such compensation for the value of such lands, &c. and hereditaments, or for any damage that shall be done thereto in the execution of any of the works by this act authorised to be made, as shall be ascertained in the manner mentioned in the act; and the said commissioners may enter upon, and thenceforth, for ever, have, take, and enjoy the said lands and hereditaments for the purposes of the said act. Littledale, J.—This is the first application I remember for a compensation for loss of tithe, sustained by a rector by reason of land having been converted to a purpose which rendered it incapable of producing tithe. If the Legislature had intended that the rector should have such compensation, they would undoubtedly have introduced into the act an express provision for that purpose. Without an express enactment, it is quite clear that the rector can have no right to such compensation. It is insisted, that, the right of the rector to take tithe being an incorporeal hereditament, he is entitled to compensation, because he is a person interested in an hereditament. I think it is not an hereditament within the meaning of that word in this act of Parliament. It is true that he may have sustained damages by reason of the commissioners having taken the land, and thereby rendered it incapable of producing tithe. That is not a damage which the law considers as constituting any injury to the rector. There must be a damage accruing from the wrongful act of another to constitute a civil injury. If the owner of the land had suffered it to lie waste, and thereby rendered it incapable of producing tithe, the rector would sustain a damage, yet he could not maintain any action against the landowner, because the damage would not have been caused by any wrongful act. The commissioners have probably purchased the soil from the former owner, and thereby acquired the rights of owners. If that be so, they are entitled to use the land in such a manner that it shall not produce tithe. The other judges concurred. Rule refused. The Barnsley Canal Company v. Twibell, (13 Law Journal, Reports in Chancery, 434).]—This case came on upon a motion to dissolve an injunction which had been granted to restrain the defendant from proceeding before a jury, summoned by the commissioners under the Barnsley Canal Act, to ascertain the compensation to which he might be entitled for his interest in certain coal, which the plaintiffs required to be left for the security of the canal. The question turned on the construction of a local act, 33 G. 3, by which the plaintiffs were in Compensation Where 200 acres of titheable land were taken and converted into a person before the act passed had done anything to deteriorate the water of the river, these parties could have brought an action as for a private injury to their property. Scarlett argued that they might, and that there were instances where persons, having acquired the right to use the water of rivers for their own purposes, had maintained actions on the case against those who disturbed them in the enjoyment. But by Lord Ellenborough, C. J.-Those were cases where the owners of the property by long enjoyment had acquired special rights to the use of the water in its natural state as it was accustomed to flow, by way of particular easement to their own properties, and not merely a use which was common to all the king's subjects. But here the injury, if any, is to all the king's subjects; and that is the subject-matter of indictment and not of action; if the salubrity of the air were impaired in consequence of the docks, every inhabitant of the place might as well claim a compensation. For general injuries, common to all the subjects, the remedy is by indictment; but that, I suppose, is taken away by the act (which was admitted): then the act has taken away the only remedy which the law would have given for this general injury. Le Blanc, J.-These persons have no more claim to compensation than every inhabitant would have who had been used to dip a pail into the river for water for the use of his horse. Rule refused. Rex. v. The Commissioners of the Nene Outfall, (9 B. & C. 875).]— Mandamus, requiring the defendants to assess compensation to the canal:-Held. that, Rev. T. Bennett, for damage done to his rectory and vicarage. as the act which authorised the taking of the land contained no express provision in favour of the tithe-owner, he receive any com pensation for being deprived of the tithes which would otherwise have issued from It appeared that the applicant was entitled to the tithes of the parish of Long Sutton, and that the defendants had purchased 200 acres of land, which were formerly productive of tithe. The defendants afterwas not entitled to wards cut a channel through the land, so that it was incapable of bearing corn or grass, or any other titheable produce. In support of the present application, sect. 34 of the act, which authorised the making of the canal, was referred to. It enacts, that it shall be lawpriated so appro- ful for all bodies politic, &c., and other persons under any legal disability, and for all other persons whomsoever, who shall be seised, &c. of any lands, &c. or hereditaments which shall be wanted for any of the purposes aforesaid, to contract for and sell the same lands, &c. or hereditaments, and to convey and assure the same unto the said commissioners, absolutely and in fee simple. By the 35th section, all bodies corporate, &c., and other persons, shall accept and receive such compensation for the value of such lands, &c. and hereditaments, or for any damage that shall be done thereto in the execution of any of the works by this act authorised to be made, as shall be ascertained in the manner mentioned in the act; and the said commissioners may enter upon, and thenceforth, for ever, have, take, and enjoy the said lands and hereditaments for the purposes of the said act. Littledale, J.-This is the first application I remember for a compensation for loss of tithe, sustained by a rector by reason of land having been converted to a purpose which rendered it incapable of producing tithe. If the Legislature had intended that the rector should have such compensation, they would undoubtedly have introduced into the act an express provision for that purpose. Without an express enactment, it is quite clear that the rector can have no right to such compensation. It is insisted, that, the right of the rector to take tithe being an incorporeal hereditament, he is entitled to compensation, because he is a person interested in an hereditament. I think it is not an hereditament within the meaning of that word in this act of Parliament. It is true that he may have sustained damages by reason of the commissioners having taken the land, and thereby rendered it incapable of producing tithe. That is not a damage which the law considers as constituting any injury to the rector. There must be a damage accruing from the wrongful act of another to constitute a civil injury. If the owner of the land had suffered it to lie waste, and thereby rendered it incapable of producing tithe, the rector would sustain a damage, yet he could not maintain any action against the landowner, because the damage would not have been caused by any wrongful act. The commissioners have probably purchased the soil from the former owner, and thereby acquired the rights of owners. If that be so, they are entitled to use the land in such a manner that it shall not produce tithe. The other judges concurred. Rule refused. The Barnsley Canal Company v. Twibell, (13 Law Journal, Reports in Chancery, 434).]—This case came on upon a motion to dissolve an injunction which had been granted to restrain the defendant from proceeding before a jury, summoned by the commissioners under the Barnsley Canal Act, to ascertain the compensation to which he might be entitled for his interest in certain coal, which the plaintiffs required to be left for the security of the canal. The question turned on the construction of a local act, 33 G. 3, by which the plaintiffs were in Compensation coals so reserved: -Held, that the lessee was nevertheless entitled to tion for the loss of the profit which he would have made on the coal, if he had not ed from working the colliery. corporated; and by sect. 40, it was declared, that the act was not to prejudice or affect the right of any owner to the minerals under any of the land taken by the company; but that it should be lawful for them (subject to the restrictions thereinafter contained) to work and receive compensa- get the minerals, not thereby injuring the said canal. And it was further enacted, that, "if the owner or worker of any coal mines should, in pursuing such mine, work so near, in the opinion of the been thus restrain- said company, to the said canal, as to endanger or damage the same, or, in the opinion of the said owner or worker of the said mines, to endanger or damage the further working thereof, then it should be lawful for the company to treat and agree with the owner or worker for all such coal as might be near or under the said canal, as should be thought proper to be left for the security of the said canal or mine as aforesaid." And in case the company and the worker of any such mine could not agree as to the amount of compensation, it was to be settled by a jury, as thereinbefore mentioned; and, upon payment of the money, the owner or worker of such mine was to be perpetually restrained from working such mine within those limits. It appeared that the canal had been completed for several years, and it passed for 495 yards through the estate of Mr. Beaumont. The defendant was lessee under Mr. Beaumont. Mr. Beaumont was entitled to the coal under the canal and towing-path; but he was not entitled to the coal under the land on each side of the canal, because the defendant had, under his lease, a right to get it, upon paying Mr. Beaumont a certain consideration. It also appeared, that the plaintiffs had served the defendant with a notice not to touch the coal within eight yards of either side of the canal, and the defendant claimed £550 for compensation. The plaintiffs afterwards paid Mr. Beaumont a sum of money for his interest in the coal under the canal, and under the eight yards on each side; but refused to pay the defendant any compensation, and filed the present bill. The Master of the Rolls.—It is argued that the plaintiffs had paid the whole value of the coal to Mr. Beaumont, and that nothing more can be required from them. Having, as they say, paid to Mr. Beaumont the full value of the coal in the bed, they are under no obligation to give to the defendant any compensation for profit which he might have made by selling the coal which he intended to obtain under his lease, and the rather, because the act of Parliament informed the defendant of the plaintiffs' powers, and that he was not to work so as to injure the canal. And it was further argued, that the court to be constituted under the act is only to determine the compensation in cases where it is agreed, or in some way decided, that some compensation is to be paid; the court, as it said, having no jurisdiction to decide the question, whether any or no compensation is to be paid. I consider it to be clear that the plaintiffs are not entitled to an injunction, if the defendant be entitled to any compensation, the amount of which has to be ascertained; and I am of opinion, that the defendant, under his lease, had an interest in the coal under the eight yards on each side of the canal; he had a right to get the coal and to sell it, upon paying the sums which became due to Mr. Beaumont. Upon this dealing, there might have been profit, which he is prevented from making. The value of the coal in the bed, or the price paid to the coal-owner, can be no compensation to the coal-worker for the loss of the interest which he had acquired. The ground on which it is argued that he should have no compensation is, that when he took his lease he had notice, or was informed by the act of Parliament, that he was not to work the coal so as to injure the canal. But, at the time when he took his lease, he had no notice that the plaintiffs would require eight yards of breadth of coal to be left on each side of the canal. The coal under the canal was not comprised in his lease, and he had no interest in it; but he did not know that the plaintiffs would require more or less than eight yards, or, indeed, any breadth of coal, on each side of the canal. He knew that he was not, by working his coal, to injure the canal; he also knew that the plaintiffs were entitled to inspect his workings, and, if he worked contrary to the directions of the act, were entitled, at his expense, to make the repairs rendered necessary by his improper working; but as the plaintiffs did not think fit, for so many years, to give any notice as to the quantity of coal, if any, which they required to be left, it does not appear why the defendant might not enter into an agreement for working and getting all the coal comprised in his lease. I think it very probable that the powers given by the act might have been so exercised as to enable the plaintiffs to buy the coal under the canal, and a reasonable distance on each side of them, at the value of the coal in the bed; but, for reasons of their own, they probably desired to delay the notices as long as they could; they left it quite uncertain whether they would or would not require any coal to be left for the safety of the canal, and I think that they cannot justly complain of any rights which the coal-owners may have conferred on the coalworkers during the time that their notices were delayed for their Compensation |
