1858. DENISON v. HOLIDAY. suages, cottages, lands, tenements and hereditaments in Drighlington aforesaid (save and except the said mines, veins and beds of coal thereinbefore specifically devised and disposed of) unto and to the use of John Scholefield, William Woodhead and William Denison, their heirs and assigns, upon trust to sell and dispose of the same (except as aforesaid)." In 1812 Sarah Denison granted and demised to John Scholefield and William Woodhead all those two seams of coal, called the Stone Coal and the First Black Coal, lying and being under the before mentioned four closes, and under other closes, with liberty of raising and landing the coal &c.: to hold, from the 1st of January, 1813, for fifty years, at the yearly rent of 1057. for the first twenty-one years of the term, to be increased upon more than an acre being worked. The lessees wrought the two seams of coal under the lease, but part of those two seams is still unwrought; and the lessees, after the death of Sarah Denison, who died in 1814, paid the rent to the seven devisees in her will. On 10th June, 1815, the devisees and trustees under Sarah Denison's will, and the trustees and executors of Timothy Topham (the mortgagee), by indenture of that date, reciting that the trustees under the will had put up the real estates of Sarah Denison, including those mortgaged to Topham to sale by auction, and that Benjamin King was the highest bidder for certain lots, which comprised the four before mentioned closes (which had been mortgaged to Topham), save and except the mines and beds of coal lying and being within and under the said closes, for the sum of 11497. 15s., and reciting that 5501. was due to the trustees of Topham, the mortgagee, did grant, bargain and sell to the said Benjamin King, all the four closes of land before mentioned, with all houses, edifices, buildings, gardens, yards, paths, watercourses, ditches, quarries, woods, &c., other than and save and except and reserved to Scholefield and Woodhead, during the term of thirty years, to be computed from the 1st of January then last, all the mines and beds of coal lying, and being within and under those four closes thereinbefore described, and thereby intended to be granted and conveyed, with powers to be exercised by Scholefield and Woodhead over those closes for the purpose of their getting the coal: to have and to hold the said closes, and all other the tenements thereby intended to be released, with their appurtenances (except as before excepted), and subject as aforesaid to Benjamin King, his heirs and assigns for ever: and Scholefield and Woodhead covenanted with Benjamin King, to pay him at the rate of 41. an acre for so much of the four closes as they might occupy with their coal works and ways, and make compensation for surface damage. The defendants in this action claim the seams of coal under the four closes, other than the two seams demised to Scholefield and Woodhead, and contend that they are entitled to them under the conveyance to King—and the question is, whether they are so entitled; for if they are not, it is not disputed that the plaintiff in the action is. The Court of Exchequer decided that Joshua Denison, the plaintiff in the action, is entitled to succeed, and that no part of the mines and veins of coal under the four closes passed to King by the indenture of the 10th June, 1815; and we are of opinion that the judgment of the Court of Exchequer is right. The indenture of the 10th June, 1815, recites that King had become the purchaser of the four closes, save and except the mines and beds of coal lying within and under them,-King therefore was not the purchaser of the mines of coal, though he was of all the other parts of the closes.In the granting part of the deed, the closes with all build 1858. DENISON v. HOLIDAY. 1858. DENISON v. HOLIDAY. ings, quarries, &c. (omitting mines),—with an exception and reservation to Scholefield and Woodhead, during the term of thirty years, of all the mines and beds of coal lying under the four closes thereby intended to be granted, with various powers to Scholefield and Woodhead,-are granted and released to King; and the habendum is to hold the four closes and all the tenements intended to be thereby released, except as aforesaid, to King. It is clear to us that the parties to the deed did not intend to convey by it the coal to King, and the only ground which can give a colour to the argument that such was the intention, arises from the exceptions-but such an intention is so clearly inconsistent with the recital in the deed of what King purchased, that it would require very clear and unambiguous terms of conveyance to pass the mines of coal to King under that deed, more especially as the trustees of the will of Sarah Denison had no title to the mines, and the devisees of Topham, the mortgagee, only joined to give the legal title to that in which the trustees of Sarah Denison had only the equitable title, and had no real interest beyond the 550l. mortgage money. If, as was observed by the Court of Exchequer, King had been entitled to the mines of coal, he would have been entitled to the 1057. rent, which however was always paid to the devisees of Sarah Denison. The real reason for the introduction of the special exception was, most probably, that given by the Court of Exchequer; and agreeing as we do in opinion with that Court, the judgment will be affirmed. Judgment affirmed. IN THE EXCHEQUER CHAMBER. (Error from the Court of Exchequer.) 1858. LAING v. WHALEY and Another. June 19. the The the plaintiff was possessed of of steam THIS Atherton argued (a) for the plaintiff in error (the defendant below) in last Michaelmas Term (November 26). -The declaration does not state that the plaintiffs were possessed of the water of the canal; but that they were possessed of steam engines, boilers, and used the waters engines and boilers, and used, had, and enjoyed the benefit and advantage of the waters of a certain branch canal to supply the same, and which waters ought to have flowed und been without of the canal for supplying the same with water. Then, in the fouling or pollution thereafter mentioned: yet the defendant wrongfully discharged into the water of the canal foul materials and thereby rendered the waters foul, whereby the plaintiff's engines and boilers were injured. The defendant pleaded: first, not guilty: secondly, that the waters of the canal ought to have flowed and been without the fouling mentioned. An arbitrator, to whom the cause was referred, found that the plaintiff, by permission of a canal company, made a cut from the canal to his own premises, by which water got to those premises and with which water he fed the boilers of his engines. The defendant, without any right or permission from the Company, fouled the water in the canal, whereby the water as it came into the plaintiff's premises was fouled, and by the use of it the plaintiff's boilers were injured. Judgment having been given for the plaintiff: Held, in the Exchequer Chamber, by Williams, J., Crowder, J., and Willes, J., that the verdict upon the issue joined on the second plea ought to be found for the plaintiff: by Wightman, J., Erle, J., and Crompton, J., that the verdict on that issue ought to be found for the defendant. Held also, by Wightman, J., and Williams, J., that the declaration was bad and the judgment ought to be arrested: by Crowder, J., and Willes, J., that the declaration was good. (a) Before Wightman, J., Erle, J., Williams, J., Crompton, J., Crowder, J., and Willes, J. 1858. LAING v. WHALEY. order to connect themselves with a right to the water, they alleged that it ought to have run and flowed without the pollution complained of. No doubt the defendant has polluted the water; but the question is whether the plaintiffs are in a position to complain of it. That depends on whether any right exists, of which they have been deprived. The right claimed is to have a continuous flow of unpolluted water to supply their engines and boilers-not of water belonging to the plaintiffs or in their possession, but water of the defendant. The plaintiffs have no such right either under the indenture of the 1st January, 1823, or the indenture of the 1st January, 1847. By the former, the lessee was empowered to make a sluice or cut of certain dimensions from the Leeds and Liverpool Canal into the close called the Bowry pasture. That power was exhausted when the lessee made that cut; and there is nothing in the indenture to authorize the cut made by the plaintiffs from their engine pit into the Ince Hall Canal. The indenture of the 1st January, 1847, empowers the lessees to make dams and reservoirs, and collect water therein to work their engines, and assuming that they were entitled under that deed to make the canal they had no right to grant to the plaintiffs the use of its water. The judgment in the Court below rests on the assumption that the plaintiffs had acquired from the Canal Company a right to the possession of the water, and that it should flow to his premises in an unpolluted state. The judgment proceeds on the doctrine laid down in Wood v. Ward (a), but there the plaintiffs had a right to insist on the continuance of the flow of water in its natural state, and consequently the pollution of it by a riparian proprietor higher up the stream was an injury to that right. Here the arbitrator (a) 3 Exch. 748. ! |