Mat 27, 1899.
THE ESTATES GAZETTE
888
| the defendants from carrying it higher, but did not prevent the use of the gasometer in its existing state. The appeal was heard in April last■•
Mr. Haldane, Q.C., the Hon. E. C. Macnagh-ten, Q.C., and Mr. Boome appeared for the defendant company ; Mr. Upjohn, Q.C., and Mr. Dightom Pollock were for the plaintiff ; Mr. Bardswell appeared for the contractors, who also appealed, and submitted to abide by the judgment of the Court with regard to the com-parny.
The Court (Lord Justice Vaughan Williams dissenting) dismissed the appeal.
The Master of the Bolls, after stating the facts as above and alluding to the Special Acts, remarked on the more generally interesting portion of the case that the liability of the defendants to pay damages caused by the subsidence of the plaintiff’s buildings required careful consideration. That the defendants have, in fact, caused such subsidence and damage resulting from it is clear beyond all controversy. Prima facie they have no right to do this—see “ Dalton v. Angus” (6 App. Cas., 740). It is for them to justify their conduct if they can. Their attempt to do so by their special statutory powers fails for the reasons already given. But they say that, even if that is so, they are not liable at common law for the damage by subsidence, because, first, they only pumped water from their own land; and, secondly, because, although some sand came with the water so pumped, the stratum of running silt under the plaintiff’s land only shrunk by reason of the abstraction of water from it, and that no soil, in any appreciable quantity at all events, was removed from under the plaintiff’s buildings. The defendants say, in short, that the subsidence was caused by the withdrawal of underground water from the plaintiff’s land by lawful pumping on their own land, and that, although damage to the plaintiff ensued, no nuisance or other actionable wrong was committed by them. For this they rely on “Popplewell v. Hodgkin-so_n” (L.K., 4 Ex., 248). The question® thus raised are extremely important and by no means free from difficulty. First as to the facts. No borings were made in the plaintiffs land, but it was not contended that in its natural state the land contained a stratum of clear water resting on a bed of sand. The running silt was a bed of wet sand, the amount of water in it varying from time to time, according to the rainfall ; but in its ordinary state, if cut through, its equlibrium would be disturbed, and it would run or flow down where cut through if not prevented from so doing. An excavation cut into or through it would disturb its equilibrium for some distance all round ; and the conclusion at which I have arrived from the evidence is that the operations of the defendants, carefully and skilfully conducted as they were, consisted in removing large quantities of silt from their own land and in pumping on their own land whatever they could get away by pumping, and that the combined effect of both operations was to disturb the equilibrium of the wet sand underneath plaintiffs houses and to cause such sand to shift its place and move towards the excavation made by the defendants׳. The plaintiff’s houses were supported by a bed of wet sand and not by a stratum of water, and they have been let down by a shifting of such sand caused by the removal by the defendants of sand and water from their own soil. This is also the conclusion at which Mr. Justice North arrived, if I understand him rightly. I do mot think it necessary to examine in detail the voluminous evidence bearing on this point, all of whieh I have studied with care. It will be sufficient to refer to what is said by the plaintiff’s witnesses, Samuelson, Hunt and Hurtzig, which is not, in my opinion, displaced by the defendants’ witnesses. In this view of the evidence it is unnecessary for me to decide whether, if the defendants had done nothing more than pump underground water from their own land and thereby let down the plaintiff’s׳ houses, an action could have been maintained against them.
“Popplewell v. Hodgkinson” (L.R., 4 Ex., 248) looks like and has generally been regarded as an authority that no action will lie in such a ease. But I am not satisfied that this׳ broad question can be considered as finally settled by that or any other decision. The question involves very important considerations. Two conflicting rights have to be reconciled, viz., the right to support and the right to pump water. It is not necessary to decide which is to give way to the other. I leave the question where it is.
I shall assume in the defendants’ favour that an action will not lie for damage caused by pumping water only. They have done more, and what they have done is, in my opinion, an actionable nuisance at common law. If this point is decided in favour of the plaintiff the defendants do not quarrel with the damages assessed. The only case I know of in which the legal consequences of cutting through quicksand have been considered is the American case of “ Cabot v. Kingman” (166 Mass., 403), to which Mr. Haldane referred us. The Court was the Supreme Court of Massachusetts, and the majority of four to three adopted the conclusion which I have expressed. The grounds of their
thirteen 8in. early Staffordshire groups,^ £27 6s. ; blue and gold Worcester jug and christening mug, £3 15s. ; pair of llin. Dresden figures, representing Gainsborough’s “Blue Boy” and “ Duchess of Devonshire,” £5 5s. ; 20in. Dresden dish, £3 3s. ; Nankin jar, £4; deep blue Wedgwood dessert service with yellow border, £4 15s. ; three 6in. Delft figure of cows, by Johannes von Duyen, 1764, £5 15s. ; six 5in. Staffordshire figures of cows, forming milk jugs, £4 10s. ; pair of lO^in. Oriental figures, £4 16s. ; pair of 5iin. Dresden figures, £10 ; silver owl, £14 ; 4in. antique cream, jug, £2 15s. ; gold bracelet, with five spade guineas, £9; silver-gilt and enamelled Star of the Order of the Bath, £3 3s. ; half-hoop diamond ring, £10 15s. ; gold brooch and pendant, set in rubies and diamonds, £16.
ligal ÇromMngs.
SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.
May 16.
(Before the Master of the Rolls, Lord Justice Rigby and Lord Justice Vaughan Williams.)
ANCIENT LIGHTS: SUBSIDENCE OF BUILDINGS: EIGHT TO SUPPOET.
JOBDESON V. SUTTON, SOUTHCOATES, AND DBYPOOL GAS
COMPANY.
This was an appeal by the defendants from a judgment of Mr. Justice North, whereby he granted an injunction restraining the defendants from darkening some ancient lights in some buildings of ׳the plaintiff’s, and ordered the defendants to pay to the plaintiff £340 in respect of damage caused by the subsidence of the plaintiff’s buildings by reason of the construction of the defendants’ works. The defendants contended (1) that, assuming that the plaintiff’s lights would be darkened and that the defendants had damaged his buildings, still no action lay against them having regard to׳ their Parliamentary powers ; (2) that, as regards the lights, assuming that an action would lie, no injunction ought to be granted and that damages only ought to be awarded ; (3) that, as regards the damage caused by subsidence, no action lay because such subsidence was occasioned by pumping water out of the defendants’ own land and thereby draining water from under the plaintiff’s land, which the defendants alleged gave no right of action. The undisputed facts were as follows. The plaintiff was the owner of some land near Hull, and on that land there were houses some of the windows of which existed more than 30 years before the commencement of the action. The def endants were a gas company, incorporated by statute, empowered to make and supply gas, and whose works were within a short distance from the plaintiff’s houses. The defendants had power to buy land by agreement, but not compulsorily. Their statutes incorporated the Lands Clauses Act (except the provisions relating to compulsory purchase), and also the Gas Works Clauses Acts, 1847 and 1871. In the district in which the plaintiff’s land and the defendants’ works were situate there was a large stratum of what was called running silt, well known to persons acquainted with the geological structure of the earth at Hull, and a constant source of trouble to all who had to make deep excavations into it. This stratum of silt extended for some miles both in length and breadth. It was some 6ft. thick, and it was some 22ft. below the surface where the defendants’ works and the plaintiff’s houses were. The land on which the plaintiff’s houses stood was, in fact, supported by this stratum of silt and by the earth above and below it. Before 1877 the defendants’ works were comparatively small and in no way injured the plaintiff. But in 1877 the defendants resolved to enlarge their works and to construct a very much larger gasometer than they had before. Its diameter was to be 152ft., and its height 105ft. above the ground level. The defendants accordingly began to excavate their land in order to receive this gasometer. The reached down to and cut through the above-mentioned stratum of silt. They took all treasonable precautions to keep the silt, as they cut through it and made their excavation, from falling in, and they kept their excavation as dry as they could by frequent pumping. Notwithstanding all their care the land under the plaintiff’s houses subsided, and this subsidence caused damage. There was a conflict of ■evidence on the question how far this running silt was liquid rather than solid—as to whether it was muddy water as distinguished from wet sand, and as to what the defendants removed by their pumping and other operations from under the plaintiff’s houses ; but it was admitted that the structural damage of which the plaintiff complained was caused by the defendants in the execution of their works. With regard to the obstruction of light, it was not seriously disputed that the defendants’ gasometer would materially darken some of the plaintiff’s ancient lights if the gasometer was erected to a greater height than its original height, viz., about 70ft. above the surface of the ground. The injunction restrained
i	SALES OF THE WEEK.
Rowlandson Drawings.
On the 15th and 16th inst., Messrs. Christie sold a choice collection of watercolour drawings by Thomas Rowlandson, the property of Mr. William Knight, whose library and collection of autograph letters will be sold at _ Messrs. Sotheby’s next month. The collection comprised 106 lots, and produced a total of £1,893. The more important included a view of Brentford Market-place, 31 guineas ; Bookseller and Author (Dr. Johnson), with the engraving of the same, 22 guineas ; Covent-garden Boxes, 1785, with “The Way of the World,” as acted at Covent-garden, containing numerous portraits of celebrities of the time, including Dr. Johnson, 12in. by lOin., 150 guineas ; French Barracks, 1788,'the original drawing exhibited by tho artist, at the Royal Academy, 22in. by 15in., 40 guineas ; “ Going to the Races,” 30 guineas ; the Hunt Dinner, 1787, 20in. by 15m., the original drawing in the well-known, hunting series, executed for the Prince of Wales (GeoTge IV.), of which the engraving was published by J. Harris, Cornhill, in 1787, 66 guineas ; “ Preparing for a Masquerade,” 1790, 17in. by 13in., engraved by the ■artist as “Dressing for a Masquerade,” 72 guineas׳; the Dolphin Inn at Greenwich, 29 guineas ; “ A Visit to the Uncle,” “A Visit to the Aunt,” the pair engraved by Rowlandson in 1786, 127 guineas ; five drawings one unpublished, to Dr. Syntax’s First Tour, and four drawings, one unpublished, to Dr. Syntax’s Second Tour, 60 guineas. A fine original impression in colours of the drawing by Rowlandson of Vauxhall Gardens, 44 guineas ; Mrs. Siddons, after J. Down-man, -engraved by P. W. Tomkins, with full margins, in colours, 120 guineas ; and Georgina Duchess of Devonshire, after the same, by F. Bartolozzi, in colours, 55 guineas.
Pictures.
The remarkable pictures by the old masters of the Italian, Dutch and Early English schools, sold by Messrs. Christie on the 13th instant, fetched high prices. There were 117 lots, and upwards of £40,000 was obtained. The following are of note:■—“The Holy Family,” by Rubens, 8,300 guineas ; “ The Conversion of Saul,” by the same, 1,950 guineas ; “The Woman Taken in Adultery,” by the same, 1,950 guineas ; portrait of Mrs. Francis Newbery, nee Bailees, by G. Romney, 1,650 guineas ; “Innocence,” by Sir H. Raeburn, R.A., 1,900 guineas ; Portrait of a Gentleman, inscribed “ iEtatis Sucess,” by Frans Hals, 3,000 guineas ; Portrait of a Lady, also by Frans Hals, “ The Companion,” 2,000 guineas ; Portrait of a Lady, seated, understood to represent Harriet Westbrook, first wife of Shelley, oval by J. Hoppner, R.A., 1,380 guineas.
Contents of Castle Malwood, Lyndhurst, Hants
Some fine examples of carved oak furniture, artistic bedroom suites, etc., were included in the sale of the contents of Castle Malwood, near Lyndhurst, held on the premises of Messrs. Hampton and Sons, on the 16th and 17th inst. Among the more important items were:—A 5ft. burnished brass tubular Italian bedstead with square pillars and extended footrail, £15 15s. ; a mahogany and banded satin-wood bedroom suite, choicely and delicately inlaid with marqueterie of Sheraton character, £105 ; a walnut bedroom suite of artistic design, £17 4s. ; a 5ft. 6in. carved' oak buffet with bold pediment adorned with mask and cherub heads, figures and other carvings, £16 16s. ; a 5ft. carved oak hall table, with lion heads and brass rings, massive supports and stretcher rail, £6 6s. ; a set of five carved oak high back chairs with cherub heads in relief, £6 per chair ; a 5ft. artistically designed satin-wood and inlaid cabinet, the panels of the doors finely painted in figures and flowers, etc., £10 15s. ; a 5ft. carved oak cabinet with cherub heads in relief, £9 9s. ; a 5ft. fine old carved oak and inlaid cabinet, with cherub head and other carvings, etc., £16 16s. ; a 4ft. 10in. old oak and inlaid buffet, £7 17s. 6d. ; a massive dark carved oak dining-room suite, profusely carved in mask heads, •fruits, etc., £75 9s. ; a full sized mahogany billiard table on massive supports, by Geo. Wright and Co., £73 10s. ; a 6ft. 6in. unusually fine oak bookcase, superbly and artistically carved in the Gothic style, etc. (exhibited at the 1857 exhibition as a specimen of English carving), £29 8s. ; and an upright clock in a finely carved oak case representing a mosque, etc., £7 17s. 6d.
Furniture, China, etc.
On the 15th and 16th instant, Messrs. Grant Whieldon and Co., conducted a successful sale, at 23, Norf olk-road, St. John’s-wood. The following are a few of the more important items: 4ft. 6in. Spanish mahogany wardrobe, £10 10s. ; mahogany tallboy chest, £5 ; mahogany dining tables, £9; six mahogany dining chairs, £9 ; pair of 2ft. 3in. walnut cabinets, with shelves for china, £7 10s. ; set of six Hogarth engravings, £2	2s. ; three Bartolozzi engrav-
ings, £12 5s. ; set of three handsome tea trays, inlaid with mother-o’-pearl, £3 10s. ; cuckoo clock in carved frame, £4 ; 9jin. early Staffordshire ware, representation of Neptune, £4 4s. ;
3Brk־a־lBrat.
[SPECIALLY CONTRIBUTED.]
In the report of the sale of the contents of Moulton Paddocks contained in a recent issue, we should have stated that Messrs. Griffiths and Chennell, of Newmarket, acted in conjunction with Messrs. J. Carter Jonas and Sons, of Cambridge.
A remarkably interesting series of Garrick letters and manuscripts, the property of the well-known collector, Mr. William Wright, of Paris, will be sold at Messrs. Sotheby’s on June 17. The entire series, numbering about 60 examples, is to be first offered at the reserve price of £400, and if that sum be not reached, each lot will be sold separately. Garrick’s reputation as an adept of the epistolary style is well maintained in these letters. The delightful specimen addressed to Madame Riccoboni, September 13, 1768, from which we give the following passage, displays the great actor’s, exquisite lightness of touch and vivacity : —“ I will not despair of ■seeing you some time or another at my sweet little villa of Hampton ; perhaps it will raise your curiosity ye more when I tell you that the King of Denmark came with all his suite yesterday to see my house and garden, the Owner and his Wife. You would think me vain should I tell you what he said, and I hope you will think me sincere when I tell you that I had rather see you and your friend there than all the Kings and Princes of Europe.”
Another letter, written in Erench, to Monsieur Preville, January 7, 1775, shows Garrick’s ingrained love of fun:—“Have you forgotten me, my dear companion in Folly? Have you forgotten our romantic expeditions on the Boulevards, when the stone cutters became more petrified with astonishment than t he stones they were working upon, in admiration of our eccentricities ?” And the following is Davy’s reply to Dr. Hoadly in accepting an invitation for himself and Hogarth, “ from the Barber’s shop, up two pairs of stairs ” : —“The little ingenious׳ Mr. Garrick and the ingenious little Hogarth will take the opportunity of the plump doctor’s being with you, to hie away to the Rev. Rigdum Funnidos, Old Alresford, there to be as merry, facetious, mad and nonsensical as liberty, property and old October can make ’em. Wants no kickshaws, nothing but laugh and plum-pudding.”
Among the occasional poems is an epistle of six verses to Peg Woffington, and another “Upon Lord Mansfield desiring my Picture.” There is also the original autograph MS. of the famous verse on Dr. John Hill:—-“For Physic and Farces׳
Thy equal there scarce is Thy Farces are Physic Thy Physic a Farce is.”
The Wright collection of Garrick manuscripts is certainly unique, and wc shall be surprised if handsome prices are not obtained for it.
Some fine specimens of carved Jacobean oak arid old French furniture׳ will be included in Messrs. Furber, Price and! Furber’s sale, at No. 20, Hertford-street, Mayfair, on the 29th instant. It will also include a valuable collection of English and Dutch paintings and watercolour drawings by well-known artists׳, the English school being represented bv examples of J. M. W. Turner, David Cox, T. B. Hardy, S. Davis, E. Waliton, etc. Particularly noticeable items of the collection are two cap-k-pie engraved suits of armour of the fashion of the 16th Century.
An object of remarkable interest sold by Messrs. Foster, of Pall-mall, on the 12th instant, was the old English two-handled loving cup and cover, embossed with birds and fruit, 28oz. 13dwt., which reached the ׳excellent price of £5 19s. per ounce. The cup possesses historic interest, for it is said to have been presented to an ancestor of the late owner by Charles II. The same sale also included a handsome presentation gold snuffbox, embossed with dancing figures, and engraved with flowers, which realised £19 ; an antique silver mounted stone ware jug, 31 guineas ; a pair of octagonal silver candlesticks, dated 1697, 25oz. lldwt., 42s. per ounce ; 12 antique three-prong dessert forks, 12oz. 10dwt., 34s. per ounce ; and a fine Venetian lace flounce, 3| yards long by 25in. deep, 56 guineas.
Many articles of choice and artistic furniture will be included in the sale of the contents of Lord Revelstoke’s mansion, at Membland, Devonshire, which is to be *held on the premises by Mr. William Pearse, on May 30. The collection contains some splendid example® of Chippendale, walnut, oak, ash, and mahogany furniture ; besides many beautiful specimens of Dresden, Copenhagen, Chelsea, Crown Derby. Wedgewood, Oriental, and ether china. It is also rich in oil paintings and engravings, exquisite embroidered window curtains (from the School of Art. South Kensington), Utrecht velvet, silk, damask, tapestry, and •ther window and portière curtains,