Glen Maye - dispute re water 1887

The first court appearance as reported in the Manx Sun, Saturday, 12th February 1887

HIGH COURT OF JUSTICE. - COMMON LAW DIVISION .

(Before his Honor Deemster Drinkwater.)

DOUGLAS, TUESDAY, FEBRUARY 8TH, 1887.

His HONOR DEEMSTER DRINKWATER presided over a Common Law Court in Douglas to-day. The only case of interest was that of THOMAS CRINGLE V. HENRY QUAYLE FOR OBSTRUCTING THE DALBY STREAM.

The jury sworn to try this case were the following :—John Cubbon, Ballabeg, Arbory; Daniel Kelly, Ballavale, Santon ; Joseph Fargher, Alexander-terrace, Douglas ; John Kinvig, Ballacurry, Santon; Edward Qualtrough, Surby, Rushen; and Richard Qualtrough, Ballafesson, Rushen.

The Attorney-General appeared for the plaintiff, and Mr Kneen for the defendant.

In opening the case, the Attorney General said: The plaintiff in this case has brought an action to recover damages with respect to the obstruction of water in a water course in the parish of Patrick, at Glenmaye. The plaintiff claims that he is the owner of a moiety, and is occupier of a certain water corn mill, called the Glenmay Mill, in the parish of Patrick, the same being worked by a water course which flows from the Dalby Mountain, called the Dalby Stream, into the river May. The plaintiff has occupied the mill since November, 1883. The defendant erected a thrashing mill close by plaintiff's mill, and since 1883 he has made three dams in order to supply that mill. The effect of those dams is that the usual flow of the water is impeded and obstructed, and the plaintiff is deprived of the use of the water according to its ancient and accustomed course. The defendant admits what we state, but says that the plaintiffs mill is really worked by the water from the Glenmaye River. The law on the subject is very plain—that the water must be allowed to flow free from any obstruction. Unless defendant has had 21 years use of these dams he has no legal right whatever to them, unless he can shew a right given by persons able to confer that right. We go on our legal rights in this case, and we say we have sustained damage, though not great damage, but the longer the dams are allowed to remain the greater the damage will be.

His Honor: I suppose he has not only built these dams but has sluice gates and lets the water out as he wants?

The Attorney-General: Yes, and the water comes down at times in very large quantities when the plaintiff does not want it. The consequence is that the plaintiff's mill is driven faster than it ought to be. The rush of water also brings a great quantity of rubbish with it. We say that the defendant has no right to impede the water flow above, and if what we say is correct, then he has done an illegal act by making these dams.

Mr Kneen: I am prepared to admit nominal damages. The real question in the case is the injunction which will close our mill. The mill cannot be worked without the dams. Plaintiff has seen defendant making his dams but never complained until they were finished. I will leave the question of the injunction for your Honor to decide.

The Attorney-General after consultation with his client said : We will go on.

The plaintiff said: I am the occupier of the Glenmaye Mill, and I own half. My brother owns the other half. I have been in occupation three years last November. I had occupied it for 13 or 14 years before, but had been out of it three years. I was at Glenfaba Mills during those three years. The defendant occupies land above me on the Dalby mountain stream. About seven years ago he made a threshing-mill there, and he made one dam right across the stream. Some time after he built another dam, I think nearer his mill, and a year or two ago he built another dam. When the defendant lets out the water from the dams the water comes down at full flood. It has come down several times unknown to me. That is not the way I would use it myself. I cannot prevent it unless I know it is coming. I have a board near my mill, and I can draw that and let the water run past.

His Honor : And why don't you always keep that board lifted except when you are using it ? Plaintiff: I am using it every day.

His Honor: It would be no trouble to you to always keep that board lifted except when you are using the water would it ? Plaintiff: I lift it every night. I have to keep the board down to get the water for the mill.

His Honor: And then you don't object to the flood of water. When you are not using it, you could prevent the flood by drawing the board ?

Plaintiff: Yes, sir (to the Attorney-General). When the water comes down with a rush unexpectedly it drives the mill about three times too fast, and it spoils the stuff I grind. The defendant never lets me know when the water is coming; down. When the mill is driven too fast on account of the rush of water, the stuff comes down crushed coarsely, and the greater part of it is wasted. That has happened scores of times during the last three years. Every rush of water brings down stone and rubbish, and instead of me cleaning the grating once a day, I have to clean it after every rush. I have not suffered very much from the loss of water. I have certainly suffered, but not to any great extent. The water in the mill-race, close to my mill, is not always sufficient to work my mill, and I have to depend upon the Dalby stream. I would not take the trouble of drawing the board, and cleaning out the grating, and looking after it the way it is at present for £5 a year.

His Honor: And if he paid you £5 a year would you let him have the dams ?

Plaintiff (hesitating): Oh, no, that would not be compensation for the damage at all. I cannot say exactly what damage I have suffered.

Cross-examined by Mr Kneen: I have also erected a threshing mill close to my place. It was built in 1885. It takes a six-horse-power engine to drive a mill like the defendants. I did not know when he stated that he could not work his mill unless he had the water. I found that out when I got my own threshing mill. The first dam is about six hundred yards from my mill. I never complained to Quayle about it, because I knew he knew what he was doing. I saw him constantly. Different parties had told me that he could do what he liked on his own property. I sent him an advocate's letter in November, 1885. Dalby stream is very much smaller than Glen Maye stream. I have never seen it dry. The board which I can draw to prevent an overflow is just across the road from my mill. If there is too much water coming, I can lessen it by a handle in the mill which opens a sluice, and that lets down the water before it gets on to the wheel. If I am in the mill, I can tell by the heat of the stones whether there is too much water coming. I cannot always tell with the noise of the mill. The defendant does not do much work in the mill in the summer. Mr Quayle offered to make an overflow at his own expense, but I told him he would have to take the dams out, and leave me as he got me. That would mean stopping his mill as far as the water supply is concerned.

Caesar Sayle said: I live at Glen Maye. I have seen the water coming down with a great rush to Mr Cringle's mill. The board has constantly to be attended to because there is too much. If I was a miller I would not have the bother of it for £5 a year.

Cross-examined by Mr Kneen : I am a fisherman, and do not understand anything about a corn mill. I have not taken much interest in this matter.

Henry Cassidy corroborated plaintiff's statement.

William Quine, proprietor of the Craig Mill, Malew, said : I know the Glen Maye corn mill. If a dam was let off at times during the night it might damage a miller down the stream, because the water would have passed away and he would not have the benefit of it. If Cringle was prepared for it he could sustain no injury. I lived for nineteen years where there were no dams and we would have been delighted to have had them.

Mr Kneen : I submit that in any case there has been nothing done that nominal damages will not cover, and the real matter is the injunction.

The Attorney-General: The jury have nothing whatever to do with the injunction.

Mr Kneen: But it might have an important bearing. The injunction would be affected by the amount of damages. I am willing to have the damages assessed once for all, and in fact to do anything that is fair.

The Attorney-General: I cannot prove any actual amount of damage.

Mr Quine continuing: In all properly constructed mills, there ought to be no great overflow. Mills are things that require to be watched all the time. A shower coming down from the hills would have the same effect as a dam if opened.

His Honor: But you have no action in case of a shower, if you are damaged by it (laughter).

Mr Quine : Sometimes we are only too glad to get a shower, and we would not bring an action if we had the power. It is quite possible for a miller to tell whether the mill is doing proper work or not, no matter where he is. I can tell in any part of our mill whether it was going too fast or doing the work properly.

Cross-examined by Mr Kneen : If Mr Cringle had a proper over-flow opposite his place, the water would pass away and do no harm ?— I think so. If the thing was properly made it would almost work itself. Not more than twice this winter have we gone out to look after our overflow. If it was a very narrow board it would not take the overflow. If I had been aware that I was going to be summoned in this case, I might have seen the place.

His Honor: You have not seen the place, then ?

Mr Quine : Not for the purpose of this case. I think the over-flow board ought to be made sufficiently wide, but who is to do it ? I do not know what side I am speaking on. I am only giving my experience. I am certain there would be no difficulty in putting an over-flow where Mr Quayle's water comes down. It would be only a matter of cost.

Mr Kneen in opening the case for the defendant said : I shall show that the damage to the defendant's mill is really imaginary, and that it is no trouble whatever to him either to raise the board and let the water pass, or by means of the handle in the mill to regulate it at any time. If he is in the mill he ought to be able to hear the water coming too fast, and he could either touch the handle or go out and touch the board. I propose to call the man who worked the mill for the three years during which Cringle was away, and he will tell you there is no damage. It is simply a matter of the miller minding his own business. The real question is not as to damages, but whether our mill has to work or not, because if, after your verdict his Honor considers the plaintiff is entitled to an injunction against the defendant having these dams, it means he will not be able to work the mill at all. The damage in point of law there may be, but there is no real damage that can be put into so much money. Mr Cringle could not say that he was damaged so much a year, and I ask you therefore only to find for nominal damages.

Thomas Fargher was then called and said: I am a practical miller. I was tenant of Mr Cringle's mill for two years and eleven months. I left three years last November. Mr Cringle was working it for a number of years before that. When I went into the mill Quayle's mill and two dams were there. I have seen the Dalby stream dry in certain parts. The Glen Maye stream would be sufficient to work the mill solely. We had constantly to use the handle in the mill to raise the sluice according to the water that was coming, or according to the work that was being done. I cannot say that I ever sustained any damage through Quayle working his mill. Of course it was necessary to attend to our work. I should be glad to get £5 a year for looking after the board (laughter). The grating near the wheel would require cleaning very often, especially in the autumn, with the fallen leaves coming down the steam. I was cleaning it perhaps once or twice a day, and sometimes once or twice in six months. I have had to clean it two or three times a day in time of flood. In the ordinary course we had plenty of water from the Glen Maye stream without the Dalby stream. There is no comparison between the two streams. It has sometimes taken two days to fill the two dams. It would sometimes get up to a certain height and then disappear. You have got to mind your mill at all times. I never complained to Mr Quayle that his working his mill ever did mine any harm.

Cross-examined by the Attorney-General: I worked Quayle's mill for 14 years. The dams never did me any injury while I was working Mr Cringle's mill.

His Worship: Supposing the water came down unexpectedly at a very early hour in the morning, would that damage the mill? Witness: No, sir, because I always drew the board at night, and put it in in the morning, when I was ready to work. If I was in the mill I would always be prepared, and I knew in an instant whether the mill was working steady or unsteady. Sometimes I could regulate it from the inside, and at other times I had to go to the board outside.

By the Attorney-General: I do not know that Cringle and I are at all unfriendly. He summoned me once for rent, but I paid it.

By Mr Kneen : When I left his mill to go to Glenfaba mill, there was a portion of the rent owing, and I suppose he thought it was necessary to summon me, but I paid the money. There was no dispute. We never exchanged cross words. Defendant was then called, and said he built his mill in 1870. The first dam was made before the mill was finished; the second in 1880; and the last in January 1885. Plaintiff saw him building the dams but made no complaint to him. On the day before witness finished the building of the third dam he received a letter, written at plaintiff's instance, from Mossrs Gell & Gell, advocates, telling him in effect that he must remove the dams. Subsequently he saw plaintiff, and said he did not want to go to law and that if the flood was an injury to the plaintiff, he would take steps to prevent it at his own expense. "Oh, no," said plaintiff, "you have nothing to do but let the water run." Defendant could not work his mill at all if that was done, as the stream of itself was nothing like sufficient. It took 12 hours to fill the dams, and even then there was only sufficient water to run the mill for two hours. The mill had cost defendant £450. Lately, plaintiff, also, had put up a threshing mill, and that was where the sore lay (laughter). Defendant was still willing to do anything reasonable in the matter. He did not want to injure any man.

Cross-examined : He did not see Cringle until he was summoned.

Thomas Rogers gave evidence of a conversation between himself and the plaintiff to show that plaintiff knew of the erection of the dams.

This was all the evidence, and Mr Kneen then addressed the jury. He said he did not think the jury would have any difficulty in coming to the conclusion that plaintiff's grievances were imaginary. The real grievance was that defendant had started an opposition threshing mill, and plaintiff wished to stop defendant's business. Plaintiff never complained to defendant. One witness, Fargher, said that the dams did not occasion any real damage. Then plaintiff had acted in a very unneighbourly way. He let defendant go on and build his dams, and then, instead of going as a neighbour to defendant, he went to an advocate. Down the dams must come, and nothing else would do. It simply meant that plaintiff was going to ruin defendant, who had offered to do anything that was fair, but plaintiff would not do anything. Defendant would not object to the damage being assessed, but he did object to the injunction. He asked the jury, if they decided against defendant, to fix only nominal damages.

The Attorney-General submitted that plaintiff was within his legal rights as, according to the law, defendant had no right to interrupt the flow of the river. The question was, had plaintiff a right to the stream? If so, defendant had no right to interfere with it.

His Honor, in summing up the case to the jury, said : the plaintiff in this case, according to the undisputed evidence, is tenant of a mill near the Dalby Stream, of which he has had the benefit for a considerable length of time. He has had it for a sufficiently long time to have acquired rights, and, having acquired rights, no person else can acquire rights to damage his mill except by having the rights for a certain length of time. He was entitled to the uninterrupted flow of this small stream that came to his mill, and nobody else had any right to interrupt that flow. It is not right that a man can put up a mill near the place and destroy the rights of the man who possesses them. That is not the law. The law is that a man who has the rights is entitled to the uninterrupted use, until some other parties acquire rights, or until he grants them away to some one else. In this case the evidence is undisputed. The defendant does not deny that Mr Cringle had gained these rights to this particular stream, and therefore any interruption of those rights by Mr Quayle is the subject of an action. The only question is as to the amount of damage, and as to whether or not it is of so trifling a nature that you will only give nominal damages, say a shilling or a farthing, or whether you will give the full amount which Mr Cringle claims £50. He only speaks of £5 in his evidence, and the only question therefore lies between about a farthing and £5 a year for the three years for which he claims the damages. You can see that these dams cause an obstruction to the stream, and of course while they are being filled less water comes down to the plaintiff, and when the dams are opened there is a superfluity of water, and the use of it is to a certain extent lost. The damage however is so trifling that he does not fix any sum for it, but why should he be put to this damage? He has looked on and seen this person building these dams, and certainly one would have been more satisfied if he had at once said to Quayle, " Well, you must take precautions before you do this. If I find I am damaged, I shall have to bring an action against you; you must therefore be cautious about what you are doing." He does not give any notice of that kind, but still his allowing it and taking no notice, however unneighbourly you may think it, does not take away his right at law. He may insist upon his right at law, notwithstanding he has stood by. Of coarse in a matter of that sort a jury might look at it, and lighten the damages, but still if you see that he has really suffered in consequence of what is done by the defendant he is entitled to damages. Whether or not defendant will be allowed to work that mill afterwards is a question you will not have to decide. You have to decide whether the plaintiff was entitled to the uninterrupted flow of the water of the Dalby stream to his mill. That will be your duty, and I am sure you will do it, because it will only put parties to great expense, supposing you were to take a strong feeling either way and say, "The defendant has allowed this to go on, and let the defendant incur all this expense, and therefore we will not give any damages." The consequence in all probability would be that that verdict would be set aside and the matter would have to be tried again. So that on a question of law like this, it is not right for you to take a view of that kind, and I am sure you won't. The only question for you is one of damages.

The jury retired to consider their verdict at one o'clock, and while they were absent from the Court, His Honor said: Then there is the matter of the injunction. The Attorney-General: Well, I do not know whether I shall go on. I think we shall rely on the verdict. Mr Kneen: I am ready to go on with regard to the injunction. His Honor: Because the facts are all fresh in one's mind at present, and perhaps in arguing the injunction one might see one's way to making an arrangement. The Attorney-General: Yes, perhaps the parties might arrange the matter themselves. His Honor: Supposing there was an injunction for a month, in order to give the parties an opportunity of arranging.

Mr Kneen : This is the time of the year that we are doing some work, but I am ready to argue it now.

His Honor: Yes. I do not want to pre-judge the case at all, but I thought very possibly, from some of the evidence that was given, that some plan might be found by which he might by payment, get as much benefit as injury.

Mr Kneen: We are quite willing to do anything in that way.

His Honor: He might gain a certain benefit from having the use of these dams. Mr Kneen asked Mr Quayle to go and see Mr Cringle at once, and see what he said to that.

At 1-15 p.m., the jury returned into Court, when the following conversation took place:-

His Honor : Do you find a verdict for the plaintiff or the defendant ? The Foreman : For the plaintiff. His Honor : What amount of damages ? The Foreman : A shilling. His Honor : You find that the plaintiff has the right to the use of the Dalby stream for the Glen Maye mill free from obstructions of the usual and accustomed flow of such stream, by means of dams, and you find the damages he has sustained to be one shilling ? The Foreman: Yes. The verdict was then signed by the jury, and they were discharged. His Honor asked whether counsel intended proceeding further to-day? The Attorney-General: I would rather it was held over. As to asking for an injunction now, I do not know that my client cares much about it. His Honor : It might be continued for a month, and that would give the parties an opportunity of agreeing. Mr Kneen : Yes, but the costs are running on. If we are to pay the costs we would rather have the matter disposed of at once. His Honor: You are not going to argue that you should have the costs of the trial ? Mr Kneen: No, but that each party pay their own. His Honor: You will have difficulty in persuading me as to the costs of this trial. As to the injunction that is another matter. The Attorney-General: I will not ask for an injunction. Mr Kneen : But the injunction is really the whole point of the case. If substantial damages had been awarded, the injunction would have followed as a matter of course. The Attorney-General: Not without argument. Mr Kneen: But you would have made a much stronger case. I offered at the opening of the case to take a verdict for nominal damages, but the plaintiff has always persisted in going on with this injunction, and we have been compelled to come into Court. It will be very hard for the defendant to have to pay the costs simply because the defendant has got nominal damages. the Attorney-General: I do not see that I can get any more than I have got. I have a verdict which I can enforce, and that is as good as an injunction. Mr Kneen : Then I shall insist upon the matter of the injunction coming on and being disposed of. I am quite within my rights in doing so. The verdict, I apprehend, will not force us to remove the dams. That is a matter for an injunction, otherwise it is really throwing to the jury the question of an injunction. The Attorney-General: If a jury makes a declaratory verdict, the Court has a right to give judgment to have that verdict carried out. I do not want an injunction because I have the right to ask the Court to give judgment on the verdict and to have the obstructions removed. Mr Kneen: But I understood the matter of the jury declaring a right to the use of the water could not force us to remove these dams. I understood the matter of the injunction was to go to your Honor afterwards. I thought the question of damages did not go beyond that, otherwise what is the use of coming here for an injunction. Whether we are to remove the dams or not is a matter for your Honor, and I shall certainly require time to argue it. I cannot understand that the matter was really settled by the verdict of the jury, because it would be a very serious matter indeed, and one which I should not advise the defendant to abide by. If the verdict of the jury is to be taken as an injunction against us, it simply means ruin to us. I am ready to leave it to Mr Quine or any practical miller to say what should be done. His Honor : I have no doubt the parties could very easily arrange it. I am only afraid when once the parties leave this Court, they will be less disposed to agree, than while they are in Court.

The further hearing of the matter was adjourned to Wednesday next.

this second hearing as reported in Isle of Man Times, Saturday, 26th March 1887

CHANCERY COURT. DOUGLAS, WEDNESDAY , MARCH 16, 1887. (Before Deemster Drinkwater.)

THOMAS CRINGLE V. HENRY QUAYLE.

The ATTORNEY-GENERAL for plaintiff. Mr KNEEN for defendant.

The plaintiff is owner of an ancient mill known as Glenmaye Corn-mill, and which is driven by the water of Glenmaye river and a small tributary known as the Dalby stream. The defendant in 1879, and subsequently built, on the Dalby stream a water threshing mill, and the stream being insufficient of itself to work the mill he constructed from time to time three dams for the purpose of collecting the water. The plaintiff filed an action claiming damages, which were laid at £50, and to have it declared that he was entitled to the right and use of the water free from the obstruction of the dams erected by Quayle; and he also claimed an injunction to restrain Quayle from damming up the water in future. The case came on for hearing about a month ago, before the Deemster and a jury, and the jury awarded to the plaintiff 1s. damages, and by their verdict found that plaintiff was entitled to the use of the water free from the obstructions caused by the defendant. The matter now came before the Court, on the application of the plaintiff, to have execution for the amount awarded, and to have the defendant ordered to remove the obstructions in terms of the jury's finding, and to obtain an injunction against the future damning of the water.

The ATTORNEY-GENERAL for the plaintiff, contended that the jury having found that the plaintiff was entitled to the right of the water free from the obstructions, asked the Court for an order to the effect, so that the matter might. be set at rest once for all, and that the plaintiff would not be driven to take action after action to obtain redress,

Mr KNEEN, for defendant, contended that upon the evidence laid before the jury, the plaintiff was not entitled to have the obstructions removed, or to have an injunction granted against him, inasmuch as under the Judicature Act,the Court was now a mixed Court, to administer law in equity, and so whatever the result of the jury's finding might be prior to that act being passed. the Deemster had now power to entertain any equitable defence which might bave been available to the defendant, supposing the plaintiff had commenced his proceedings in the old Chancery Court, instead of in the Common Law Court. He contended that, had the plaintiff proceeded in the Chancery Court, he would not have been entitled to the injunction now asked for, inasmuch as the injury to the plaintiff was merely nominal as found, by the verdict of the jury, whereas the effect of the injunction would be a loss of about £500 to the defendant, inasmuch as it would render his mill absolutely useless. He also contended that by the plaintiff sleeping upon his rights since 1879, and allowing the defendant to spend his money, and erect his present works, it would be inequitable to grant the relief asked for. In support of this he quoted several authorities.

The ATTORNEY-GENERAL, in reply, contended that the defendant was not entitled to any defence which he might have made in the Chancery Court under the old practice, as plaintiff was never in a position to proceed in that Court; and that if the Court refused an injunction it would be doing an injustice to plaintiff, who had been declared by the jury to be entitled to the free use of the stream.

His HONOUR, in giving judgment, said : In this case the jury have found that the plaintiff has the right to the use of the streams free from obstructions, and have also found that he is entitled to recover damages to the amount of 1s. The plaintiff has now applied for an order to give effect to the verdict of the jury. While full effect can be given to the verdict of the jury, and I should have no right to interfere with it in any way, I am now asked to do what under the old law would have been the case — I am asked to go further, and make an order which would be tantamount to depriving the defendant altogether of the dams he has made and the mill he has built for the sake of giving a very small advantage to the plaintiff. Though it might have been the law formerly where strict common law was to be implied, it would clearly be inequitable and a wrong thing to do. Here the plaintiff lived by, and saw the mill completed, and saw it could not be used unless the stream was dammed up, and he lets it go on until that to stop it would be a hundred times greater loss to the defendant than any damage he has proved to have sustained. Then he seeks to have an injunction. The more equitable course would be to let him go before a jury again, if he finds he is aggrieved, and I am not quite sure if on the jury I would not have to assess the damage at considerably more than the jury in this case have done, but what I proposed at the time was that the matter should be left to some fair person to decide the amount of damage caused. The plaintiff declined to agree to anything of that kind, although the defendant stated he was willing to.

Mr KNEEN : And is still willing.

His HONOUR : The defendant declined, and he now seeks to have his extreme right in the stream declared. The extreme right I shall give is execution for the amount of the jury award, and the declaration that he has a right over this stream. That will not deprive him from coming before the Court again, and getting further damages if he can prove them. That I think a power given me under the new Act, but I should be glad to see it contested by appeal if it is thought I am wrong.

Judgment was then entered for plaintiff in terms of the jury's finding, and with costs.

		Water powered Mills etc
Any comments, errors or omissions gratefully received The Editor © F.Coakley , 2023