L. C.

and L. JJ.

1874

MAYNARD

v.

EATON.

purpose, and it was so treated by both parties. Maynard tells us in his bill that he was induced to consent to the compromise under which he paid back the purchase-money because he considered that the action, if tried, would raise the question whether his conduct had been correct with reference to the sale of the shares. However, the trial did not take place, and the compromise gave the Plaintiff in the action the full benefit of his action and the purchase-money was returned to him. It was argued, and it was the only way in which the compromise could be got rid of, that Maynard at that time was ignorant of the fact that the father was the real owner of the shares. Supposing it to have been so, how could that have been in any way relevant to the validity of the compromise? Suppose Maynard had been told in Court, when the compromise was about to be concluded, that the real owner of the shares was the father, I cannot imagine in what respect it would have been relevant, either in trying the action before a jury, or as to the terms of the compromise, whether the beneficial owner was the son or the father. The only person who could have brought the action was the infant whose name was on the register, and he was capable of maintaining it. The action having resulted in the rescission of the contract, the vendor had a right to be reinstated as the owner of the shares, and by being so reinstated he lost any right which he might have had against the father for any indemnity in respect of them. I cannot, therefore, think that the view taken by the Vice-Chancellor is right; I think that the compromise is an absolute bar to the suit, and that the bill must be dismissed with costs; but there will be no costs of the appeal.

SIR W. M. JAMES, L.J.:

I am of the same opinion. I agree with the argument that the compromise would not have been binding if there had been any concealment of truth, or suggestion of what was false; but that must be understood as relating to what is relevant to the matter to be compromised. Whether the father or the son was the beneficial owner was immaterial to the question whether there was a valid sale of the shares. It was an action against the vendor by the real purchaser, whoever he might be, for the purpose of getting

rid of the contract; and whatever the vendor's motive may have been for consenting to the compromise, the effect of it was to put an end to the transaction, and to restore the shares to the vendor. Having thus put an end to the litigation, it is not competent to him to revive it now by bringing the bill against the next friend of the infant.

SIR G. MELLISH, L.J., concurred.

Solicitors for the Appellant: Messrs. Stephens & Stephens.
Solicitor for the Respondent: Mr. J. Tucker.

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and L. JJ.

1874

MAYNARD

v.

EATON,

ATTORNEY-GENERAL v. TERRY.

[1873 A. 32.]

Navigable River-Obstruction-Nuisance-Injunction-Conservators-Benefit of Trade.

A wharf-owner drove piles into the bed of a river, extending the wharf so as to occupy three feet out of a breadth of about sixty feet available for navigation :

Held, that this was such an obstruction as would be restrained at the suit of a municipal corporation empowered by Act of Parliament to remove obstructions.

Decree of the Master of the Rolls affirmed.

Held, per the Master of the Rolls, that an owner of land at the side of a public navigable river has no right to erect on the bed of the river, for the benefit of his own trade, any structure, whether any actual obstruction to the navigation of the river will or will not be thereby occasioned; and any benefit to his own trade is too remote to be held for the advantage of the public generally, and so to justify the erection.

Rex v. Russell (1) disapproved of by the Master of the Rolls.

THIS
was an information filed at the relation of the mayor,
aldermen, and burgesses of the town and port of Sandwich against
the Defendant, Henry Terry, who was the owner of a mill and
storehouses at Sandwich, and of a wharf or quay adjoining the
same, and abutting on a part of the river Stour. The object of

(1) 6 B. & C. 566.

L. C. and L. JJ.

1874

March 3.

L. C. and L. JJ.

1874

6

ATTORNEY-
GENERAL

V.

TERRY.

the information was to restrain the Defendant from constructing any platform or piles so as to obstruct the navigation of the river.

The Stour is a small public navigable river forming the port or harbour of Sandwich, and by an Act of Parliament passed in 1847 (10 & 11 Vict. c. cxcvi.), the mayor, aldermen, and burgesses of Sandwich, were empowered to cleanse and deepen the river. By the 12th section it was provided that the corporation should not, without the consent of the Admiralty and the Woods and Forests, construct any works in the haven where and so far as the tide flows and reflows. Other powers were given to the corporation, and by the 37th section their water-bailiff was authorized to remove any floating timber or other obstruction.

It appeared that the Defendant, about the year 1857, had taken in a portion of the river on which his wharf was constructed, and had erected a quay or platform outside the wharf projecting two feet beyond it, and had placed some sloping piles within a short distance of the platform. No opposition was offered on the part of the corporation to these works.

In the year 1873 the Defendant took away the old platform. and piles, and put in their place three strong piles at points in the bed of the river between high and low water, projecting about three feet three inches from the face of the old platform. Upon these piles he was about to erect a framework of the height of twenty-two feet as the support of an upper platform or stage, projecting four feet eight inches over the river, and communicating with his storehouses.

The Defendant had applied to the corporation for their permission to erect these new structures, which they had refused to grant, and, on his proceeding with the works, the present information was filed.

The information alleged that before the Defendant commenced his works the river opposite his quay afforded a channel of barely sufficient width for the convenient passage of vessels along the same, and that by the proposed works the width of the channel would be substantially diminished, and the navigation would be attended with difficulty, and, moreover, that the yards and rigging of the vessels passing along the same would be in constant danger

L. C.

and L. JJ.

1874

of coming in contact with the platforms and other works, and that, under the circumstances aforesaid, the Defendant's works would seriously interfere with and obstruct the public right to navigate the river, and would be to the damage and common nuisance of all ATTORNEYHer Majesty's subjects using the same.

The information prayed that the Defendant, his workmen, servants, and agents, might be restrained from erecting or constructing, or causing or allowing to remain, any platform, piles, or other erections or works in or above the river Stour beyond the line of his quay, and from otherwise obstructing the navigation of the river or the public use of his quay, for the purpose of mooring of vessels along the same.

It appeared from the evidence that the river Stour at the point in question was seventy-six feet in width at high water, that it was deepest near the wharf, but that the bank opposite the wharf was shallow, so that only about fifty feet of the river from the wharf was available for the purposes of navigation, the depth beyond that distance being eight feet or less; that the vessels navigating the river were from eighteen and a half feet to twentyone feet in beam, and that their draught of water was from eight to eleven feet.

There was a considerable amount of evidence on both sides as to the alleged obstruction of the river by the Defendant's works. Part of the Defendant's evidence was to the effect that the works complained of did not materially obstruct the river more than the quay which he had previously erected, and would in some respects be an advantage to the river.

The Master of the Rolls made a decree for an injunction (1), and the Defendant appealed.

(1) 1873. Dec. 10.

SIR G. JESSEL M.R., after stating the facts of the case, continued:

This information is founded upon two complaints. The one complaint is that the obstruction caused by the erection of the structure of the Defendant will be a nuisance in the common acceptation of the term, that is, will actually impede the navigation of

the river. The other ground is this:
that whether that be so or not, the
Defendant has no right to erect such
structure, and ought to be restrained
by injunction, quite independently of
the fact of there being an actual nuis-
ance or not. I think the information
is entitled to succeed on both grounds.

As regards the law upon the subject,
it is necessary to say a word or two;
because an argument has been addressed

GENERAL

v.

TERRY.

L. C. and L. JJ.

1874

ATTORNEY-
GENERAL

v.

TERRY.

Mr. Fischer, Q.C., and Mr. E. Beaumont, for the Appellant:

We have a right to do all that is necessary to support our building. Moreover, our wharf is for the advantage of trade: Hale, de Por