Mexborough and Swinton Times September 17, 1886
The Water Dispute at Conisborough
Legal Proceedings
Nicholson v Doncaster Union Rural Sanitary Authority
The Holywell Spring at Conisborough
in the Chancery Division on Saturday Mr Justice Sterling had before him the case on Nicholson versus the Doncaster Union Rural.
Mr Hemming, Q.C.(with whom was Mr Norton), moved, on behalf of the plaintiffs, who are the proprietors of the brewery at Conisborough, Yorkshire, for an injunction to restrain the defendant from taking water from the spring or well known as Holywell, close by Conisborough and from in any way interfering with the well and the overflow therefrom, so as to deprive the plaintiffs of the overflow, or diminish the supply of water to the plaintiff’s brewery.
The plaintiffs were the trustees of the brewery in question, and the octane their water from brewery purposes by the overflow of the Holywell. The land on which the well and brewery were situated was conveyed to the plaintiffs predecessors in title in the year 1776, and the water from the well and be used for the purposes of a mill, which was built in that year, and which was converted into the existing brewery in 1852.
The defendant, over the sanitary authority of the Doncaster Rural Union, at commenced to lay down a pipe at the bottom of the well, and although they are not yet connected, the result would be, if it was connected, that the plaintiffs would be deprived of the overflow which had come to their brewery for so long a period, and which was necessary for the purposes of carrying on their business.
It will be remembered that Mr Justice Sterling granted an interim injunction on the application of Mr Norton, on August 26, in the terms asked for, and the opposed motion was now heard, Mr Vaughan Williams appearing for the defendants.
Mr Hemming, in opening the case, quarter the fact, an affidavit of Mr George Thomas Nicholson, which the plaintiff stated he was trustee of the will of John William Nicholson, and in possession of the fee simple of the estate on which was erected a brewery, and which was occupied and carried on by Messrs Nicholson.
The brewery was erected about the year 1852, and immediately opposite the brewery was a spring and well, no as the Holywell stop the overflow water from the well than under the turnpike road into a pond which was part of the brewery premises, and this again ran into another pond, also in the brewery.
In 1776 the turnpike road was not made, and in that year the owner of the property on which now stands the brewery conveyed it to another, and in the conveyance there was a description of the spring and well. The then owner of the estate erected on it a spinning mill, which was afterwards converted into a sawmill. Ever since 1776 the owners or occupiers of the mill had used the overflow water from the spring for their mill, and since the erection of the brewery the overflow had been used by the brewery.
In the year 1858, some common lands adjoining the road were enclosed, and the wall was enclosed and covered over, but the overflow was not interfered with. In 1875 the plaintiffs, with the consent of the Highway Board of that time, placed a pipe at the bottom of the well, and carried also water into the brewery by means of the pipe, and the water obtained from the pipe was only used for actual brewing purposes. This pipe was however, discontinued in 1885, at the request of the defendants, as they complained it caused the well to run dry. The pipe had been placed at the bottom of the well with the consent of the surveyor of road, but of course, his consent only extended to giving permission to disturb the road.
In June 1886 the defendant passed a resolution that they would lay down pipes from the bottom of the well to the centre of the village of Conisborough, and on 23 August 1886, without giving any notice whatever to the plaintiffs, they commenced to lay down pipes from the bottom of the well to Conisborough and if the scheme be carried out the result will be that the plaintiffs would be entirely deprived of their water, and would be unable to carry on their business.
Another affidavit of Mr Nicholson showed that on the side of the main road opposite the brewery is an open shallow spring or well, known as Holywell, which he had known and believed to be public for time immemorial, and from which there was a pipe conveying water to the brewery. Although these people and always had the right to the water from the spring, the public also had the right of bringing their pails and dipping from the spring. When they put a pipe across the road to convey the water they did not take or use more than they had done previously.
Mr Vaughan Williams in defending the motion, pointed out that the plaintiffs claimed that they had been in the habit of using the overflow water from this wealth for a certain time, but they did not deny this well was vested in the local authority, under the 64 section of the Public Health Act, 1875. He also drew attention to the fact that they did not deny the right of the public to use the water he did not know the legal contention of the plaintiffs whether they said they had the right of owners or consent, but he submitted that whatever they claim there were only entitled to easement.
He would also further submit that the evidence only showed that they were going to exercise a right, which other proprietors higher up the stream also experienced. He admitted that they could not permanently divert the stream, but what they proposed to do was this. It was admitted that the inhabitants of the village of Conisborough were entitled to this water for drinking purposes, and what they were doing was to lay a pipe from the bottom of the well into Conisborough village, a distance of about 500 yards, and at the end of the pipe they should be a tap, so that the inhabitants should be saved the trouble of going up the hill to get the water. It was simply for the convenience of the public.
Mr Justice Sterling asked if the overflow will continue to run.
Mr Williams said it would run as usual, the only diversion of the water would be that used by the inhabitants, and, as far as a local authority were concerned they were willing to undertake enter into convenient regulations for prevention of waste of water. He had been asked to go further and undertake that the easement should not substantially diminish the overflow. Now, it could not be suggested that the rights of proprietors were limited taking water at the tank, for a proprietor had the right of taking water from the stream to his house, providing that what he did did not amount of permanent diversion. He could repeat that, as far as a local authority was concerned they were prepared to give any undertaking.
Mr Justice Stirling: are you willing to undertake not to interfere with the well or the water therein, so as to deprive the plaintiffs of the overflow?
Mr Williams replied that he was not quite prepared to do that, because the well was only small, and if six pails or more of water were drawn up, there would not be any water for a few moments. But, subject to the easement of the public appeal domestic purposes, he was willing to give an undertaking, but it must be subject to usage by the public. All they were doing was to save the public the trouble of walking up the hill, and, possibly, the people may become more thirsty and more clean, and use more water because they would have less trouble to get it. The brewers almost said that if they were more cleanly in Conisborough there would be not enough water to brew with. He would say reply, that the consumption of beer must be less if the water was brought nearer the people. (Laughter)
Mr Hemming contended that there was a serious question of law be considered. There was a public well, and the private ownership of a stream flowing from that well, subject to public easement. What were the right of the public, and what were the rights of the private proprietor? The public, he took it, meant not only people in the locality, but if they like, people as far away as London. A man from London had as much right to use the water from that well as the people of Conisborough.
Mr Williams interposed, and claim that the inhabitants of a particular district had the right to a public well, if one existed, he was surprised to here it disputed.
Mr Hemming said his learned friend claimed the right vested in the inhabitants of Conisborough, but the right was not restricted to them. If the public wished to have the water from the well they must fetch it from the top of the well itself. What the commissioners could do under the Public Health Act was to maintain the rights which the public had always had, and nothing more. If they could carry the water into the village of Conisborough they could just as well carry it into a large town. The rights of the public in a public well had be settled by the House of Lords in the case of Smith and Archibald, but the case lying in Scotland came under the Scotch act, and was somewhat different to wells in England. He suggested that what the defendant could do was to make it easier for people to dip into the well, and, if by doing so, they could induce more people to go there, and more water would be used, and his clients got less for their brewery that, but the defendants never had the right of taking the water away to a district of this proposed kind. He also stated that the village had a well of its own. The village of Conisborough was possessed of a town well, and it was said a large quantity of water was hourly wasted from the town well, and if the pipes now been made by the Doncaster Union were connected with the town of Conisborough the whole of the inhabitants of the village would be completely supplied with water without interference with the Holy Well.
Mr Justice Sterling: Mr Williams, what do you suggest? I think there is a question whether you have a right to practically remove the spring to another place.
Mr Norton confessed that he did not quite understand what like the plaintiffs claimed.
Mr Justice Sterling explained that the plaintiff asked for an order to restrain interference with the supply from the overflow heretofore enjoyed by the plaintiffs. He thought it ought to be left in a status quo.
Mr said he thought he could give an undertaking not to connect the pipe for the present.
Mr Justice Stirling: That could be done without great difficulty, and if you give an undertaking not to connect the pipe before the second motion day next session, I will let the motion stand over.
Mr Hemming said that even then it would be a matter for hearing
Mr Norton said that they were perfectly willing to let the case go over for hearing under the agreement.
After brief conference, the case was sent over for hearing on the second motion day next session on the undertaken defendant not to connect the pipe with the well.
The necessary undertaking was given and the present hearing closed.