SUPREME COURT.

Otago Daily Times, Issue 8020, 4 November 1887, Page 4

SUPREME COURT.

IN BANCO. Wednesday, Novkjijikh 2.

(Before bis Honor Mr Justice Williams.)

DICIUSON V. MOHNINUTON TItAMWAY COMPANY. In this previously heard case his Honor do. livcred judgment as follows i—

In (his case the plaintiff, as the owner of two

houses near lo Ihe xlefomlimts' stationary engine, complains of the injury he Buffers from the noise and vibratif.n caused by working the engine, and Ironi tho smoko and steam escaping from It, and lisks for damages and an injunction. I am satisfied Mint; so fur as his claim depends upon injury arising from noiso or vibration, he has tailed to make out his ca6e. So far as the brick house is concerned, two

of Ilia plaintiffs own witnesses, who lmd resided in it, though they lioiiril a rumbling noiso, did not aoeiu to considor it an annoyance, and noitlior of them perceived liny sensible vibration. In tlio face oi their evidence, mid of the evidence of the experiments iimilo by thu witnesses for the defence, it is impossible to Bay that there is a noise and vibration which substantially intorforea with the comfort and enjoyment, of the occupiers of the brick house. So far as the cottage in concerned, I think the balance of the evidence shows that If Its inmates are injuriously affected by noise or vibration, such annoyance is caused not by the engine but, by passing oars. As to the allweii imltancu from smoke and steam, I also think that, bo far at anyrato as tho brick ;iioiisa is concerned, it 18 of a very trifling kind. Buchanan, who was called for the plaintiff, and who lias boon living in the brick house for over nine months. Bays not a word as to any nuisance from Binoke or steam. Sachtler, who lived therefor lour months, said that it didn't do the water any good, and thathe lws had to keep tlie windows closed to prevent tiie smoke getting in. There is nothing, however, in the evidence oi Sachtler from which it can bo inferred that his comfort was really interfered with. If either Sachtler or Buchanan had been really annoyed by the smoke-either directly or by the water from the ruof being materially affected— their evidence might reasonably have been expected to have been far stronger than it was. The plaintiff., moreover, in August last, sued the defendants in the Magistrate's Court for injury done to Die cottage by smoke and steam. It is reasonable to suppose that if he then considered lie had a claim against the defendants for injury done by smol;e and »team to the brick house fie would have brought it forward. No reason can be Buggeated why he should not have done so. So far as the coltngo is concerned, the only witness who speaks to any injury done to the structure by the smoke is the plaintiff himself, who says that the galvanised iron roof haa been black spotted and blackened so as to interfere with tho galvanising. Noneof tbeother witnesses, however, although many of them went on the premises, say a word on this subject. It appears that the cottage has alwayß been let until the tith of August last, and occupied by different, tenants. 'Hie plaintiff himself never lived in the cottage..- Of these tenants only one was called. This wns Mr Hale, who resided in tho cottage about eight months, and left about the end of last February. He says that there was a nuisance from smoke and steam, that it spoilt the water and made it bitter; that the

first two or three weeks he was in the < house Mrs Hale had to wash the c!othes over again two or three times, and when the wind blew that

way she couldn't Jiang out the clothe 3 for soot. Mr Hale says he left the cottnge because of the nuisance of nol6e, vibration, and smoke. I have already decided that upon the balance of evidence any Beußlble annoyance that arises to the inmates of tho cottage from noise and vibration is caused by the passing cars. There is nothing definite as to any annoyance by Btcam, and the only matter left, therefore, Is the alleged nuisance to the cottage from smoke. Now, if the smoke is bimply tho necessary result of the ordinary use of a Btatlomry engine erected and worked in the usual way, and without negligence, it seems to mo doubtful whether, apart altogether from any question of the statute, the plaintiff is entitled to relief. The evidence ns above stated shows that the smoke causes Borne annoyauco to the inmates of the cottnge, but I doubt whether the annoyance is more serious than persons mußt reason- | ably expect to experience in the neighbourhood of an increasing town. " Blacks " are one of those evils which people who live in towns where coal is used must expect to put up with, and the evidence points to "blacks" as tha plaintiff's grievance, Towns cannot be expected to stand still, and ai> population increases and manufactures grow, the inhabitants must be prepared to sacrifice some of the amenities of a country life. As was said by Lord Justice James in Saloin v. North Ikancepeth Ooal Company (L.lt. ft eh., p. 709), iv a more poetical stra-n than is usual in the Law Keportß:—" It would have been wrong for the court in the reign of Henry VI to have interfered with Hie further use of sea coal in London because it had been aicertained to their satisfaction, or predicted to their jatisfaction, that by the reign of Queen Victoria both white and red roses would have ceased to bloom in the Temple gardens. If some picturesque haven opens its arms to invito the commerce of the world, ifc Is not for this court to forbid the embrace, although the fruit of it should be tho sights and sounds and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitudes." I think, moreover, that if the annoyances suffered are no more than might have been reasouably anticipated from the neighbourhood of a stationary engine properly erected and worked, that there U sufficient to show an acquiescence by the plaintiff. The question of acquiescence is not, it is true, raised on tho pleadings ; but it is sufficient if it appears from the evidence. The plaintiff admits that he negotiated the purchase of the land on which the engine standß for the company, and was paid by them lor his trouble. That he was aware that an engine was to be erected on it is a reasomblo inference, and that he stood by and made no objection to its erection is plain. In a case where the annoyance iB trilling, and where a large sum of money has been expended by a public company in the erection of the works complained of, I think slight evidence of acquiescence ought to ha a bar for relief where the annoyanco complained of Is a necessary result of the works and might reasonably have been anticipated. That the eugine was properly erected, and has been workrd in a proper way and without negligence,was decided by the magistratelu the action brought by the plaintiff agaiust the defendants in August Jast for damage sustained by him as owner of the cottage through smoke. Thli, it seems to me, estops the plaintiff from now deserting that up to that date at anyrate the defendants had been negligent. The evidence before mo, moreover, leads me to the Bame conclusion that was arrived at by tho magistrate—viz., that negligence has not been prov'd. It was admitted on the part of the plaintiff before the magistrate that the defendants had a

statutory right to erectand work a stetiooary engine. I think that admission was well advised. Tho order under which tho defendants constructed their works distinctly authorises the use of a stationary engine. The order also authorises (hem to acquire for tho purposea of the lines of tramway land not exceeding five acreß in extent. Now, the order d»ei not pretend to, and could not authorise the construction of a stationary engine on any public road over which the tramway runs. Section 101 of " Tlie Tramways Act 1872 "'prevents the nbridgment of tho right of the public to pass along or across every part of such a toad. The engine, therefore, must be erected on land purchaied by the company under thoir powers. The ilth Bectiou of the Tramwaya Act gives the Governor full power in the order to insert 6uch provisions as—subject to tho requirements of the act, and according to the nature of the application and the faou and circumstances

of the ease—he ma - think fit, and also to authorise

the purchase of land. Now, tho only requirement of the act as to motive piwer is that all carriagpe used on any tramway shall be moved by the power prescril ed by the order. There is nothing in the act which makes it necesiary that the engine applying the power is to be a locomotive. Nothing indeed Is said in the act as to a locomotive engine; and as locomotive engines running in a public street are frequently a nuisance, it might as reasonably be contended that an order authorising their uso upon a tramway would be ultra vires as to contend that the au'horißation of a stationary engine would bo. Tho latter, Indeed, involves far less annoyance nn<l danger to the public ilinn a locomotive. Fortheso reasons, therefore, I think the defendants are ontltled to judgment. Judgment for defendants ; costs on scale of £300, £10 10a for second day, disbursements find witnesses' expenses.

DANIEL AND OTIIEHS V. THE CORPORATION OP

LAKE CODNTY.

la this case his Honor delivered judgment as follows:—

In this case it is desirable, in the first instmce, to ascertain what the liabilities of the appellants are, apart from the statutory provisions as to audit. The appellants were members of a county council, and the moneys they are charged with illegally expending were drawn from the couni.y fund. Section 101 of the " Counties Act 18?(i" specifies what moneys are to form the county fund. Section 102 provides that these moneys are to be carried to an account to be called the county fund account, and then proceeds as follows:—" Such funds shall bo applied by the council towards the payment of all expenses iucurred in carrying this net Into execution, and in doing and performing all acts and things which the council aro or shall be by this or any other act empowered or required to do or perform." How, this section is analagous to, and wai probably more or less remotely derived from the 92nd tection <i the " English Municipal Corporations Act 18.15 " (5 and 6 Will. IV.. cap. 36), by which the borough fund was created. This latter section provides how the borough fund is to bo constituted, and then goes on to state that it is to be applied towards the payment of certain expenses specifically mentioned, and then continues in these words !-'• And of all other expenses not herein otherwise providedfor, which shall be necessarily incurred in carrying into effect the provisions of this act; and in case the borough fund shall be more than sufficient for the purposes aforesaid, the surplus thereof shall he applied under the direction of the council for the public benefit of the inhabitants and improvement of the borough." The two sections are therefore sufficiently alike to make the Knglish decisions respecting the borougli fond for the most part applicable to the county fund. Now, it was decided in the Attorney-general v. Aspinall, 2 Mylne and Craig, 613, and afterwards in the House or Lords, in Parr v. the Attorney-general, 8 01. and Kn. 409, that (he act constituted the borough fund a trust fund, and that although the act provided other remedies for a misappropriation of the fund, yet that the Court of Chancery had the same jurisdiction over It as over other trust funds, j

The nine principle baa been recognised in other cases, and notably in the more recent case of the Attorney-general v. the Mayor, &c, of Batley (36 U,,p.392). In this latter case Vice-chancellor Sir W. Page Wood decides that the borough fund i« a trust fund, held by the corporation upon a public trust which is not a charitable one. It will be observed, however, that there is an important difference between the two sections in this—viz , that the Eug'ish act, if there is a 6nrplus after the specific objects of the act have been provided for, gives the council a wide discretion to apply that surplus for the public benefit of the inhabitants, fn our act tke council had no such discretion, but are limited by section 102 to th» purposes there msntioned. The Queen v. the Mayor of Sheffield (b.R., 8Q.8., p. «X) shows that expenditure will not bo allowed if there is no surplus, which might have been allowed it there were one. That case decided that the expenses of opposing a bill in Parliament by a waterworks company who were 6ceking to obtain fresh powers, which the council considered would be detrimental to the public, would be disallowed if

there were no surplus. Chief Justice Coekburn says, at page 657: " With regard to the expenses incurred in opposing tho bill in Parliament, I think it is abundantly clear and open to do doubt or question that that was a purpose to which, looking at the words of the section, it was altogether beyond the scope of the municipal government or anything to bedone under that act of Parliament in a borough without a surplus fund to apply the borough fuuds." Now, in tho present case the money admittedly drawn from the county fund was applied for traveling expenses of delegates to Wellington, as shown on page H of .'the Parliamentaty paper B 10,1887. produced. It there appears that the council sat in committee of the whole to consider tho most advisable steps to be taken to securn a fair share of the revenue under the proposed Local Government Bill; and that it was resolved that the council send two of its members to wait on the Ministry at Wellington re looal revenue, and that a special meeting be convened to be held on the 20th of April, then instant. No meeting is recorded as having been held on that date; but Mr Boycs, the chair-

man at a meeting held on the Ist of June, Rave the report of the delegation, and the sum of £80 each was passed for payment to the delegates in payment of the expenses incurred by them whilst on their delegation to Wellington and tack. Now, it is perfectly plain that this expenditure was not authorised by section 102, and is therefore entirely illegal. There is nothing in the act which, directly or indirectly, gives the council any power to draw upon the county fund for tho purpose of influencing legislation in the direction of getting money. That being so, would this court, if an information had been liled,

have compelled the members of the council who authorised thisexpenditure to refund it? Now, money was ordered to be refunded in the Attorney-general v. Eastlake (11 Hare, p.p. 205,229), where money had been expended in taking proceedings in Parliament. The case also of the Attorney-general v. the Tottenham Local Board of Health (37 L.T.. i>. 410) well illustrates the principle on which repayment will be ordered, The board in Ihatcasehad spent money in promoting a bill in Parliament. An injunction was asked for to prevent more money being paid and to

charge the members of the board personally with £401) which had been already paid. The defenco was that tho board had acted boim fide for the benefit of the ratepayers, and that tho defendants were protected by section 110 of the "Hoard of IleAlth Act 1818," 11 and \2 Vie, cap. 03, which protects persons acting bonn fide under the act. It appeared th.it the amount had been surcharged by the auditor against the defendants, and that there wbb therefore a complete remedy at law for that amount. Sir W. Page Wood, V.0., says that the case is one in which, assuming tho solvency of the persons chargeable, ample justice can be done through the action of the auditor, and therefore no order was made as to tho mousy surcharged. Die Vice-chancellor, however, decidtd that tliu defendants were not protected by the 110 th section of tile act of 18-IS. 110 says ■ " I'he auditor was right to decide as ha did; and I hd!d that it is clear that when persons' who know, or ought to know, that they are acting irregularly, take out of tho corporate chest money devoted to other purposes, they are acting irregularly, and must be made to lefund.' That seems to mo to state the true rule in cases like the present. No doubt, as stated in Lewln on Trusts (7th «1., page 700), where trustees of charitable funds, through mistake, have diverted their funds from tho proper channel, the Court will not call back any disbursements made before the commencement of the proceedings, or before the trustees had notice that the propriety of such application would be called into question. That doctrine, however, wbb very much iraßed on the mischief that would arise If members of ancient corporations had been hold personally liable lor simply following the practice of their predecessors in applying funds when such practice had not been strictly in accordance with law. If ere, however, the mode of dealing with the funds is prescribed by statute. The way In which this particular amount was dealt with ■ waa clearly outsido tho statute, as anymie who read tho statute ought to have seen. Ta put tho case in the way mostfavourabletotheappellantß, the legality of the payment was doubtful, and they took no steps to ascertain whether it was in fact justifiable. Not to have take'i such ateps is in itself negligence, and tenders them liable if it should turn out that tho payment was illegal. I think, moreover, that the maxim ignomntia juris neminem ezcusat would apply so as to make persons liable for moneys expended In an improper way. As was pointed out by Kir W, Scott In the case of the Charlotte (1 Dodson's ' Adm. Rep.,' p, 392), the bona fide misconstruction o'a statute can bo no protection for acts done In contravention of it, because the subjects of this country are bound to construe riuhtly the statute law of tho land. It Ib not competent to them to aver in a court of justice that they h ,ye mistaken the law. This is a plea which uocourt of justice is at liberty to receive. I am satisfied therefore that, apart from tho provisions as to audit, this court would compel the appellants to rotund the amount thus illegally paid. With respect to the 7th sectionof''The PublicHevenues Act 1885,"! do not think the surcharge li conclusive. It has not been made conclusive in exprCßS words; and, if the Legislature iiad intended lo make it conclußive, one would eipect to find some provision for enabling the party surcharged to bo heard, and giving Idm a right of appeal. It is a pity that clauses are drawn so a3 to appear concise and luoid to the caroless reader while in fact they are obscure. The section offers a striking contrast to the elaborate and carefully-drawn provisions on a similar subject contained in the 60th section of •' Theßnglish Local Government Act 1858." I see no roason, however; why the section should not be retrospective, as it is substantially one of procedure only. As I havb already said, this court would, in ray opinion, have compelled the refund of illegal payments', at any rate where the parties makiug them had not taken reasonable steps to ascertain whether they were justified in making them. The section seemß rather to limit than to extend the liability of members of a local body. 1 have not overlooked section 6-1 of " The Counties Act Amendment Act 1882," but I do not think it has any application in determining the construction of section 7 of the act of 1885 ; because, however It bo interpreted, it would not limit the liability which this court would impose upon members of the counei! as trustees. I «cc, therefore, no renson why the appellants ought not, upon the evidence before tho magistrate, to have been compelled to pay the amount sued for if only it has been properly sued for, as provided by section 7 of tho act of 188 S. The money, by that section, is deemf dtobe a debt due to the local body. The section does not say that the local body may sue for it, but, in the absence of express prohibition, to sue; and, looking at the fact that the power of the Audit Office to sue Is permissive only, 1 see no reason why the local body should not have a power to sue for their own debt concurrent with the express power given to the Audit Office. There is no particular incongruity In a power to sue being concurrent. The Legislature may well haveconsidered that there were cases In which the local body would not sue its own members, and so have given the Audit Office a discretionary power to sue -in their stead. In the present caße, however, the Audit Offlcehassued, not In tho name of the Auditor-general, but In the name of the local body, without any authority from the local body to use its n«me. I do not think this is a proceeding contemplated by the act. The power Is given to the Audit Office to recover the money, and pay the money over when recovered to the local body. If it had been intended that the Audit Office might me tho mane of the local body against their will, and so render them liable to costs, I think the »etwould have laid so. B/ section 80, however, of the Resident Magistrate! Act, the magistrate hai ample powers of amendment, and there is no reason at all why the Audit Ofßce—that it to say, the Controller and Auditor-general—should not now be substituted for the corporation of the Lake County as plaintiff. The principle on which amendments of the kind are allowed is pointed out by Bramwell, 3, in Clay v. Oiford, L.R. 2, Bx., p. 51. If the party suing possesses, though with a variety in legal description, the same interest as the party proposed to be substituted, the amendment ought to be made. There are several cases where amendments of the kind have been made—Blake v Dow, 7 H. and N., 465; La Banca Nazionale v. Hamburger, 2 H. and 0., 330; fJallowity v. Bleaden. IM. and Q , 217; Lord Bolingbroke v. Towmend, L.R. 8, 0.P., 645; Mills v. Scott, L.E., 8, Q. 8., 496. Ido not think that justice should be defeated because the person who everyone knew was the real plaintiff has made a mistake in the name in which he sues, if by any means whatever it is posiible to amend it. The decision of thii court Is that the proceedings In the court below, and in this court, ought to bo amended by substituting the Coutroller and Auditor-general as plaintiff for tho present plaintiffs, and that, subject to such amendment, the decision of tho magistrate be affirmed. There will bo no costs or this appeal.

Mr Denniston asked whether there ought not to be a new trial, seeing that his Honor had dealt with the case in that way.

His Honor hardly thought so. It seemed to him to be a purely technical objection, which would without question bo ground for an amendment.

Mr Denniston submitted that they could have appealed to tho Legislature on other grounds had it not been for this point, which they considered fatal.

His Honor: What the magistrate should have done was to say that tho defendants were clearly liable; but there was a mistake in the Dame of the party suiDg, which of course be amended, and the person representing the plaintiff would have said that of course if the court thought so it would be amended.

Mr Denmstou said the magistrate did not do this, and probably if he had his learned friend would have thought tho magistrate wrong, and declined to ask for the amendment.

His Henor said it seemed to him a merely technical point, and that the merits of the case were with the plaintiff.

Mr Denniston suggested at any rate that the matter should be held over by the Auditorgeneral pending the decision of the Court of Appeal in other similar cases.

His Honor replied that ho would probably have withheld judgment if he had known that the matter was to come before the Court of Appeal. But oven if ho had decided in plaintiff's favour on the technical ground raised, it would only be a matter of amending the other cases. CORPORATION OF SOUTH DUNEDIN V. CORPORATION OF CAVERSHAM. Motion for an injunction restraining the defendants from discharging water, drainage, and sewage from a sewer and box drain into an open ditch in the borough of South Duuedin. Mr Haggitt appeared for the plaintiffs, and Mr I?. R. Chapman for the defendants. The statement of claim set forth that the plaintiff corporation prayed for an order—(l) restrainiug tho defendant from discharging 7/ater, drainage, or sewage from the defendant's brick and stove sewer and box drain into an open ditch in the borough of South Dunedin; I (2) restrainiug the defendant from discharging J water, drainage, or sewage from the borough of Cavorsham against the earth and clay put by the plaintiff to preserve and protect the Caversham stone culverts, or from otherwise injuring the said culverts; and (3) for such further relief as to the court might seem fit. The grounds of the motion were that the defendant had no lawful authority to discharge water, drainage, or sewage into the said open ditch, and that the plaintiff had sustained and would sustain serious damage unless the defendant was so restrained.

Mr Haggitt opened the pleadings at some length, explaining by the aid of maps the drainage system of both boroughs, and tho legislation on the subject. He called

Robert Hay, civil engineer, who iv the course of his evidence said that tho water from the main Caversham sewer was discharged on to tho clay covering of the South Dunedin drain, and the probability was that in the event of a severe flood the plaintiff's stone culverts would be undermined, and portion of South Dunedin would be flooded through tho damming back of the drainage. If the present junction of the two drains had been effected some 80ft or 100 ft lower down towards the harbour, this dangar would have been avoided. The cost of doing this work would be about £(30. In crossexamination witness said that his calculations as to the amount of damage that was likely to ensue were based upon the assumption of a certain velocity in the outflow. He had not observed the rate of discharge at the mouth of the sewer, and when he spoke of tho possible damage he merely gave his opinion. Reexamined : He had observed the velocity of the outflow at tha point where the sewer crosses the Hillside road. With the velocity that he had seen at the point spoken of, and the sewer three-fourths full, he censidered that there was considerable risk to the culverts.

William Wardrop, mayor of South Dunedin, also gave evidence. Mr Chapman, in opening the case for the defence, traced the drainage system of the Flat from its initiation. All the works undertaken by the Caversham borough had benefited the plaintiff borough even more than themselves, and everything that had been done the borough of South Dunedin had acquiesced in. He denied that damage was done by the present discharge of drainage, and maintained that if it were, the defendants would not, under the circumstances, be responsible.

Counsel was proceeding to call evidence for ihe defence when the court rose at 5 p.m.

IN BANCO. THURSDAY, NOVEMBER 3. (Before his Honor Mr Justice Williams.) CORPORATION OF SOUTH DUNEDIN V. CORPORATION OF CAV2KSHAM. Mr Haggitt appeared for the plaintiff, and Mr F. R. Chapman for the defendant. The hearing of this motion for an injunction against the defendant corporation was resumed, Mr Chapman calling further evidence for the defence. William Hargreayes, inspector for the Caversham Corporation, iv the course of his evidence said that in January last he observed that tho tide backing up was washing away the covering "of the culvert and was going inside it. There was no flood at the time, but the tide was in. The point he referred to was about 20ft seaward from the mouth of the Caversham sewer.—Cross-examined: He was not on the spot when the stuff was washed away; he was there shortly afterwards. There had been heavy rain immediately before the day on which ho noticed the damage. He could not say that ho always anticipated danger to the culverts from the water coming down the Caversham sewer; but he knew that it had been suggested by some members of the Caversham

Works Committee to put in sheath-piling and planking so as to prevent damage to the culverts; and he believed that this work would have been done if South Dunedin had consented to pay half the cost. His recommuudation to the Caversham Council was to put in a sort of screen or wing wall, which would have sent the water from the Caversham sewer to the northern side of the ditch.—Ro-examined: The first suggestion as to a wing wall came not from tho Caversham Council, hut from the South Dunedin inspector.

Martin Pearco, Caversham town clerk, said his council had an arrangement with South Dunedin to clean out tho ditch at their joint expense—that was the trough beyond the two culverts; arid half the dost of repairs was also borne by each corporation;

Mr Gt. M. Barr, who was also examined for the defence, and who designed the Caversham drainage system, said the velocity of tho out-flow of the Caversham sewer was not greater than according to tho highest authorities it was prudent to allow in a Bewer. The culverts ought to bo perfectly stable without sheath-piling or covering at all if tboy were properly constructed. The covering took up a certain portion of the waterway, and so increased the velocity.

Counsel on either side having addressed the court,

His Honor said ho would take time to consider his decision. The difficulty, if any, seemed to arise from tho absurdity of having one natural drainage aica and two separate conflicting drainage jurisdictions. Mr Haggitt said that by tho evidence, of Mr Barr there was nothing in the way of the Caversham Corporation discharging its drainage elsewhere.

His Honor: Of courso, if they liko to spend money.

Mr Haggitt said South Dunedin had always been ready to meet them in any arrangement.

Mr Chapman: Well, we have tried our best to get it settled.

The court then rose,