[brewery, damage to – dam, erection of  – nuisance, pollution of river]

Jacomb v. Calder

Supreme Court of Van Diemen’s Land

Pedder C.J., 19 March 1842

Source: Hobart Town Advertiser, 25 March 1842

            Jacomb v Calder - This was an action brought to recover compensation for injuries caused by the defendant. Damages laid at £200.

Messrs, McDowell, Horne and Rowlands for the plaintiff.

            The Attorney-General and Mr. Stewart for the defendant.

            The principal witnesses in this case in favour of the plaintiff, were Henry Ellis, a brewer, and Benjamin Jackman, a maltster, both in the service of Mr. Jacomb. Their evidence tended to shew that considerable injury had been done to their employer through the erection of a dam, belonging to Mr. Calder’s mill, upon the New Town Rivulet. As part the injury Ellis, the brewer, stated that owing to the water being backed up against Mr. Regan’s tan pit, it was impregnated with greasy, slimy matter, which had been the cause of spoiling 100 hogsheads of beer, valued at £3 per hogshead. In answer to a question put to him by Mr. Stewart for the defendant, he said he knew of a disease called the fox, which beer is subject to, and which is of that nature that it will frequently remain in a brewery for a considerable time, spoiling every brewing, one after another. He did not think they ever had it in their brewery, as the complaint was produced from want of cleanliness in the utensils. He also allowed that since the dam had been pulled down a few complaints had been made.

The maltster stated that owing to the impure state of the water, 192 bushels of malt had been spoiled, value at 10s. per bushel. Three samples of malt were produced in court, the first was a fine bright sample, said to have been malted before the dam was erected; the second was of a black dirty appearance, which had been malted with the impure water; the third which was equal to the first, had been malted within the last week since the dam had been pulled down, so that the water had gained its former purity.

            Mr. Degraves was called upon to give his evidence as a practical engineer, and from his statements it might be clearly seen that the dam was not capable of producing the ill effects spoken of by the former witnesses.

            The Attorney General, in addressing the jury, stated that Mr. Jacomb in former years had occupied a very different situation from that of a brewer, maltster, and miller having been an officer in the Royal Navy. The defendant was a man in humble circumstances, who had through industry and perseverance erected a mill, to complete which he had formed a mill-dam upon the government land, which he certainly must confess he had no right to do, but he the Attorney-General did not think it right that a public wrong should be converted into a private injury. The plaintiff he thought very probably had confided his brewery into the hands of careless, unskilful persons, who, as an excuse for their ignorance, had blamed Mr. Calder for all the injuries their employer had sustained. He also quoted the skilful testimony of Mr. Degraves, which in his opinion, was in favour of the defendant.

The learned counsel then called several witnesses who proved the water was not affected in the manner described. Amongst others was Mr. Wilson, who said he did not agree with the statements made by Ellis and Jackman, for in his opinion the size of Mr. Jacomb’s reservoir, all impurities would sink to the bottom. Also the distance, which was nearly half a mile, would enable all offensive matter to subside, and he, who had been a brewer for 23 years would not object to such water. Verdict for the Defendant.

Pedder C.J., 19 March 1842

Source: Hobart Town Courier, 25 March 1842

This was an action brought by Mr. Jacomb, of New Town, brewer, against the defendant, for damages alleged to have been willingly done by the erection of a dam, through which a quantity of filth and “other nauseous” matter was conveyed into his brewery, destroying a large quantity of beer as well as of barley. Damages laid at £2,000.

Messrs. Horne and Macdowell advocated the case for the plaintiff; the Attorney-General assisted by Mr. Stewart, that of the defendant.

The present matter having been the prompter of certain - more than ordinary - measures, we give our readers the main points of the evidence, as it appeared before the Court.

The Solicitor General first laid before the jury a statement of the alleged grievances, and afterwards a succinct outline of the nature of the evidence about to be brought forward, most emphatically cautioning them not to receive influence from what they might have seen in a certain local paper of the preceding Friday week. He then proceeded to call -

A bricklayer, who had been employed to add a coat to the surface of a partition wall, to prevent the liquid contained on one side from penetrating to the other.

Henry Ellis, after deposing, when under examination by the Solicitor-General, that he was brewer to Mr. Jacomb, and had, in consequence of the lime and slimy matter imparted to the water, seen 100 hhds. of beer, which he valued at £3 each, completely destroyed, though the greatest attention had been bestowed on its brewing, cross-examined by Mr. Stewart - went on to state - if any liquid matter penetrated into the earth it would find its way, whether the dam was there or not; the top of the dam was below the upper part of the embankment, I know the race which has been cut from this dam to Calder’s mill; on proceeding by the course towards Mr. Jacomb’s one side is higher than the other; I have not, since Christmas, observed a drain carrying water into the water-race; have heard Mr. Jacomb speak of sheep having been washed in the rivulet; the dam leads under the New Town road, there is a considerable portion exposed to the public, who generally take water from that spot; the mill-race terminates in a reservoir, which I should think much larger than the Court-house; the water remains in this reservoir until wanted for use; we resort to this water as well for grading as for brewing purposes; have heard of a fox getting into a brewery; believe it usually arises from a want of cleanliness in the utensils used, and when once it appears there is much difficulty in eradicating it; it would spoil every brewing, one after the other; since the dam has been pulled down, we have had water from the creek, but complaints have still been made of our beer, some of which has, I believe, been returned on our hands.

By the Solicitor-General. - I believe we have not had the fox in our brewery; it is about a fortnight since the dam was pulled down; the creek, as I have before stated, is not yet cleansed; there have been a few trifling complaints of our brewing since the dam has been pulled down; after its erection, I never knew the water to be good.

Mr. P. Degraves. - I am an engineer; at the request of the defendant, I visited the site of a dam on the New Town rivulet, either in the beginning of the present week or at the latter end of the last; the dam had been pulled down, but I could see where it had been erected; also observed Mr. Regan’s tannery; judging from the lines which I saw, the water would be raised nearly up to Regan’s bridge; the sluice-gate from Calder’s mill was not quite as high as the top of the dam; its tendency is to back the water into the rivulet higher up than it would naturally be; it would have two effects - that of backing the water up against Regan’s wall, and of giving Calder a little more fall; the effect would also be, if the stones were not well puddled, to allow the water to percolate through them into whatever might be behind; if the water contained fibrous matter, it would hang back - but, if atomic particles, they might be partially carried through; it might extract a small quantity of tan from the refuse of a tan-yard; the lime vat discharges itself below the level of the dam, with which it has a direct communication, and the contents must be impregnated with whatever proceeds from it; I have had some experience in brewing, and should say that no question can exist of the effect likely to be produced on malt - if the water be at all foul, its influence must be extremely prejudicial.

            The cross-examination to which this witness was subjected by the Attorney-General might rather be termed a dissertation on certain self-evident and long established laws of hydraulics, for which we cannot here afford space. The gist of the questions may be said to lie in the likely predominance of opposing forces in the two fluids supposed to be contained on either side of the above-mentioned separation wall. Mr. Degraves, before asserting on which side the preponderance would declare itself, naturally required to know the nature of the fluids referred to, and their relative specific weights. Speaking of water on the one side, and of the same fluid impregnated with tan on the other, witness starting with the belief that the latter must be the more weighty, gave as his opinion that it would more than counteract the effect of the other.

            Benjamin Jackson, malster to the plaintiff, besides corroborating the greater portion of the testimony elicited from the brewer, deposed - we had a little touch in the malt about a twelve month ago; the reason then assigned by Mr. Jacomb was, that the water was not very good; he believed it was caused by the filth from the tannery; the quality of the beer does not always depend on that of the malt; the first steep was made on the 7th January; about Christmas last the season was very dry; malt made during a drought would not be as good as that made at other times, but the colour would not be altered; another quantity of barley was steeped after the 7th January, it is not more than a month ago since I attended at the Police-office about the water; inferior beer might be brewed from good malt and good water.

            By the Solicitor-General. - Between the periods of the dam being erected and its being pulled down, we had to go about a quarter of a mile above the tannery to procure good water.

By a juror. - The spoilt malt was made of new barley; do not usually malt in January, as it would not work well in that season.

Mr. William Wolnough, clerk to Mr. Jacomb, deposed. - that he had repeatedly seen the water when it reached his employer’s premises bearing in its course lime, hide, hair, and other filth, of which he had heard constant complaints made on the establishment.

So ended the case for the plaintiff.

The Attorney-General, in rising to address the jury on behalf of the defendant, began by admitting that his client had no right to erect a dam where he did, and that having done so on Government land he had been a trespasser from the beginning; but where was the proof that by doing so any damage had been done to the plaintiff to the extravagant amount sought for at their hands, nay more, to any amount? The evidence brought forward had come entirely from the “satellites” of Mr. Jacomb, who, no doubt, sought to cover their own neglect or ignorance of duty by answering the complaints made of their brewing, with a transfer of he onus on the shoulders of his “honest, industrious, and,” the learned counsel would say, “persecuted client;” and if one fox did creep into the brewery - and of it the possibility had been established - certainly it might be said that three had found their way, to wit, the fox already described, the brewer, and the malster. Mr. Jacomb having been brought up to the sea, it was a pity that he should leave his profession to dive into a mode of making money with which he was not thoroughly acquainted, and must therefore leave the responsibility to his underlings. The learned speaker then went on to dilate on the details of the evidence (which we will not recapitulate,) after disposing of which he called several experienced brewers, Mr. Wilson amongst others, who said that malt ought not to be made in this colony from January till March, as no dependance could be placed on the result. From what they knew of the localities, they should not think that any ill effects would accrue to Mr. Jacomb’s brewing establishment from the situation of the defendant’s dam.

An eccentric little man, whose name we were unable to seize, but who announced himself as “dearly loving” a glass of good beer, stated that he had several times tried to drink Mr. Jacomb’s, but had found it so bad that he determined on brewing for himself, which he had for many months done, almost weekly, and invariably used the water coming from Mr. Calder’s premises, and had always been successful in his malt achievements.

A parchment-maker was also called - He stated that the skins are instantly spoiled, by changing colour, when dipped in water holding lime in solution. He had for some time back been daily working at his trade, and but in one or two exceptional instances - had not found the water produce that effect.

Verdict for the defendant.