and The Queen v. The South Wales Railway Company, 13 Q. B. 988 (E. C. L. R. vol. 66). Cur. adv. vult. ERLE, C. J., now delivered the judgment of the court:(a)— Upon this rule, the question is whether the umpire has exceeded his jurisdiction by awarding compensation in respect of a claim for damage not within the reference.

From the affidavits in support of the application, it appeared that, before and in the year 1855, the claimants of compensation as occupiers of the Tondu Works had the use of two public tramways for horse-power, with a narrow gauge,-one from Tywith to Porth Cawl, and the other from Bridgend to Porth Cawl; that, in 1855, an act passed empowering a new company to construct a railway for steam-power, with a broad gauge, nearly in the course of the two tramways above mentioned, and granting to it the option of abandoning those tramways, subject to an exception as to part of one of them in favour of the claimants. Under this act the company gave the proper notices for taking parcels of land belonging to the claimants; and, as the parties did not agree, an umpire was appointed according to the provisions of The Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), who awarded that the company should pay to the claimants 73007. "as and for the purchase-money and compensation for and in respect of their interest in the said lands, and for the damage sustained and which may be sustained by them by reason of the execution of the works of the *said railway or the exercise

*239] by the said company of the powers of the said act;" and he de

clared that he gave 150l. for the purchase of one part of the lands, and 2007. for the purchase of the other part.

The reference was in the usual form, to ascertain the amount of compensation to be paid for the interest in the lands, and for any damage that might be sustained by reason of the execution of the works.

The affidavits showed that the claimants by their counsel and witnesses claimed to be compensated for a supposed loss which would be sustained if each of the two tramways above mentioned was abandoned according to the option given by the act: and the award indicated the same result, as it gave compensation for the land, and for damage from the execution of the works "or the exercise of the powers of the act."

On these grounds, the company contended that the umpire had exceeded the authority given to him by the reference, by giving compensation for a damage which was contingent, and might never arise, and which was not so connected with the land to be taken and the works to be executed thereon as to be within the reference.

In answer to this, the claimants denied that any excess of authority appeared. They showed, by referring to the plan on which the umpire was to act, that, in the execution of the proposed works, a considerable part of the old tramway from Bridgend to Porth Cawl would be in effect absorbed into the new railway; that this would be the case on part of the lands of the claimants to be taken by the company; and that the change of level and of gauge and of traction from horse to steam would prevent the claimants from being able to use the railway as they had used the tramway, without great expense, and would make their private tramway forming a junction with the public tramway useless.

(a) The judges present at the argument were Erle, C. J., Williams, J., Willes, J., and Byles, J.

*The affidavits also showed that the damage by severance would be considerable, as the furnaces would be severed in [*240 part from the cinder-heaps and in part from the coal-mine on the works.

Upon these facts, we have come to the conclusion that no excess of authority is proved, and therefore the objection to the award is not supported. The affidavits show that the umpire had a right to infer that the execution of the proposed works on the lands of the claimants would render the use of one of the tramways impracticable, if not impossible. If he did so infer, it was his duty to give compensation in respect of the loss of this part of the tramway: and, if any other part of the tramway should be continued by the company, still there was ground to infer that the value of it to the claimants would have been so depreciated by the works as to entitle them to substantial compensation in respect of that part also.

Our judgment proceeds on this view of the effect of the affidavits: but we ought to add, that, in so limiting it, we do not intend to sanction the argument that the award would have been bad, if the umpire had given the compensation for contingent damage which the company alleged. Rule discharged, with costs.

*SWINDELL and Another v. The Company of Proprietors of THE BIRMINGHAM CANAL NAVIGATIONS.

[*241

By a canal act it was enacted that no owner or proprietor of any mines or minerals, &c., should open or carry on any work for digging, getting, or discovering such mines or minerals under any tunnel, or within twenty yards of the same, without the consent of the company; and by a subsequent section it was provided, that, when the owner or proprietor of any coal-mine, limestone, or other minerals lying under the said canal, towing-paths, and other works, or within the distance therein before limited, should be desirous of working the same, such owner or proprietor should give three months' notice in writing of such his intention to the clerk of the company, and that, if the company should refuse to permit the minerals to be worked, they should pay to the owner or proprietor such compensation as (in the event of the parties disagreeing as to the amount) should be assessed by a jury.

The plaintiffs, who were lessees of a mine adjoining the canal, under a lease wherein they covenanted with the lessors that they would without intermission or delay work the mines thereby demised, and raise and get coal and ironstone thereout, until the whole of the said mines, or as great a quantity thereof as by working the said mines in a diligent and effectual manner could or might be gotten, should be worked out, except the ribs or pillars which must necessarily or which the lessors might require to be left,-having given the company notice of their intention to work their mine within the prescribed distance of a tunnel, a jury was impannelled to assess the compensation to be paid to them by the company on their refusal to permit them to do so.

In an action to recover the sum so assessed, the company pleaded the covenant above referred to, and alleged that the minerals which the plaintiffs so ceased and abstained from working, and the said coal and ironstone which they so left ungotten, were a rib within the meaning of the covenant, and that, before the time when the plaintiffs first ceased and abstained as in the declaration mentioned, the lessors required the said minerals, &c., above mentioned, to be left by the plaintiffs under the covenant as and for such rib as aforesaid, and of such their requirement duly gave notice to the plaintiffs :-Held, no answer to the action, the plea disclosing no covenant, but merely a partial exoneration from the obligation fully to work the mine,-or, assuming it to be a covenant, it not being one for which a special performance could be enforced in equity, or substantial damages awarded in an action at law.

The defendants further pleaded,-that the plaintiffs did not cease and abstain from working the said minerals within twenty yards of the tunnel aforesaid as alleged,-and that, after the service of the notice in the declaration first mentioned, and after the defendants' refusal to

permit the plainiffs to work the minerals mentioned in the notice, and after they caused the plaintiffs to be served with a notice in the declaration secondly mentioned, the plaintiffs waived and abandoned the first-mentioned notice, and claimed to work and did work and carry away the minerals in the said notice mentioned :

Held, that neither of these pleas afforded any answer to the action.

THE declaration stated, that, by an act passed in the session of parliament holden in the 16th year of the reign of His Majesty King George the Third (c. lxvi.), intituled "An act for making and maintaining a navigable canal within and from certain lands belonging to Thomas Talbot Foley, Esq., in the parish of Dudley, in the county of Worcester, to join and communicate with the Stourbridge Navigation, at a place called Black Delph, upon Pensnet Chase, in the parish of Kingswinford,

* in the county of Stafford" (and hereinafter called "The Dudley *242] Canal Act"), certain persons therein named, their several and respective successors, executors, administrators, and assigns, were incorporated by the name of "The Company of Proprietors of the Dudley Canal Navigations;" and several powers and authorities were given and granted to them for making, completing, and maintaining the said canal, and carrying the purposes of the said act into execution, and in particular those thereinafter mentioned and specified: and it was by the said act recited (s. 12) that differences might arise between the said company of proprietors and the several owners of and persons interested in lands, grounds, tenements, hereditaments, or waters which should or might be affected or prejudiced by the execution of any of the powers thereby granted, touching the purchase-money to be paid or recompense to be made to them respectively; and thereby it was therefore enacted that certain persons therein named should be and they and their successors were thereby appointed commissioners for the settling, determining, and adjusting all questions, matters, and differences which should or might arise between the said company of proprietors, their successors and assigns, or any of them, and the several proprietors of and persons interested in any lands, grounds, tenements, hereditaments, or waters, that should or might be affected or prejudiced by the execution of any of the powers thereby granted; and they the said commissioners, or any five or more of them, were thereby empowered, by examination of witnesses upon oath, and by other lawful ways and means in manner in the said act mentioned, to determine and adjust from time to time what distinct sum or sums of money should be paid by the said company of proprietors, their successors and assigns, or any of them, either by an annual rent or payment or by a sum of money in gross, to and *at *243] the election of such bodies politic, corporate, or collegiate, person or persons, respectively, who should be so entitled or interested as aforesaid, for the absolute purchase of the lands or grounds which should be set out and ascertained as in the act mentioned, for making the said canal or any part thereof, and other the purposes in that act mentioned; and also to determine and adjust what other distinct sum or sums of money should be paid by the said company of proprietors, their successors or assigns, as a recompense for any damages which might or should be at any time or times whatsoever sustained by such bodies politic, corporate, or collegiate, or other person or persons, respectively, being owners of or interested in any lands, grounds, tenements, hereditaments, and waters, for or by reason of the making, repairing, or main

taining the said canal, or of any reservoirs, trenches, passages, gutters, watercourses, roads, ways, or sluices, or supplying the same or any of them with water as aforesaid, or by the flowing, leaking, or oozing of the water over or through the banks of the said canal, reservoirs, trenches, or sluices, or over or through any passages, gutters, or watercourses which should be made pursuant to the powers thereby given for conveying and communicating water to or from the said canal, or by not cleansing the said watercourses, trenches, or passages, or by turning or diverting any streams or brooks into the same, or by reason or means of the execution of any of the powers therein contained, by the said company of proprietors, their successors and assigns, their agents, servants, or workmen, in case such price or value, damages, and recompense, respectively, could not be settled, adjusted, and agreed upon by and between the said company of proprietors, their successors and assigns, and such proprietors of and persons interested in the said lands and grounds as aforesaid; and, if the said company of proprietors, their successors

and assigns, for and on the part and behalf of themselves, or [*244 any such body politic, corporate, or collegiate, or other person or persons so interested or entitled as aforesaid, for and on his or their parts, should refuse to submit any such matter to the determination of the said commissioners, or should be dissatisfied with any determination which should be by them made as aforesaid, the said commissioners, or any five or more of them, should and they were thereby empowered and required from time to time to issue a warrant or warrants under their hands and seals, to the sheriff or sheriffs of the said counties of Stafford or Worcester for the time being, respectively, in which the matter or matters should arise, or, in case such sheriff or sheriffs, his or their undersheriff or undersheriffs respectively, or either of them, should happen to be one of the company of proprietors of the said navigation, or should be interested in the matter in question, then to the coroner or coroners of the said county of Stafford or Worcester respectively, for the impannelling a jury to assess such distinct sum or sums of money or annual rent to be paid for the purchase of such lands or grounds, or the recompense to be made for the damages that might or should be sustained as aforesaid; and the said commissioners or any five or more of them were to give judgment for such purchase-moneys, rent, or recompense so to be assessed by such juries, whose verdict, and the judgment thereupon pronounced by the said commissioners, or any five or more of them, should be binding and conclusive to all intents and purposes against the King's Majesty, his heirs and successors, and against all bodies politic, corporate, or collegiate, and all persons whomsoever: And it was by the said act enacted that no owner or proprietor of any mines or minerals, their workmen or servants, or other *person whatso[*245 ever, should open or carry on any work for digging, getting, or discovering such mines or minerals under any tunnel which should be made by virtue of that act, or within twenty yards of the same, without the consent of the said company of proprietors, their successors and assigns, and that no owner or proprietor of any mines or minerals, their workmen or servants, or other person whatsoever, should on any account whatever, open, dig, sink, or carry on any work for the getting of coal, lime-stone, iron-stone, or mineral, within the distance of twelve yards. from the said intended canal or any reservoir or reservoirs to be made

by the said company of proprietors, their successors or assigns, as aforesaid; nor should any coals or other minerals be got under any part of the said canal, or the towing-paths thereunto belonging, or under any such reservoir or reservoirs as aforesaid, or within or under any land or ground lying within the distance of twelve yards of either side of the said canal or any such reservoir or reservoirs or other works, on any account whatsoever, except as thereinafter and hereinafter mentioned, without the consent of the said company of proprietors, their successors and assigns, in writing, under their common seal for that purpose first had and ob tained: And it was afterwards by the said act provided and enacted, that, when and so often as the owner or proprietor of any coal-mine, lime-stone, or other minerals lying under the said canal, towing-paths, reservoir or reservoirs, and other works, or within the distance thereinbefore limited, should be desirous of working the same, then and in every such case such owner or proprietor should give notice in writing, under his, her, or their hand or hands, of such his, her, or their inten- . tion, to the clerk for the time being of the said company of proprie tors, at least three calendar months before he, she, or they should begin *to work such mines lying under the said canal, towing-paths, *246] reservoirs, and other works, or within the distance aforesaid, and upon the receipt of such notice it should and might be lawful for the said company of proprietors, their successors and assigns, to inspect or cause such mines to be inspected in order to determine what coal or other minerals might be come at and actually gotten without prejudice or damage to the said canal, towing-paths, reservoirs, and other works; and, if the said company of proprietors, their successors and assigns, should fail or neglect to inspect or cause such mines to be inspected within the space of thirty days after the receipt of such notice, then it should and might be lawful for the owners or proprietors of such mines, and they were thereby respectively authorized, to work and get such part of the said mines as should lie under the said canal, towing-paths, reservoir or reservoirs, and other works, or within the distance aforesaid, and if upon such inspection as aforesaid the said company of proprietors, their successors or assigns, should refuse to permit the owners or proprietors of the said mines to work such part of the said mines as should lie under the said canal, towing-paths, reservoir or reservoirs, and other works, or within the distance aforesaid, or any part thereof, as they might from time to time have come at and actually gotten, or in any other manner obstruct or prevent them from getting the same, that then the said company of proprietors, their successors and assigns, should within three calendar months after such refusal or obstruction as aforesaid pay or cause to be paid to the owners, proprietors, or workers of such mines respectively, such price or prices for the same in proportion to their several interests therein as the next adjoining mines of equal quality should have been really and bonâ fide sold for or be estimated or valued *at; and, if any question or dispute should arise between the

*247] said company of proprietors, their successors or assigns, and the

owners, proprietors, or workers of the said mines, their executors or administrators, touching any of the matters aforesaid, then the same should be settled and ascertained by the said commissioners, or any five or more of them, in such manner, and subject to the verdict of a jury, if required, as the value of the lands for making the said canal, towing