1862. BRINE V. GREAT WESTERN Railway Company. MELLOR J. The declaration in this case alleged that the defendants, whilst the plaintiff was possessed of and residing in a certain dwelling house, wrongfully raised and continued a certain embankment of earth near the plaintiff's said house, by reason whereof large quantities of water have run and flowed down to and upon and against the said dwelling house of the plaintiff, rendering it damp and incommodious, and less fit for habitation, &c. To this declaration the defendants, for a second plea, pleaded that they raised and continued the said embankment under the powers and provisions of three Acts of Parliament granted in that behalf. To this plea the plaintiff replied that, although true it was that the said embankment was raised, made and continued by virtue of the powers and provisions of the said Acts of Parliament, yet he said that the plea was no bar to his claim because he said that the running and flowing of the water to and against his said dwelling house, in the declaration mentioned, was occasioned by the wrongful construction, and negligent and improper raising and making of the said embankment, and the want of proper and sufficient drains to the same. To this replication the defendant demurred, alleging it to be a departure from the declaration. Upon the argument it was contended, by the plaintiffs, that a departure in pleading was not ground of general demurrer: but we thought this point not open for the plaintiff in this Court after our recent decision in the case of Bartlett v. Wells, 1 B. & S. 836; see also note (1) to Richards v. Hodges, 2 Wms. Saund. 84f, 6th ed. The real question on the argument was, whether the replication was a departure from the declaration. On considering what is the gravamen of the charge alleged in the declaration, I am of opinion that the replication is no departure. The substance of the complaint in the declaration is the wrongfully raising, making and continuing an embankment near the plaintiff's dwelling house, and by means thereof wrongfully causing water to run and flow to and against such dwelling house, whereby it was rendered damp and incommodious, &c. The plea excuses the making and raising of the embankment under the provisions of three Acts of Parliament, to which the plaintiff in substance replies, that his complaint against the defendants is, not for the lawful exercise of the powers conferred upon them, but for the causing the water to run and flow against his dwelling house by the wrongful construction of the embankment, and by the negligent and improper raising and making it without proper drains. It appears to me that the substance of the complaint, both in the declaration and replication, is the wrongful causing of the water to run and flow against the dwelling house of the plaintiff, and although it may be doubtful whether the replication is to be considered as an informal traverse of the plea, or in the nature of a new assignment, it appears to me not to be obnoxious to the very wholesome rule against departure in pleading. In Co. Litt. 304 a, as cited in note (1) to Richards v. Hodges, 2 Wms. Saund. 84 a. b., 6th ed., "a departure in pleading is said to be, when a man quits, or departs from the ground which he has first relied upon, and has recourse to another"; and the rule is stated by Tindal C. J. in Prince v. Brunatte (a) in the following terms: Undoubtedly, where a replication does not consist with or fortify the declaration, it is a departure in pleading; " (a) 1 Bing. N. C. 435. 438; 1 Scott, 342, 345. 1862. BRINE V. GREAT WESTERN Railway Company. 1862. BRINE V. GREAT WESTERN for a plaintiff is not entitled to declare in respect of one right, and then to set up another in his replication. The only question here, is, whether this replication does not set up a title inconsistent with that disclosed in the declaration." Another test of a departure in pleading is stated by Tindal C. J. in Smith v. Nicolls (a) as follows "That which is a departure in pleading is a variance in evidence; and if the evidence in support of the replication would sustain the allegation in the declaration, there is no departure." Applying that test to the present case, it appears to me that the evidence necessary to prove the matter alleged in the replication is not inconsistent with, but would clearly support, the allegations in the declaration. Tried therefore by the test of variance in evidence, as suggested in Smith v. Nicolls, I think that the objection fails, and that the plaintiff is entitled to recover on this demurrer. The case of Palmer v. Stone (b), cited by Mr. Smith, is clearly distinguishable, inasmuch as the plea was, that the defendant impounded the mare damage feasant, which is a private trespass, whereas the rejoinder, that the mare was mangy, set up that which is a common nuisance. I am therefore of opinion that the plaintiff is entitled to judgment. CROMPTON J. I concur with my brother Mellor in thinking that the replication in this case is no departure from the declaration. The declaration is for wrongfully, that is, without lawful excuse, causing the water to flow (a) 5 Bing. N. C. 208. 218; 7 Scott, 147. 164. on the plaintiff's land and against his house by means of an embankment, and so injuring his premises, and the plea is a justification for so causing the water to flow and injure the premises under the authority conferred on the defendants by three Acts of Parliament. The replication is very inartificially drawn, but it appears to me in substance to avoid the plea, either by way of informal denial that the acts complained of were justified by the authority of the statutes, or by way of shewing how they were not justified. This The replication commences by a statement that it is true that the embankment was raised under the powers of the Acts, and then goes on to shew that it was negligently and improperly constructed, so as to shew that it was not justified by the powers of the Acts. seems repugnant and inartificial, but, taken according to its real meaning, seems to me to amount to saying,— though you had the authority of the Acts of Parliament, and were raising your embankment under their authority, yet you did not so construct your embankment as to make it a work done under the authority of the statutes. The distinction is now clearly established between damage from works authorized by statute, where the party generally is to have compensation and the authority is a bar to an action, and damage by reason of the works being negligently done, as to which the owner's remedy by way of action remains: and it seems to me that the effect of the plea and replication, fairly considered as on general demurrer, is, that the plea says, what you complain of arises from works justified under statutes, and for which your remedy, if any, is for compensation; and that the replication inartificially answers 1862. BRINE V. GREAT WESTERN Railway Company. 1862. BRINE V. GREAT WESTERN Railway Company. this by saying the works causing the injury were not authorized by the Acts of Parliament, but were negligent and improper works, for which you are answerable in damages. Whether the replication is a mere informal denial, or whether it explains why the plea is not a bar, or is in the nature of a replication of excess, it is not necessary to inquire. The plea, pleaded in a compendious and general form, that the works were done under the authority of the statutes must, I think, be construed as if it contained all the necessary averments of a special plea expanded on the record, and would, I think, be bad if not construed to contain expressly or impliedly an averment that the works were such as were authorized by the Act. And to this averment the replication seems to me to contain a direct answer. It might depend on the mode in which the special plea, if expanded on the record, were framed, whether the formal mode of answering the plea would be by a denial of the averment of the acts complained of being justified by the statutory authority, or whether a new assignment or replication of excess might be rendered necessary by reason of the plea containing an averment of quæ est eadem, or of the acts being done under the statutory authority without any unnecessary damage. But these questions no longer arise in the general mode of pleading adopted in this case, which seems sufficient, as special demurrers are no longer allowed. It is sufficient if the replication contains, as I think it does, either a denial that the Acts complained of were authorized by the statutes, or an explanation how they were not so authorized. Suppose that this case had arisen before the new rules |