[watercourse, interference with – civil procedure]

Radcliffe v. Buxton

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., 10 and 14 May 1839

Source: Tasmanian, 17 May 1839[1]

            In re Buxton and Radcliffe. - Mr. Horne, in this case, moved for a rule nisi, to show cause why the verdict for the plaintiff, on three counts of the declaration, should not be set aside, and a new trial granted, as no special damage had been proved on the part of the plaintiff. The explanation of this case, to Mr. Justice Montagu, occupied a considerable time, at the expiration of which, it was arranged, that their Honors should consult the plan of the land, (our readers will recollect the dispute was about the division of a water course) together with the Chief Justice’s notes of the trial, and, on Friday next, their opinion would be given. Mr. Justice Montagu expressed an opinion, to the effect, that, if a short-hand writer were employed, his notes, in such cases, would be available for satisfactory reference.

Tuesday, May 14

            This was an action on four counts, tried at the nisi prius sittings last term, brought by plaintiff against the defendant, for diverting a water course, and cutting a sluice, when a verdict was found for defendant, upon three counts.

            Mr. Horne, on behalf of defendant, now moved for a rule nisi, calling upon plaintiff to show cause why the verdict should not be set aside, and a new trial granted, on the ground that evidence had been given on the trial to show plaintiff had sustained any injury. The learned gentleman went through portions of the evidence given on the trial, and quoted a decision of Lord Tenterden, in the case of Mason and Hill, in support of his motion. In conclusion, he argued there was not a tittle of evidence that plaintiff had built or intended to build any works to which he might have applied the water; it was not used for irrigation and his cattle were watered at a distance of half a mile from the spot. The whole evidence was conflicting, and no proof had been given of injury sustained.

            Sir John Pedder admitted that the evidence was conflicting; but he did not know why the jury had given the greater weight to the witnesses of the plaintiff, than to those of the defendant; the whole case was before them, and they had decided upon it. It had been given in evidence, that in consequence of the diverting of the water course, the floods deposited rubbish on alluvial soil that plaintiff cultivated, and so much was it deteriorated, that one of the witnesses had advised the plaintiff not to cultivate it; and although one witness swore, that plaintiff’s cattle were taken to water two miles distant from the water course, another witness had sworn that they were watered at the water course. He considered the mere circumstance of diverting the water course, together with the destruction of the alluvial soil caused by it, sufficient evidence of injury, and that it would be improper for the Court to disturb the verdict upon the grounds mentioned by Mr. Horne.

            Judge Montagu thought, from what he had heard of the evidence given on the trial, that there was evidence of damages. If a man had cattle, and did not water them at a stream which was subsequently diverted, it was no answer to the substantial justice of the case, for he might have done so if he thought fit. The diverting of the water itself was also an injury Rule refused.

            In the same case, the Solicitor General, on behalf of plaintiff, moved for leave to enter up judgment upon the three counts on which they had obtained judgment. By the rule of Court he was bound to make this motion within the first four days of the term, but owing to pressing private business, Mr. Allport, the attorney in the case, had forgotten the circumstances until the previous evening.

            Sir John Pedder. - Cannot the plaintiff himself enter up judgment in this case?

Solicitor-General. - No; by the rules of Court, unless the application is made within the four first days of the term, to take judgment, the case will remain unadjudicated. Perhaps, the other side would wave the objections?

Mr. Horne declined that course.

Sir John Pedder. - Who is to have the judgment, if the rule be so?

Solicitor-General. - The case will remain in the position it was, before action brought, and the expenses will be left on the shoulders of either party without either obtaining satisfaction.

Mr. Allport. - If the Court cannot grant the application, the parties will be at no loss, as I will pay them out of my own pocket, the error having arisen with me.

Sir John Pedder. - Neither can Mr. Horne take judgment on the whole of the pleas.

Mr. Horne. - I can upon the one on which we obtained a verdict, and I think, under the new rules of Court, I can take judgment on the whole of the pleas.

Sir John Pedder. - No; you can only have costs upon the plea, on which a verdict was returned. Perhaps, they would mention the case again on Friday, and, in the mean time, look for authorities on the point.

In banco, Pedder C.J. and Montagu J., 14 May 1839

Source: Tasmanian, 24 May 1839

            In the case of Radcliffe and Buxton, the Solicitor General stated to the Court, that, on reference to several cases, which the learned council cited, he was not too late to apply for a rule for a new trial in the case.  The rule was granted.

In banco, Pedder C.J. and Montagu J., 28 May 1839

Source: Tasmanian, 7 June 1839

            In this case, tried last Term, the Jury found a verdict for the plaintiff, upon the lst, 2nd, and 4th pleas, and upon the 3rd plea for the defendant. The Solicitor-General now moved to enter up judgment upon all the pleas, not withstanding the finding upon the 3rd plea.

Mr. Horne, on the part of the defendant contended that, a verdict having been found upon the 3rd plea, they could not be separated. If a plea was immaterial, a party, taking issue to it, made it material; they might if they had thought proper, have demurred to the plea.

Chief Justice. - The plea did not prove twenty years’ possession, and was, therefore, bad. If he had any doubt, he would take time to consider of it; but he had no doubt of it. This was an action for diverting a water-course, by damming it up, cutting a new channel and taking away the water by that channel. A plea of justification was put in, alleging that long before you cut the channel you had a right of the water, but it did not set forth, that you had twenty years’ possession. A verdict can never cure a bad plea; you could not have had twenty years’ possession, if it was cut one day before, and it could not be supported by the plea. It was quit clear, that it was a bad plea, and upset by the evidence given for the plaintiff, and it was quite right to ask for judgment, notwithstanding the finding upon that plea.

Mr. Horne considered they were entitled to the whole costs of the expenses in supporting the plea, as in the case of Moore and Barnes, tried in that Court, because they did not demur to the plea, they were ordered to pay all costs.

Chief Justice. - We cannot enter into a question of costs here; you will obtain them if they are allowed.