L. C. and L. JJ. 1874 GOODSON v. highway from Broadstairs to Ramsgate, and as such was owner in fee of an undivided moiety of the adjoining half of the highway. He was also shareholder in a waterworks company at Ramsgate. The Defendant, R. Richardson, owned some houses at Ramsgate, and, RICHARDSON. being dissatisfied with the waterworks company, proceeded to construct waterworks for the supply of his houses. He applied to the Highway Board of the Isle of Thanet for permission to lay down pipes along the highway, which, after some time and discussion and opposition from the waterworks company, was, on the 8th of April, 1873, granted to him; the clerk to the board at the same time informing him that the board could only give permission subject to the rights of the owners of the lands. The Defendant had on the 4th of April begun to lay the pipes along the highway, and (apparently in the course of the day of the 9th of April) he laid the pipes in the soil of the side of the road adjoining the land of which the Plaintiff had an undivided moiety. On the same 9th of April the Plaintiff and other landowners served the Defendant with notice not to lay pipes in their lands, and that they intended to apply for an injunction. There was a dispute as to the exact times when the pipes were laid, and when the notice was received. On the 21st of April the bill in this suit was filed, praying for a perpetual injunction to restrain the Defendant from so laying any pipes and from allowing them to remain. The Master of the Rolls, Sir G. Jessel, made a decree for a perpetual injunction, and the Defendant appealed. Mr. Jackson, Q.C., and Mr. J. Beaumont, for the Appellant: We contend, in the first place, that the Plaintiff is too late. In the next place, the Plaintiff's remedy, if any, is at law: Deere v. Guest (1). No doubt the land is legally his, but he has in reality suffered no injury, and the Court will not interfere, or at all events will only give damages: Bowes v. Law (2), especially where the work is all done: Hindley v. Emery (3). The object of the Plaintiff is not to protect his land, but to prevent the Defendant from making waterworks to the probable injury of the Plaintiff's waterworks. (2) Law Rep. 9 Eq. 636. (1) 1 My. & Cr. 516. (3) Law Rep. 1 Eq. 52. Mr. Southgate, Q.C., and Mr. Davey, for the Plaintiff, were not called upon. LORD SELBORNE, L.C.: In this case the Master of the Rolls has thought it right, in the RICHARDSON exercise of that discretion which, as Mr. Beaumont very properly said, is a judicial and not an arbitrary discretion, to grant an injunction restraining the continuance of certain water-pipes which the Defendant has placed in the Plaintiff's land. Now, it is undoubtedly true that where a legal remedy exists, this Court, in determining whether it will leave the parties to that legal remedy or will interfere by way of injunction, has regard to the circumstances of each particular case, and amongst those circumstances are, no doubt, the time at which the work was executed, and also what will be the result to the parties of the interference of the Court, on the one hand, or of leaving them to their legal rights and liabilities, on the other hand. But I apprehend that the Court has nowhere said that when a trespass of this kind has been committed under circumstances at all similar to those in the present case, the mere fact of the trespass being complete at the time when the bill was filed will prevent an injunction against the continuance of the trespass. The Plaintiff is the owner of the soil through which these pipes have been laid, and no one has a right to take that soil for such a purpose, except under contract with the owner, or with his consent. At the same time the Plaintiff has not the right of an unlimited owner in respect of that soil, because the upper surface is dedicated to the public for the purpose of a public highway, which is under the management of local authorities; and the Plaintiff cannot use the soil, or deal with it by breaking it open, or in any other manner, so as to interfere with the use of it by the public for the purpose of a highway. These pipes, therefore, being laid below the surface, the Plaintiff might not, without exposing himself to difficulties with the public authorities who are the guardians of the highway, be able to redress the injury in the easy and simple manner which he could if the same thing had been done in an ordinary field. It is said that the objection of the Plaintiff to the laying of these pipes in his land is an unneighbourly thing, and that his L. C. and L. JJ. 1874 GOODSON บ. right is one of little or no value, and one which Parliament, if it were to deal with the question, might possibly disregard. What Parliament might do, if it were to deal with the question, is, I apprehend, not a matter for our consideration now, RICHARDSON. as Parliament has not dealt with the question. Parliament is, no doubt, at liberty to take a higher view upon a balance struck between private rights and public interests than this Court can take. But with respect to the suggested absence of value of the land in its present situation, it is enough to say that the very fact that no interference of this kind can lawfully take place without his consent, and without a bargain with him, gives his interest in this land, even in a pecuniary point of view, precisely the value which that power of veto upon its use creates, when such use is to any other person desirable and an object sought to be obtained. Besides which, I am not prepared to accede to the proposition that it is an unneighbourly proceeding in a man, whose motive for desiring to prevent a particular act may be collateral to the interest in his land-such, for instance, as his being a proprietor of waterworks which may be injured by the proposed use of it ;to say to his neighbour who wishes to compete with him in that business, "You are perfectly at liberty to enter into competition with me as a seller of water to the public of Ramsgate in any lawful manner; but you are not at liberty to take my land without my consent for the purpose of competing with me, and I shall object to your doing so." In that, I confess, I see nothing unneighbourly whatsoever. Then what are the actual circumstances of this case? The Plaintiff has certainly been guilty of neither acquiescence nor delay. [His Lordship then stated the facts of the case.] In that state of things, and looking to the nature of the work, and that it was capable of being so quickly done, and done in that manner, I have no hesitation in saying that I think this Court is bound to deal with the case exactly as it would have done if this bill had been filed, not as it was a few days afterwards, but on the morning of the day, and before any part of the work had been done. I cannot look upon this case otherwise than as a deliberate and unlawful invasion by one man of another man's land for the purpose of a continuing trespass, which is in law a series of trespasses from time to time, to the gain and profit of the trespasser, without the consent of the owner of the land; and it appears to me, as such, to be a proper subject for an injunction. The cases which have been referred to are either cases of ancient lights, such as Durell v. Pritchard (1), or cases of covenants, such as Bowes v. Law (2), where a man had, once for all, done upon his own land something which exposed him to an action by the other party. In those cases the thing was finished, and in the judgment of the Court it was more equitable, having regard to the consequences of interference or non-interference, to leave the parties to their legal rights and liabilities, or to give damages, rather than to interfere by injunction. No doubt in such a state of things the quantum of damage to the Plaintiff, as compared with the quantum of loss to the Defendant, is a material consideration; but that consideration does not appear to me to arise in the present case. The other class of cases is that exemplified by Deere v. Guest (3), which, when rightly considered, amounted to neither more nor less than an action of ejectment brought in the Court of Chancery without any equitable circumstances to induce that Court to assume jurisdiction. The facts were these: The Defendant had made a tramway and completed it openly, so that everybody interested in the land either did know or might, three years before the bill was filed, have known what was taking place. That had been done lawfully, with the consent of the tenant, subject to some question of waste which I will not enter into. That was a case between landlord and tenant. But so far as the possession was concerned, it had been lawfully acquired by the consent of the then occupying tenant. His occupation continued for about three years afterwards, and, as far as appears from the statement on the bill (for that case arose on demurrer), even when the tenancy ceased the land was re-let to a person who, upon the allegation in the bill, must be taken to have consented, so far as he could consent, to the continuance of the occupation of the tramroad by the Defendant. The bill, however, contained an allegation which Lord Cottenham thought obscure, that when the land was re-let the Plaintiff had reserved to himself the tramroad. The allegation was, therefore, that the right to the tramroad or to the posses(1) Law Rep. 1 Ch. 244. (2) Law Rep. 9 Eq. 636. VOL. IX. (3) 1 My. & Cr. 516. 1 L. C. and L. JJ. 1874 GOODSON v. RICHARDSON. L. C. and L. JJ. 1874 GOODSON v. sion of the land had been originally given by the person in occupation, and was confirmed by the person subsequently in occupation, but that he had no right to confirm it. It also appeared that the owner of the equity of redemption had sold to the Defendant the RICHARDSON. right to have the tramroad, also that the Plaintiff had not even the legal title of mortgagee, for he was only the husband of the administratrix of the mortgagee, and interested in the money only, though no doubt he was entitled to call on the persons who had the legal estate to defend his rights. He had brought an action of trespass against the Defendant on account of this tramroad. In point of law the Defendants, having lawfully got possession three years before, were continuing in possession, and the Plaintiff's title, or rather that of the trustee for him as mortgagee, was a purely legal title on the shewing of the bill, and there was no impediment to an action of ejectment or an action of trespass. In that state of circumstances, Lord Cottenham thought-and, in my judgment, was quite right in thinking-that there was no equity whatever to interfere, and that the case was a simple attempt to transfer the jurisdiction in ejectment from law to equity. Had the circumstances of this case been similar, and had these pipes been laid with the consent of the tenant three years before, and used as part of the system of waterworks during the whole of that interval, and had it been a case of possession, originally legal but now liable to be displaced by ejectment, I have little doubt that I should have come to a similar conclusion. But all the circumstances of the case are entirely different, and the principle upon which this case ought to be dealt with is, in my opinion, that upon which the Master of the Rolls has dealt with it. Therefore I, for my part, cannot give a voice for disturbing the judgment of the Master of the Rolls. SIR W. M. JAMES, L.J.: I am of the same opinion. The Defendant in this case is admittedly a trespasser. He has committed a trespass upon the Plaintiff's land without any legal justification or any legal excuse whatever; and he proposes to continue that trespass from day to day, keeping the pipes and allowing the water to go through them for the purpose of making a profit of a trade which he proposes to et up in rivalry to a trade which the owner of the land upon |