these species of operations. The defendants gave in evidence at the trial the service of final notice, but admitted that no declaration (as required by 5 & 6 Vic. c. 89, s. 33,) had been made or served upon the plaintiff. A verdict having been obtained by the plaintiff, Held, that the Commissioners having failed to make and serve a declaration as required by the statute, did not possess jurisdiction to undertake the works complained of by the plaintiff Held also, that the service of final notice did not cure the want of a declaration. Held also, that the navigation works did not come within the summary powers given by the latter part of 9 Vic. c. 4. ing that a solemn direction of the Board should be treated as a nullity. He relies upon the fact of section 26 having mentioned three instances only in which the vote shall be rejected, namely, in case the initials of a voter shall be written against the name of more persons than are to be elected guardians for the electoral division or ward; or if he shall not sign or affix his mark to the voting paper; or if his mark shall not be duly attested. Just as if there were no other cases in which voting papers were to be rejected. No doubt the three circumstances in question must be strictly observed, but it is going too far to say that because three matters of form have been specifically required, no other cases exist in which it is competent for the returning officer to reject votes; for the returning officer Quære, whether, if the defendants had invested is required by the statute to inquire into the validity themselves with jurisdiction to undertake the works, of the votes, and to make a return according to the they would have been justified under the statute best of his ability and judgment. I further am of in doing the acts complained of. opinion, that if any doubt existed upon this subject, CASE. The declaration, after reciting that the the question ought not to be inquired into in this plaintiff before and at the time of the committing of manner. The 23rd section of the 6 & 7 Vic. c. 92, the grievances herein-after mentioned by the Comwas passed for the purpose of limiting this court missioners of Drainage in Ireland, was possessed in respect of interference with elections of this kind. of a certain flour mill and machinery in the County The party deeming himself aggrieved has the op- of Galway, and during all that time ought to have portunity of applying to the best tribunal under the enjoyed the free use of a certain stream of water circumstances, namely, the Poor Law Commission-running from Lough Mask to the flour mill and ers, who are to make rules for the convenient work-machinery of the plaintiff, and which still ought to ing of the system. If they think fit they may, after inquiry, make an order, which can then be removed by certiorari into this court. It is the rule of this court, that in the exercise of our discretion as to the granting of a quo warranto, we will not interfere when there is in existence a competent tribuual, where the question can be decided; and knowing as we do the amount of litigation which would grow hereout, and how futile the final result would be, the making of an order for the issuing of a quo warranto would be a proceeding appertaining not to the discretion, but to the indiscretion of the court. This motion ought therefore to be refused with costs. An action upon the case was brought by a mill owner against the Commissioners of Drainage in Ireland, for having made a canal and tap-drain, by which the working water power of his mill had been diminished. The declaration did not allege negligence on the part of the defendants. The works had been undertaken under the provisions of 5 & 6 Vic. c. 89, and 9 Vic. c. 4, and were of two sorts, drainage, and navigation and drainage, and the acts complained of included both Lefroy, C.J. was absent, in consequence of severe irdispositio. flow in great plenty and in its proper course to the plaintiff's mill, alleged, that the Commissioners of Drainage, intending to injure the plaintiff and to deprive him of the benefit of the said stream, and to prevent him from working his mill as effectually as he had done theretofore, wrongfully cut and dug in and out of the sides of the said stream in divers places higher up in the said stream than the flour mill of the plaintiff, divers cuts and trenches, and excavated the channel of the stream, and have kept and continued, and still keep and continue the several cuttings and excavations, and thereby diverted the water of the stream out of its ancient channel, whereby the water of the stream was made to flow partly in the new cuts and trenches, and partly in the ancient channel, whereby the water of the stream was repeatedly drained off and exhausted and hindered from running in its usual, gradual, uniform course to the mill of the plaintiff, and supplying the same with the necessary and usual supply of water for the purpose of working the mill. The second count, after reciting that the plaintiff was possessed as above stated, and of right ought to enjoy the free use of a certa n stream called the Cong in the County of Galway, which used and of right ought to flow in great plenty, and its usual course to the plaintiff's mill for the working and supply thereof, yet that the Commissioners of Drainage intending, &c., wrongfully and unjustly erected and set up divers mounds, dams and other obstructions across the channel of the said stream at several places above the mill, and unjustly continued the same, and wrongfully dammed up and obstructed the water of the stream and prevented it from running in its ancient, plentiful and uniform manner to the plaintiff's mill, whereby the plaintiff during all that time was obstructed in the working of his mill for want of sufficient water. The water to the headwater of the mill, and also to im- 66 third count, after reciting as above, and that the water of the stream ought of right still to flew from said mill through the tail race without causing any backwater or obstruction to the mill wheel, alleged that the Commissioners of Drainage intending, &c., wrongfully erected certain dams or obstructions Drainage of lands under 5 & 6 Vic. c. 89; 9 across the bed of the stream above the plaintiff's Vic. c. 69; 9 Vic. c. 4; 10 & 11 Vic. c. 79; sunmill near Lough Mask, and continued these ob-mary proceedings under 9 Vic. c. 4, and 10 & 11 structions for the period of two years and three Vic. c. 79. Districts of Lough Mask and River months until the 19th January, 1852, and thereby Robe in the counties of Galway and Mayo. Final collected a quantity of water in Lough Mask and notice of compliance with the preliminaries required prevented the water of the said stream from flow-by the provisions for summary proceedings under ing in its usual plentiful manner to the plaintiff's the Act of 9 Vic. c. 4, and 10 & 11 Vic. c. 79, we do mill, and that the Commissioners dug a channel hereby notify and declare, that all the proceedings below the dams so placed, but above the plaintiff's required by the provisions for summary proceedings mill, and leading from the original stream to a point under the Act of 9 Vic. c. 4, intituled, An Act to below the mill, in the tail race; and that they then, amend the Acts for promoting the drainage of lands to wit, on the 19th Jan., 1852, removed the dams, and improvement of navigation and water power in whereby the water rushed with great force through connection with such drainage in Ireland, and to the channel so constructed into the tail race, afford facilities for increased employment for the whereby backwater was thrown upon the mill wheel labouring classes in works of drainage during the and its working power diminished. The fourth present year, and the Act of the 10 & 11 Vic. c. 79, count varied from the third by alleging that the amending the former previously to the commenceobstruction had been removed without notice to the ment of the proposed works in the district of Lough plaintiff. The fifth count, after reciting as above, Mask and River Robe in the counties of Galway alleged that the Commissioners of Drainage wrong- and Mayo have been concluded. And we do hereby fully and unjustly diverted large quantities of the give this final notice, that all such preliminaries water of the said stream away from the plaintiff's and requisitions under the provisions for summary mill, and prevented him from using it to as large an proceedings as aforesaid, with respect to the lands extent as previously, whereby the plaintiff lost much within the said district proposed to be drained and custom, &c. The sixth count, reciting that the improved have been complied with.”—Signed, &c. plaintiff was possessed of a certain eel weir and "Board of Public Works. solely entitled thereto, and in the practice of makDrainage and Navigation under the Acts 5 & 6 ing gain thereby, alleged that the Commissioners Vic. c. 89; 8 & 9 Vic. c.69; 9 Vic. c. 4; 10 & 11 of Drainage diverted large quantities of the water, Vic. c. 79. District of Loughs Corrib, Mask, and and prevented it from running to the eel weir with Carra, in the counties of the town of Galway, and its usual supply, whereby, &c. The defendant counties of Galway and Mayo. Final notice of pleaded the general issue. The trial took place compliance with the requisites of the above menbefore Mr. Justice Jackson, at the late Spring As- tioned Acts. We the Commissioners of Public Works sizes at Galway, A.D. 1853. It was proved in evi- in Ireland, acting in execution of the above mendence that the plaintiff was the proprietor of a mill tioned Acts, do hereby notify and declare that the situated between Lough Mask and Lough Corrib, several preliminaries, measures, and proceedings, in the county of Galway, and that there was no by the Act of the 5 & 6 Vic. c. 89, intituled, An visible communication between the lakes, but that Act to promote the drainage of lands and improvethe water flowed from the former to the latter ment of navigation and water power in connexion through subterraneous passages; that the plaintiff's with such drainage in Ireland, and the several Acts mill was supplied by a volume of water, which amending the same, directed to be taken and obbursting up from one of these subterraneous pas served previously to the commencement of the prosages, formed the head-water of the mill; and hav-posed works in the districts of Loughs Corrib, ing flowed past the mill wheel, descended into the tail-race of the mill, and thence to Lough Corrib; that the Commissioners of Drainage commenced certain drainage and navigation works in the neighbourhood, and for those purposes began to construct a navigable canal leading from Lough Mask to Lough Corrib; but that in doing so, they cut across and laid open, at a certain distance above the plaintiff's mill, some of those subterraneous passages, by which the head-water of the mill was supplied; and for the purpose of drawing off the water which flowed into the canal through these fissures, and also from Lough Mask, and impeded their operations, a tap-drain was cut leading from a point in the canal, about half a mile above the plaintiff's mill into the tail race of the mill, the effect of which was both to diminish the supply of Mask, and Carra, in the county of the town of Galway, and counties of Galway and Mayo, have been concluded. And we do hereby give this final notice that all the requisitions of the said Act with respect to the lands within the said district proposed to be drained and improved, and also with respect to the making and improving of the navigation and mill-power within the said district have been com. plied with."-Signed, &c. The defendants counsel having proved that the tap-drain, mill-pond, and mill-race, were within the district of Lough Mask and River Robe, and that the canal was in the district of Lough Mask, Corrib, and Carra, and that all the acts of the defendants complained of were done in those districts mentioned in the above final notices; called upon the learned judge to nonsuit the plaintiff, or direct a verdict for the defendant, upon the ground that an action at Common Law was not maintainable against the Commissioners of Public Works, it not having been alleged or proved that the acts complained of had been occasioned by the negligence, or want of proper skill in the Commissioners or those acting for them, or that those works had been done arbitrarily, or in excess of their jurisdiction, submitting that proof of the publication of the above notices in the Dublin Gazette was conclusive evidence, that the several preliminary measures necessary to give the Commissioners jurisdiction to do the acts complained of, had been duly observed; admitting that no declaration had been deposited or served by them upon the plaintiff, but contending that no such service of a declaration was unnecessary in the present case, the works complained of having been executed under the provisions of the Summary Proceedings Act, 9 Vic. c. 4: but the learned judge refused to non-suit the plaintiff, or direct a verdict for the defendant, but allowed the case to go to the jury; upon which counsel for the defendant proceeded to give evidence for the purpose of proving that the water power of the plaintiff could not be injured by the works undertaken, or that at all events the injury would be only of a temporary nature. Defendant's counsel then called upon the learned judge to direct a verdict for the defendant, as well upon the grounds above mentioned, as because the remedy of the plaintiff (if any) for the alleged grievance, was under the provisions of the several Acts of Parliament under which the works were executed; but the learned judge refused to direct a verdict for the defendant upon any of these grounds, and told the jury that the several matters proved on the part of the defendant, were not conclusive evidence to entitle the defendant to a verdict, or to bar the plaintiff of his action at Common Law, and that if they believed that the plaintiff's mill had been injured by the drainage and navigation works proved to have been carried on by the Commissioners, even though they should believe that the works had been skilfully executed, and that the Commissioners had not been guilty of any carelessness as regarded the execution of the works, they should find a verdict for the plaintiff according to the damages they believed he had sustained. The jury having found a verdict for the plaintiff for £200, counsel on behalf of the defendant excepted to the above charge of the learned judge. If no declaration was served, what means were af- G.O.Mally, with Fitzgibbon, Q. C., contra.-This case is not altogether similar to Sharpleyv. Hornsby; the damage complained of here being the drawing off a certain portion of the working water, and stopping the action of the mill by raising a backwater. [Pennefather, B.-Does the plaintiff in his declaration complain of negligence or misconduct on the part of the defendants?] That is not alleged, but the acts are said to have been done "wrongfully." The only question for the court is this, whether the judge was justified in allowing the matter to go to the jury upon the evidence of damage. These works were executed under the provisions of 5 & 6 Vic., c. 83, by which persons interested in any land liable to be flooded or otherwise injured by water, were to apply to the Commissioners of Drainage by memorial, (s. 3); who were then bound to appoint a competent engineer to make a preliminary survey and report, (s. 8); and if they considered that the probable expenses of the undertaking would exceed the benefit likely to arise from the works, they are empowered to decide accordingly, (s. 10); but if they approve of the works, they are bound to lodge copies of the engineer's report with the Clerk of the Peace, and in other convenient places in the district, and to direct a second and more complete survey to be made of the lands to be drained, (ss. 11, 12.) In all cases where the Commissioners propose to lower, raise, or modify any dam, weir, or other obstrucMay 24.-.Č. Kelly opened the exceptions. tion connected with any mill or factory, a copy of is submitted that unless the defendants were guilty the notice stating the places in which copies of said of negligence or excess of jurisdiction, the learned schedules, maps, &c., have been deposited, shall judge should have directed a verdict, in the present be served on the owner, lessee, or occupier of such case, for the defendants, according to the decision inill or factory; and by such notice all such ownof this court in Sharpley v. Hornsby, (4 Ir. Jur. ers, &c., shall be required on or before a day to be 381.) [Pennefather, B.-That case decided no named therein, to send in their objections thereto such thing. It did decide that the 18th section of to the secretary of the Commissioners. These 9 Vic. c. 4, did not take away the remedy by an proceedings are followed by a meeting of the peraction at law. Pigot, C.B.-The point raised in sons interested in the land or river likely to be afthe present case was not then decided.] The plain- fected by the proposed works, (ss. 16, 17.) The tiff relies upon this: that the non-service of the Commissioners are then required to make a decladeclaration mentioned in the Act leaves the defen-ration stating the names of the assenting propriedant unprotected under the statute. It is admitted that no such declaration was served. [Pigot, C.B. It tors, and other particulars connected with the lands, and in case mills or factories a e to be inter the proprietors who shall have assented to the execution of fered with, the declaration is to state that such mill the object of requiring personal service to be made or factory causes the injury proposed to be re- upon the millowner is, to enable him, by notice of moved, and whether such injury amounts to or ex- the works proposed to be executed, to appeal to the ceeds three times the value of the mill or factory, Assistant Barrister, if he consider himself to be agand if not, the Commissioners are to state their grieved by anything contained in or omitted from opinion as to whether the injury cannot be remedied the declaration, under the provisions of s. 35. Sec. without altering the amount of working water power tion 36 gives a further power of appeal in the case of the mill or factory; and copies of such declara- of mills and factories only, from the decision of the tion are to be deposited with the Clerk of the Peace Assistant Barrister, within one month after such deand the Secretary of the Grand Jury of each county cision, by petition in a summary way to the Court in which the lands to be affected by the proposed of Chancery or Exchequer; but this latter appeal works may be situated; and, in case of interfering to the Superior Courts is to be distinguished from with any mill or factory, a duplicate of such decla- the power of summary appeal to the same courts, ration, together with a written description of such given under sec. 52 of the same Act, in the event part of the proposed works as shall affect the mill of the Commissioners failing to secure the due or factory, is to be delivered by the Commissioners amount of water-power to the owner of the mill or to the owner or occupier of such mill or factory-factory. It is to be observed, that the former power s. 33; and after the several preliminary proceedings of appeal from the declaration to the Assistant Barhave been completed, the Commissioners are to pub- rister is recognized and preserved by 9 Vic. c. 4, lish in the Dublin Gazette, and in other places, a s. 15, and section 18 of the same Act preserves the final notice that all the requisitions of the Act have right of appeal to the Courts of Chancery and Exbeen complied with-s. 37; and the publication of such final notice is made conclusive evidence of the performance of the several preliminary measures— the proposed works, or the lands belonging to them respecs. 38. The statute 9 Vic. cap. 4, shortens the pro- tively, or in respect of which they shall have so assented; ceedings to be taken under the former Act, requir- and in such declaration shall also be described the river, if ing only one survey, and limiting the preliminary any, the navigation whereof is proposed to be made or imsteps-s. 8, and the time for the serving of notices, proved, and the baronies, half-baronies, or townlands in &c. s. 16. It will be perceived that the Legisla-provement thereof, and the proportions in which such ba the district likely to be benefitted by the making or imture under these Acts provided for two classes, ronies, half-baronies, and townlands will be so benefitted; whose interest might be antagonistic, landowners and in all cases wherein any mill or factory, or any weir, and millowners; providing that the property of the dam, or other work or obstruction belonging to or conlatter, when interfered with, should not be injured. nected with any mill or factory, shall cause flooding, so as When a mill-dam occasioned flooding, the Commis- thereby to injure or prevent the improvement of such land sioners were empowered to make such alterations in mill or factory, or such weir, dam, or other work or obstrucits construction as to obviate the injury done, "but tion as aforesaid, causes the flooding whereby such injury is always so that the supply of water sufficient for se- produced, or improvement prevented, and whether such incuring the amount of working water-power thereto-jury or prevention of improvement be to an extent in value, fore enjoyed by any such mill or factory, shall not be thereby lessened"-5 & 6 Vic. c. 89, s. 29; and this either directly or indirectly, (as in the case of Sharpley v. Hornsby,) where it may be necessary to change the position of the machinery of the mill -s. 30; and where the obstruction caused by the mill or factory shall cause injury or prevent improvement to the amount of three times the value of the mill, the Commissioners are authorized to take such mill or factory at a valuation. The declaration required by the Act, and that which the Commissioners in the present action have failed to make and serve, is fully described in sec. 33,* and 5 & 6 Vic., c. 89, s. 33. enacts-"That at or after the meeting herein-before directed to be convened by the said Commissioners, and if then or within such period as shall have been limited and appointed by them, as herein-before provided, the proprietors of two-thirds or more in extent of the land proposed to be drained or improved by drainage, shall have assented in writing to the execution of the proposed works, the said Commissioners shall make and sign a declaration describing the land proposed to be drained or improved, and declaring the then actual value thereof, and the estimated increase in such value by means of the proposed works, and the proportions with which such land shall be chargeable towards the costs of the proposed works, such proportion being fixed according to such actual value, and such estimated increase as aforesaid, and also stating therein the names, additions, and residences of as aforesaid, it shall be stated in such declaration that such or exceeding three times the value of such mill or factory; and in case such injury or prevention of improvement be mill or factory, it shall be stated in such declaration, whether, in the opinion of the Commissioners, the flooding of said lands cannot be remedied without altering such dam, weir, work or obstruction, or the position or level thereof, and also the amount of the actual working water power of such mill or factory, also the level of the water at which the amouunt of working water power theretofore enjoyed by such mill or factory, can be secured; and such declaration shall be printed, and copies thereof deposited with the Clerk of the Peace; and when it is proposed that any navigation shall be made or improved by such works, with the secretary of the Grand Jury of each county in which the land or river or any part thereof proposed to be drained or improved by drainage, is situated, and also in such convenient places as the said Commissioners shall think fit, and in all cases where it is proposed to interfere with any mill or factory, or any works or appurtenance thereof as aforesaid, the said Commissioners shall deliver or cause to be delivered to the owner or occupier of any such mill or factory, or to his clerk, agent, or servant, superintending the same, a copy or duplicate of such declaration as aforesaid, together with a written description of such part of the proposed works as shall be intended to be executed at or in respect of such mill or factory, and all persons may inspect or take extracts of, or copies from, such declaration; and all persons requiring copies of, or extracts from, such declaration, to be made by such Clerk of the Peace, shall be entitled to the same on payment of the costs thereof, not exceeding three half-ence for every seventy two words.". to an extent in value less than three times the value of such chequer. [Pigot, C.B.-There are two sections, the mill, or if that is impossible, they must purchase one in each Act, referring to this matter. Section it. Section 140 contemplates the bringing of such 18 of the latter Act saves the right of petition to actions as the present, and regulates the service of the Courts of Chancery and Exchequer generally, notice of action in such cases. The 9th Vic. c. 4, that is to say, both the right of petition founded up to section 45, contemplates the continuation upon appeal to the Assistant Barrister, given by of the preliminary proceedings imposed by 5 & 6 section 36 of the former Act, and the original right Vic. c. 89, limiting the time and mode of proceof summary appeal given by section 52 of the same dure in some cases; and the latter part of the Act, Act. Section 38 of the former Act provides that called the Summary Proceedings, recites the necesas to the several preliminary measures directed to sity of expediting drainage proceedings on account be observed, the publication of the final notice shall of the failure of the potatoe crop in Ireland, and be conclusive evidence, and that no person shall that for a limited time some of the preliminary question or appeal against anything whatsoever proceedings should be omitted. The summary prodone or omitted to be done by the Commissioners ceedings are restricted to drainage alone and do under any other provision thereinbefore contained, not extend to navigation like the rest of the Act; "save only by such petition to the Court of Chan- and they are for a limited purpose and time, and cery or Exchequer as aforesaid." This provision therefore the proceedings which are the subject of cannot apply to the right of appeal given by section the present action cannot come within those pro52, which comes after it; the only thing to which visions, being for drainage and navigation purposes. it can apply, is the right of appeal given by section This appears from the two final notices served, the 36, which precedes it, from the decision of the As- one referring to drainage alone, and the other to sistant Barrister; but it saves no right of appeal to drainage and navigation. The works affecting the the Assistant Barrister. Thus it saves a power of mill which are complained of are situate in the appeal founded upon another power of appeal, navigation district, and therefore do not come while it takes away the latter.] It is submitted that within the summary provisions contained in the the power of appeal to the Assistant Barrister lies latter part of 9th Vic. c. 4, but must have been upon the declaration, by shewing a discrepancy be- undertaken under 5 & 6 Vic. c. 89, which requires tween that and the real state of facts. [Pigot, service of a declaration, and is recognized in the C.B.-It also lies for "any other act, deed, matter, early part of 9th Vic. c. 4. [Pigot, C B.-There or thing whatsoever, done or omitted to be done by are no words in the latter portion of 9th Vic. c. 4, the Commissioners."] Except the Commissioners dispensing with the necessity of the declaration; state in the declaration what operations they pur and as these Acts generally prohibit injury to mill pose to undertake, we can have no remedy until owners, it is to be concluded that they contemplate after final notice, when we shall have lapsed our the preservation of the mill owner's common law time for appealing. The right of appeal recognised right.] In all cases where a common law right is by 9 Vic. c. 4, s. 18, is, it is submitted, the power of interfered with in a manner not authorized by staappeal given by the previous Act from the decision tute, such is the presumption. In Boulton v. Crowof the Assistant Barrister. The remedy given by ther, (2 B. & C. 703), it was held that trustees of appeal under section 52 of the former Act, is one roads were not liable to an action for a consequenof a summary and speedy nature; but sections 37 tial injury resulting from an act they were autho& 38 refer to matters of detail and procedure; and rized to do; but that if the act was one which they section 18 of the latter Act, clearly referring to were not authorized to do, that the action would lie. things ejusdem generis, does not apply to the sum- The remoteness of the injury does not prevent the mary mode of proceeding given under 5 & 6 Vic. plaintiff from bringing the action. In Turner v. c. 89, s. 52. [Pigot, C. B.-Is it the canal or the The Sheffield and Rotherham Railway Company, drainage works that have caused this injury to the (10 M. & W. 425), an action was brought by a plaintiff? Walker, Q C. (on the other side.) It is reversioner for injury done by the obstruction of occasioned not by the canal, but by the drainage lights, and creating dust; and Parke, B. in giving works which are still in operation, and by which judgment for the plaintiff says, "As this house was the mill will be ultimately benefitted. Pigot, C. B. erected before November 30, 1835, the company -This is a possessory action, and the present plain- should have considered before the Act was passed tiff cannot be deprived of his right, because an whether the construction of any of those works owner of the mill in 1863 may be benefitted.] Com- would have been injurious to it, and caused it to pensation where lands have been injured is given be inserted in the schedule; it was the fault of the under sections 64 to 73-an adjudication as to the company to omit it, and they must suffer for the amount of damage done, being, in the first instance, omission; and as they cannot now be permitted to made by the Commissioners, and if the party in purchase the house directly without the owner's jured be dissatisfied with the assessment of the consent, so they cannot be allowed to buy it indiCommissioners, he may appeal to the Assistant rectly, by causing its lights to be obstructed, and Barrister-a proceeding quite distinct from the then leaving the owner to receive compensation power of appeal previously given in the case of mills under the Act." And in The Queen v. The Eastand factories. [Greene, B.—Is not section 52 con ern Counties Railway Company, (1 Gale. & Dav. fined to things done by the Commissioners, and not 589), where the Act contemplated giving compenauthorised by the Act?] It is; and no act injuri-sation for injury done to persons owning any land ous to mill owners is authorized by the Act, for the Commissioners must either guard against injuring taken by the company, its provisions were held to extend to a case where the land of a party had not |