Wednesbury

Lorp Lorssurn L.C. My Lords, this is an action
by the local authority against mine owners whose workings have
caused the road to subside, and there is no dispute except as to
the amount of the damages.

The local authority restored the level by an embankment and
retaining walls at a cost of about 400I., and the mine owners said
that this was quite unnecessary, and that an equally commodious
road could be made for 65/. at the sunken level. They paid 80l.
into Court.

Jelf J. found this sum sufficient to make an equally com-
modious road, and so judgment was entered for the defen-
dants. (1) On appeal judgment was entered for the plaintiffs
for 4001.

Now I think a Court of justice ought to be very slow in
countenancing any attempt by a wrong-doer to make captious
objections to the methods by which those whom he has injured
have sought to repair the injury. When a road is let down or
land let down, those entitled to have it repaired find themselves
saddled with a business which they did not seek, and for which
they are not to blame. Errors of judgment may be committed
in this as in other affairs of life. It would be intolerable if
persons so situated could be called to account by the wrong-doer
in a minute scrutiny of the expense, as though they were his
agents, for any mistake or miscalculation, provided they act
honestly and reasonably. In judging whether they have acted
reasonably, I think a Court should be very indulgent and
always bear in mind who was to blame. Accordingly, if the
case of the plaintiffs had been that they had acted on the advice
of competent advisers in the work of reparation and had chosen
the course they were advised was necessary, it would go a very
long way with me; it would go the whole way, unless it became
clear that some quite unreasonable course had been adopted.

But when the proceedings at the trial and the preceding
correspondence are examined, it appears that this was not the
plaintiffs' contention at all. They did not in fact consider how
they could make an equally commodious road without unneces-
sary expense. Their position was that they were in law entitled

(1) [1905] 2 K, B, 823.
A. ©. 1908. 3 Z

325

H. L. (B.)
1908

—
LODGE
HOLES
COLLIERY
COMPANY,
LIMITED

Vv.
WEDNES-
BURY
CORPORA-
TION.

326

H..L. (B.)
1908

eke
LODGE
HOLES
COLLIERY.
COMPANY,
LIMITED

Xv.
WEDNES-
BURY
CORPORA-
TION.

Lord Loreburn
L.C,

HOUSE OF LORDS [1908]

to raise the road to its old level and to charge the defendants
with the cost of so raising it. At the trial, as an afterthought,
they also contended that the road would not in fact be so com-
modious to the public if it were made up on the lower level at
the smaller cost. Jelf J. states in terms that these were the two
contentions advanced, and this has not really been disputed.

My Lords, I regard the finding of Jelf J. as conclusive on the
question of fact. It has not been assailed, and if it were, I need not
repeat what has often been said as to the advantages enjoyed by a
judge who has heard the witnesses. When a finding of fact rests
upon the result of oral evidence it is in its weight hardly
distinguishable from the verdict of a jury, except that a jury gives
no reasons. The former practice of Courts of Equity arose from.
the fact that decisions often rested upon evidence on paper, of
which an Appellate Court can judge as well as a Court of first
instance.

The point of law which was advanced by the plaintiffs, namely,
that they were entitled to raise the road to the old level, cost
what it might and whether it was more commodious to the public
or not, will not, in my opinion, bear investigation. Such a rule
might lead to a ruinous and wholly unnecessary outlay. There
is no authority for it, though there is authority to shew that as
between the owners of a public road and the adjacent lands the
former may be entitled to restore the ancient level. Even those
who have been wronged must act reasonably, however wide the
latitude of discretion that is allowed to them within the bounds
of reason.

Accordingly, with the utmost respect to the Court of Appeal, I
think the judgment of Jelf J. should be restored. The plaintiffs
acted quite honestly, but under the mistaken belief that they
were bound, or at least entitled, to maintain the ancient level at
the defendants' expense. So thinking, they did not consider
whether it was necessary to do so in the interests of the public
and did not exercise a discretion on that question, so far as
appears from the evidence before us.

Lorp Macnacutren. My Lords, I have had the advantage of
reading and considering the judgment which has just been

A. C. AND PRIVY COUNCIL.

delivered by my noble and learned friend on the woolsack, and
I entirely agree with it.

Lorp ATxKINSON concurred.

Order of the Court of Appeal reversed and judgment
of Jelf J. restored, with costs here and certain
costs below.

Lords' Journals, June 30, 1908.