*250] *MICHAELMAS VACATION, 24 VICT.

IN THE EXCHEQUER CHAMBER.

(Error from the Court of Exchequer.)

HIPKINS v. THE BIRMINGHAM AND STAFFORDSHIRE GAS LIGHT COMPANY. Dec. 1.

The 6 Geo. 4, c. lxxix., incorporated a Company for the purpose of supplying the town of Birmingham with gas. By the 8 & 9 Vict. c. lxvi., s. 160, it is enacted, "That if the Company shall at any time cause or suffer to be conveyed or to flow into any stream, reservoir, aqueduct, pond, or place for water, within the limits of the said Act, any washing, substance, or thing which shall be produced by making or supplying gas," they shall forfeit 2007. In 1854 the Company erected a gas tank about forty-five yards from the plaintiff's well. The site was selected by an engineer on behalf of the Company, and the tank was erected on solid sandstone and with proper materials. The Company knew that mines in the neighbourhood had been worked, but they did not know that mines had been worked under or near to any part of their land. In 1838 there were workings under half the Company's land, and from 1848 to 1855 these workings were brought to within about sixty yards of the tank, in consequence of which the floor of the tank cracked, and the washings in it flowed out and percolated to the plaintiff's well, thereby rendering the water in it unfit for domestic purposes.-Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the Company had suffered the washings to flow into the plaintiff's well within the meaning of the 8 & 9 Vict. c. lxvi., and consequently were liable to the penalty of 2001.

THIS was a proceeding in error on the judgment of the Court of Exchequer for the plaintiff on a special case stated for the opinion of that Court. The pleadings and special case fully appear in the report, 5 H. & N. 74.t

Sir F. Kelly (with whom were Whateley and Phipson) argued for the defendants. (a) The land on which the works were erected was selected by an experienced mining engineer; and the tank was constructed with proper materials and with due care. The plaintiff must contend, that if an earthquake or any other convulsion of nature had *destroyed the tank, and caused the washing to flow into his well, *251] the defendants would be liable. Or suppose a trespasser had entered in the night time and bored a number of holes in the tank, whereby the plaintiff's water was contaminated, could he maintain an action against the Company? [COCKBURN, C. J.-My doubt is whether there is any default in the Company unless they have had an opportunity, that is a reasonable time, to repair. It occurred to me whether that was not an element in the case which has hitherto been overlooked.] It is conceded that, by the 162d section of the 8 & 9 Vict. c. lxvi., the Company are liable to a penalty of 201. for each day the fouling shall continue after twenty-four hours' notice of it; but under the 160th section they are not liable unless they have "caused or suffered" the fouling. [COCKBURN, C. J.--Can a person be said "to suffer" what he cannot prevent?] The damage has arisen from the act of a person over whom the Company had no control; and if they are liable in this (a) Before Cockburn, C. J., Wightman, J., Williams, J., Hill., Keating, J., and Blackburn, J'

action they are insurers against such an event however caused. The flow of the washing from the tank was caused by the cracking of its walls, and that again was caused by the working of the mines. The Company have a common law right to the support of the mines, but they have no power to prevent the owner from working them, nor any means of ascertaining the effect of the working. The word "suffer" should receive its ordinary construction, and its meaning is "to allow that which a person has it in his power to prevent." [WIGHTMAN, J.-Suppose the water had been contaminated by gas, under the 165th section the Company would have been liable to a penalty of 20l. without any default or negligence on their part.] That clause has been inserted in order to relieve the party injured from proving actual negligence. If a gas pipe, which passed through a person's land, burst, and thereby the gas [*252 *contaminated his water, the Company might be liable under that clause, although no reasonable diligence or attention could have prevented the mischief. But under the 160th section the injury must have been caused by something which the Company might have prevented and failed to prevent. If the plaintiff's construction of the word "suffer" prevails, the Company might be liable although they used their utmost endeavour to prevent; for instance, if rioters had broken into the Company's premises and demolished the tank, notwithstanding the Company struggled to prevent it. [COCKBURN, C. J.-The Company selected the spot over the mines on which they built their works, and they accumulated a quantity of foul water which found its way to the plaintiff's well; therefore they are the immediate cause of the injury. It was incumbent upon them to construct their works with greater care and skill than would be required if there were no mines under them.] If the legislature had intended to make the Company insurers against contamination caused by the wrongful act of any person, they would not have called it an "offence."--He referred to Harris v. Ryding, 5 M. & W. 60;† Humphries v. Brogden, 12 Q. B. 739 (E. C. L. R. vol. 64); and Fletcher v. The Great Western Railway Company, 4 H. & N. 242.†

The Court intimated their wish to hear the argument for the plaintiff on the first count.

Scotland (Macnamara with him), for the plaintiff.-There is nothing unreasonable in these provisions, and the legislature has inserted them for the protection of persons in the neighbourhood from injury by works of this description. The act of parliament does not impose upon the Company the obligation of erecting their works on any particular spot, and at the time they purchased the land on which the tank was built mining operations were going on under it. The Company [*253 had the means of knowing that, and ought to have chosen a different site. It is for them to show that they have taken every possible means to prevent damage to any one from their works. This they have not done. The case only finds that they have taken every precaution with reference to an ordinary state of things. They might have obtained power to purchase the mines. The Company are receiving a great benefit from their act of parliament, which is in the nature of a contract between them and the legislature acting on behalf of the public. The tank might have been constructed on an embankment of cast iron, so that a crack in the surface land would not affect the tank. The case finds that the surface soil of lands in the neighbourhood of mines, H. & N., VOL. VI.-13

without any superincumbent weight, is frequently cracked by the subsidence or the lateral sinking of the earth, by the giving way of the ribs and pillars of coal which are left in the mines, when the coals are worked, to support the surface. That leads to the inference that the first working of the mines might have caused a subsidence, though the second working had never taken place. There is nothing unreasonable in construing the 160th section as meaning that the Company shall be responsible as insurers against injury to the neighbourhood from their works. The legislature has granted them a monopoly in the supply of gas to the neighbourhood, and has enabled them to divide great profits. [COCKBURN, C. J.-Is this a contract for an absolute guarantee, or merely that the Company shall be liable if they do not prevent?] The words "suffer to flow" mean "allow to flow." [COCKBURN, Č. J.— Suppose the Act used the word "allow," does a person "allow" if he neither has the means, the power, nor the opportunity of preventing?] It *254] is not necessary to contend that the *Company would be liable if the injury was occasioned by vis major, because their responsibility arises from their contract. The not taking extraordinary care is, in effect, "to suffer." The word "negligently" would have been introduced if the legislature intended to limit the liability to ordinary neglect. The term "offence" does not necessarily imply a criminal act: King v. Burrell, 12 A. & E. 460 (E. C. L. R. vol. 40): here it is used in the sense of offensive act. The words in the 160th section, "or shall do any act to the water whereby it shall be fouled," apply to acts knowingly and intentionally done. By the 161st section the penalty shall be recovered" by the person into whose water such washing, substance, or thing shall be conveyed, or shall flow, or whose water shall be fouled or corrupted thereby." That is an exposition of the previous section. By the 162d section the Company are liable to an additional penalty of 201. "for each day such washing, &c., shall be conveyed or shall flow as aforesaid," &c., after twenty-four hours' notice. The 163d section. supports the construction contended for. There the legislature, in imposing a penalty for the escape of gas, makes knowledge of it a necessary element in the offence. The 165th and 166th sections, the object of which is to prevent the contamination of water by gas, contain substantially the same provisions as the 160th and 162d. As regards liability, there is a wide distinction between officers acting in discharge of a public duty and a Company carrying on an offensive trade for their own profit. In the latter case, the employment of skilled persons will not protect them if they have not taken proper precautions against injury. He referred to Scott v. The Mayor, &c., of Manchester, 2 H. & N. 204.†

Phipson replied.

*COCKBURN, C. J.-We are all of opinion that our judgment *255] must be for the plaintiff. At first I entertained some doubt upon the main question for our decision, viz., whether the Company are responsible at all events and under all circumstances, having undertaken to guaranty against all possible contamination of the water in the neighbourhood. The doubt in my mind was as to the construction of the 160th section of the Act-whether an individual or a corporation can be said to "suffer" a thing to be done, when they have taken every care to prevent it, or until an opportunity has been afforded them to repair

the injury. I desire not to be considered as deciding that point affirmatively; and if it were necessary I should require further time for consideration. The decision of the case does not necessarily depend upon it, and my judgment proceeds on the ground urged by Mr. Scot land in his able argument, that the Company have not exonerated themselves from negligence, and that the fact of the plaintiff's water having received contamination makes them primâ facie liable. If there was negligence on the part of the Company, they may be presumed to have suffered the act which by due and proper care they might have prevented. All that they say is, that they have constructed their works with due and proper care and security, with reference to ordinary circumstances. But here the circumstances are not ordinary, but extraordinary. The works were constructed on a spot where the ground, to a considerable extent, had been excavated; and, upon the facts stated, it does not appear that they might not have constructed their tank in a different. position, or that they might not, by constructing the tank of different materials, or by other mechanical means, have prevented the mischief. I think, therefore, that the Company have failed to show that they are exempt from liability. The injury having proceeded immediately *from their works, the onus was on them to get rid of the pre[*256 sumption of negligence; and, not having done so, they may be properly said to have "suffered" this evil to take place. That being so, it is not necessary to say anything upon the second question.

WIGHTMAN, J.—I am of the same opinion. From the terms used in the 160th section, I think that the object of the legislature was to make the Company insurers at all events against any contamination of the water in the neighbourhood by the access to it of the residuum of their gasworks. It seems to me very reasonable that those who bring into a neighbourhood such works as are likely to be injurious (and it is clear that the escape of gas may have the effect of contaminating one of the first necessaries of life), should be bound by the conditions upon which they obtained their act of parliament. In my opinion, the Act imposes on them the duty of taking care at all events that the public shall not suffer. The words of the 160th section are consistent with that view of the case "if the Company shall at any time cause or suffer to be conveyed or to flow into any stream, &c., any washing, substance, or thing which shall be produced in making or supplying gas," &c. It is said to be a great hardship to charge the Company with a penalty of 2001. without any neglect or default on their part; but it may be that the legislature considered that, if the Company had such a stringent rule imposed upon them, it would have the effect of causing them to exercise more caution in choosing the place where they constructed their works. Then the 165th section says that, if any water is contaminated by the gas of the Company, they shall forfeit for every such offence 201.; in other words, imposing on the Company an absolute obligation to prevent, under any circumstances, the water in the neighbourhood from *being fouled by the escape of gas from their works. For these reasons I think that the plaintiff is entitled to judgment.

[*257 WILLIAMS, J.-I am also of opinion that the judgment of the Court below should be affirmed. It has not been shown that the manufacture of the gas might not be so conducted as to prevent the washing from

flowing into the neighbouring wells. If it does, that is an offence within the meaning of the act. I can see no hardship in the enactments, and no improbability that the legislature meant to enact that the Company shall carry on their works upon the terms of their preventing at all events the offensive fluids which they themselves create from being a nuisance to the neighbourhood. Moreover, it does not appear that the works might not be so conducted as to give no cause of complaint. WILLES, J., HILL, J., KEATING, J., and BLACKBURN, J., concurred. Judgment affirmed.