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public works, railways, canals, &c., the sum awarded by a jury was no real
compensation. The jury might be unable to appreciate the pleasure enjoyed
by another in a matter which to them would appear to be foolish;
but this was an evil inseparable from these matters, and the legislature
having thought fit to enact that individual rights, in other cases held so
sacred, should in these cases be sacrificed to obtain a great public benefit,
it did not lie within the power of a court of equity to say that the object
of the legislature should be prevented because a right was interfered with
for which adequate compensation could not possibly be afforded.
It was said that the sewers might be so constructed as not to drain away
any of the water that supplied the rivulet, that if they were made watertight
and confined rigidly to draining the houses the injury would be
avoided, and thence it was contended that the only question was one of
expense, and the case of Coates v. the Clarence Railway Company was
cited in support of this view. The evidence, however, led to the conclusion
that it would not be possible to construct these sewers as suggested, having
regard to the functions they had to perform, but that they would not be
fitly constructed unless they admitted the filtration of water from the
adjoining lands, and the District Board expressly stated that they considered
it essential for the due performance of their duty, having regard to the
state of the adjoining soil, to admit the water from it to percolate into the
drain; and the same careful and expensive mode of constructing each
separate drain would be required in the case of every house communicating
with the main drain; and the final result, as far as he (the Master) could
judge, that the drainage of the district when completed in this unusual
manner would be expensive, liable to derangement, and probably ineffectual
for the purposes intended by the act, while he was satisfied that the present
drains and sewers were perfectly well constructed for those purposes,
setting apart only the interference with the enjoyment by the plaintiffs of
the rivulet. If the object of the plaintiffs could be obtained by the construction
of the sewers and drains in the manner suggested, the same mode
could be adopted in every case; and if such a course were intended by the
legislature the provision referred to would be useless and unmeaning.
But he was of opinion that it had a clear meaning, and applied to the consequences
of constructing sewers and drains in the ordinary manner, and
that the legislature did not mean to impose a peculiar mode of construction
to meet any exceptional cases. The case of Coates v. the Clarence Railway
Company was not repugnant to this view. If he (the Master) were satisfied
that the drains were improperly constructed, or even that by a very slight
expense as good a system of drainage might be maintained consistently with
preserving the accustomed flow of the rivulet, he should not hesitate to
enforce that mode of construction; but he had not only not come to that
conclusion, but that an opposite conclusion if not proved was strongly impressed
011 his mind as the fair result of the evidence and facts proved.
He had felt considerable hesitation respecting the costs of the suit, but
under all circumstances he thought he should best consult the ends of
justice by dismissing the bill without costs.
He foresaw that litigation was likely to arise hereafter as to the right to
compensation, the amount of it, and whether, if at all, it should be borne
by the Metropolitan Board, or the District Board, or by both, and if so, in
what proportion, and he suggested that all further litigation should be put
an end to by agreement between the parties.