The river Mersey and an associated brook overflowed their banks in wet weather at the place in question, and the waters went north and west over adjoining lands, at length flowing back into the Mersey. The affected landowners raised banks (referred to as ‘fenders’) to confine the flood waters to the river and the brook. A canal, carried over the Mersey on an aqueduct, was constructed by authority of Parliament. The aqueduct had three arches taking the canal across the land where the flood waters naturally went. Thereafter the flow of water in the Mersey was increased by improved drainage higher up the river. So the landowners raised the height of their fenders. This pushed up the height of the flood water so as to endanger the canal and its aqueduct. The canal owners prosecuted the landowners on indictment for a nuisance. The jury delivered a very complicated special verdict which, under the procedure of the time, was then referred to the Court of King’s Bench.
Held: In favour of the prosecutor: ‘Now, it has long been established, that the ordinary course of water cannot be lawfully changed or obstructed for the benefit of one class of persons, to the injury of another. Unless, therefore, a sound distinction can be made between the ordinary course of water flowing in a bounded channel at all usual seasons, and the extraordinary course which its superabundant quantity has been accustomed to take at particular seasons, the creation and continuance of these fenders cannot be justified.’
Judges:
Lord Tenterden
Citations:
(1831) 1 B and Ad 874
Jurisdiction:
England and Wales
Citing:
Removed in error (appealed) to – Trafford v Rex CEC 1832
Landowners next to the Mersey had raised the banks to prevent floodwaters coming on to their land. This raised the water level threatening a canal. The landowners appealed a conviction.
Held: A guilty verdict of guilty would only be . .
Cited by:
Removed in Error from (appealed) – Trafford v Rex CEC 1832
Landowners next to the Mersey had raised the banks to prevent floodwaters coming on to their land. This raised the water level threatening a canal. The landowners appealed a conviction.
Held: A guilty verdict of guilty would only be . .
Cited – Arscott and others v Coal Authority and Another CA 13-Jul-2004
The defendant had deposited coal wastes. When the river Taff flooded, the spoil heaps diverted the floods to damage the claimants’ homes. They appealed refusal of their claims in nuisance. The judge applied the common enemy rule: ‘an owner or . .
Lists of cited by and citing cases may be incomplete.
Nuisance
Updated: 29 August 2022; Ref: scu.199369
