York Herald March 17, 1838
York Lent Assizes, York Castle Crown Court
Wilson v River Don Company
Mr Alexander and Mr Watson were for the plaintiff; the owner of a mill at Kilnhurst, on the banks of the river Don; and Mr Cresswell and Mr Wightman for the defendants.
The action must recover damages for the diversion of a stream of water by defendants. They having deep in their navigation, raised a weir by placing a cill thereon, and refused to repair certain lockgates, which they were bound to do, in which the plaintiff’s trade was much injured.
There were five counts in the declaration, to which the defendants pleaded the general issue; he also specially denied the right of the plaintiff to the water, and their liability to repair the lock gates – all of which places were put in issue by the plaintiff’s replication.
The facts of the case were shortly these:
Mr Wilson since 1830 had been in the possession of a mill situate at Kilnhurst, on the banks of the river Don, which runs from Alwarke to Doncaster, in which mill business have been carried on for upwards of a century. From it they were on the banks of this river three emails, situate at Aldwark, Thribergh and Kilnhurst, each of which was entitled to the water it required.
In 1725 the company obtained and Act of Parliament, authorising them to make the river navigable for vessels of 20 tons burthen; and from that period to 1739, three other Acts were procured. The males, however, still continue to work; but as commerce increase, the Company found it necessary to obtain a greater depth of water in the river, which they had done, so now vessels from 70 to 80 tons burthen could be navigated.
There was a shoal at Aldwarke launch, by which in summer vessels were greatly impeded. The company, in the year 1821, purchased the Thribergh corn mill and stream, off Col Fullerton, for the purpose of obtaining the control of the water, and they immediately pulled down the mill.
The plaintiff further complained that the defendants, having also purchased the Aldwark Mill stream, and kept down the shuttles of both mills, heightened the rears of the latter, refused to repair their lock-gates, and had otherwise diverted the water from the river down to the canal, so that in dry weather is mill was prevented from working, and at all times and an insufficient supply of water in consequence of which is trade was seriously injured.
After the statement of the case, the learned Judge said that as far as he understood, this is the question affecting merely the regulation of the water; and although the cause would be of great length, and other suitors necessarily delayed, the decision of the Jury could not be satisfactory. It would be much better if an arbitrator were appointed, who might define the rights of the party, and prevent further litigation.
Various arguments and objections were then raised to the case heard.
The learned Judge overruled the defendant’s objection; on which a conversation arose between the parties, and it was agreed that a verdict should be taken by the plaintiff on the fourth and fifth counts, and for the defendants on the others, the subject matter in dispute been a refer to an arbitrator.
His Lordship directed a verdict to be entered accordingly.