POWERS OF LOCAL GOVERNING BODIES.

Globe, Volume XX, Issue 1608, 16 April 1879, Page 4

POWERS OF LOCAL GOVERNING BODIES.

The following somewhat important judgment bearing on the powers and liabilities of local governing bodies, was delivered recently by Mr Justice Gillies : MUBDOCH T THB ONE TEEE HILL EOAD BOABD. His Honor delivered judgment in this case as follows'This is a motion by the defendant in an action for damages for trespass on the plaintiff’s land, causing irreparable damage thereto, to dissolve an interlocutory injunction granted on the 28th of October last, restraining the defendants until the hearing of the action from further excavating certain land adjoining the lu.rl of the plain'iff, so as to endanger plaintiff’s land by not leaving proper and sufficient support for the same. The injunction was therefore only a provisional one, and did not conclude any right, but was merely to preserve the plaintiff’s property in statu quo until the hearing of the action, The injunction was moved on notice, but not on sufficient notice. The defendants appeared, but did not show cause, and the injunction was granted without objection on their part upon the terms (as if it had been an ox parte application) that the defendants should be cut 11-d to move to dissolve before hearing, which they now do. The grounds on which the motion to dissolve is now made are, ad I Understand, threefold —1, That the origin 1 affi avits wore insufficient to sup, or' ' under the uKs of the Court, the* issuing of an ex parte injunction; (2) that.tbey were insufficient to support the issuing of an injunction on notice ; (3) that the answering affidavits show clearly that there were originally no grounds tor issuing the injunction. As to the first ground, I cannot entertain it. The defendants appeared by counsel, and did not object to the injunction issuing, provided they had the right, which under 1 an ex parte application they would hare had, to move for a dissolution of the injunction before hearing. I must therefore treat the injunction as having been issued virtually upon notice, although with the usual ex parte, terms added. But the second contention is that the plaintiff’s affidavits were insufficient to warrant the issue of an injunction even upon notice. The facts sworn to by the plaintiff in his affidavit are that “for some time past the defendants have been carrying on excavations on land adjoining the plaintiff’s land, which have had the effect or causing portions, of the plaintiff’s land to slip into the excavations ; that the defendants wore still excavating on the said land, and refused to desist; that he was apprehensive that the works of the defendants would cause further similar injury, being irreparable damage to the substance of his freehold.” The affidavit of the plaintiff was supported by those of Messrs Aitken and Tothill, who swore that excavations had been made (they do not know when or by whom) on the land adjoining the plaintiff’s land, which had already caused the plaintiff’s land to slip, and that if similar excavations were continued further slips ot the plaintiff’s land would be caused. Now, npon these facts uncontradicted, it is perfectly clear that this Court was not only entitled but was bound to interfere to prevent the apprehended danger to the plaintiff’s property until the action brought by the plaintiff was determined in due course. But the third ground of the defendants’ contention raises more important issues. I shall deal first with the contention that the defendants’ affidavit shows that they were a public body acting in pursuance of statutory powers, and that the plaintiff had in his action and original affidavits concealed this important fact from the Court, and that if the Court had been made aware of this fact it would not have granted the injunction. It is true that the plaintiff, in applying for an injunction, was bound to place before the Court all material facts—that is to say, facts of which he might bo aware, and would militate against his obtaining the injunction. It is also true that he did not disclose the fact of the defendants being a public body, but sued and treated them as private individuals. Now, if the fact of the defendants’ being sued as individuals instead of in their quasi corporate capacity, had placed them at a disadvantage, the contention of the defendants would have been sound. But it appears to me that the fact of the defendants being a public body, acting under statutory powers, was not a material one in favour of the defendants, but was one which, had it been made known to the Court, might have greatly assisted the plaintiff’s claim for an injunction, Mr Kerr, in his treatis “ On Injunctions, “ says, p. 295, “ The principle on which the Court acts in restricting trespass on the part of companies cr bodies or functionaries incorporated by Act of Parliament, and having compulsory powers to take and enter lands, differs in some respects from those upon which it acts in restraining trespass by individuals, A private person who applies for an injunction to restrain a public incorporated body or body of functionaries from entering illegally on his land, is not required to make out a case of destructive trespass or irreparable damage. The inability or private persons to contend with these powerful bodies, which have often large sums of money at their disposal, and are often too prone to act in an arbitrary and oppressive manner, raises an equity for the prompt interference of the Court to keep them within the strict ‘limits of their statutory powers, and prevent them from deviating in the smallest degree from the terms prescribed by the statute which gives them authority,’ If they enter on a man’s land without taking the steps required by the statute, the Court will at once interfere. A man has a right to say that they shall not affect his land by stirring one step out of the exact limits prescribed by the statute. The principle upon which the Court interferes in such cases is not so much the nature of the trespass as the necessity of keeping them within control.” Applying the principle thus laid down, it is clear that the suing of defendants in their private instead of their public capacity was an advantage to them. But it is further contended that, as it has been made to appear to the Court that defendants are a public body, performing the works complained of under statutory powers, the plaintiff has no remedy by action or injunction, even if he is injured, but only a claim for compensation under the Act, With this view of the case I was considerably impressed on the argument, for there can bo no doubt of the correctness of the general principle that where a public body, acting under statutory powers, inflicts an injury on an individual, the remedy is by compensation, and not by action or injunction. But in such case “it is incumbent on the company (public body) to prove clearly and distinctly from the Act of Parliament the existence of the powers which they claim a right to exercise, and if there is any doubt with regard to the extent of the power claimed by them, that doubt undoubtedly should be for the benefit of the landowner, and should not be solved in a manner to give to the company (public body) any power-that is not most clearly and expressly defined in the statute.” (Lord Chancellor Westbury, quoting Lord Cottenham in Simpson v the South Staffordshire Railway Company, 34, Law Journal, oh. 387, vide Joyce on the “ Doctrines and Principles of the Law of Injunctions,” ppp. 50, 300, 334.) Not only must the existence of the power be clearly and distinctly proved, but also that the acts complained of are clearly and distinctly within the limits of the power. The maxim sic utere tuo ut alienum non Iwdas (which I translate for the benefit of the Road Board), “so use your own property as not to injure the rights of another,” is as applicable to public bodies as to private individuals, and, unless the statute under which the public body acts either expressly or by necessary implication gives to that public body the right to interfere with their neighbour’s property, they have no right to do so, and if they do, the remedy is action, not compensation. A Road Board who, as in the present case, have vested in them the soil of the road, with power to make and maintain the same, and raise and lower the levels thereof, are not entitled to so raise or lower the levels as to injure the adjacent property, unless such injury cannot be possibly avoided. Thus, a Road Board has no right to make an embankment in front of a man’s property which will have the effect of causing an unnatural How of water thereupon. (Brine v. Great Western Railway Company, 31, L. J. Q. 8., 101.) Nor have they a right to make a perpendicular cutting to the iimila of their road,

so as to render the adjacent property liable to slip, without taking sufficient precaution against such contingency. Had, therefore, it not appeared from the defendants’ affidavits that they intended, in connection with their admittedly-intended excavations adjacent to the nlaintiff’s property (vide contractor s affidavit) to take proper and sufficient means for the protection of the plaintiff’s property, there can be no doubt that this injunction ought to bo continued. But the plaintiff s affidavits in reply, which cannot be looked to as supporting his original grounds of application to this Court, but only so far ns they deal with the now facts set up by the defendants, admit that the precautions proposed to bo taken by the defendants in the course of their excavations would be sufficient for his protection. This admission, therefore, removes the origin 1 ground for issuing the injunction. No doubt there are grave contradictions between the plaintiff’s and the defendant’s affidavits in reference to the facts as to past injuries to plaintiff s property. With these, however, it is unnecessary on this motion to deal, inasmuch as this injunction has to do with future injuries —not with the past. The action will dispose of that part of the plaintiff’s complaint which refers to past injuries. It appearing, therefore, to the Court that, as the defendants, in excavating their road, in pursuance of their powers, intend to take sufficient precautions satisfactory to the plaintiff against injury to his property, this injunction be dissolved, and with costs of the motion, it haying been resisted, but without costs of the original injunction, inasmuch as the plaintiff does not appear to have been informed, as he ought tq have been, of the precautions intended to be taken by the defendants against injury reasonably to be apprehended to his property. Nor did the plans, copies of which are annexed to defendants’ affidavits show that such precautions wore intended to be taken with reference to plaintiff’s property. I need scarcely add that if: the defendants fail to carry out their protective works, and do any actual injury to plaintiff’s property, they will be clearly liable to action by the plaintiff. The injunction is dissolved with costs of the motion for dissolution.