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Compensation

Cases.

own convenience. And, under the circumstances, I am of opinion, that the defendant lawfully acquired an interest in the coal which the plaintiffs desire to be left for the safety of the canal. Injunction dissolved.

A party who sus

Fenton v.

The Trent and Mersey Navigation Company, (9 Mee. & W. tains damage by reason of being

203; S.C., 2 Railway Cases, 837).]-The plaintiff brought an action on prevented from working mines the case against the defendants, for damages sustained by him. The deadjacent to a canal, must, in claration, after referring to 1 W. 4, c. lv, an act relating to the navi. order to obtain compensation, gation from the Trent to the Mersey, stated, that the plaintiff was the pursue the remedy provided by the owner of certain mines and minerals within the distance of 40 yards statute. He cannot, there. from the tunnels belonging to the defendants, under Harecastle hill, fore, maintain an action on the case, and which mines had become and were workable in the regular course where the statute directs a feigned of working ; whereupon the plaintiff had given notice to the defendssue (n).

ants, and required them to make satisfaction to the plaintiff for his interest in all such parts of the said mines as shall be required by the defendants to be left ungotten or unworked for the preservation of their tenants and works, &c. Averment, that the defendants had required that the said mines should be left unworked, and that the same were, in pursuance of the said notice, left unworked accordingly; nevertheless, the defendants had neglected to pay the plaintiff the value of the said mines and minerals. Plea, that the plaintiff had not delivered to the defendants a declaration in any action upon a feigned issue, in respect of the said mines and minerals. Demurrer and joinder.- The plaintiff's title to compensation was not disputed; but the question raised by the demurrer was, whether the plaintiff was entitled to maintain an action on the case. The case turned upon the construction of several sections of the statute, which are fully stated in the judgment of the court.

Rolfe, B.—This act is certainly obscure, but we have come to the conclusion that the only remedy is that of a feigned issue. The company is empowered, in the ordinary way, to take lands, and, by the 118th and subsequent sections, provision is made for ascertaining, by a jury, the sum to be paid, as well for the land taken as for any damage occasioned by the company. But this is not all. The navigation, it seems, traverses a mining district, and passes through two tunnels under Harecastle hill ; and, by section 170, it is provided, that no mine

(n) See Lyster v. Lobley, 7 Ad. & E. 124, post, 238 ; R. v. North Mid

land Railway Co., 2 Railway Cases, 1, ante, 195.

Compensation

Cases.

owner shall work any mine within forty yards of the tunnels without leave of the company. Section 171 enacts, that, if the company, instead of insisting on their full right of having forty yards left unworked, should require less than thirty yards to be so left, then the mine-owner may insist on the necessity of leaving, for his security, any greater quantity unworked, not exceeding thirty yards; and the question so in dispute, as to the quantity necessary to be left for the security of the mine-owner, is to be tried, settled, and determined by an issue at law. The 172nd section provides, that whenever any mine becomes workable within forty yards of the tunnels, the mine-owner shall give notice to the company, and thereupon the company shall pay to the mine-owner for so much of the mine within the forty yards as they shall require to be left unworked, or for so much of the mines as, under the provisions of section 171, it may be ascertained to be necessary to leave unworked for security of the mines ; provided that no mines shall in any case be worked under the tunnels ; but whenever any such last-mentioned mines shall become workable, satisfaction shall be made by the company for the same, “such satisfaction to be ascertained, fixed, and determined by an issue at law.” There is no doubt but that, by the express terms of the 172nd section, the plaintiff is entitled to be paid for the value of the forty yards of mine left unworked for the security of the navigation, and the only question is, by what proceeding he is to enforce his right. It may be conceded, that the more obvious construction of this section would refer the words “such satisfaction" &c. only to the satisfaction immediately preceding, namely, the satisfaction to be paid, at all events, for the mines left unworked under the tunnels. There is, however, nothing grammatically incorrect in referring the words “such satisfaction” to every species of satisfaction mentioned in the clause ; namely, to the payment to be made for mine within the forty yards, for mine within the thirty yards, and for mine actually under the tunnels ; and, in furtherance of what we cannot but suppose must have been intended by the Legislature, and to avoid the strange incongruity of having one mode of deciding questions as to the value of mine within forty yards of the tunnels, and another as to the value of mines along the rest of the line of the canal, and under the tunnels theniselves, we feel bound to adopt the latter construction of the words “such satisfaction,” and to hold them applicable to every case for which satisfaction is made payable under the 172nd section. The defendant is therefore entitled to the judgment of the court.

Compensation

Cases.

3. Compensation Cases, on Claims made by Lessees of Lands.

Where a statute gave compensation

year to year who

otherwise."

tled to compensa

that she had been

her landlord that she should hold

her rent.

But where a te

at three months' notice, at any

Ex parte Farlow, (2 B. & Ad. 341). ]- This was a rule for a mandato any tenant from mus to the Hungerford Market Company, requiring them to assess might sustain injury“ in respect

compensation to one Ann Farlow. The company were incorporated of any interest whatsoever, for

by 11 G. 4, c. lxx. Section 17 enacts, that every lessee or tenant for goodwill, improveinents, te

years or at will, and every other person, should deliver up possession nants' fixtures, or

of their premises to the company at three months' notice, the comHeld, that a tenant from year to year,

pany making such compensation to the tenant or lessee, in case he whose tenancy had should be required to quit before the expiration of his term, as they

to by a legal notice

should think reasonable. Section 19 provides, “ that any person, teto quit, was entition, it appearing

nant for years, from year to year, or at will, or occupier of any part

of the market, and other hereditaments, who may sustain or be put many years in possession under an assurance from unto any loss, damage, or injury, in respect of any interest whatso

ever, for goodwill, improvements, tenants' fixtures, or otherwise, the premises as long as she paid which they now enjoy, by reason of the passing of this act,” shall re

ceive compensation from the company in the manner therein prenancy was for one scribed. Ann Farlow was the widow of a person who had carried on year, determinable

the business of a carman on the premises in question. It did not time, with a stipu. appear that John Farlow had any lease ; but he and his father had derletting, except been tenants of the property for sixty years. The widow occupied leave :-Held, that them from the time of her husband's death, as tenant from year to no compensation

year, and continued the business. At Midsummer, 1830, after the passing of the act, she received notice to quit; and she in consequence required the company to give her compensation. In support of the rule, it was sworn, that the loss to this party would be very great; that her husband had laid out large sums of money on the premises, being assured by the then proprietor that he should not be disturbed in his possession as long as the rent was duly paid. On the expiration of the time specified in the notice to quit, an ejectment was brought on behalf of the company, and while this rule was depending they recovered possession.

Lord Tenterden, C.J.-In this case a mandamus ought to go. It appears that a contract had been made by a new company to purchase a very considerable estate, used as a market. [His lordship referred to sect. 17 of the act.] Then comes the 19th section; and this appears to me to have been intended to provide for that feeble and imperfect interest which many occupiers had in the premises to be contracted

was recoverable,

Compensation

Cases.

for by this company. It was likely to be foreseen by the legislature, that, when the company was established, and the proceedings taken, which this act had in view, many occupiers of premises in the old market would be dispossessed; and if it was considered that this might be done in the ordinary way, by ejectment, and that the parties should then have no right or claim against the company, I do not see why the 19th section should have been framed. That section is certainly obscure, and incorrectly worded. It is said, “ the interest which they now enjoy,” must be taken to mean a legal interest, and that all legal interest was determined by the notice to quit. But I think this is not the fair meaning of the words, and that they must be understood as signifying that sort of right which an occupier ordinarily has, of parting with his tenancy to another person for such sum as he may be induced to give for good-will, fixtures, and improvements, and which is often very considerable, though the tenancy be only from year to year, where there is a confidence that it will not be put an end to. This interest, feeble as it may be, (since it is always determinable at a short notice), may justly be considered as matter of value to the owner, and to any other party who becomes the purchaser. The other judges concurred.—Rule absolute.

Other writs of mandamus were applied for on behalf of other persons who also claimed compensation under the above act; but these rules were discharged, upon the ground that the agreements under which the applicants held their premises enabled the landlord, after the expiration of the first year of their tenancies, to give the tenants three months' notice to quit, and also contained a stipulation that the tenants should not underlet or give up the possession of the premises without the lessor's permission in writing.

to hold the pre

were wanted:

Rex v. The Hungerford Market Company, (4 B.& Ad.592). Man. And where a lessee damus, requiring the defendants to assess compensation to one John term had expired, Still, under the stat. 11 Geo. 4, c. Ixx (o). It appeared that the from the company party took the premises at Christmas, 1828, as tenant from year to mises until they year, and paid the outgoing tenant £412 for goodwill and fixtures, Held, that his unand expended large sums of money in improvements ; that since the year to year was passing of the act the company had given him notice to quit, and had compensation

when he quitted brought an action of ejectment against him, which was still depend- possession. ing; and had also, by pulling down the neighbouring houses, ren

(0) See ante, 224.

Q

Com ensation

Cases.

dered his house so unsafe that it was condemned by the annoyance jury, and the parish authorities were taking it down. On behalf of the company it was sworn, that the applicant's house was upon an estate purchased by them; that by their agreement with the vendor, (the superior landlord), they were to be entitled to the rents of the estate from the 24th of June, 1830, on which day the then existing lease of the premises expired ; that the company, on applying to Still, were informed that one Mr. Tritton was his landlord, and thereupon they requested him to see Tritton, and refer him to the company; that shortly after the 24th of June it was communicated to them that Tritton wished to hold the premises till the company wanted them; and it was agreed between him and the company, that, when possession was required, the company should leave notice for Tritton on the premises, and he would then deliver them up. On the 29th of September, 1831, the company left notice accordingly for the representatives of Tritton (he being dead) to quit on the following Lady-day. Per Curiam.—There is no material distinction between this case and Ex parte Farlow (P). There was a chance of the tenancy being continued.-Rule absolute.

And, under the same statute, the

Rex v. The Hungerford Market Company, (4 B. & Ad. 596).—Manassignee of a lessee damus to the defendants, on the application of one Gosling, requiring held to be entitled them to assess compensation to him. It appeared that one Wise had for the loss of his demised the premises in question to Day, for fourteen years from the newal of the lease; 25th of March, 1818. Gosling purchased of Day the lease, goodwill

, incurred in respect and fixtures, in February, 1823; Day informing him that he might of fixtures and improvements. rely on a renewal of the lease if he conducted himself well. Gosling

made considerable improvements on the premises, where he carried on the business of a confectioner; and it was stated, that, while these were going on, Wise's agent told him that Wise never tumed away a good tenant. The lease expired at Lady-day, 1832, and the company brought ejectment against Gosling and turned him out. It was sworn, that the custom on the estate had been, not to dismiss tenants who conducted themselves well. In answer it was sworn, that the premises were part of the estate purchased by the company

of Wise, pursuant to agreement entered into before the passing of the act, subject to certain outstanding leases, (mentioned in the act), of which the le in question was one. That the tenant, by that lease,

(P) See ante, 224.

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