SUPREME COURT

Press, Volume XI, Issue 1372, 1 April 1867, Page 2

SUPREME COURT

[Beforo Mr Justice Gresson.] (In Banco) h. b. johnston v deans' trustees. This case in which wo reported at len»th tlio arguments of counsel on the 15th ultimo, was set down for judgment last Friday. It will bo remombored that tho principal question in tho cause turned on the effect of an agreement betwoeu the plaintiff and tho defendants for permitting the construction of a mill-dam across the stream by tho latter, under which the defendants contended that they were en. titled to erect a mill and form a mill-raco. Uij Honor's judgment was as follows:— This was an action against the Trustees of tho Ricearton estate for wrongfully diverting tho water of the River Avon from tho plain". tiiFs land, which is described as being bounded on nil sides but one by a branch of that river.

The defendants pleaded first, " Not guilty;" secondly, a certain agreement luado in lgfig between tho plaintiff and the defendants, by which tho plaintiff for a valuable consideration agreed that the defendants should have full right at any time thereafter to construct across that part of the river which Hows between tho Riccarton estate and tho land of tho plaintiff, at or near a, certain point bliowii on tho plan endorsed on the agreement, a mill-dam, which should raise the water of the said river to a height of two foot above its then level, as shown by the said plan, and that tho said con. sidcration Bhould be considered full compete sntion for all damages which tho plaintiff, his heirs, or assigns should at any time thereafter sustain by reason of the water of tlia said river being raised two feet above its then level, | The second plea further stated that at tho time of making the said agreement tho river was flowing at its natural level. That imrne* diately after tho making thereof, tho defendants constructed across one part of tho river in the agreement mentioned such mill, dam as therein mentioned, and tho water of the river was thereby, and has sinoe continued, and now is, raised to a height of two foot above the then existing natural level thereof. That &t the time of entering into the said agreement, and during the alleged grievances, defendants were in the lawful possession of a certain pieco of hind therein described, bounded on tho north by a branch of tho said River Avon and on tho east by a further branch of the said river, running below tho pieco of land in the declaration montioned. That tho Hgreement was entered into by tho defendants, and tho mill-dam constructed for the purpose of enabling them to form a mill-race, commencing at a point on tho river on defendants' side thereof above the said milldam to a certain water-mill of tho defendants, which was then nbout to bo erected on tho said parcel of land of the defendants, and thereby, and by reason of such mill-race, at all times thereafter to divert water from the'said river, and uso tho same for tho working of the said mill, of all which the plaintiff at the tima of his entering into the said agreement had notice.

That the defendants did accordingly form such mill-race and erect such mill, and during the times in the declaration mentioned diverted and used n little of tho water of the said river for the working of the said mill as they lawfully might, and tho alleged grievances were lawful uses by the defendants of the said water. To this plea the plaintiff has]demurred on two grounds. Firstly—That the alleged knowledge of tho plaintiff of the purpose for which tho agreement was entered into by the defendants, and the said mill-dam was constructed, affords no justification in law to the defendants for diverting the water in the manner in the declaration mentioned. Secondly—That it is not alleged that tha amount of water diverted by the defendant* was so small and unappreciable as not to interfere with tho enjoyment by the plaintiff of the flow of the river in its natural state along the land in the declaration mentioned. Upon the argument of tho demurrer, it was contended on the part of tho defendants. Firstly—That the effect of constructing the mill-dam was to change the character of the stream from a natural to artificial ono, and thereby to do away with the right of action which tho plaintiff as riparian proprietor would otherwise have had against the defendants for diverting tho water from its natural course. ' Secondly—lt was said that the consent to the erection of the dam and the consequent outlay by tho defendants amounted to an irrevocable license to do the acts complained of^ Lastly—lt was agreed that the plaintifT by standing by with notice that the defendants were erecting their mill without remonstrating, must bo taken to have bound himself by acquiescence, and to be precluded from objecting now when tho outlay has boon mourrod. It may be conceded that a riparian proprietor who would have a right of action for disturbance of his enjoyment of a natural stream might have no such right if the stream were only artificial- Wood v. Wand, 3J*. 743, and Reeston v. Weate El. and B U WJ, are authorities for that proposition. iJu= these cases can havo no application unless the preliminary question ™ «"*/ viz., that the stream is artificial bo and it seems to mc hopeless to contend tn» the mere raising of tho level of tho water by means of tho dam could so change the cn«w|" of tho stream as to make that which was before natural thenceforth artificial. ±m river still retains the character of a pornianenc watercourse, and occupies the bed in wincn» has flowed within the memory of man. a"» argument founded on tho licenso to erc °y"° dam, and the consequent outlay by the deteadants, would be sound if the licenso were w comprehensive as clearly to include w'""" J" terms the alleged wrongful act, viz., w diversion of the water— Liggem v. Inge, t »&& 682. But the agreement does not either cs pressiy, or as it appears to mc, by »<*"**£ inference, authorise the doing of the acts cow P This brings mc to tho last ground relied on by tho defendants, viz.—acquiescence. U said by defendants, evon supposing t.iat t right which they acquired by punw** ' ovueUho mill clam did not in terms «* wnl \ making tho mill-race, and diverting so mat water aa mi-ht be required for «°»k«»g !"* mill—that, at all events, the plaintifl Knew that tho object of the defendants in consww ing the mill-dam was to enable tne to carry out their purposo of ouii » nnd working a mill, and that under thee cumstances the plaintiff would bo restraineu by a Court of Equity from proceeding recover damages at law for an act * nw ' , L himself assented to and encourag*i. doubtedly a party may so encourage > which he afterwards complains of a* ft « l ' as not only to preclude him from camp£»» * of it in a Court of Equity, but to < £ adverse party a right to restrain w™ recovering damages at law for such nuuanwo

mlliami>.E<* rl of Jersey, 1 Cr. and Ph. 91. lint this equity docs not apply where the l&v was expended with knowledge of the Jso r *. n , c of the title—.Benine v. Young, 2 7) ex and I, 136- I n tnia c&ae t^ie defendants re fully cognizant of the legal rights of both rtics and it is n° fc alleged that there was. P 5 fa u & or contrivance used by the plaintiff. not. therefore, the ordinary case of a 1 n w ] lo ij as a title to an estate, and stands r Buffering a person ignorant of such title to end money on the estate in expensive ime «)venientß, and then asserts his title in a r irt of l» w - * fc more resembles the case of roan who places his property on the land of "nother with full knowledge of that person's ?tle in which case it is clear that he would have no equity to restrain the legal owner from asserting his rights It appears to mc, therefore, that the plea is had and that the demurrer must be allowed. Demurrer allowed, with costs. I.ANCE AND ANOTHEB V. JUGGINS. In this case the defendant had cashed, at aturitv, a bill accepted by the plaintiffs, upon the understanding, as they alleged, that they were not to be called on to pay it unless a aturity there should be sufficient funds standing to a specified account to meet it. Ihe plaintiffs brought the present action to recover back the money. The defendant demurred to the declaration. Dr Foster, instructed by Mr Duncan, argued in support of the demurrer that the alleged erbal understanding could not control the Lai effect of the acceptance ; and Mr Nott'dee for the plaintiffs, cited cases to show that different rule had been laid down. The facts, . are fully Bet out in liis Honor ' B judgment* which we give entire:This was an action brought by the Trustees of the estate of William Henry Mem (claiming der a deed of composition made by the said Mem with bis creditors) against a creditor of the estate to recover back a sum of £198, alleged to have been paid to the defendant under a mistake of facts. ■~,-,. The declaration states that under the deed of composition 10s in the £ had been paid to the creditors, including the defendant, who had assented to the deed. That at the request of the defendant the plaintiffs, as s ucn trustees, accepted the bill of exchange set out in the declaration, being a bill at three months, drawn upon the plaintiffs as trustees of W. H. Mem's estate by the defendant, for £198. . That before accepting the said bill plain tills explained to defendant that at the time of such acceptance they had no funds applicable to the payment of the bill, and the plaintiffs accepted the same upon the express understanding with defendant that such acceptance was conditional, and that the plaintiffs were not to bo called upon to meet the said bill of exchange at maturity unless at the time when Buch bfll arrived at maturity there should be, money in the hands of the plaintiffs arising from the estate sufficient to pay to all the creditors of the said W. H. Mem a second dividend of 10a in the £ on the amount of their respective debts. That when the bill of exchange became payable there were no funds in the hands of plaintiffs applicable to the payment of any, dividend amongst the creditors, and the estate; up to that time had not produced sufficient money to enable plaintiffs as such trustees to pay any second dividend to the creditors. That, until after the payment of the bill as after mentioned, the Bank of Now Zealand had no knowledge that the bill had been accepted by the plaintiff* subject to any condition whatever. That the defendant employed the Bank of New South Wales as his bankers.

That before tho bill arrived at maturity: defendant, without the consent of the plaintiffs, and without notice to them, wrote his name across the back oi the bill, and left it at the said Bank of New South Wales for collection on his account, and the said Bank as his hankers and agents presented it when at maturity at the Bank of New Zealand for payment, and the said Bank of New Zealand as the ianiers and agents of tho plaintiffs, haying moneys belonging to them in their possession, paid to the said Bank of New South Wales £198, the amount of the said bill. That the said sum was so paid in the ordinary course of business, but under a mistake of fact. That the said sum was received by the Bank of New South Wales as the bankers and agents of defendant, and the said Bank had given defendant credit for the said sum so paid as aforesaid. Tho declaration then states a demand by the plaintiffs of repayment, and a neglect on the part of the defendant to comply with such demand, and concludes by claiming to recover from defendant the sum of £198. The defendant has demurred to the declaration on the ground that it does not allege any facts which, in the absence of a written contract, render the defendant liable to pay to the plaintiffs the money sought to be recovered by them in their declaration. These grounds are not very clearly expressed, but I understand the objection to mean that parol evidence is inadmissible to prove a verbal contemporaneous agreement, such as is stated, the effect of which would be to vary the terms of the written contract by enlarging the time which the bill would have to run. There is abundance of authority for the proposition so stated, from Soar v. Graham, 3 Camp. 57, down to the present time— Adams v. Wordley, 1 Mees and W. 374. It has been argued on behalf of the plaintiffs that this case falls within a class of authorities which decide that as between immediate parties parol evidence may be adduced to establish a defence on the ground of an agreement with tho plaintiff at the time of taking the bill, the effect of whicli would be to qualify the plaintiffs right of action— Pgm v. Campbell, 6 El. and Black 370; Sell v. Lord Ingestre 12, Q. 13, 317. But these decisions, although at first view it may appear difficult to reconcile tbem with the rule of law above stated, all profess to maintain that rule inviolate.

In Mauley t>, Baycot, 2 El and Black, at page 56, Lord Campbell, C.J., Btates the distinction thus:—

"No parol evidence can bo received of any

agreement inconsistent with what appears on the fece of the instrument, as that a bill drawn payable at three months shall not be payable till the expiration of four months; but evidence may be given by parol of an agreement at the time a bill is drawn and endorsed which »consistent with the written instrument, as for example that a bill is endorsed and handed over for a particular purpose, without giving the bailee the usual rights of ondorseo of the

In the present case the declaration states a complete acceptance by the plaintiffs of a bill payable absolutely on the face of it at the expiration of three months from the date, and alleges a contemporaneous understanding between the parties, the effect of which would he to enlarge the time of payment indeßnitely. 1 am of opinion that the plaintiffs are estopped from saying that they made any other verbal contemporaneous contract than the absolute one appearing on the face of the «»", and that the demurrer must therefore be "lowed, with costs.