Reservations of rights to proprietors of lands adjoining.

Fishery.

Roads and bridges.

setting out this title, that grant would have appeared to be against the right of the public, and void on the face of it. The twenty years' user, therefore, could establish no right."

A verdict having been obtained for nominal damages only, in the above case, it was held that the plaintiffs would have been entitled to an injunction, having sufficiently established their right at law, had it not been for their negligence (t).

Reservations of fishery, mines, roads (u), bridges (x), and such like rights, to the proprietors of lands on canals, are not uncommon in most of the Acts, which, it may be noted, ordinarily contain clauses empowering proprietors to sell, as well as those authorising companies to buy, lands (y).

Thus, where a Canal Act empowered the lord of any, manor, and the owner of any lands through which the canal should be made, to erect and use any wharves, quays, &c., in or upon their respective lands, and to land goods, &c., provided they did not prejudice or obstruct the navigation or towing-paths, it was held that an adjoining owner had a right to erect a wharf on his own soil, and to land goods on the towing-path, and convey them across to his wharf (z).

Where the right of fishery in a canal is not specified by the Act to belong to the owners of the land on which the canal is made, as it sometimes is (a), it belongs to the canal company, who can do what they like with it (b).

Some Acts contain provisions for the benefit of mineowners with regard to the transport of minerals along canals passing through their lands (c). Thus in Birmingham, Canal Navigation Proprietors v. Hickman (d), by 5 Will. 4. c. 34, the B. Canal Co. were to make such bridges over their canals as two or more justices should “from time to time judge necessary, and appoint for the use of the owners and occupiers of the lands adjoining" the canal. The respondent was an adjoining owner, and claimed to have a bridge made to connect his works on both sides of the canal. The justices found such bridge

(t) Rochdale Canal v. King, 2 Sim. (N.s.) 78; 20 L. J. Ch. 675.

(u) As to roads, see Richards v. Richards, 1 Johnson, 255; Mold v. Wheatcroft, 29 L. J. Ch. 11; 1 L. T. 226.

(x) As to bridges, see Birmingham Canal Co. v. Hickman, 56 J. P. 598; Neath Canal Co. v. Ynisarwed Colliery, L. R. 10 Ch. 450.

(y) Robins v. Warwick Canal, 2 Bing. N. C. 483; 42 R. R. 642.

(z) Monmouth Canal v. Hill, 4 H. & N. 421.

(a) Bostock v. North Staffordshire Rly. Co., 4 E. & B. 798; Snape and Wife v. Dobbs, 1 Bing. 202; S. Č., 8 Moore, 23; 25 R. R. 616.

(b) See post, p. 404.

(c) Finch v. Birmingham Canal, 5 B. & C. 820; see Mold v. Wheatcroft, 29 L. J. Ch. 11; 1 L. T. 226, as to substitution of a railway for a tram road. (d) (1892) 56 J. P. 598.

necessary:-Held, that the B. Canal Co. were bound to erect such bridge (e).

as to mines.

Right of

support.

v. Graze

Reservations with regard to the right to work mines and take Reservations the minerals (f) are usually made for the benefit of proprietors of purchased lands, the principle followed usually being to permit the working by the owner, at the same time making provisions in favour of the company, which empower them to inspect and purchase or make compensation for the mines where the operations carried on appear likely to endanger the canal (g). In the case of Dudley Canal v. Grazebrook (h), an Act Dudley Canal provided that no owner of any mines should work within twelve brook. yards of the canal without leave of the company. If the owner wished to work the mines, he was to give the canal proprietors notice, and they might inspect. If they did not inspect he might work them, and if they refused to let him work them they were to buy. By another clause nothing was to defeat the right of owners of mines to work them, provided that in working the same no injury was done to the navigation. It was held that this proviso was to be construed with some qualification-namely, either that the party working the mines was to do no unnecessary damage to the navigation, or no extraordinary damage by working out of the usual mode. Therefore, where notice had been given of the working of a coal-mine under a reservoir, and the canal company had not purchased the owner's rights, it was held that he was entitled to work the mine under the reservoir in the ordinary mode, and the reservoir having been damaged by such working, no action was maintainable for such damage; but an action would be maintainable for injury to a house erected under grant from the owner of the soil (i).

In Midland Rly. v. Checkley (k), by a Canal Act, the owners Midland Rly. of mines were prohibited from getting minerals under or within v. Checkley. ten yards from the canal without the consent of the proprietors

of the canal, who, if they refused to permit the owner of any mines to work such part thereof as should be under or within

(e) As to the maintenance of bridges over canals, see post, pp. 546 et seq. (f) Whether the term minerals includes shale oil, see Marquis of Linlithgow V. North British Rly. Co., [1914] A. C. 820; [1912] S. C. 1327.

(g) Cromford Canal v. Cutts, 5 Rail. Cas. 442; Barnsley Canal v. Twibill, 3 Rail. Cas. 451; Dudley Canal v. Grazebrook, 1 B. & Ad. 59; 35 R. R. 212; Birmingham Canal v. Dudley, 7 H. & N. 969; Wightly Canal v. Badley, 7 East, 366; Birmingham Canal v. Hawkesford, 7 East, 371; 8 R. R. 644, note; Stourbridge Canal v. Dudley, 3 L. J. Q. B. 108; Swindell v. Birmingham Canal Co., 9 C. B. (N.S.) 241; 29 L. J. C. P. 364. See Fletcher v. Lancashire and Yorkshire Rly. Co., [1902] 1 Ch. 901; 71 L. J. Ch. 500; 50 W. R. 423; 66 J. P. 631, as to interest on purchase-money of a mine; and see ante, Chap. III., pp. 142 et seq.

(h) 1 B. & Ad. 59; 35 R. R. 212.

(i) See also Wyrley and Essington Canal v. Bradley, 7 East, 368; 8 R. R. 642.

(k) L. R. 4 Eq. 19; 36 L. J. Ch. 380; 16 L. T. 620; 15 W. R. 671.

Consett

Waterworks

ten yards from the canal, were required to compensate such owner in the manner provided by the Act: the Court held that the provisions of the Act as to the prohibition of working and compensation extended by implication to workings more than ten yards from the canal, and that the proprietors of the canal were not entitled, by virtue of their common law right to adjacent support, to prevent the lessee of an adjacent quarry from working more than ten yards from the canal, so as to endanger the safety of the canal, without paying him compensation in the same manner as if the quarry had been within the ten yards; but that upon paying such compensation, they were entitled to stop the working of any mine which would be injurious to the canal.

In Consett Waterworks Co. v. Ritson (1), an Inclosure Act Co. v. Ritson, provided that the lord of the manor should enjoy all mines and minerals as fully and freely as if the Act had not passed without paying damage or making satisfaction for so doing to the owners of allotments. The plaintiffs, a waterworks company incorporated under an Act of Parliament which incorporated the Lands Clauses Consolidation Act, 1845, and the Waterworks Clauses Act, 1847, purchased compulsorily from the representative of an allottee land forming part of one of such allotments, and constructed a reservoir thereon. The defendant, claiming title under the lord of the manor, gave notice to the plaintiffs of his intention to work the coal under such land within forty yards of the reservoir. The plaintiffs did not offer to purchase the minerals, and the defendant worked the coal according to the usual course and practice of mining, and thereby caused damage to the reservoir. The plaintiffs sued in respect of such damage.

Knowles v. Lancashire and York

shire Rly.

The Court of Appeal (Lord Esher, M.R., Lindley and Lopes, L.JJ.) held that the Inclosure Act in question (the Lanchester Act, 1773) was so special and definite in its language that they could come to no other conclusion than that it gave to the lord of the manor and his assigns the right to work the mines so as to let down the surface of the land without paying damages or making compensation to the allottees, and they therefore reversed the judgment of the Court below (m), it having been agreed, on the opening of the appeal, that in the event of the appellant succeeding upon the question of the interpretation of the Inclosure Act questions raised under the Waterworks Clauses Act, 1847, would become immaterial.

In Knowles v. Lancashire and Yorkshire Railway (n), by a section of an Act empowering a company to make a canal, it

(1) 22 Q. B. D. 702.

(m) 22 Q. B. D. 318; 60 L. T. 360. (n) 16 A. C. 248; 61 L. T. 91; 54 J. P. 103, H. L. E.

was provided that nothing therein contained should affect the right of any owner of lands to the mines and minerals under the lands to be made use of for the canal, and that it should be lawful for such owners to work such mines and minerals, not thereby injuring, prejudicing, or obstructing the canal. By another section it was provided that if the owners should, in pursuing such mines, work near or under the canal so as, in the opinion of the canal company, to endanger or damage the same, or in the opinion of the owners of the mines to endanger or damage the further working thereof, it should be lawful for. the canal company to treat and agree with the owners for all such minerals as might be near or under the canal as should be thought proper to be left for the security of the canal or mines; and upon payment of such satisfaction such owners should be perpetually restrained from working such mines within the limits for which satisfaction should be declared to extend. Owners of a coal mine under or near the canal having given the canal company notice that they were going to work the coal, the company declined to purchase or pay compensation for leaving the coal, and the owners then worked the coal and thereby damaged the canal. The working was in the usual mode, without negligence and without doing unnecessary damage, save in not leaving sufficient support. The House of Lords held, affirming the decision of the Court of Appeal (o), that the owners of the mine had a right under the Act to initiate proceedings and to receive satisfaction for such minerals as should be thought proper to be left for the security of the canal or the mine, but were liable in damages for the working the mine to the injury of the canal. Lord Macnaghten says (p): "The language and scheme of the Act differ from the language and scheme of the Act which came in question in the case of the Dudley Canal Co. v. Grazebrook (q). In that case a belt was to be left unworked on each side of the canal. They (the Canal Co.) were then to be at liberty to inspect the mine in order to determine what minerals might be got without damage to the canal. If they neglected to avail themselves of this privilege the mine owner was expressly authorized to work his mine. That express authority was, or at any rate was considered to be, inconsistent with a provision contained in another section of the Act, which empowered mine owners to work their mines provided that no injury be done to the said navigation. In order to reconcile the two sections it was held that the party working the mines was bound to do no unnecessary damage or

(0) 20 Q. B. D. 391.

(q) 1 B. & Ad. 59; 35 R. R. 212.

(p) 16 A. C., at p. 257.

Chamber

Colliery Co. v. Rochdale

Canal Co.

injury to the navigation, or no extraordinary damage or injury by working them out of the ordinary and usual mode.' With that limitation the Court thought that all the parts of the Act were consistent with each other. In the present case there are no inconsistencies to be reconciled. There is no protected belt; there is no provision for notice; and it is at least doubtful whether the proprietors of the canal have any power of inspecting adjoining mines, except in a case where the workings have been stopped by payment of compensation, and it is apprehended that the mine owner is working in contravention of the statutory injunction consequent upon such payment. The scheme of the Act seems to be to make the security of the canal depend upon the mine owner keeping in view his statutory liability. The question is not without authority. The exact point was determined by Lord Cottenham in the case of Cromford Canal Co. v. Cutts (r). In that case, under an Act identical in language with the Act under consideration, a mine owner had instituted proceedings for the purpose of obtaining compensation for coal which, in view of his statutory liability, he did not venture to work. The company filed a bill to restrain these proceedings. The mine owner in his answer alleged danger to the canal, but did not suggest any case of danger to the mine. The point taken before your Lordships was urged in that case, and Dudley Cana! Co. v. Grazebrook (s) was cited. But Lord Cottenham dissolved an injunction which had been granted by the Vice-Chancellor. He held that if the coal owner sustained injury by getting less coal, or by working in a less beneficial manner for the sake of not injuring the canal, he had a right to compensation, and that he might proceed, as he proposed to do, for the purpose of ascertaining whether or not there would be any injury either to the owner of the coal or of the canal company. The decision in the Cromford Canal Co. v. Cutts (t) was pronounced upon an interlocutory application: but I do not agree that it is of any less authority on that account. The question determined was the only question in the cause, and it depended simply on the construction of an Act of Parliament. In such a case an order on motion has, I think, the effect and weight of a judgement at the hearing. I think that Lord Cottenham's decision was clearly right, and that this appeal must be dismissed."

In Chamber Colliery Co. v. Rochdale Canal Co. (u) the House of Lords have held, affirming the Court of Appeal, that under an Act similar to that in the last case, the owner of mines