(453.) [IN THE COURT OF APPEAL.] IN RE AN ARBITRATION BETWEEN KNIGHT AND THE TABERNACLE PERMANENT BUILDING SOCIETY. [JULY 5TH AND 11TH AND AUGUST 8TH, 1892.] Practice Arbitration-Special Case stated by Arbitrators-AppealCosts of Special Case-Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 19. (For a Report of a previous stage of this Case, see Vol. V., p. 56.) No appeal lies from the decision of the High Court upon a special case stated by an arbitrator with regard to a question of law arising in the course of the reference under s. 19 of the Arbitration Act, 1889. Except so far as there may be power under s. 20 of the Act to impose terms as to costs on making an order for the statement of a special case, the Court has no power to make an order as to the cost of a special case under s. 19.—(L. R. [1892] 2 Q. B., p. 613.) (454.) [IN THE COURT OF APPEAL.] TICHBORNE v. WEIR. [JULY 21ST, 1892.] APPEAL FROM THE QUEEN'S BENCH DIVISION. Statute of Limitations-Lease-Lessee out of possession for twenty years-Title of lessee extinguished-Rent paid to landlord hy person in possession-Action by landlord on covenant in the original lease-3 & 4 Will. IV., c. 27, s. 34. By sect. 34 of 3 & 4 Will. IV., c. 27, it is provided that, at the determination of the period limited by the Act to any person for making an entry or distress or bringing any action or suit, the right and title of such person to the land for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period shall be extinguished. In 1802, D., the plaintiff's predecessor in title, granted a lease of a house to B. for eighty-nine years. In 1836 G. took possession of the house and remained in possession till 1876, paying to D. the rent agreed on in D.'s lease to B. In 1876 G. by deed assigned all his estate and interest in the lease to the defendant, who continued in possession, paying the same rent to D. and the plaintiff till 1891, when he delivered up possession to the plaintiff. The plaintiff sued the defendant for a breach of a covenant to repair contained in the lease granted to B. Held, that the right and title of B. was not transferred by sect. 34 to G., and that therefore the defendant was not liable on the covenants running with the land contained in the lease to B.-(L.T., C.A., vol. lxvii., N.S., p. 735.) (455.) IN RE AN ARBITRATION BETWEEN PREBBLE AND ROBINSON AND ANOTHER. [AUGUST 11TH, 1892.] Arbitration-Costs-Taxation of Costs of Award-Amount of Costs not specified in Award-Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 2, Sched. I. (i.) By s. 2 of the Arbitration Act, 1889 (52 & 53 Vict. c. 49), it is provided that a submission to arbitration, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the first schedule to the Act, and by clause (i) of that schedule, "the costs of the reference and award shall be in the discretion of the "arbitrators or umpire, who may direct to and by whom "those costs, or any part thereof, shall be paid, and may tax or settle "the amount of costs to be so paid, or any part thereof." Held, that the amount of the costs to be so paid must be ascertained and stated in and by the award itself, and that otherwise the costs of the reference and award, including the arbitrators' fees, are liable to taxation in the ordinary course.-(L.R. [1892] 2 Q.B., p. 602.) (456.) IN RE BARING-JEUNE v. BARING. [OCTOBER 26TH, 1892.] Tenant for Life-Leaseholds-Trustees-Liability of Tenant for Life for Rent-Qui sentit commodum sentire debet et onus-" In re Courtier" (34 Ch. D., 136) followed. A testator gave a leasehold house to trustees upon trust to permit his wife to occupy the same during her life. Held, that there was no obligation on her part to perform the covenants in the lease.-(T. L. R., Ch. D., vol. ix., p. 7.) (457.) CORPORATION OF LEICESTER v. FRANK BROWN. [OCTOBER 26TH, 1892.] Local Government Acts-Public Health Act, 1875 (38 & 39 Vict., c. 55), sec. 156-Public Health (Buildings and Streets) Act, 1888 (51 & 52 Vict., c. 52), sec. 3-Front Main Wall-Building Line-Building or Structure. This was an appeal by way of special case stated against a conviction for building a certain wooden building, with a glass front, beyond the front main wall of a house without having obtained the written consent of the urban sanitary authority, as provided by the 156th section of the Public Health Act, 1875. It appeared that Mr. Brown, the appellant, was a photographer, and carried on his business in a house at the corner of the London Road and Coburg Street, Leicester. On April 26th this year he put up a structure 30 feet beyond the front of his house. This was a glass case, in which he placed photographs as an advertisement to his business, which was carried on in the house. The case was of wood, 9 ft. 6 in. long, 3 ft. wide from back to front, and 7 ft. high. It was roofed over, and had a glass front and a door to enter by at one end. The structure was fastened to the ground by four posts forming part of the structure, and let into the ground to the depth of 9 in. to 12 in. The structure was large enough for a man to walk about inside. The house itself had no shop window on the side on which this structure was, and it served as such. The magistrates held that this structure was a building within section 3 of 51 and 52 Vict., chap. 52, and convicted the appellant. Mr. Baron POLLOCK said that the conviction must be confirmed. No authority had been cited that in any way fettered the Court's discretion. In Hibbert v. Acton Local Board, reported in 5 The Times Law Reports, 274, there was an expression of opinion that a conservatory was not a building, but that was on the construction of an Act which provided for the solidity of buildings which should be erected, and provided that they should be solidly built of brick or stone. Such a provision, if construed to apply to a conservatory, would make them useless and prevent their being erected. The case in which a wooden movable pay-box was decided not to be a building was on the ground of its movable character and nature. In the present case the building was not movable, but its object was to assist in the carrying out of the business of a photographer. The object of the Act in using the words house or building" seemed to contemplate such a structure, for it was to keep a free passage of light and air in the street. Everybody knew the sort of erections that were to be seen in urban districts, sometimes being cages for keeping animals or birds, and these might possibly not be buildings; but a structure of the dimensions of this one might be. It was not removable, being sunk into the ground. Mr. Justice HAWKINS.-If I were here to decide as a jury whether this was a building or not, I might come to a different conclusion; but, as the law says if there is a difference of opinion as to whether it is a building the magistrates are to decide, and as they have exercised a reasonable discretion and come to a reasonable conclusion, I do not think it ought to be interfered with. It is difficult to draw a line, and each case must depend on its own circumstances as to what is a building.—(T. L. R., Q. B. D., vol. ix., p. 8.) (458.) BEVAN v. THE LONDON PORTLAND CEMENT COMPANY, LIMITED. [OCTOBER 26TH AND 27TH, 1892.] Soil under highway—Vesting—Tunnel-Easement or hereditament— Prescription Act (2 & 3 Will. IV., c. 71)—Statute of Limitations (37 & 38 Vict. c. 57). By a deed of the 12th July, 1871, the trustees of a highway, in exercise of rights and powers given to them under Acts of Geo. III. and Geo. IV., and for valuable consideration, granted a licence to the predecessor in title of the defendant company to excavate, construct, and use a tunnel under the highway. The rights and powers of the trustees came to an end on the 1st Nov. 1871, when the Highways Act (33 & 34 Vict. c 73) was passed. The tunnel in question was completed in 1872, and remained, without any substantial alteration, in the exclusive possession and occupation of the defendant company, or their predecessors in title, until the commencement of the action in August 1891. The tunnel was many feet beneath the surface; it was bricked at either end, and was used to carry chalk and soil from one part of the defendants' property to another. The plaintiff was owner of the land abutting on the highway on one side, and, at one place, on both sides; and he alleged that he was owner of the soil under the highway. By his action he claimed an injunction to restrain the trespass upon his land. Held, that, even assuming that the plaintiff had a sufficient title to the soil under the highway, apart from the Statute of Limitations, the action was barred by that statute, inasmuch as the defendant company had enjoyed no mere easement, but the exclusive occupation and possession of the tunnel for more than the required twelve years. -(L.T., Ch.D., vol. lxvii., N.S., p. 615.) (459.) LONDON AND NORTH WESTERN RAILWAY [OCTOBER 26TH, 27TH; NOVEMBER 7TH, 1892.] Canal-Right of Navigation-Subjacent Mines-Right of Support. (For a Report of a previous stage of this Case, see Vol. V., p. 478.) By a private Act of Geo. 2, the undertakers, who were not made a corporation, were authorised to make an existing brook navigable, and to maintain and use such navigation, and to make such new cuts and canals as might be necessary for the purpose, the undertakers first giving satisfaction to the owners of lands which should be made use of, or prejudiced, or damaged, by the carrying on, effecting, or preserving the navigation, which satisfaction might be by a yearly payment or by a sum in gross. The undertakers were authorised to charge tolls for the use of the navigation, and the public were to have a right to use it on payment of the tolls. No express power to purchase land was given, but persons under disability were empowered to sell. The Act contained no reference to minerals. The brook was made into a canal, but no conveyances to the undertakers were made-compensation being made to landowners by annual payments. The navigation subsequently became vested in the Plaintiffs. The Defendants, who were owners of coal under the canal, worked it so as to cause a subsidence, and the Plaintiffs brought their action for an injunction on the ground that they had a right to support :— Held, by KEKEWICH, J.-that the grant of a right to make and maintain the navigation without any grant of the land, did not carry with it a right of support so as to prevent the landowners from working their mines: Held, on appeal, that where an express statutory right is given to make and maintain something requiring support, the statute, in the absence of a controlling context, must be taken to mean that the right of support shall accompany the right to make and maintain—that if the Act does not provide any means of obtaining compensation for the loss occasioned to the landowner by his having to leave support, this is a strong argument against the Legislature having intended to give such right; but that if it contains provisions under which compensation can be obtained, it needs a strong context to shew that the right to support is not given-that under the Act in the present case compensation could have been successfully claimed for the damage occasioned to the landowners by making their mines unworkablethat the Legislature, therefore, must be taken to have intended to give a right of support, and that the Plaintiffs were entitled to an injunction. BOWEN, L.J.-The Plaintiffs, the London and North Western Railway Company, have succeeded to the ownership of the St. Helen's Canal and to the rights and liabilities of its original proprietors under an old Act of Parliament passed in the year 1754. The Defendants are lessees and occupiers of coal mines in the subjacent and adjacent lands over which a branch of the canal has been constructed, and, in the ordinary course of working their coal, are endangering this branch. Thereupon the London and North Western Railway Company ask for an injunction to restrain the Defendants from so working their mines as to cause damage to the canal. The Plaintiffs contend that, together with an express right to make and to maintain their canal, the Act of 1754 conferred on them by implication the right to such support as was necessary for the existence of the canal and its branches. The right to make the canal, they |