanitary authority. By an Act of 1899 duly confirmed by the Local Government Board, the Rural District Council was dividted into two parts, and the part in which the sewers were situated became an Urban District, and the Urban District Council became the owners of the sewers as successors of the Rural District Council. Those orders contained provisions whereby the properties and liabilities, so far as the same related to the Urban District Council, parsed and became vested in the defendants. In his opinion, tho liabilities that were transferred included such as the Rural District Council had in respect of the sewage system in question. It followed that they could not do more as the Urban District Council than could have the Rural District Council or the Guardians of Llanrwst. Further the Council had not confined them- selves with regard to tliis sewage as they might NEW DIGNITARIES AT ST. ASAPH CATHEDRAL. j Wynne Jones, Archdeacon Fletcher, Canon D. Davies (Wrexham), and Canon Thomas Jones (Abergele), who were .instzilcd at St. Asaph Cathedral on November 30th. have done, to leaving things as they found them. They had themselves laid new sewers and they had relaid and enlarged the sewers that were constructed by the Guardians. That took the case quite outside tho limit of the cases cited. It appeared! to him that if the statutory rights in question formed a defence to an action for injunction for nuisance no injunction could ever be granted against a sanitary authority. But there had been numerous cases in which such in- junctions had been granted, and further he was unable to see on principle why, where the right of a third party was interfered with and there was a remedy by way of injunction, the right to relief should be any the less because it was the Attorney General that was seeking for it. The rights, however, were not analogous. One was a prescriptive right. The right of the in- habitants was the right to carry sewage into tho river by a sewer belonging to the local authority, "I I but their rights had not been required against the riparian owner. If A grants authority to B to do certain things he did not see why A should escape liability for letting sewage out on his own land generally because B bad acquired a right from him. He came to the conclusion that the existence of the statutory right formed no de- fence to the claim for an injunction. Lastly, the defendants had endeavoured to say that the agreement of 1882 under which the Guar- dians obtained leave to lay the sewers, the fact' that the plaintiff had received rent under it, further the fact that it was shown that the sewers were laid partly under the plaintiff's knowledge and the delay in instituting the pro- ceedings was a bar to the claim. He (the judge) could not construe the aereement of 1882 as a licence to turn crude sewage into the river to the injury of the Plasyndre estate. The Guar- dians had under the Act of 1885 statutory autho- rity to lay sewer No. 2 to the Plasyndre land, and were of course bound to pay compensation to the owner of the estate. He looked upon the agreement of 1882 merely as a settlement of that compensation, and not as a grant to the Guar- dians of any right they did not possess. With regard to delay in bringing the action, except so far as the defendants could rely upon prescription, he did not think the Statute of Limitations had anything to do with it. He did not think that with regard to a continuing nuis- ance or trespass the Statute of Limitations had any application except as to the amount of da- mages that could be recovered. SUGGESTED TERMS OF- INJUNCTION. The plaintiff did not ask for damages if an in- junction was granted, and he thought an injunc- ton was the proper remedy under the circum- stances. It would, however, have to be sus- pended for some time in order to give the defen- dants an opportunity of getting rid of their sewage in some other manner, and the precise terms of the injunction would be a matter for diacuss.on. The form of the order he suggested was an injunction restraining the defendants causing or permitting the sewage of the town nf Llanrwst to flow or pass into the River Conway by means of the existing outfalls Nos. 1 and 2, or any other outfall, unless and until the same had been purified and excrementitious matter had been removed, and from discharging sewage con- taining solid and excrementitious matter so as to collect in the river bed or on the plaintiff's land in such a manner as to be a nuisance to the plaintiff or his tenants on the Plasyndre estate. Having regard to the terms he thought it would be proper to suspend the operation of that injunc- tion for 18 months. Mr Romer said that so far as he was concerned, the injunction mentioned would serve the pur- pose. Mr Macmorran said that lIe should have to consider it before the order was finally drawn up His Lordship said that the matter could be mentioned to him at any time before the order was drawn up if the defendants did not approve of the terms, Mr Romer: And with regard to the costs? Mr Justice Parker: The costs will follow the event. Mr Macmorran pointed out that tho plaintiff had had leave to amend, and he had amended his claim during the course of the hearing. It was necessary that something should be done with regard to the costs of that amendment. His Lordship said that he would make the oosts of the amendment costs, in the action. Messrs Chamberlain, Johnson and Johnson, Llandudno and Llanrwst, were the solicitors for the plaintiff, and Messrs Porter, Amphlett and Co., Conway, Colwyn Bay, and Llanrwst, were for the defendants.

LLANDUDNO WESLEYAN S.

CONWAY TOWN COUNCIL.

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