paths, reservoir or reservoirs, and other works, was by the act directed to be settled and ascertained: And it was by that act further provided and enacted that nothing therein contained should extend, or be construed to extend, to defeat, prejudice, or affect the right of any lord or lords of any manor or manors, common or waste grounds, or of any owner or owners of any lands or grounds in, upon, or through which the said canal or towing-paths, wharves, quays, reservoirs, trenches, sluices, passages, watercourses, or conveniences aforesaid, or any of them, should be made, to the mines, minerals, or quarries lying or being within or under the lands or grounds to be set out or made use of for such canal, towing-paths, wharves, quays, reservoirs, or other conveniences aforesaid, or any of them; but all such mines, minerals, and quarries were thereby reserved to such lord or lords of such manor or manors, or of such common or waste grounds, and to such owner or owners of such lands or grounds, respectively, their heirs or assigns; and that it should and might be lawful to and for the lord or lords of such manor or manors, common or waste grounds, or such owner or owners of such lands or grounds, respectively (subject to the conditions and restrictions therein contained), to work all such mines and quarries, and to take and carry away all such coals, ironstone, and minerals as should be gotten therein, to his and their own use; *providing, that, in working such mines [*248 and quarries, no injury were done to the said navigation; anything therein contained to the contrary notwithstanding: And the said act also contained divers provisions for the continuance and succession of a sufficient number of commissioners for putting the same in execution: And it was further enacted, that, upon application to be made by the said proprietors, their successors and assigns, or any five or more of them, or by the owners or occupiers of any grounds, lands, tenements, or hereditaments to be affected by the said intended canal, or any of the works necessary or relating thereto, unto the commissioners appointed by and for the purposes of the said act, or any five or more of them, requesting or desiring them to appoint a general meeting of the said commissioners, the commissioners so requested or applied to, or any five or more of them, might and should, and they were thereby respectively authorized and required, within fourteen days after such request or application made, to give notice in manner aforesaid (s. 30) of a general meeting to be held at such time and place as should be specified in such notice, such time not being less than fourteen days nor more than twentyone days from the day on which such request should be made to them as aforesaid: And it was by the said act provided and further enacted, that it should and might be lawful for any five or more of the said commissioners, and they were thereby empowered, although they should not be assembled at a meeting to be held by virtue of the said act, from time to time, and at all times, upon such request made as aforesaid, by notice in writing signed by them and published in manner required by the said act, to summon a meeting of the said commissioners at such time or place as should be mentioned in such notice, for the settling and ascertaining such damages as were therein *directed to be settled and ascertained, notwithstanding any adjournment or non-ad- [*249 journment of the said commissioners: And it was further enacted that every meeting of the commissioners for hearing or determining any complaint, controversy, dispute, or difference between the said proprietors,

their successors and assigns, and any other person or persons, should be held at some place within two miles of some part of the said canal; and that no order or determination should be made unless a majority of the commissioners present at such meeting should concur therein, such majority not being less than the respective numbers thereby authorized to make such orders or determinations: That, by an act passed in the session of parliament holden in the twenty-fifth year of the reign of King George the Third, intituled "An act for extending the Dudley Canal to the Birmingham Canal, at or near Tipton Green, in the county of Stafford," certain persons therein named, and their several and respective executors, administrators, and assigns were united and incorporated with and became part of the said company of proprietors of the Dudley Canal Navigation; and the said company of proprietors were thereby authorized and empowered to make, complete, and maintain a canal navigable for boats, barges, and other vessels, from the said Dudley Canal, in, through, and under (among other lands) certain lands then of John Lord Viscount Dudley and Ward, situate in the parish of Dudley, in the county of Worcester, into a cut or canal in the last-mentioned act mentioned; and that satisfaction and compensation should be made by the said company of proprietors to the said John Lord Viscount Dudley and Ward, his heirs or assigns, for the same out of the moneys to be raised by virtue of that act, such satisfaction and compensation to be settled and ascertained (in case the parties should not agree about

*250] *the same) in like manner as the satisfaction for any damage done by virtue of the act first aforesaid was thereby directed to be ascertained and settled: And the said company of proprietors of the Dudley Canal Navigation were thereby also authorized and empowered to make, erect, execute, do, and perform all such works, matters, and things as should be requisite and convenient for making, completing, and main-* taining the said last-mentioned canal, and the navigation thereof, and for supplying the same with water, in as full, ample, and beneficial a manner, to all intents and purposes, as the said company of proprietors were authorized and empowered to do, execute, and perform under and by virtue of the said recited act of the 16 G. 3, c. lxvi., with respect to the canal thereby authorized to be made; and it was thereby enacted that the said act first hereinbefore mentioned, and the several powers, authorities, clauses, provisoes, limitations, exceptions, exemptions, privileges, penalties, forfeitures, punishments, matters, and things therein contained for making, completing, preserving, and maintaining the canal and other works thereby authorized to be done, so far as the nature and circumstances of the case would admit, should be used and exercised by the said company of proprietors, and should be applied and enforced for making, completing, preserving, and maintaining the said canal by the said secondly-mentioned act authorized to be made, and also for making, erecting, executing, doing, and performing all such other works, matters, and things as the said company of proprietors should think necessary or expedient for the benefit of the said undertaking; and that the same persons who were appointed commissioners for putting the said recited act first hereinbefore mentioned in execution should be commissioners for the purposes of that act, that is to say, the act *secondly herein before mentioned, as fully and effectually to all *251] intents and purposes as if the several powers, authorities, clauses,

provisoes, limitations, exceptions, exemptions, privileges, penalties, forfeitures, punishments, appointment of commissioners, matters and things contained in the said first-mentioned act were repeated and re-enacted in the body of the said secondly-mentioned act, and as if the canal and other works by the said secondly-mentioned act intended to be made, completed, and maintained, had been part of the canal and other works by the said first-mentioned act intended to be made, completed, and maintained: That the said canal so authorized by the secondly abovementioned act was afterwards made in pursuance of such act, and the same canal was made and passed in, through, and under the said lands of the said John Lord Viscount Dudley and Ward in a tunnel for a long distance, to wit, the distance of 577 yards, and such canal was made and completed long before the plaintiffs had acquired any interest in the mines under the aforesaid land of the said John Lord Viscount Dudley and Ward, and before the passing of the act next hereinafter mentioned: That, by an act passed in the fifth year of the reign of King William the Fourth (c. xxxiv.), intituled "An act to consolidate and extend the powers and provisions of the several acts relating to the Birmingham Canal Navigations," it was enacted that the several persons and bodies politic therein named, their successors, executors, administrators, and assigns, should be united into and become one body corporate by the name of "The Company of Proprietors of the Birmingham Canal Navigations," and by that name should have perpetual succession and a common seal, and by that name should and might sue and be sued: That, by the Birmingham and Dudley Canal *Consolidation Act,

1846 (9 & 10 Vict. c. cclxix.), the said acts firstly and secondly [*252

herein before mentioned were repealed, and the said company of proprietors of the Dudley Canal Navigation were dissolved, and were as hereinafter mentioned incorporated and united with, and became part of, the said company of proprietors of the Birmingham Canal Navigations; but that by the said Birmingham and Dudley Canals Consolidation Act, 1846, it was provided and enacted that nothing in that act contained should affect or prejudice in any respect any rights, liberties, powers, easements, reservations, accommodations, guarantees, exemptions, or protections, which under or by virtue of (amongst others) the hereinbefore and thereinbefore recited acts of the 16th and 25th years of the reign of King George the Third, or any or either of them, were granted, continued, or reserved to or for the benefit of any persons or corporations whose respective estates, canals, mines, works, properties, or interests, were, had been, or might be in anywise affected in or by the making or maintaining or otherwise on account of the canals or works by the same acts respectively authorized, or by reason of the exercise of the respective powers by the same acts granted, or which any persons or corporations other than the Dudley Canal Company were or might be, or, but for the repeal therein contained of the same acts, or such portions thereof as aforesaid, would or might have been, entitled unto or competent to enforce; and that such several persons and corporations should be entitled to, and should have, use, and enjoy the same rights, liberties, powers, easements, reservations, accommodations, guarantees, exemptions, and protections, or so many of them as they would respectively have been entitled to if the said acts or such portions thereof as aforesaid had not been thereby repealed, and should have the like powers and remedies

*upon and against the said company of proprietors of the Bir

*253] mingham Canal Navigations (which company are the defendants in this suit) and any other persons for securing the possession, use, and enjoyment of such rights, liberties, powers, easements, reservations, accommodations, guarantees, exemptions, and protections under the said repealed acts, or any of them, as they would have had upon and against the Dudley Canal Company or such other person if the act now recited had not been passed; and, in every case in which under the repealed acts or otherwise any such right, liberty, power, easement, reservation, accommodation, guarantee, exemption, or protection was to be exercised, enjoyed, or enforced, with the consent, or under the superintendence, or subject to the control in any particular of the Dudley Canal Company, or the committee of management, officers, or agents thereof, the same should be exercised, enjoyed, or enforced in like manner and in the same particular, with the consent, or under the superintendence, or subject to the control of the defendants or their committee of management, officers, or agents, respectively: That, by the same act it was enacted, that, from and immediately after the passing thereof, the several persons and corporations who immediately before the passing thereof were proprietors of any shares or portions of shares in the capital of the Dudley Canal Company should be and were thereby incorporated with the said company of proprietors of the Birmingham Canal Navigations; and that, from and immediately after the passing of the act, all the canals and cuts made or executed by or for the use of, or which immediately before the passing of the act were vested in the Dudley Canal Company, and all other lands, buildings, works, easements, privileges, tenements, and hereditaments whatsoever, and of *whatever tenure, of or to *254] which the Dudley Canal Company immediately before the passing of the act and by virtue of the recited acts, any or either of them, or by any other means whatsoever, were seised, possessed, or entitled, at law or in equity, or which they could have used, exercised, or enjoyed in any manner, if the act had not been passed, or over which they had any right of disposition, should belong to and were thereby vested in the defendants for the same respective estates, interests, rights, and powers, and should thenceforth and to the extent of the same estates, interests, rights, and powers, form part of the Birmingham Canal Navigations and of the capital of that company: That, by a certain indenture of lease bearing date the 1st of April, 1837, and made between The Right Rev. Henry Lord Bishop of Exeter, The Right Hon. Edward John Baron Hatherton, Francis Downing, and John Benbow, Esqs., of the one part, and Samuel Evers and Robert Martin, coal and iron-masters and copartners (both since deceased), of the other part, the said parties thereto of the first part, as trustees under and in execution of the powers for that purpose contained in the will of the Right Hon. John William Earl of Dudley, deceased, granted, demised, and leased unto the said Samuel Evers and Robert Martin, their executors, administrators, and assigns, certain furnaces therein described, called The Parkhead Furnaces, therein mentioned to be situate in the parish of Dudley, in the county of Worcester, and certain messuages, lands, and premises therein described, and also all and singular the mines, beds, measures, and strata of coal called the Thick or Ten Yard Coal, The Heathen Coal, and the Brooch Coal, and of ironstone called The Gubbin Ironstone, and The White

[*255

Ironstone lying below the Thick Coal, and the Penny Earth Ironstone, and all other ironstone lying or which might be found above the Thick Coal, in and under all those said *lands therein before described and demised, annexed, and next and appurtenant to the furnaces therein mentioned, or so much and such part thereof as should not be within thirty yards of any of the buildings therein mentioned, which parts were to be left for the preservation of such furnaces and buildings; and also in and under certain messuages or dwelling-houses, yards, gardens, roads, closes, pieces or parcels of land, and premises therein described, which said several premises contained together, by admeasurement, including the site of the buildings, 80a. Or. 8p., or thereabouts, and belonged to the said lessors as such trustees as aforesaid; together with full and free liberty, power, and authority to and for the said lessees, their executors, administrators, and assigns, and their miners, agents, workmen, and servants, to enter into and upon certain parts of the lands and hereditaments therein before secondly described as were not then in their own occupation, to occupy so much and such part and parts thereof as might be necessary or convenient for the carrying on of the working of the said mines, they the said lessees, their executors, administrators, and assigns, first giving such notice and paying compensation as in the said indenture was expressed; and also with like full and free liberty and authority to and for the said lessees, their executors, administrators, and assigns, to make, construct, and set up such engines, gins, and other machinery and erections upon the said lands, or any part thereof, and to open, sink, drive, work, and make such pits, shafts, adits, canals, watercourses, fences, soughs, tunnels, drains, ways, paths, passages, roads, and railways in and upon or under the same lands, or in, under, or upon any part or parts thereof, as should be requisite for the purpose of working the said mines of coal and ironstone, and getting, stacking, consuming, converting, carrying *away, and disposing of the produce thereof, or for the purpose of burning coke from [*256 the coal gotten out of the said mines, or of calcining the ironstone raised and gotten therefrom, and also for the carrying away and disposing of the same coal and ironstone, and the coke made therefrom, and to work, get, raise up, stack, carry away, sell, consume, convert, and dispose of for their own use and benefit, the produce of the said mines of coal and ironstone and every part thereof, and generally to do and perform all such acts, matters, and things as might be requisite or necessary to be done and performed in, upon, or under the said lands and premises therein before secondly described, and as are usually permitted to lessees in leases of the same or the like nature as the now stating demise, for the purpose of getting, converting, selling, consuming, disposing of, and carrying away the produce of the said mines of coal and ironstone to the greatest advantage, except and reserved as in said indenture mentioned and expressed,-To hold the same unto the said lessees, their executors, administrators, and assigns, from the date of the now stating indenture for the term of twenty-one years, at the rents and royalties thereby reserved, and at a minimum rent of 20007., and subject to the covenants and stipulations therein contained: That the mines which the plaintiffs abstained as hereinafter mentioned from getting, are part of the mines demised by the last-mentioned indenture: That, by an indenture dated the 21st of June, 1841, and made between the said Samuel Evers of the C. B. N. S. VOL. IX.-11