Subject_Reparation — Measure of Damages — Mines — Highway Subsidence — Restoration of Level.
Facts:
Where the level of a road has been lowered by subsidence above a mine, the highway authority has no absolute right to restore the original level and recover the whole expense as damages without considering whether the road could be more cheaply restored at the new level so as to be equally commodious.
Headnote:
Appeal from a judgment of the Court of Appeal (
Collins, M.R.,
Cozens-Hardy and
Farwell, L.JJ.). The facts appear sufficiently from the opinion of the Lord Chancellor, pronounced after their Lordships had taken time for consideration.
Judgment:
Lord Chancellor (Loreburn)—This is an action by the local authority against mineowners whose workings have caused a road to subside, and there is no dispute except as to the amount of the damages. The local authority restored the level by an embankment and retaining walls at a cost of about £400, and the mineowners said that this was quite unnecessary, and that an equally commodious road could be made for £65 at the sunken level. They paid £80 into Court. Jelf, J., found this sum sufficient to make an equally commodious road, and so judgment was entered for the defendants. On appeal judgment was entered for the plaintiffs for £400. Now I think that a court of justice ought to be very slow in countenancing any attempt by a wrongdoer to make captious objections to the methods by which those whom he has injured have sought to repair the injury. When a road is let down, or land let down, those entitled to have it repaired find themselves saddled with a business which they did not seek, and for which they are not to blame. Errors of judgment may be committed in this as in other affairs of life. It would be intolerable if persons so situated could be called to account by the wrongdoer in a minute scrutiny of the expense, as though they were his agents, for any mistake or miscalculation, provided that they act honestly and reasonably. In judging whether they have acted reasonably, I think that a Court should be very indulgent and always bear in mind who was to blame. Accordingly, if the case of the plaintiffs had been that they had acted on the advice of competent advisers in the work of reparation, and had chosen the course which they were advised was necessary, it would go a very long way with me; it would go the whole way, unless it
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became clear that some quite unreasonable course had been adopted. But when the proceedings at the trial, and the preceding correspondence, are examined, it appears that this was not the plaintiffs' contention at all. They did not, in fact, consider how they could make an equally commodious road without unnecessary expense. Their position was that they were in law entitled to raise the road to its old level, and to charge the defendants with the cost of so raising it. At the trial, as an afterthought, they also contended that the road would not, in fact, be so commodious to the public if it were made up on the lower level at the smaller cost. Jelf, J., states in terms that these were two contentions advanced, and this has not really been disputed. I regard the finding of Jelf, J., as conclusive on the question of fact. It has not been assailed, and if it were I need not repeat what has often been said of the advantages enjoyed by a Judge who has heard the witnesses. When a finding of fact rests upon the result of oral evidence it is in its weight hardly distinguishable from the verdict of a jury, except that a jury gives no reasons. The former practice of courts of equity arose from the fact that decisions often rested upon evidence on paper, of which an appellate court can judge as well as a court of first instance. The point of law which was advanced by the plaintiffs—viz., that they were entitled to raise the road to the old level cost what it might, and whether it was more commodious to the public or not—will not, in my opinion, bear investigation. Such a rule might lead to a ruinous and wholly unnecessary outlay. There is no authority for it, though there is authority to show that as between the owners of a public road and the adjacent lands the former may be entitled to restore the ancient level. Even those who have been wronged must act reasonably, however wide the latitude of discretion that is allowed to them within the bounds of reason. Accordingly, with the utmost respect to the Court of Appeal, I think that the judgment of Jelf, J., should be restored. The plaintiffs acted quite honestly, but under the mistaken belief that they were bound, or at least entitled, to maintain the ancient level at the defendants' expense. So thinking, they did not consider whether it was necessary to do so in the interests of the public, and did not exercise a discretion on that question, so far as appears from the evidence before us.
Lords Macnaghten and
Atkinson concurred.
Judgment appealed from reversed.
Counsel:
Counsel for Appellants—
Sir R. Finlay, K.C.—
Shearman K.C.—
Disturnal. Agents—
Bower,
Cotton, & Bower, Solicitors, for
Thursfield & Messiter, Wednesbury, Solicitors.
Counsel for Respondents—
Macmorran, K.C.—
Hugo Young, K.C.—
M'Cardie. Agents—
Sharpe,
Pritchard & Company, Solicitors, for
Thomas Jones, Town Clerk, Wednesbury.
