reason thereof before and at &c., of right ought to have had and enjoyed, and still of right ought &c. the benefit and advantage of the water of a certain stream or watercourse in &c., which during all those times of right ought to have run and flowed, and until the division thereof herein-after mentioned of right had run and flowed, and been used and accustomed to run and flow, and still of right ought to run and flow, unto the said mill of the said plaintiff, to supply &c. ; yet the defendant well knowing &c., but contriving &c., whilst the said plaintiff was so possessed of his said mill, with the appurtenances, to wit &c., in &c., and higher up the said stream or watercourse than the said mill of the said plaintiff, wrongfully and injuriously diverted and turned, and caused to be diverted, &c., divers large quantities of the water of the said stream or watercourse from and out of the usual, accustomed, and proper course and channel thereof, and away from the said mill, and also hindered &c. and prevented a large part of the water of the said stream or watercourse from running or flowing in or along its usual, accustomed, and proper course and channel to the said mill, and from supplying the same with water for the necessary working thereof, as the same ought to have done, and otherwise would &c., and by reason thereof &c. First plea, Not Guilty. Second plea, that the plaintiff, at the said times when &c., ought not, by reason of the possession of the said mill with the appurtenances, &c., to have had and enjoyed the benefit and advantage of the water so diverted, and turned, and caused and procured to be diverted and turned from and out of the usual &c. (describing the diversion as in the declaration). Similiter. Gg 3 Third 1835. FRANKUM against The Earl of FALMOUTH. 1835. FRANKUM The Earl of Third plea, a justification; upon which the plaintiff tendered an issue; and the defendants joined. Fourth plea, that at the said times when &c., the said water, so as in the said declaration mentioned, diverted and turned, and caused and procured to be diverted and turned as therein mentioned, and hindered and prevented from running and flowing as therein mentioned, ought not to have run and flowed unto the said mill as therein mentioned. Similiter. On the trial before Alderson B., at the Berkshire Summer assizes 1834, the justification on which the third issue turned, was not supported. With respect to the three other issues, the act of diverting the water was admitted; but the plaintiff did not shew that the mill was an ancient one, or that the water had been used for it so long as twenty years, it having in fact been erected about fourteen years before the act complained of. Evidence was however given, on the part of the plaintiff, to shew that the owners of the land had always been entitled to the water. The defendants' counsel contended that the plaintiff had failed to make out the case on the record: and the counsel for the plaintiff suggested that the record might be amended, by altering the claim in the declaration. His Lordship declined to amend the record, on the ground that the alteration would amount to an alteration of the issues. He then directed the jury to find the facts specially, according to the evidence, upon questions which he put to them, in order that the finding might be stated on the record, under 3 & 4 W. 4. c. 42. s. 24. The jury found for the plaintiff on the third issue; and, as to the other three issues, they found as follows:-"And the jury also find that the defendants defendants wrongfully and injuriously diverted and turned, and caused and procured to be diverted and turned, divers large quantities of the water of the stream in the declaration mentioned, from and out of the usual, accustomed, and proper course and channel thereof, and also hindered and prevented a large part of the said stream of the said watercourse from running and flowing, as it ought to have done, in and along its usual, accustomed, and proper course and channel, and from supplying water necessary for the proper enjoyment of the plaintiff's premises, as they existed before the plaintiff's mill was erected, and thereby injured the same, and they assess such damages at 251." The learned Judge then directed that the verdict should be entered for the defendant on the first, second, and fourth issues. In Michaelmas term last (a), Justice moved for a rule to shew cause why the plaintiff should not have judgment on those three issues, contending that the variance was immaterial; that the opposite party could not have been misled or prejudiced in the conduct of their cause; and that such judgment would be "according to the very right and justice of the case:" and he cited Hanbury v. Ella (b) (on the 23d section of stat. 3 & 4 W. 4. c. 42.), and Lamey v. Bishop (c) (on stat. 9 G. 4. c. 15.). The Court refused the rule as prayed for, saying that the variance was material, and that the defendant might have prepared his defence to meet the claim made in respect of the mill, and not of the land. Justice then moved for a rule to shew cause why the plaintiff should not have judgment on the first issue, contending that the (a) Nov. 13th. illiams Js. (b) 1 A. & E. 61. Before Lord Denman C. J., Taunton, Patteson, and (c) 4 B. & Ad. 479. Gg 4 act 1835. FRANKUM against The Earl of FALMOUTH. 1835. FRANKUM against The Earl of FALMOUTH. act done was the only matter put in issue by that plea, and was admitted by the defendants. The Court granted a rule to shew cause why judgment should not be so entered, without damages, and, in the present term (Monday, January 12th)(a), Talfourd Serjt. and R. V. Richards shewed cause. The fair way to try the question is, to suppose this first the only issue on the record. If the words “ wrongfully and injuriously" had been left out of the declaration, it would have been demurrable. Therefore those words are material; and, that being so, the general issue puts the wrong and injury in issue; and these are disproved, since the only wrong and injury alleged are in respect of the possession of the mill, which, as it now appears, did not support the claim. Suppose the defendant had shewn that no mill had ever existed, would the plaintiff have been entitled to judgment on this issue? [Patteson J. On this issue, I should not have received evidence that the mill did not exist. The plea of not guilty admits its existence.] In Wyatt v. Harrison (b) the Court considered it necessary to prove a legal injury, as well as the fact charged, though the words "wrongfully and injuriously" do not appear to have occurred as here. [Littledale J. "Wrongfully means "without lawful cause." Lord Denman C. J. It is a challenge to the defendant to shew lawful cause. Patteson J. Would not your argument go the length of dispensing with special pleading, under the new rules?] This is not like a title set forth in the inducement, which would be admitted on this plea: the allegation contains the very cause of the action. The rule, Hil. 4 W. 4., (a) Before Lord Denman C. J., Littledale and Patteson Js. Pleadings Pleadings in particular actions, IV. 1. (a), shews only that the plea would not be a denial of "facts stated in the inducement," which words explain and limit the preceding, “denial only of the breach of duty, or wrongful act alleged to have been committed by the defendant." [Patteson J. You should take all together: what do you say of the second rule (a) as to actions on the case?] That raises the same question, whether the declaration complains of any injury except that to the mill ? Thus, the general issue in slander appears, by the first rule (a) as to actions on the case, to deny the speaking of the words "maliciously, and in the sense imputed." Curwood and Carrington, contrà. The general issue now puts in issue nothing but the fact of the diversion. The word "wrongfully" imports, at the most, no more than a reference to the inducement, as explaining how the wrong arose, and is not traversed by any plea which does not traverse the inducement: if the act be not wrongful, that should be pleaded. The second rule (a) as to actions on the case requires that matter in confession and avoidance shall be specially pleaded. Even if there were no mill at all, the plaintiff must have succeeded on this issue. Per Curiam. We will confer with all the Judges, in order that there may be an uniformity of practice on this point. On this day, Lord DENMAN C. J. said: Cur. adv. vult. We have conferred with the other Judges, and we (a) 5 B. & Ad. ix. 1835. FRANKUM against The Earl of FALMOUTH. |