Bradford Corporation v. Pickles

Bradford's waterworks drew water from springs on Trooper Farm. Pickles owned higher land next to it and began a shaft and a level there. The town said he meant to injure its supply and force a purchase of his land. The House of Lords held that his motive did not matter, because he was using his own land within his legal rights.

Quick Revision

Parties

The Mayor, Aldermen and Burgesses of the Borough of Bradford — appellants (plaintiffs). They held the whole undertaking of the Bradford Waterworks Company under statutory powers and supplied water to the town.

Edward Pickles — respondent (defendant). He owned about 140 acres west and north of Trooper Farm, above the springs.

Bradford Waterworks Company — predecessor of the appellants. Lord Watson says it was incorporated by the Act of 1854 and took over the undertaking of a corporation of the same name created in 1842. Lord Macnaghten says the old company was incorporated in 1842, then dissolved and re-incorporated in 1854.

Lord Herschell L.C., Lindley L.J. and A. L. Smith L.J. — the Court of Appeal that reversed North J.

Procedural History

1. In 1892 the respondent began the work complained of. The appellants then brought the suit.
2. They asked for an injunction (a court order to stop an act) to stop the respondent from continuing to sink the shaft or drive the level.
3. They also asked to stop him from drawing off, diminishing or polluting the waters of the spring and stream.
4. North J. held that the respondent's acts were prohibited by statute. He granted the injunction ([1894] 3 Ch. 53).
5. The Court of Appeal reversed that decision. It declared that the appellants were not entitled to any of the relief claimed ([1895] 1 Ch. 145).
6. The appeal was argued before the House of Lords on 9 May. The House took time for consideration.
7. Judgment was given on 29 July 1895 (Lord Halsbury L.C., Lord Watson, Lord Ashbourne and Lord Macnaghten).
8. The headnote records these topics: underground percolating water (water seeping through the soil by undefined channels), interference with its flow, mala fides (bad faith), and a lawful act done with a malicious motive.

Facts

The statement of facts is taken from Lord Watson's judgment. Lord Macnaghten adds further detail.

1. The appellants bought, under statutory powers, the whole undertaking of the Bradford Waterworks Company. That company was incorporated by an Act of 1854 (17 & 18 Vict. c. cxxiv).
2. The Act of 1854 transferred to it the undertaking of a corporation of the same name, created by statute in 1842 (5 Vict. Sess. 2, c. vi), with all its rights and privileges.
3. The older company bought a parcel of land called Trooper Farm. It also acquired certain springs and streams arising in or flowing through the farm.
4. From these springs and streams the appellants and their predecessors had obtained a valuable water supply for the domestic use of the people of Bradford.
5. Trooper Farm is bounded on the west and north by the respondent's land, about 140 acres in extent. Only the western boundary matters here. It is a public highway called Doll Lane.
6. The respondent's land west of Doll Lane is higher than Trooper Farm and slopes steeply down to the lane.
7. Two faults run east to west through its substrata, one from each end of the boundary. They stop percolating water from escaping north or south.
8. The strata are so shaped that the underground water must, by gravity, eventually reach Trooper Farm.
9. The appellants drew water near the western boundary from two sources.
10. The first was a large spring called Many Wells. It issues from their ground twenty or thirty yards east of Doll Lane.
11. The second was a stream south of Many Wells. It begins in a smaller spring on the respondent's land, close to Doll Lane, at a point called the Watering Spot. From there it runs in a definite channel into Trooper Farm.
12. It was admitted that the appellants and their predecessors never acquired any part of the respondent's legal right to the water in their land. The same applies to any interest in that water, above or below the ground.
13. It was also admitted that the statutes give no compensation to the respondent if that right is prejudicially affected by the appellants' undertaking.
14. In 1892 the respondent began to sink a shaft on his land next to the lane, west of the Many Wells Spring. He also began to drive a level through his land.
15. His professed purpose was to drain the strata so as to work his minerals.
16. These operations occasionally discoloured the water in the Many Wells Spring. They also reduced, to some extent, the water in that spring and in the stream from the Watering Spot.
17. It became apparent that, if continued, they would cause a considerable and permanent fall in the water supply from these sources.
18. The appellants alleged in their statement of claim that the respondent had no bona fide intention to work his minerals. They said he meant to injure them and so induce them to buy his land or pay him some other compensation.
19. Lord Macnaghten describes the land as a gathering-room or reservoir for underground water. There is a bottom of impermeable clay, and at that time the only escape for the trapped water was by the Many Wells Springs.
20. In his account, the respondent was making a tunnel or drift that apparently would pierce one of the two faults holding the water in. The result, it was said, would be to let the water run off in another direction.
21. Lord Macnaghten also records that the respondent tried to persuade the Court that he only wanted to unwater some beds of stone that he could work at a profit.
22. Lord Macnaghten notes that the Court found a sinister design in this. He says the respondent's real object may be taken to be to show he was master of the situation. He wanted to force the corporation to buy him out at a price he liked.
23. For forty years the corporation had supplied the town with water. The 1854 Act authorised and required it to buy the undertaking of the existing Bradford Waterworks Company.
24. The chief source was a cluster of springs called Many Wells. They issue from the lower slope of a hillside some distance from the town.
25. The 1842 Act scheduled lands that the company could take. They included part of a farm belonging to Seth Wright, known as Trooper or Many Wells Farm.
26. Section 233 of that Act allowed the company to divert or alter Hewenden Beck, a tributary of the River Aire. It also allowed the company to divert and take the water from the Many Wells Springs.
27. When the 1842 Act passed, water from the Many Wells Springs, and a stream rising in adjoining land, flowed in several defined channels through Trooper Farm into Hewenden Beck.
28. The scheduled part of the farm seemingly held some but not all of these channels. After the Act passed, the company bought the whole of Trooper Farm.
29. As the Act required, the company paid compensation to the millowners on Hewenden Beck for the loss of the Many Wells water.

Issues Raised

1. Did the Bradford Waterworks Acts (section 49 of the Act of 1854, repeating section 234 of the Act of 1842) prohibit the respondent's operations?
2. Was the respondent, as owner of the land, entitled to divert or impound percolating water beneath his land so as to stop it reaching the appellants' springs?
3. Did the respondent's alleged malice, meaning an intention to injure the appellants and force a purchase of his land, make an otherwise lawful use of his land unlawful?
4. Did the Waterworks Clauses Act 1847 (section 14) give the appellants wider protection than section 234 of the Act of 1842?

Arguments Contended

For the appellants (Bradford Corporation)

Cozens-Hardy Q.C. and B. Eyre appeared for the appellants, on 9 May.

1. The respondent, in diverting the water, was not making a reasonable use of the land. He was acting maliciously.
2. The cases show that a use of land that would otherwise be justifiable ceases to be so when its object is to injure another.
3. They relied on Keeble v. Hickeringill (11 Mod. 74, 131; 11 East 574 n.), an early case in which a decoy was disturbed by shooting.
4. In Acton v. Blundell (12 M. & W. 324) the right to intercept underground water was established. Counsel said that case states this limit.
5. Tindal C.J. quoted Marcellus at p. 353. Lord Wensleydale quoted the same passage in Chasemore v. Richards (7 H.L.C. 349, 387).
6. They cited Lord Wensleydale's statement that a man has a right to the natural advantages of his soil. They said he must use that right reasonably and with as little injury to his neighbour's rights as may be. His statement rests on the maxim sic utere tuo ut alienum non laedas (use your own so as not to harm another's).
7. In Smith v. Kenrick (7 C.B. 515, 559) Maule J. said that a man using his own land who acts negligently or capriciously, and causes injury, is liable.
8. They relied on Bowen L.J. in Mogul Steamship Co. v. Macgregor, Gow & Co. (23 Q.B.D. 598, 618). He said a man is justified in the bona fide use of his property even if it seems selfish. That justification would not exist where the act was done merely to cause temporal harm.
9. They said the respondent's conduct falls within those exceptions.
10. They also contended that the respondent's conduct was forbidden by the Bradford Waterworks Act 1854, section 49.

For the respondent (Pickles)

Everitt Q.C., Tindal Atkinson Q.C., Butcher and A. P. Longstaffe appeared for the respondent. The House did not call on them. The report therefore records no argument for the respondent.

Court's Reasoning

The judgment has no numbered paragraphs. Each step below is cited to the Law Lord's opinion.

Lord Halsbury L.C.

1. Noted: the plaintiffs sued to stop acts that they said would interfere with the water they were incorporated to collect for Bradford. North J. ordered the injunction. The Court of Appeal (Lord Herschell, Lindley L.J. and A. L. Smith L.J.) reversed him. (Lord Halsbury's opinion)
2. Noted: the material facts lie in a very narrow compass. All the acts were done on the defendant's own land. (Lord Halsbury's opinion)
3. Noted: the interference is with underground water. It is not shown to flow in any defined stream. It is percolating water that would otherwise reach the plaintiffs' works and so deprives them of it. (Lord Halsbury's opinion)
4. Held: the plaintiffs had to establish two things. They had to show a right to the flow, and that the defendant had no right to do what he was doing. Neither could be established. (Lord Halsbury's opinion)
5. Noted: apart from the Act, the plaintiffs' claim to a right to the flow is covered by authority. In Chasemore v. Richards the House had to decide whether a landowner could sink a well on his own premises. The well would draw off percolating water that would otherwise feed springs of the River Wandle. The plaintiff there had enjoyed that flow for over sixty years. (Lord Halsbury's opinion)
6. Held: the House had decided the very question in Chasemore v. Richards. The landowner had a right to do what he did, whatever his object. His purpose could even be wholly unconnected with the enjoyment of his estate. (Lord Halsbury's opinion)
7. Held: apart from the Act, and even apart from section 49, it was absolutely hopeless to argue that the case was not governed by Chasemore v. Richards. (Lord Halsbury's opinion)
8. Noted: the case then turns on section 49 of the 17 & 18 Vict. c. cxxiv. The Lord Chancellor read the section. (Lord Halsbury's opinion)
9. Held: two things are clear from the section, whatever its drafting. First, it contemplates that persons other than the company may be legally entitled to divert, alter or appropriate the waters. Second, the acts it forbids must be illegal diversion, alteration or appropriation. (Lord Halsbury's opinion)
10. Held: the natural reading is that the section protects only streams, springs and supplies the company had acquired by purchase, compensation or otherwise, so that the company owned the waters. The legal rights of all others are expressly saved. (Lord Halsbury's opinion)
11. Held: on that reading the later, penal part of the section punishes illegal diversion of waters of which the company had become the proprietor. (Lord Halsbury's opinion)
12. Noted: North J. had said the section forbids a man to do certain specified things except so far as he may lawfully do them. Lord Halsbury said, with respect, that the fallacy lies in the phrase certain specified things. (Lord Halsbury's opinion)
13. Held: what the section forbids is taking or diverting water the company has appropriated and paid for. What it does not forbid is taking water that has not reached the company's premises. No title to that water is given by the section, and the act complained of means it can never reach them. (Lord Halsbury's opinion)
14. Noted: put in popular language, the section forbids taking what belongs to the company and does not forbid taking what does not belong to it. (Lord Halsbury's opinion)
15. Why: the draftsman had in mind that property in percolating water could not be asserted absolutely. A person may have a right to the flow of water, or property in it once it is collected and reduced into possession. So the draftsman's phrasing is intelligible. (Lord Halsbury's opinion)
16. Held: that is the true construction from the language itself. Also, the plaintiffs' reading gives no compensation to those whose rights are affected. That fact alone is conclusive against their reading. (Lord Halsbury's opinion)
17. Noted: the last point is the plaintiffs' allegation of fact that the defendant acted, not to use his land or its percolating water, but maliciously, as the pleader put it. Lord Halsbury said he could not give the word any intelligible construction. (Lord Halsbury's opinion)
18. Held: on the supposition being argued, the allegation comes to this: the defendant did maliciously something he had a right to do. (Lord Halsbury's opinion)
19. Noted: suppose the matter had been tried in old times as an injury to the right, in an action on the case. The plaintiffs would have had to allege and prove a right to the flow of the water. They would have failed. (Lord Halsbury's opinion)
20. Held: this is not a case where the state of mind of the person acting can affect his right to act. If the act was lawful, he had a right to do it however ill the motive. If it was unlawful, a good motive gave no right. (Lord Halsbury's opinion)
21. Held: "Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant." (Lord Halsbury's opinion)
22. Noted: Lord Halsbury said he was not prepared to adopt Lindley L.J.'s view of the moral obliquity of a person who insists on his right when that right is challenged. (Lord Halsbury's opinion)
23. Noted: he gave an illustration. An owner may stop up a path that is a convenience to all and no inconvenience to him. But when use is insisted on as a right, stopping the permissive use is a familiar way to test that right. (Lord Halsbury's opinion)
24. Held: so here, an adjoining owner can lawfully divert water that would otherwise pass into the possession of a trading company. He can insist that the company buy his interest, from which it wants to make profit. (Lord Halsbury's opinion)
25. Held: the appeal ought to be dismissed with costs. The plaintiffs are to pay the defendant's costs here and below. (Lord Halsbury's opinion)

Lord Watson

1. Held: apart from any privilege given by statute, the respondent has a legal right, as against the appellants, to divert or impound percolating water beneath his land. He can stop it reaching Trooper Farm and feeding the Many Wells Spring or the Watering Spot stream. That is beyond doubt since Chasemore v. Richards, decided by the House in 1859. (Lord Watson's opinion)
2. Noted: the appellants argued that Chasemore v. Richards did not apply, for two reasons. First, the operations were expressly prohibited by statute. Second, the respondent designed and partly carried them out with the sole object of injuring their undertaking, not to improve his land or minerals. (Lord Watson's opinion)
3. Noted: the statutory provisions relied on are section 234 of the Act of 1842 and section 49 of the Act of 1854, which repeats it. The clause covers the Many Wells Springs, and the context shows this includes the Watering Spot stream. (Lord Watson's opinion)
4. Noted: the clause has two enactments, one prohibitory and one penal. The prohibition says it is not lawful for anyone but the company to divert, alter or appropriate the waters, except as the law entitles them. It also bars sinking wells or doing acts that draw off or diminish the waters of the springs. (Lord Watson's opinion)
5. Noted: the penal part fixes a penalty of five pounds a day until the springs are restored, plus compensation for damage. It applies to a person who illegally diverts, alters or appropriates the waters or sinks a well or pit. It applies only if he fails to restore the springs when the company requires it. (Lord Watson's opinion)
6. Held: the appellants tried to read the prohibition as a virtual confiscation, in their favour, of all water rights in the respondent's land west of Trooper Farm. That is exceedingly improbable. The Legislature would not deprive a landowner of property for a commercial company without providing compensation. (Lord Watson's opinion)
7. Held: probability aside, the language cannot bear that meaning. The plain object of the prohibition, in its two branches, was to protect the supply the company had acquired or owned. It was not meant to forbid any legitimate use by a neighbour of water running upon or percolating below his land before it reached the company's supply. (Lord Watson's opinion)
8. Held: the first branch bars others from diverting, altering or appropriating waters now supplying the Many Wells Springs. This seems to include sources on land adjacent to Trooper Farm. (Lord Watson's opinion)
9. Held: had the prohibition been absolute, it would have struck the respondent's operations. But it is subject to a qualification. The respondent, or any similar landowner, may lawfully divert those waters if he does not exceed his common law rights. His operations are within his proprietary right and fall outside that prohibition. (Lord Watson's opinion)
10. Held: the second branch, on sinking wells and similar operations, does not refer to outside waters, more or less distant, that might ultimately reach the springs. It covers the waters of the said springs. That can only mean waters that have actually reached the Many Wells Springs, or a channel or reservoir prepared for them once they issue. (Lord Watson's opinion)
11. Held: this branch protects waters within the appellants' dominion against withdrawal or diminution by an adjacent proprietor or anyone else. It does not stop an adjacent proprietor from diverting or impounding water in his own land that has never reached that point. This holds so long as his operations are such as the law permits. On the first plea he agreed with the Court of Appeal. (Lord Watson's opinion)
12. Noted: the second plea was rejected by both courts below. It rested on Roman law (Dig. lib. 39, tit. 3, art. 1, s. 12) and, to his surprise, on Scots law. (Lord Watson's opinion)
13. Noted: Lord Watson doubted that the doctrine of Marcellus would help the appellants. He said it was unnecessary to consider the point. The Lords who decided Chasemore v. Richards had held the doctrine had no place in English law. (Lord Watson's opinion)
14. Noted: he said he could not assent to the law of Scotland as laid down by Lord Wensleydale in Chasemore v. Richards (7 H.L.C. at p. 388). Lord Wensleydale seemed to have accepted a passage in Mr. Bell's Principles (section 966). It is in very general terms and misleads unless read with the decisions behind it. (Lord Watson's opinion)
15. Noted: the phrase in aemulationem vicini (a phrase Scottish lawyers use, loosely, in this context; the judgment does not define it) was once frequently, and is even now occasionally, used loosely by Scottish lawyers. He knew of no case where a proprietor's act was held illegal or restrained as being in aemulationem unless it offended or injured the neighbour's legal rights. (Lord Watson's opinion)
16. Noted: in cases of nuisance, some indulgence is shown to operations such as burning limestone, which the law regards as necessary evils. Suppose a landowner burned limestone close to his boundary and annoyed his neighbour. Suppose he could burn it elsewhere just as conveniently. He would probably face an interdict (an order to stop). (Lord Watson's opinion)
17. Held: the principle of aemulatio has never been carried further. Scots law, if it differs, is otherwise the same as English law. No use of property that would be legal with a proper motive becomes illegal because the motive is improper or even malicious. (Lord Watson's opinion)
18. Held: he concurred in the judgment moved by the Lord Chancellor. (Lord Watson's opinion)

Lord Ashbourne

1. Held: he concurred. The case is clear and turns on simple considerations. (Lord Ashbourne's opinion)
2. Held: the plaintiffs have no case unless they show a right to the flow of the water and that the defendant has no right to do what he is doing. Putting the statutes aside, the defendant's rights cannot be seriously contested. (Lord Ashbourne's opinion)
3. Noted: the law stated by the House in Chasemore v. Richards cannot be questioned. Mr. Pickles acted within his legal rights throughout. (Lord Ashbourne's opinion)
4. Why: Lord Ashbourne asked whether he should forfeit his legal rights, and be punished for exercising them, because certain motives are imputed to him. Generous motives would not save him if his actions were illegal. Selfish and mercenary motives are no reason to confiscate his rights when his actions are legal. (Lord Ashbourne's opinion)
5. Noted: the defendant and his predecessors never parted with any legal rights. The plaintiffs are not said to have acquired them by agreement or otherwise. No one has indicated any intention to compensate him for the legal rights the plaintiffs seek to take or injure. (Lord Ashbourne's opinion)
6. Held: the appellants' reading of the statutes would practically confiscate the defendant's water rights. He saw nothing in the statutes that interferes with his legal rights. Very clear words would be needed to sweep away legal rights without compensation. (Lord Ashbourne's opinion)
7. Held: waters that have come under the appellants' control are fully protected. But the statutes have no word to hinder or cramp Mr. Pickles unless he acts illegally, or proceeds in any other manner than by law he may be legally entitled. (Lord Ashbourne's opinion)
8. Held: he concurred in the order proposed. (Lord Ashbourne's opinion)

Lord Macnaghten

1. Noted: he set out the background. The corporation had supplied Bradford with water for forty years. It was empowered by the Act of 1854 to buy the undertaking of the existing Bradford Waterworks Company. Its chief source, the Many Wells springs, was taken over from that company. (Lord Macnaghten's opinion)
2. Noted: above the springs lies Mr. Pickles's land. The fall of the ground and the lie of the strata make it a gathering-room for subterranean water. Two nearly parallel faults run through it, and there is an impermeable clay bottom. The only escape for the trapped water is by the Many Wells Springs. (Lord Macnaghten's opinion)
3. Noted: within the ambit of his own land Mr. Pickles is making a tunnel or drift that apparently would pierce one of the two faults. The corporation claimed an injunction. It put its case in two ways: the operation exceeds a landowner's rights, or it breaks the express terms of the special Act. (Lord Macnaghten's opinion)
4. Noted: on the first point the appellants' position is not easy to understand. They cannot dispute Chasemore v. Richards. They do not suggest the water flows in any defined channel. They say the action is malicious, so that a bad motive bars what every landowner may do if his motives are good. (Lord Macnaghten's opinion)
5. Noted: Mr. Pickles tried to persuade the Court he only wanted to unwater stone beds he could work at a profit. The Court found a sinister design. It may be taken that his real object was to force the corporation to buy him out at a price he liked. (Lord Macnaghten's opinion)
6. Noted: he has something to sell, or something he can stop others enjoying unless he is paid. Why, he may think, should he keep his land as a store-room for a commodity the corporation dispenses, probably not gratuitously? He prefers his own interests to the public good. (Lord Macnaghten's opinion)
7. Noted: "He may be churlish, selfish, and grasping." His conduct may seem shocking to a moral philosopher. But where is the malice? He has no spite against the people of Bradford and no ill-will to the corporation. They are welcome to the water, and to his land, if they pay the price. (Lord Macnaghten's opinion)
8. Held: the real answer is that in such a case motives are immaterial. "It is the act, not the motive for the act, that must be regarded." If the act, apart from motive, causes only damage without legal injury, a reprehensible motive does not supply the missing element. (Lord Macnaghten's opinion)
9. Noted: on this point North J. and the Court of Appeal both decided against the corporation. In his view the decision was plainly right. (Lord Macnaghten's opinion)
10. Noted: on the second point, where North J. favoured the corporation and the Court of Appeal did not, more can be said. He agreed with the Court of Appeal's result. He doubted, though, that the section was as unsatisfactory, ill-drawn and hard to construe as the Court of Appeal thought. (Lord Macnaghten's opinion)
11. Noted: the old waterworks company was incorporated by an Act of 1842. It was dissolved and re-incorporated in 1854 in view of the immediate transfer of the undertaking to the corporation. Section 49 of the 1854 Act merely reproduces section 234 of the 1842 Act, so he dealt with the earlier Act. (Lord Macnaghten's opinion)
12. Noted: the 1842 Act scheduled lands, including part of Seth Wright's farm, known as Trooper or Many Wells Farm. Section 233 let the company divert or alter Hewenden Beck, a tributary of the River Aire, and divert and take the water from the Many Wells Springs. (Lord Macnaghten's opinion)
13. Noted: when the Act passed, waters from the springs, and a stream from adjoining land, ran in several defined channels through Trooper Farm into Hewenden Beck. The company later bought the whole farm and compensated the millowners on Hewenden Beck. (Lord Macnaghten's opinion)
14. Held: section 234 is a protective clause, corresponding in the main with section 14 of the Waterworks Clauses Act 1847. It operates after the Many Wells Springs are purchased. The ordinary course of legislation protects property and rights acquired by purchase. It does not transfer unpaid-for property and rights from one person to another. (Lord Macnaghten's opinion)
15. Held: the first part says only the company may divert, alter or appropriate the waters. The exception is what others may do as the law entitles them. The waters are those now supplying or flowing from the springs. As to underground sources and the streams flowing from the springs, it forbids only acts in excess of legal rights. (Lord Macnaghten's opinion)
16. Noted: at that time, landowners' rights in underground water had not been finally decided. Had the view of the Court of Exchequer in Dickinson v. Grand Junction Canal Company (7 Ex. 282) been established, Mr. Pickles's action would no doubt have been illegal. (Lord Macnaghten's opinion)
17. Held: as matters stand, nothing in the first part of the prohibition restricts his rights as a landowner in dealing with underground water percolating through his land in unknown channels. (Lord Macnaghten's opinion)
18. Held: the second part says only the company may sink any well or pit, or do any act. It covers acts that draw off or diminish the waters. The question is what the waters of the said springs means. The natural meaning is the waters issuing from the springs. That means their quantity and volume at the point of issue. For the stream, it means the point of entry into Trooper Farm. (Lord Macnaghten's opinion)
19. Held: the expression cannot include the underground sources that feed the springs. Otherwise things treated as legal in one part of the clause, by the saving of existing rights, would be illegal under another. It means not the waters that supply the springs, but the waters which the springs supply. (Lord Macnaghten's opinion)
20. Noted: other sections confirm this. The phrase the waters of the said Many Wells occurs in section 275. It is evidently synonymous with words in the parallel section 238: water issuing from the springs and authorised to be taken and diverted for the purposes of the Act. (Lord Macnaghten's opinion)
21. Noted: the company compensated the mill-owners and bought Trooper Farm. The spring waters from their point of issue, and the stream from adjoining land from its point of entry, became the company's absolute property. The company had to carry them to Bradford. No one was to interfere with them. A later part of the section calls any interference an illegal act. (Lord Macnaghten's opinion)
22. Noted: it is hard to see how such interference could be legal unless the company built its works in a perverse and foolish manner. No one from whom the company acquired land or an easement could lawfully let down its works. No one could lawfully tap its aqueducts or conduits. (Lord Macnaghten's opinion)
23. Held: the act Mr. Pickles proposes to do falls under neither prohibited class in section 234. It is not in the first, since his predecessor was and he now is legally entitled to do it. (Lord Macnaghten's opinion)
24. Held: it is not in the second class. He does not propose to do anything that draws off or diminishes the waters of the Many Wells Springs at the point of issue in Trooper Farm. The same applies to the stream that does not rise in the farm, at the point where it enters. (Lord Macnaghten's opinion)
25. Noted: it was argued, somewhat faintly, that section 49 of the 1854 Act must be wider, because that Act incorporates the Waterworks Clauses Act 1847. Section 14 of that Act, it was said, covers everything section 234 would cover if read as he read it. (Lord Macnaghten's opinion)
26. Held: there is little in that argument. Promoters in 1854 would naturally re-enact every clause of the former Act that could protect them. The truth is that the corresponding section of the 1847 Act does not apply to the Many Wells Springs, which were bought under the 1842 Act. (Lord Macnaghten's opinion)
27. Why: the 1854 Act says that in construing the 1847 Act, the special Act means the Act of 1854. It does not mean or include the Act of 1842. (Lord Macnaghten's opinion)
28. Held: the appeal should be dismissed with costs. (Lord Macnaghten's opinion)

Authorities

• Chasemore v. Richards (7 H.L.C. 349; decided by the House in 1859). Followed as governing authority for the landowner's right to sink a well and abstract percolating water, whatever his purpose. Cited by all four Law Lords (Halsbury, Watson, Ashbourne, Macnaghten). Lord Watson disagreed with Lord Wensleydale's statement of Scots law at p. 388.
• Keeble v. Hickeringill (11 Mod. 74, 131; 11 East 574 n.). Relied on by the appellants: an early case where a decoy was disturbed by shooting. Not discussed in the opinions.
• Acton v. Blundell (12 M. & W. 324). Relied on by the appellants: the right to intercept underground water was established, with a limit. Tindal C.J. at p. 353 quoted Marcellus. Not discussed in the opinions.
• Smith v. Kenrick (7 C.B. 515, 559). Relied on by the appellants for Maule J.'s remark that a man acting negligently or capriciously on his own land is liable for resulting injury.
• Mogul Steamship Co. v. Macgregor, Gow & Co. (23 Q.B.D. 598, 618). Relied on by the appellants for Bowen L.J.'s view that a bona fide use of property is justified, but not an act done merely to cause temporal harm.
• Dickinson v. Grand Junction Canal Company (7 Ex. 282). Noted by Lord Macnaghten: had the Court of Exchequer's view been established, the proposed action would have been illegal. It was not established.
• Marcellus, Roman law, Dig. lib. 39, tit. 3, art. 1, s. 12. Relied on by the appellants. Lord Watson doubted it would help them, and said the Lords in Chasemore v. Richards held the doctrine had no place in English law.
• Mr. Bell's Principles, section 966. Lord Watson said Lord Wensleydale accepted it and that it is misleading unless read with the decisions it rests on.
• The decisions below: North J. ([1894] 3 Ch. 53), reversed by the Court of Appeal ([1895] 1 Ch. 145). Lord Halsbury and Lord Watson approved the Court of Appeal's result. Lord Halsbury did not adopt Lindley L.J.'s view on moral obliquity.

Also cited in footnotes: Chasemore v. Richards (7 H.L.C. 319 and 349, as printed); Bradford v. Pickles (report reference in the page header); Chasemore v. Bichards and Smith v. KenricJc (printed forms in the source text of the two cases above).

Statutes and provisions

• Bradford Waterworks Act 1854 (17 & 18 Vict. c. cxxiv), section 49. It bars anyone but the company from diverting, altering or appropriating the Many Wells waters, except as the law entitles them. It also bars sinking wells or doing acts that draw off or diminish those waters. A person who illegally does so and fails to restore the springs on demand pays up to five pounds a day, plus damages.
• Act of 1842 (5 Vict. Sess. 2, c. vi), section 234. The earlier protective clause. Section 49 almost repeats it.
• Act of 1842, section 233. Lets the company divert or alter Hewenden Beck and divert and take the water from the Many Wells Springs.
• Act of 1842, sections 238 and 275. Cited by Lord Macnaghten to show the meaning of the waters of the said Many Wells.
• Waterworks Clauses Act 1847, section 14. Incorporated by the 1854 Act, among others. It corresponds in the main with section 234 of the 1842 Act.

Judgement

1. The order appealed from is affirmed and the appeal is dismissed with costs here and below.
2. The action is dismissed.
3. The plaintiffs (appellants) pay the defendant's costs in the House of Lords and in the courts below.

Legal Principle / Ratio

An owner of land may divert or appropriate percolating water within his own land, even if his neighbour loses it. His motive, good or bad, does not change his right. The local Acts only protected water the company had acquired.

The key holding, in Lord Watson's words: "No use of property, which would be legal if due to a proper motive, can become illegal". That holds even where the motive is improper or malicious.

Lord Watson's remarks on Roman law and Scots law were not needed to decide the appeal.

Critical Analysis

Analysis based on the judgment text.

• Lord Halsbury said he could not understand the pleader's word maliciously. He also said the allegation only meant the defendant maliciously did what he had a right to do. The judgment does not define malice.
• Lord Macnaghten asked where the malice was, and said the defendant had no spite against Bradford. The judgment does not settle whether the motive was spite or a wish to sell. It treats this as unnecessary.
• The Lords decided the point on the strength of Chasemore v. Richards and the plaintiffs' lack of a right to the flow. Lord Halsbury also said a plaintiff would have to prove a right to the flow in an action on the case.
• Lord Watson said aemulatio has never been carried beyond cases of offence or injury to legal rights, with limestone burning as an example. Lord Halsbury would not adopt Lindley L.J.'s view of the moral obliquity of insisting on a right.
• Counsel for the appellants said Acton v. Blundell, Smith v. Kenrick and Mogul Steamship state limits on free use of land. The opinions do not discuss those cases. The House did not call on the respondent's counsel.
• Lord Watson called it exceedingly improbable that Parliament meant to take water rights without compensation. Lord Ashbourne said very clear words would be needed. The reasoning on the statute therefore depends on the absence of compensation.

Significance

• The case is a leading illustration that a lawful act does not become actionable because of a bad motive.
• Lord Macnaghten's phrase damage without legal injury links it to damnum sine injuria (loss without violation of a legal right).
• The counsel's argument on malice and reliance on Mogul Steamship shows the case being read with that decision.
• The Court treated Chasemore v. Richards as binding precedent (an earlier decision that must be followed). It also decided the case on statutory construction.
• Lord Watson's disapproval of Lord Wensleydale's statement of Scots law is a later correction in the House itself.

Exam-Important Points

• Facts in one line: Pickles began a shaft and level on his own land above the Many Wells springs. Bradford said he meant to injure its supply and force a purchase.
• Holding: appeal dismissed. An owner may divert percolating water in undefined channels within his own land. Motive is irrelevant.
• Rule first: the act, not the motive for the act, must be regarded (Lord Macnaghten).
• Statute: section 49 of the 1854 Act protects only waters the company owns. Water not yet reached the company is not covered.
• Trap: the House did not say Pickles's conduct was good. Lord Macnaghten said it may seem shocking to a moral philosopher. Lord Halsbury did not adopt Lindley L.J.'s view of moral obliquity.
• Trap: Lord Watson disagreed with Lord Wensleydale on Scots law. He did not overrule Chasemore v. Richards; he applied it.
• Related cases in this judgment: Chasemore v. Richards (followed), Mogul Steamship (cited for the appellants).

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so no paragraph numbers are cited. The citation is not in the judgment text apart from the page header.