The learned judge pointed out that this distinction is as applicable to works executed for one purpose as another. "It is pointed out by Lord Campbell in The Southampton Itchin Bridge v. The Southampton Local Board of Health (x) that in every case the liability of a body, created by statute, must be determined upon. a true interpretation of the statute under which it is created. And if the true interpretation of the statute is that a duty is cast upon the incorporated body, not only to make the works authorized, but also to take proper care and use reasonable skill, that the works are such as the statute authorizes, or, as in the present case, to take reasonable care that, they are in a fit state for the use of the public who use them; there is, with great deference to Lord Cottenham, nothing illogical or inconsistent in holding that those injured by the neglect of the statutable body to fulfil that duty thus cast by the statute upon it, may maintain an action against that body, and be indemnified. out of the funds vested in it by the statute" (y). The House of Lords gave judgment in accordance with this opinion of the judges (z).

We shall now proceed to notice in detail some of the principal points of the law relating to-I. Canals; II. Water Supply; and III. Docks.

I. Canals.

A canal may be defined to be an artificial highway by water Definition of constructed for the benefit of the public by adventurers authorised canal. by the legislature to take tolls for its use, as a compensation for their risk and labour in the undertaking.

It differs from a river navigation chiefly in the fact that the company or proprietors working it do so for their own profit, and usually have the soil of the canal vested in them by the terms of their Act, whilst the trustees of a river made navigable by Act of Parliament appear usually to have a mere possession of the soil for the purposes of improving the navigation, and, like dock trustees, to be bound to apply the profits for the future benefit of the public (a).

(z) 8 E. & B. 801-812.

(y) See Ward v. Lee, 7 E. & B. 426; Clothier v. Webster, 12 C. B. (N.s.) 798: Ruck v. Williams, 3 H. & N. 308; Whitehouse v. Fellowes, 10 C. B. (N.S.) 765: Brownlow v. Metropolitan Board of Works, 13 C. B. (N.S.) 768; 16 C. B. (N.S.) 546.

(z) For further cases as to liability of harbour and dock authorities, see post, pp. 354 et seq.

(a) See ante, Chap. II., p. 105; and cf. Thames Conservators v. London Port Sanitary Authority, [1894] 1 Q. B. 647; Thames Conservators v. Smeed, [1897] 2 Q. B. 334; Blantyre (Lord) v. Clyde Navigation Trustees (1881), 6 A. C. 273.

L.W.

19

Canal companies.

Rights of canal companies defined and limited by Act of Parliament.

"Canals," said Bayley, J., in Rex v. Nicholson (b), "are real property; they are land applied to a particular purpose, and the tolls are the profits arising from that use of the land, and are given to the proprietors as a compensation for the use of it in that manner."

Pollock, C.B., in the case of Manly v. St. Helens Canal Co. (c), thus defined the status of the undertakers: "The owners of this canal are to be looked on as a trading company, who, though the legislature permits them to do various acts described in these statutes, are to be considered as persons doing them for their own private advantage, and are, therefore, personally responsible if mischief ensues from their not doing all they ought, or doing in an improper manner what they are allowed to do."

The method, therefore, hitherto pursued in treating of natural streams manifestly cannot be applied to the consideration of artificial waterways like canals. The ownership of the soil, and the rights and duties incident to canal proprietors, are in each case defined and limited by a particular private Act to which reference must be made in all cases involving the consideration of any of these points. In order to ascertain the law on this subject it will be necessary to examine the construction that has been put upon this class of enactments, for the purpose of arriving at general rules with regard to it (d).

In order to consider the principles which have been followed in the construction of the private Acts incorporating canal companies, it will be well to state briefly what is the general nature of these enactments (e).

They usually vest the ownership of the soil of the bed and banks of the canal in the undertakers, with certain reservations to landowners, and empower the corporate body thus formed to levy tolls for the purpose of carrying on the navigation which exists for the benefit of the general public, though they themselves are not precluded from being carriers on their own canals. The company are bound to abstain from any act which may cause inconvenience or injury either to public or private owners when carrying out their works (f), and to submit in certain cases

(b) 12 East, 330; 11 R. R. 398.

(c) 2 H. & N. 840.

(d) There are, however, a certain number of general public statutes regulating the traffic on canals, the charges of companies, and the liabilities of the owners of barges plying on them. See for these, post, Chap. VII., pp. 503 et seq. (e) See post, Chap. VII., pp. 490 et seq.

(f) Geddis v. Bann Reservoir, 3 A. C. 430, H. L. Ir.; Att.-Gen. v. Bradford Navigation, 35 L. J. Ch. 619; Reg. v. Delamere, 13 W. R. 757; Preston v. Norfolk Rly. Co., 2 H. & N. 735.

to the due exercise of the rights of others where such rights do not interfere with their own (g).

Such is the general tenor of these enactments, which are to be regarded as the form of contract between the public and the company. "Every Canal Act," as was said by Lord Tenterden, C.J., in Stourbridge Canal v. Wheely (h), is to be considered as a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this that any ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing which is not clearly given to them by the Act. This rule is laid down in distinct terms by the Court in the case of The Hull Dock Co. v. La Marche (i), where some previous authorities are cited; and it was also acted upon in the case of The Leeds and Liverpool Canal Co. v. Hustler” (k).

We will now proceed to consider the various decisions on particular enactments incorporating canal companies in the following order :

1. Such as relate to the ownership of the soil;

2. Such as turn on the rights and duties of canal companies

to other proprietors;

3. Such as refer to their duties towards the public in respect of the navigation.

the soil vested in proprietors, but only for the purposes

The soil of canals is, as a rule, vested in the proprietors Ownership of absolutely by the terms of their Act, though only for the purposes for which they are incorporated (). Thus 16 Geo. 3. c. 28, an Act for making and maintaining the Stourbridge Canal, empowers the company "to purchase lands for the use of the navigation, and vests the lands acquired by a voluntary or

(g) Monmouth Canal Co. v. Hill, 4 H. & N. 121; London and Birmingham Rly. v. Grand Junction Canal, 1 Rail. Cas. 224; Blakemore v. Glamorganshire Canal, 2 C. M. & R. 133; Glamorganshire Canal v. Blakemore, 1 C. & F. 262.

(h) 2 B. & Ad. 793; 36 R. R. 746; see Parnaby v. Lancaster Canal, 11 A. & E. 223; see, too, the remarks of Lord Eldon and Lord Lyndhurst in Blakemore v. Glamorganshire Canal, 1 M. & K. 162, 169; 1 C. & F. 262;

36 R. R. 289.

(i) 8 B. & C. 51; 32 R. R. 337.

(k) 1 B. & C. 424; 36 R. R. 746, 748; cf. Lord Brougham in Stockton and Darlington Rly. v. Barrett, 11 Cl. & F. 590; 8 Scott, N. R. 641; Glamorganshire Canal v. Blakemore, 1 Cl. & F. 262.

(I) Bostock v. North Staffordshire Rly. Co., 4 E. & B. 798; National Manure Co. v. Donald, 4 H. & N. 8. If the canal undertaking ceases to exist, the land reverts to its original owners: In re Woking Urban Council (Basingstoke Canal) Act, 1911, [1914] 1 Ch. 300; 83 L. J. K. B. 1264.

of their Act.

Reg. v. Archbishop of York.

compulsory sale in the proprietors for the use of the navigation, and for no other use or purpose whatsoever" (m).

They may, however, under certain circumstances, have a mere possession of land without being the owners thereof; as where the proprietor of the soik gives permission to a company to make erections, such as a dam or mound, upon it (n), and such possession has been held to entitle them to maintain trespass (n).

The powers of companies vary considerably in this respect; and in each case, as was said by Lord Tenterden in Stourbridge Canal v. Wheely (m), "the canal having been made under the authority of an Act of Parliament, the rights of the company are derived entirely from that Act." As has been stated, however, whatever the extent of the ownership may be, it is permitted solely for the purposes of the Act.

Thus a canal company, incorporated by Act of Parliament and having powers to take water for supplying their canal, cannot by user acquire an easement to take water for any other purpose, and the easement to take water to fill a canal ceases when the canal ceases to exist (o).

So, too, where an Act incorporating a canal company empowered them to acquire lands compulsorily, which were to vest by the Act in the company in fee simple, "for the use of the said navigation, and to or for no other purpose or use whatsoever," but reserved to proprietors of purchased lands the minerals and fishery over their lands, and the right to use pleasure boats over the whole canal and reservoir, it was held that the North Staffordshire Railway Company, in whom such rights and property were vested by a subsequent Act, could not lawfully use the lake or reservoir for any other purpose than supplying the navigation with water, and an injunction was subsequently granted to restrain them from holding a regatta thereon, and also from letting out boats for hire (p).

In Regina v. Archbishop of York (q), B. was empowered to make a canal, to supply it from brooks, &c., and to inclose and appropriate lands proper for wharfs, quays, &c. Nothing was

(m) 2 B. & Ad. 793; 36 R. R. 746; as to power of a canal company to dedicate land as a public footpath, see Grand Junction Canal v. Petty, 21 Q. B. D. 273; 57 L. J. Q. B. 572; 59 L. T. 767; and R. v. Leake, 5 B. & A. 469; 39 R. R. 521; and ante, pp. 98 et seq.

(n) Dyson and Another v. Collick, 5 B. & A. 600; 24 R. R. 484; S. C., 1 D. & R. 225.

(0) National Manure Co. v. Donald, 4 H. & N. 8; see Staffordshire and Worcester Canal v. Birmingham, L. R. 1 H. L. 54; see ante, p. 251, post, p. 312.

(p) Bostock v. North Staffordshire Rly. Co., 4 E. & B. 798. See also Hill v. Tupper, 9 Jur. (N.S.) 725; and ante, pp. 225 et seq.

(q) 14 Q. B. 81.

to authorise his using the lands for anything else than navigation. The works and things made in forming certain parts of the canal were to be B.'s property. A stream had been dammed up to feed the canal, forming a pool. This pool had been lowered and reduced in size. On part of the ground so recovered, B.'s successors had built limekilns, &c.-Held, that no right to the soil of the lands adjoining the canal, and applied to the purposes of the canal other than those works and things used in forming the canal, passed to B. where there had been no actual purchase.

In The Rochdale Canal v. Radcliffe (r), an Act for establishing Rochdale Canal v. a canal company provided that it should be lawful for owners Radcliffe. of lands within twenty yards of the canal to draw off water for the sole purpose of condensing steam; such water to be returned to the canal, so that no damage should be done to the navigation. Defendant being tenant of a certain mill, drew off more water than was used for condensing. He set up a claim, as a right, to do so by twenty years' user. It was proved that the defendant had an old mill which had existed for twenty years, and that he had added a new mill within twenty years, communicating with the old one. The water was used for both. The existence of a cistern claimed in plea was not proved:-Held, first, the justification in respect of a certain mill was supported by proof of defendant having used the water of the old mill for twenty years. Held, also, the failure of proof as to the cistern did not entitle plaintiffs to an entire verdict.

The plaintiffs moved for judgment non obstante veredicto:Held, that the company could not, consistently with their Act of Parliament, have granted water for uses not sanctioned by these Acts; that an actual grant, if proved for the purposes stated in the plea, would have been illegal, and that, therefore, a grant implied from twenty years' user was no legal defence (8).

"This is a claim," said Erle, J., "to acquire a servitude on the canal by virtue of twenty years' user. The party seeking to establish such a claim must shew a grant by a person capable of making the grant relied on. Now the grant here is by a person having no distinct ownership of the water, but entitled only to the flow of it for purposes of the navigation, and having no right to the surplus (which was given by the Act to the Duke of Bridgwater). If it appeared by direct evidence that the company had made a grant to the purport now supposed,

(r) 18 Q. B. 287; 21 L. J. Q. B. 297.

(s) 18 Q. B. 287; cf. Rochdale Canal Co. v. King, 14 Q. B. 122, 136; see ante, pp. 251 et seq. post, p. 312. As to a prescriptive claim by a canal company to take more water from a river than they were entitled to by their Act, see ante, p. 223.