Corporation of Bradford (x), a waterworks company, acting under the Waterworks Clauses Act, 1847, was restrained from diverting a stream without paying compensation for the same, or making a deposit and bond as required by the Lands Clauses Act, 8 Vict. c. 18, s. 85. Though merely nominal damages may have been recovered for the diversion of water, the Court will interfere and vindicate the right by perpetual injunction, if the act complained of would cause irreparable mischief or permanent injury, or would destroy a right (y). If necessary, the injunction will be in the mandatory form (z). In Goodhart v. Hyett (a), where the owner of a house had for many years had a supply of water by pipes passing through the adjoining land under circumstances which created an easement, the owner of the adjoining land was restrained from building on the line of pipes on the ground that the means of access to the pipes would be materially interfered with and rendered more expensive. Chap. VI. Sect. 4. Where substantial damage is shown, the Court will restrain Injunctions to restrain fouling the fouling and pollution of water (b). If there is a house upon a stream. the property drawing its supply from the stream, the fouling of the stream so as to render the water unfit for domestic or culinary purposes is substantial damage (c). So also is the pollution of water to such an extent as to render it unfit for cattle to drink (d), or for fish to live in (e), or for the purposes of manufacture (f). So also is the discharge of sewage matter & S. 515, 6 ib. 562; Roberts v. Gwyrfai District Council, (1899) 2 Ch. 608 (C. A.). (x) 21 Beav. 412. (y) Rochdale Canal Co. v. King, 2 Sim. N. S. 79, 87, 16 Beav. 630. (z) Harrop v. Hirst, 1 Set. 593. (a) 25 C. D. 182. (b) Elmhirst v. Spencer, 2 Mac. & G. 45; Pennington v. Brinsop Hall Coal Co., 5 C. D. 772; John Young & Co. v. Bankier Distillery Co., (1893) A. C. 691. See, as to the form of the order for an injunction, Lingwood v. Stowmarket Co., 1 Eq. (c) Ib.; Goldsmid v. Tunbridge (d) Ib.; Oldaker v. Hunt, 6 D. M. & G. 376; Att.-Gen. v. Borough of Birmingham, 4 K. & J. 328. (e) Aldred's case, 9 Co. R. 59 a. ; Oldaker v. Hunt, 6 D. M. & G. 376; Att.-Gen. v. Borough of Birmingham, 4 K. & J. 328. (f) Wood v. Sutcliffe, 2 Sim. N. S. 163; Tipping v. Eckersley, 2 Chap. VI. into a stream so as to cause mud banks to be formed (g). So also may be the discharge of heated water into a stream (h). If the purity of a stream as claimed be in itself excessive, the Court will not interfere unless a prescriptive right be shown. Thus an injunction was refused in the absence of a prescriptive right being shown to restrain a surveyor of roads from draining a gravel pit into a stream which the plaintiff had been in the habit of using for the purpose of supplying water to his beds of watercresses (i). In granting injunctions against the pollution of rivers by sewage matter, the practice is to grant an immediate injunction restraining any new communication with the river, but as to existing drains, to suspend the operation of the order for a longer or shorter period to enable the defendants to comply with the order by altering their works (k). Liberty to apply for a further suspension of the injunction is sometimes reserved (1); and if it be not reserved, further time is usually granted on the terms of paying the costs of the application. In the case of injury to riparian rights from the pollution of water, the Court will not, except in special cases, award damages in lieu of an injunction (m). Where plaintiffs obtained their water supply from a well by means of a pipe laid in a main road, the defendants, a gas company, who owned gas mains and pipes laid in the same road, were restrained from polluting such water supply by allowing gas to escape from their pipes (n). An injunction to K. & J. 264; Crossley v. Lightowler, (g) Att.-Gen. v. Luton Board of (h) Tipping v. Eckersley, 2 K. & J. 264. (i) Weeks v. Heward, 10 W. R. 557. (k) Goldsmid v. Tunbridge Wells Commissioners, 1 Ch. 349; Att.-Gen. v. Colney Hatch Asylum, 4 Ch. 146; Att.-Gen. v. Corporation of Leeds, (m) Pennington v. Brinsop Hall Coal Co., 5 C. D. p. 773. (n) Batcheller v. Tunbridge Wells Gas Co., 84 L. T. 765. restrain the fouling will, if required by the circumstances of the case, be in the mandatory form (0). In Spokes v. Banbury Board of Health (p), a local board of health was restrained from causing or permitting sewage matter or water polluted therewith to pass through drains or channels under their control into a river (q). Chap. VI. The Court will not, however, grant a mandatory injunction Mandatory injunctions. against a public body in order merely to force them to do their duty. The proper function of a mandatory injunction is to force a defendant to cease continuing an act which is wrongful against an individual. If a local board do no act themselves to cause a nuisance, but merely permit a state of things to continue as it existed before the commencement of their powers, and neglect to perform their duty of providing a satisfactory and healthy system of drainage, it is no ground of action by an individual for damages or an injunction. The proper remedy is by the prerogative writ of mandamus (). In dealing, moreover, with the question of restraining a public body from continuing a state of things which existed before the commencement of their powers, the Court must take into consideration the balance of convenience (s). In an action by a sanitary authority to restrain the sanitary authority of a neighbouring district from authorising or directing sewage from their district to flow into the sewers of the plaintiff, the Court granted an injunction as to the future, but refused to grant a mandatory injunction to compel the stopping up of existing drains, firstly, because to do so would cause serious inconvenience to the district, and secondly, because it was doubtful whether a local board have power to (0) See ante, pp. 31 et seq., as to mandatory injunctions. (p) 1 Eq. 42. (q) Att.-Gen. v. Leeds Corporation, 5 Ch. 589, 1 Set. 615; Att.-Gen. v. Colney Hatch Asylum, 4 Ch. 161; Att.-Gen. v. Corporation of Halifax, 17 W. R. 1088, 1 Set. 616; Stansfield v. Corporation of Bradford, 1 Set. 616. (r) Glossop v. Heston and Isleworth Board of Health, 12 C. D. 120; Att.-Gen. v. Guardians, &c., of Dorking, 20 C. D. 595; Att.-Gen. v. Clerkenwell Vestry, (1891) 3 Ch. 527, 537. (8) Att.-Gen. v. Guardians, &c., of Dorking, 20 C. D. 595; Islington Vestry v. Hornsey Urban District Council, (1900) 1 Ch. 695 (C. A.). Chap. VI. Injunctions to stop up drains which they have once authorised to be connected with their drains (t). But where a third party was acting in violation of an agreement to pass surface water only through a pipe into the sewers of a sanitary authority, and was passing sewage matter, and it appeared to the Court that no special inconvenience would be caused to other neighbours, an injunction was granted at the suit of a private individual who had suffered injury to restrain the sanitary authority, on the ground that they could prevent any nuisance being caused by stopping up the pipe which was used in contravention of the agreement (u). The duty imposed by 18 & 19 Vict. c. 120, s. 72, the Metropolis Local Management Act, 1855, on a district board to keep the sewers vested in them in such a condition as not to create a nuisance, is not an absolute duty, but only a duty to use all reasonable care and diligence (r). The same is the case in regard to local bodies constituted by the Public Health Act, 1875 (y). Other cases of nuisance to water which have been brought before the Court are obstructions or damage to canals (z). In Attorney-General v. Great Eastern Railway Co. (a), a railway company were restrained from taking so much water from a non-tidal river under the care of conservators, as to interfere with the navigation. A canal company authorised but not ordered by Act of Parliament to supply their canal with water from a stream which was pure at the date of the Act, cannot after the stream has been made foul and polluted, though (t) Att.-Gen. V. Acton Local Board, 22 C. D. 221; Islington Vestry v. Hornsey Urban District Council, (1900) 1 Ch. 695 (C. A.); Brown v. Mayor, &c., of Dunstable, (1899) 2 Ch. 378. (u) Charles V. Finchley Local Board, 23 C. D. 773. Cf. Att.-Gen. v. Clerkenwell Vestry, (1891) 3 Ch. 527, 534. (x) Bateman v. Poplar Board of Works, 37 C. D. 272. (y) Stretton's Derby Brewery Co. v. Mayor, &c., of Derby, (1894) 1 Ch. 431; Lambert v. Corporation of (z) Blakemore v. Glamorganshire Canal Co., 1 M. & K. 154; London and Birmingham Railway Co. v. Grand Junction Canal Co., 1 Ra. Ca. 224; Manchester, Sheffield, &c., Railway Co. v. Worksop Board of Health, 23 Beav. 198; Case v. Midland Railway Co., 27 Beav. 247; Swindon Waterworks Co. v. Wilts and Berks Canal, &c., Co., L. R. 7 H. L. 697. (a) 6 Ch. 572. by the act of others, go on supplying their canal from its water, if they cause thereby a public nuisance (b). It is no answer to say that the company did not pollute the water, they having the power to draw or not to draw the water into their canal as they please; or that by restraining the canal company a worse nuisance would be created; or that the company may be obliged to close their canal and expose themselves to an indictment on that ground (c). In Attorney-General v. Mayor of Basingstoke (d), a local sanitary authority was restrained from permitting sewage to pass into a canal. Chap. VI. The Court has also jurisdiction, on the ground of irreparable To a mill race. damage, to restrain a man through whose land an ancient weir was constructed which turned the waters of a mill stream into a mill race from preventing the mill-owner, who had a prescriptive right to the mill stream, from entering upon his land for the purpose of repairing the weir (e). to restrain a of water. Notwithstanding the statutory remedy provided by sect. 68 Injunction of the Waterworks Clauses Act for the settlement of disputes company from by justices, and the special remedy given by sect. 43 against cutting off supply a company withholding water, the Court will grant an injunc tion to restrain a waterworks company from cutting off the supply of water to a house, but the injunction will only.be granted on the plaintiff giving an undertaking to take immediate proceedings before the justices to have the question determined as to the proper amount to be paid by him for the water (f). Important alterations have been made by the Rivers Pollution Rivers Pollution Acts, 1876 (g) and 1893 (h), in the law and procedure relating to the pollution of rivers. The jurisdiction of restraining by summary order offences in respect of river pollution is, by sects. 10 and 11 of the Act of 1876, given to the County Courts. (b) Att.-Gen. v. Proprietors of Bradford Canal, 2 Eq. 71. (c) Ib. (d) 45 L. J. Ch. 727. (e) See Peter v. Daniel, 5 C. B. 568; Beeston v. Weate, 5 E. & B. 986; Roberts v. Rose, 3 H. & C. 162. See further, as to damage to a mill race, Coates v. Clarence Railway Co., 1 R. & M. 182; Manser v. Northern (f) Hayward v. East India Act, 1876. |