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“ port an action ; but if the water be prevented, and I had a pro“ perty in that water, no man has a right to alter or diminish the “ property I had in that water: so is the case 2d Henry 6th, 14. If “ I had one hundred acres of pasture, and no man had pasture in it, “ it would be lawful for me to make the best advantage of it, &c. « &c. so an action does not lie merely for an inconvenience arising “ to another, 9 Co 58. c. 1. Kebb. 577. An action does not lie for “ breaking a wall in which the plaintiff had no property, &c. It is “ not a ground in this action that a man is disturbed in his profits, “ &c. without a partial damage: here again is an authority which « in my judgment combats the principle, that a mere alteration “ of the mode, or extent, in which any man enjoyed a particular “ property would maintain this action; he must alledge a substan“ tial injury sustained by him in his property. If an highway “ be so stopped that a man is delayed, it is not such a special “ damage as will maintain an action on the case, but the damage “ must be direct, as the loss of his horse, corporal hurt, &c. “ Carth. 194: so, if a man use water in his own land out of a “ watercourse running through his lands to the pond of B, " whereby B’s pond is not so full, an action lies, Smart v. Hested « 1st Com. Dig. 215. This again combats that principle, that a “ mere alteration in the mode of enjoyment, or mere potential “ or possible enjoyment will maintain the action ; there must be « positive injury. The single question then remaining to be en" quired into, is, Has the plaintiff stated such an injury in his “ declaration, and has the jury found it?' and here without tra“ velling minately into the record, it will be sufficient to state «« facts shortly. The plaintiff is the proprietor of a fishery in “ the river Bann; the defendant has a fishery in the same river “ below the plaintiff, both derive from the crown, the plaintiff's “ grant is prior to defendant's: a variety of points were made in “ the argument as well with regard to the validity of these pa“ tents in themselves as in respect to other matters, but now no " question arises with regard to them. It appears that the 6. parties claiming under them have been in uninterrupted pos“ session more than a century each of their respective fisheries, “ and therefore upon that possession alone the question at issue “ does fairly arise, What is the injury then of which the plaintiff 6complains as done to his fishery? It is clear, and I agree with “ my lords the chief judges, that the plaintiff by the grant has " a clear and undoubted right to the possession of the water of “ his fishery, in the same plight, state and condition in which it “ was at the time of the grant made to the corporation of London.
“I agree with them that ary alteration made by defendant, « or those under whom she derives, in the state and condition of " that from that in which he enjoyed it, if that alteration re“ dounded to his injury, would give a right of action, so he had a “ right of passage for every fish which escaped the industry of the « proprietor of the lower fishery but no more, so he had a clear "right to catch every fish he could, which found its way from the “ defendant's tishery, or escaped the ingenuity, industry or act of
“ defendant, but defendant under her grant has the same right; “she has a right to enjoy the water of her fishery in the same plight “ and condition in which it was at the time of the grant, a right “ of passage for fish, and a right to catch every fish that found its way "s into her fishery, and a right to intercept every fish for the purpose “ of taking, provided that by so doing she does not injure lord' Do“ negal's fishing by intercepting those not taken. These being the
clear obvious rights of the parties, see what the injury com“ plained of is, and what is found. If lord Donegal had declared " that by the erection of these weirs the rapidity of the stream «s had been so increased as to obstruct the passage of fish which « escaped the efforts of the defendant ; that she altered the state, (i plight and condition, so as to injure his property, I should not 6 hesitate to say the action would lie. So, if in the erection of 6 these works a passage was denied to fish which defendant did " not catch, I should not hesitate to say that would be a ground of " action, because of the subsequent injury done to his property, 6 not by the exercise of a clear existing right. But what is the in“ jury here? that divers large quantities of salmon which otherwise « would have gone up have been obstructed. Let me suppose for a “ moment that these works never were erected, and that defen6 dant employed five hundred men with boats and nets, night and “ day, would not that have obstructed divers quantities of fish " from going up, which otherwise would have gone up? The act 6 of erecting these works I take not to be the ground of this ac“ tion; the question whether they are legal or not cannot arise “ in this form of action. It is not pretended they were a common “ nuisance. It is admitted that the rock was granted to the So. “ ciety: it is their soil and freehold, and therefore the act itself s is not complained of, the injury as resulting from it can alone “ be the foundation of the action, so, as the case of Clarke v. • Reynolds, and those others I have stated, so in every case for “ consequential damage : see then if what this verdict has found " is held to be a foundation for this action, whether we must not 66 determine that the sanje identical injury alledged to flow from “ one act in itself illegal will found an action, and the same iden“ tical injury from another act not in itself illegal will not found “ an action; for, if it be found that divers large quantities of fish « have been prevented, by boats, nets, loops,&c. &c. that, it is ad"mitted,would not found an action; but it is asserted, that because “ the injury arose from the erection of permanent works, it shall “ maintain the action, although the self same injury arising froin “ another act will not maintain an action. In ny judgment, the law
is clear that the act itself does not at all constitute the ground of 6. the action, but the injury, and that alone; and in my judgment, “ if we determine this action maintainable in this form, it will " involve the absurdity, that the self same injury arising from 66 one act in itself illegal will maintain the action, and the self “ same injury arising from another act not illegal will not main
tain the action ; and surely if the relief sought by the plaintiff " was granted to him, the very same description of injury would
“ follow to the defendant; as she must evidently lose in profit “ whatever he might gain. In every such case it has been de« termined that the injury alone is the foundation of the action, “ But when we look at this verdict, see how infinitely stronger it is. “ It is true the plaintiff alledged, he loses the profits by this in“ jury. In my judgment, if the jury had even found that fact, the “ injury alledged would not maintain the action, because the self “ same injury from another mode of fishing with the legal ex" ercise of a right, resulted to the proprietor of the fishery. But “ the jury find, that by the obstructions divers large quantities “ of fish were prevented, &c. but not a word finding that by these “ obstructions his fishery has been injured, not any inference o arises that lord Donegal has not caught the self same number “ of fish as before, or that he sustained any loss. And when we “ look at this case, in my judgment, this want of finding shews a “ want of jurisdiction in the Armagh jury. The plaintiff declares “ for a fishing lying in several counties, Tyrone, &c. lastly in “ Armagh: What can give jurisdiction to the Armagh jury to “ assess damages, unless they found the injury to have been done “ to the fishery in Armagh especially? I have looked through the « verdict, and there is not a word to shew, that any injury to the “ Armagh fishery has been done, although an injury there must « be alledged, because if not, the venue being there, it would be “ a mix-trial : therefore, in my judgment, here is, from defect of “ finding an injury in the fishery of Arinagh, a plain want of juris6c diction in the Armagh jury to assess damages, because it is the “ locality of the injury that can give jurisdiction to them, and " there is not any thing like allegation or insinuation that any “ injury has been sustained. Supposed they found an injury in “ Londonderry, would not that be a mix-trial ? Is it not equally “ necessary that the jury, to give themselves jurisdiction, should “ find a specific injury in the county of Armagh, where the party “ has laid the injury for the very purpose of giving them jurisdic« tion? Therefore on the very face of the verdict there is no in“ jury found, no injury shewn to sustain the action. I have turned “ the case over and over again in my mind; I have looked through * all the cases that bear on the question, the injury as alledged, the “ verdict not finding any injury at all; and considering the locality “ of the injury, and the jury omitting to find any injury in Ar. “ magh, it is a plain and palpable want of jurisdiction. They had “ no manner of jurisdiction to assess damages. The case of lord “ Lonsdale does not apply to this: I have made enquiry from a “ gentleman of long experience in Westminster-hall : he thought “a new trial was awarded, but did not recollect it was more a « trial of force than of law. But see what the case was: the plain“ tiff there declares against the defendant for having drawn a net « entirely across the river, fixed upon poles from one side to the “ other, by which great quantities of fish were prevented from pass“ing, by which he lost the profits, &c. ; and the jury found, &c.
“ By 2d Henry 6th, c. 15. Eng. it is expressly prohibited “ to any man to erect nets across rivers ; and therefore this erecta « ing of this net by lord Lonsdale was under this act of parliament « a clear nuisance presentable. I believe the law is clear, that ** any man who alledges a substantial injury arising from a com“ mon nuisance, will have a giound of action; therefore it is « no authority in this case. Again, it is stated in the declaration “ and found by the jury, that the plaintiff lost the profits : which is
not the case here.
“ I have turned the case again and again in my mind; it is new 6 certainly, and there is no decided authority. It must therefore “ go by principle ;, and I cannot satisfy my judgment that the “ injury alledged is sufficient to maintain the action. But when (the majority of the judges in the exchequer and the assessors “ here now agree, I shall not upon this occasion set up my own “ opinion, because I suppose the case will go further. And “ therefore I shall here direct the judgment of the inferior court 66 to be affirmed.”
COPY OF MR. ROMILLY'S OPINION. .“ It appears to me, that the decree of the court of exchequer “ is erroneous : That decree orders, that works, all of which had “ been erected a great number of years ago, and long before the « interest of the tenant for life (who was the only defendant in “ the cause) commenced, should be prostrated; it is manifest that " this must materially affect the rights of those who are entitled « to the inheritance, and yet the persons entitled to the inherit“ance were not parties to the suit, and had no opportunity of “ being heard, even if there had been proper parties to the suit. “ I think that the court ought not to have made the decree which “ it has done, at least not without first giving the corporation an “ opportunity of trying their right at law; the objection however " on the ground of the proper parties to warrant such a decreę “ not having been before the court, seems to me to be unane. “ swerable, and I should think on that ground alone the decree « would be reversed by the House of Lords; in the mean time “ however and before the appeal can be heard, irreparable injury “ may be done to the corporation by the execution of the decree. « The only means that occur to me for preventing this, is an "application to the court of exchequer; and for that purpose I " think the corporation ought immediately to file in that court « an original bill, in the nature of a bill of review, against lord “ Donegal and lady Hamilton, stating the former proceedings, and “ that the plaintiffs were not made parties to the suit and had no “ opportunity of being heard upon it, and that their interests " are essentially affected by the decree, and praying that the « decree may be reversed; and that in the mean time, and till the “ cause can be heard, all proceedings under the decree may be « suspended. And I think that as soon as the bill is filed and the “ defendants have appeared to it, a motion should be made to " stay the execution of the decree. A bill of the nature which
“ I have mentioned I apprehend the only proceeding by which a
person, whose rights are affected by a decree made in a suit to “ which he was not a party, can be relieved. See Mitford's Plead« ings, 83.
“ I am of opinion that the decree of the court of exchequer is “ binding only during the life of lady Hamilton, and that if the “ decree was executed, the corporation would upon lady Hamil. “ ton's death have a right, notwithstanding the decree, to re-erect “ traps, similar to those which are now existing. It is however I “ think very important for them to prevent, if they can, the decree « being carried into execution.
“SAMUEL ROMILLY. “ Lincoln's Inn, Nov. 6th, 1891."