is not to be paid, but, on the contrary, by section 79 it is to be lawful for the owner "to work the said mines, or any part thereof, for which the Company shall not have agreed to pay compensation." If the railway Company do not choose to make compensation to the owner for the minerals, he may work them as he would if the surface had never been taken from him, provided he does so in a proper manner; and if, in the course of the proper working of the mines, damage ensues, the railway Company must bear the consequences. Sir F. Kelly, in reply.-The claim of the plaintiffs below, if allowed, would in effect place railway Companies in a different position from that of other owners of land under which mines exist. In the present case, by the terms of the conveyance the mines were reserved to Sir Francis Scott and Lady Emily Foley, the vendors. Sir F. Scott and Lady E. Foley sold the minerals to the plaintiffs, who had notice that the surface had been conveyed to the defendants for the purposes of their railway. If any person other than a railway Company had been the owner of the surface, it is clear that he would have had a right to support, of which the owner of the mines could not deprive him. Yet it is said that the owner of mines under a railway may work them so as to cause a subsidence, though by so doing he would destroy the surface, and would have equally done so had no railway been upon it. The 78th and 79th sections apply to those cases only in which, in consequence of the additional weight of the works of the railway, the land would be endangered if the mines were wrought. A railway Company, by putting additional weight on the surface, is not to prevent the owner of the minerals from working mines which he would be otherwise entitled to work. Suppose Sir F. Scott and Lady E. Foley had conveyed the 1860. GREAT WESTERN RAILWAY Co. v. FLETCHER. 1860. GREAT WESTERN RAILWAY Co. v. FLETCHER. land to A. and the minerals to B., A. being entitled to (a) 5 M. & W 60. (c) 2 Macq. 449. mines, could the inability of the owners of mines to work them be taken into consideration in assessing the compensation? Would not the assessor be bound to tell the jury that they must wholly exclude the minerals from their consideration.] The 77th section does not say that the conveyance is to be read, as excepting the common law right of support. The 79th section is meant to apply to cases where the owner of the minerals had a right to work them at the time of the passing of the Act, but where the railway Company by putting an additional weight on the surface, have rendered it dangerous for him to do so. Again, these sections may apply to cases where the owner of the mines is not owner of the surface. [Cockburn, C. J.-That construction would import into the 78th section the words "other than a person for whom the Company have purchased."] The 77th section directly affects and provides for the legal meaning of a conveyance of land by the owner to a railway Company. [Cockburn, C. J.-The owner of the mines may work them to the detriment of the railway, unless the Company are willing to treat with him for payment of compensation.] By the 79th section, the mine-owner must work the mines according to the usual manner of working such mines in the district where the same shall be situate." It is not found that the working those mines in such a manner as to cause a subsidence is the usual manner of working mines in that district; and unless the Court is prepared to hold that it is so, the defendants below are entitled to judgment. COCKBURN, C. J.-The question lies in a very narrow compass, and the facts are very simple. The owners of the land in question had conveyed it to the defendants, a railway Company, for the purposes of their railway. This was not a voluntary conveyance in the ordinary sense of 1860. GREAT WESTERN RAILWAY CO. v. FLETCHER. 1860. GREAT WESTERN RAILWAY Co. v. FLETCHER. that term, but a conveyance of the land according to the provisions of the Railways Clauses Consolidation Act, by which the owners must necessarily have parted with it. Under these circumstances what are the relations of the landowners and the Company in respect of the mines? The 77th section of the Railway Clauses Consolidation Act, 1845, says, that where land is purchased by a railway Company, they shall not be entitled to any minerals under it, except only such parts thereof as shall be necessary to be dug or carried away or used in the construction of the works, unless the same shall have been expressly purchased. Therefore the right to get the minerals remained in the landowners. If, indeed, prior to the conveyance, there was any separation of the surface soil from the minerals, the right of support would, no doubt, belong to the Company, because if a landowner parts with the surface soil, he does so subject to the obligation of dealing with the substratum so as not to disturb the superincumbent soil. In such case the landowners, having parted with the surface, and there being attached to the ownership of the soil the right to the support of the stratum below, would not be entitled to any compensation for the loss they may sustain in not working the minerals; but that is not the question which we have now to consider. In the case of land sold to a railway Company, the minerals, by operation of the act of parliament, must be considered as reserved to the owner of the soil: then comes the question how far is he entitled to work the minerals? Now, what the act of parliament means is this-All that the railway Company requires is the surface soil: it may be that the minerals will never be worked by the landowner, in which case the Company ought not to be subject to any expense; and therefore the legislature interposes and says that the Company shall be under no obligation to pay the landowner for that which may never be required; but if the mines come to be worked, and the Company require them as necessary for the support of the surface, they must make compensation to the landowner. In accordance with that view, the legislature has provided, that when a man has a mine which he is about to work, lying under or near to a railway, he shall give the Company thirty days' notice of his intention, and they must then take measures to discover whether that proposed working will injure their works, and act accordingly. The very fact that provision is made in the 78th section for possible injury to the railway works, shews that the legislature intended to reserve the question of support and compensation. The legislation would be incomplete, if it were not applicable to the case of a landowner, who, having parted with the surface soil to be used by a Company, for the purpose of putting an additional weight upon it, as a railway Company must necessarily do, shall afterwards entertain the idea of working the mines under or in the neighbourhood of the railway. If the legislature had not so intended, they would have framed the 78th section in a more special manner, instead of in the general terms in which it is now framed. The 77th section reserves the minerals, and to my mind it is clear that the two clauses must be read together. The minerals are reserved to the landowner, and the railway Company is under no obligation to make him any compensation in respect of them until the necessity for it arises from his desire to work the mines. In such case the Company are to consider whether the working is likely to damage their railway, and then if they are willing to make compensation for the mines the owner is not to work them. The mines may never be worked, and it would be a great hardship on railway Companies if, upon a speculative possibility, they were bound to make compensation for not working the mines. Such is 1860. GREAT WESTERN RAILWAY CO. v. FLETCHER. |