adjacent to but not under a canal does not come within a provision in the Act, for the purchase of minerals near and under the canal" to be left for the security of the canal; consequently that if the working of such mines near the canal would not endanger or damage the further working of the mines, although it would cause some damage to the canal, the owner could not insist against the will of the company upon minerals being left. for the security and preservation of the canal, and upon receiving satisfaction from the company therefor, the company being willing that the owner should work as he pleased, and preferring from time to time to bear the expense of the necessary repairs to the canal rather than compensate the owner for his unworked minerals. In New Moss Colliery Co. v. Manchester, Sheffield and Lincolnshire Railway (2), under an Act identical in effect with the statutory provisions construed by the House of Lords in Knowles & Sons v. Lancashire and Yorkshire Railway Co. (y), and Chamber Colliery Co. v. Rochdale Canal Co. (z), plaintiffs were the owners of coal mines under the canal and the lands on both sides of it, and, being advised that if they continued their workings within certain limits on both sides of the canal they would damage it, they gave the defendants (who had succeeded to the rights and obligations of the canal company) notice of their intention to work the subjacent and adjacent coal, and requiring them to treat for the coal necessary to be left for the security of the canal. The defendants replied that no coal need be left and declined to treat. Plaintiffs then sued defendants for (a) a declaration that they were entitled to work all their adjacent coal, although the result might endanger or damage the canal (a), or in the alternative (b) a declaration that plaintiffs were entitled to be paid, under section 38, satisfaction for adjacent coal left as protection. The Court held that the plaintiffs were entitled to declaration (a), but that on the plaintiffs and defendants making admissions that the costs, if any, of repairing damages to be sustained to the canal and works by getting all the coal would be trifling compared with the value of the coal required to be left for the absolute protection of the canal and works, and that such damage could be repaired from time to time, and would not interfere with the navigation, and on the defendants undertaking not to claim damages in the future. in respect of the plaintiffs working the subjacent coal, and at (r) [1897] 1 Ch. 725; 66 L. J. Ch. 381; 76 L. T. 231; 45 W. R. 493. (y) 14 A. C. 248. (z) [1895] A. C. 564. (a) See also Wyrley and Essington Canal Co. v. Bradley, 7 East, 368; 8 R. R. 642. New Moss v. M., S. and L. Rly. L. & N. W. their own expense to repair any damage thereby caused, the plaintiffs were not entitled to any declaration respecting the subjacent coal. In L. & N. W. Rly. v. Evans (b), by a private Act of Geo. II. Rly. v. Evans. the undertakers were authorised to make an existing brook navigable, and to maintain and use such navigation, and to make such new cuts and canals as might be necessary for the purpose, the undertakers first giving satisfaction to the owners of lands which should be made use of, or prejudiced, which satisfaction might be by a yearly payment or by a sum in gross. The Act contained no reference to minerals. The brook was made into a canal, compensation being made to the landlords by annual payments. The navigation subsequently became vested in the plaintiffs. The defendants, who were owners of coal under the canal, worked it so as to cause a subsidence, and the plaintiffs brought their action for an injunction on the ground that they had a right to support-Held, by Kekewich, J., that the grant of a right to make and maintain the navigation without any grant of the land, did not carry with it the right of support so as to prevent the landowners from working their mines. The Court of Appeal held that where an express statutory right is given to make and maintain something requiring support, the statute, in the absence of a controlling context, must be taken to mean that the right of support shall accompany the right to make and maintain-that if the Act does not provide any means of obtaining compensation for the loss occasioned to the landowner by his having to leave support, this is a strong argument against the legislature having intended to give such right; but that if it contains provisions under which compensation can be obtained, it needs a strong context to show that the right to support is not given-that under the Act in the present case compensation could have been successfully claimed for the damage occasioned to the landowners by making their mines unworkable-that the legislature, therefore, must be taken to have intended to give a right of support, and that the plaintiffs were entitled to an injunction. A. L. Smith, L.J., says (c): "It is a correct proposition of law that when an Act of Parliament empowers undertakers to make and maintain works for the benefit of the public upon the land of others, and such works of necessity require the support of the subjacent soil, and the Act provides for compensating the landowners for damages, both to the surface and subjacent minerals, by reason of the (b) [1893] 1 Ch. 16; 62 L. J. Ch. 1; 2 R. 120; 67 L. T. 630; 41 W. R. 149, C. A. (c) [1893] 1 Ch., p. 31. execution of the contemplated works, then, unless there be something in the Act to the contrary, a necessary implication arises that the Act gives to the undertakers a right to subjacent support for the works authorised to be constructed and maintained. In stating this proposition I do not wish to be understood as holding that nothing less than the above will suffice to raise the implication of the right to subjacent support, but this case does not, in my opinion, necessitate an inquiry as to what, if anything else, will suffice. In my judgment, if the conditions above stated are to be found in an Act of Parliament, a necessary implication does arise that the undertakers are entitled to subjacent support for their works as against the mineral owner below. This proposition appears to be one which is irresistible, for it is impossible to suppose in the premises mentioned that the legislature contemplated that the mineral owner might let down and destroy the works authorised to be constructed for the benefit of the public " (d). canal com It is usual in canal Acts to insert clauses providing for the Liabilities of amount of compensation (e) to be given by companies for damage panies as to done to the interests of neighbouring proprietors. Where an compensation Act injurious to another is authorised by an Act of Parliament the remedy is under the Compensation Clauses (f). Thus a canal Act provided that no mine owner should work within forty yards of certain tunnels without leave of the company; and if the company, instead of insisting on full forty yards, should require less than thirty yards, a quantity not exceeding thirty yards was to be left for the security of the mine. Whenever a mine should become workable within forty yards. the mine owner should give notice, and the company should pay him for so much of the forty yards as they required to be left:Held, that where a mine had become workable within forty yards. of the tunnels, and the company had required the whole forty yards to be left, the owner of the mine was entitled to compensation for the forty yards (g). In Halliday v. Mayor of Wakefield (h), a special Act, incorporating the Waterworks Clauses Act, 1847, empowered the (d) See also Glamorganshire Canal Co. v. Nixon's Navigation Co. (1901), 85 L. T. 53, C. A. (e) In order to induce the Court to issue a mandamus to a canal company to make compensation to a claimant, a clear refusal on the part of the company must be shown; mere delay in attending to the claim is not sufficient: Reg. v. Wilts and Berks Canal, 8 D. P. C. 623; 4 Jur. 848 (see Reg. v. Thames and Isis Navigation, 8 A. & E. 201). (f) Ridler v. Great Western Rly. Co. (1906), 96 L. T. 98, H. L. E. (g) Fenton v. Trent and Mersey Navigation Co., 2 Rail. Cas. 837; cf. Cromford Canal v. Cutts, 5 Rail. Cas. 442; Dunn v. Birmingham Canal Co., L. R. 8 Q. B. 2; Reg. v. Delamere, 13 W. R. 757. (h) [1891] A. C. 81. under their Acts. Halliday v. Mayor of Wakefield. making of a reservoir in lands containing coal mines. The waterworks undertaker having given the mine owners notice to treat for part of the coal, the mine owners claimed compensation (to be settled by arbitration), not only for the value of the land to be taken (as to which no question arose), but also for injurious affection and prospective damage. The arbitrator found that the workings of the mine owners had not as yet approached the reservoir so as to cause any present risk to the mines from the existence of the reservoir; that if the mine owners were free to work their mines without risk of interruption from the undertakers' works, they could and would have got the whole of certain seams of coal under the reservoir and within forty yards of the boundary, and that if the undertakers purchased and retained in situ the coal which they had given notice to take and no other coal, the mine owners, by reason of the undertakers' works and of apprehension of injury therefrom to one seam, could not get more than 50 per cent. of the coal under the reservoir or within twenty yards of its boundary; that a prudent lessee working without right to compensation would be compelled by reason of such apprehension of injury to abstain from working more than 50 per cent. of the coal within the defined area; and that there was no reason to apprehend injury, present or future, from the undertakers' works to any part of the mines if 50 per cent. of the coal in the defined area were retained in situ. The House of Lords held, affirming the decision of the Court of Appeal (i), that the mine owners were not entitled to claim or recover compensation for the prospective prevention of the working of more than 50 per cent, of the coal within the defined area inasmuch as though the word "lands" in section 6 of the Waterworks Clauses Act, 1847, includes "mines," the mine owners were not "injuriously affected" within the meaning of section 6 (k); neither could they at present claim or recover under the mines clauses of that Act, sections 18 to 27. Where under a canal Act commissioners were appointed for settling all matters in dispute between the company and the owners of lands prejudiced, and the amount of compensation was to be assessed by a jury, and to be binding and conclusive to all intents and purposes; it was held that the verdict and judgment were conclusive as to the amount, but not as to the claimants' right to compensation (1). (i) 20 Q. B. D. 699. (k) As to the right to compensation for withdrawal of support by the abstraction of water under the section, see Fletcher v. Birkenhead Corporation, [1907] 1 K. B. 205, ante, p. 215. (1) Barker v. Nottingham Canal Co., 15 C. B. (N.S.) 726. See Glamorganshire Canal Co. v. Nixon's Navigation Co. (1901), 85 L. T. 53, C. A. It was provided by an Act for making a canal, that in case of disputes a jury should assess the value of the land, and award recompense either for damages which should or might before that time have been sustained, or for the future, temporary, or perpetual continuance of any recurring damages. It was also enacted that all the works should be completed within fifteen years. A jury having assessed the value of land at £6, the present damage at nil, but the future damage at £2,800; it was held that this verdict was wrong, since, in order to enable the jury to assess future damages, the cause of the injury must already exist in some of the work done; and it was also held, that unless the undertakers had finally abandoned the work, they might take the land on payment of £6, at any time during the fifteen years (m). In the somewhat similar case of Thicknesse v. Lancaster Canal Co. (n), where no specified time was assigned within which the canal should be completed, it was held that a Court of law could not interfere, since no limitation as to time could be assigned to the powers conferred by an intendment that they were to be exercised within a reasonable time. It has been held that the owner of tithes from land taken for the purposes of a navigation being land covered with water, was not entitled to compensation as the owner of a hereditament under an Act giving compensation to all persons seised, possessed, or interested of or in any lands, tenements or hereditaments which should be taken thereunder (o). So, too, a person entitled to an easement over certain lands has been held not qualified to maintain trespass for acts done on such land, though he might have claimed compensation under a canal Act as soon as actual damage was sustained (p). In Kennet and Avon Navigation v. Witherington (q), the plaintiffs were authorised by an Act to maintain a navigation, and alter dams, &c., from time to time. Persons injured were to receive compensation from commissioners under the Act. The commissioners were named, and power was given them to appoint successors. They all died without doing so. The company afterwards raised a certain dam to the injury of the defendant, a mill-owner below;-Held that, although the mill-owner should have no longer any means of obtaining compensation-as to which point the Court gave no opinion-the power to alter the dam still existed. (m) Lee v. Milner, 2 M. & W. 824. (n) 4 M. & W. 472. (0) Rer v. Commissioners of the Nene Outfall, 9 B. & C. 875. (q) 18 Q. B. 530. |