bind the infant, it was invalid, and no conveyance was executed, and the purchase-money was returned. The company, however, used the land for the canal, paying rent for forty years to the landowner after he attained his majority. It was held that no agreement for sale of the fee, in consideration of the rentcharge, could be presumed to have been entered into or ratified by the landlord, but that an action of ejectment, as well as the intended erection of a bridge by the latter, should be restrained by injunction, on the ground of acquiescence, the company undertaking to put in force their parliamentary powers for the purchase of land (n).

In another case, lands were demised in 1779 by P. to M. and Company for sixty-five years. In 1794 an Act was obtained for making Swansea Canal through part of the lands in question; and it was enacted that on payment or tender of certain sums for the purchase of such lands, and, by leave of the owners, such lands should vest in the canal company. In 1797 the Duke of Beaufort made arrangement with the company to extend the canal through certain other of the lands. No payment or satisfaction was made, but the owners, &c., consented. On the termination of the lease of 1779, the assignees of the reversion brought ejectment against the assignee of the Duke of Beaufort, who remained in possession of the canals:-Held, the mere consent of the owner of the land to the construction of the canal did not bring the case within the Act, and the lessors of the plaintiff were entitled to the land. Per Parke, B., the reversioner could not create such an interest except by deed" (0).

A question as to copyhold lands arose in the case of Dimes v. Grand Junction Canal (p). There an Act of Parliament gave the defendants powers to purchase lands, and also provided a form of conveyance. S. was tenant of copyhold land, and sold part to the company, the then lord not objecting. On the death of S., the lord made proclamation for the heir of S. to come and be admitted. No one appeared, and the lord seized the land quousque," and brought ejectment against the defendants, and obtained judgment on the ground that the conveyance, under the Canal Act, only vested in the defendants an equitable estate. He interfered to stop the navigation, and the defendants, having filed a bill praying that the customary heir of S. might be admitted on their paying all fees, and having sought a perpetual injunction, the Vice-Chancellor made a decree directing the customary heir of S. to be admitted to hold as trustee for the canal company,

(n) Somerset Canal v. Harcourt, 2 De G. & J. 546.
(0) Patrick v. Beaufort, 6 Ex. 498; 20 L. J. Ex. 251.
(p) 3 H. L. 794.

Remedies for injuries by canal companies.

Rights to surplus water.

Blakemore v. Glamorganshire Canal.

and granted an injunction. On appeal, the House of Lords affirmed this decision.

The Court will not grant a mandamus to compel a canal company to proceed to assess the value of land taken by them, if the parties interested in the land do not apply within a reasonable time, especially where there is another remedy by ejectment (q).

Where a canal company had powers under their Act to take and give leases of other canals, and sold their rights under another Act to the Oxford Railway Company, it was held that the latter had authority to take a lease of another canal (r).

Where a particular jurisdiction is appointed under a Canal Act to determine all questions as to things to be done under the Act, if the canal proprietors do anything not exactly in accordance with the terms of the Act, and not strictly within the powers thereby given, the person aggrieved is not restricted to the particular jurisdiction, but the complaint is to be entertained by the ordinary jurisdiction, on the principle that anything done not in exact conformity with the Act is not done in pursuance of it (8).

Parties injured, however, are bound to use due diligence in applying for redress (t).

So where a canal company had deviated from the line prescribed by the Act, and had not adhered to the previous steps required thereby, in occupying the appellants' grounds, Lord Eldon, though he held that the company were trespassers, and liable to damage, said, "Where a person stands by while an act not strictly legal is done, having the means to prevent it, the remedy by injunction is gone (8).

A question as to the right to the use of the surplus water of a canal under special Acts of Parliament arose in the case of Blakemore v. The Glamorganshire Canal (u). The Acts of Parliament (x) authorising the formation of the canal contained a reservation, in favour of the owners of certain iron works, of the surplus water flowing from the canal, down a certain cut or watercourse. The canal works were to be completed within two years. Some years after the passing of these Acts, the plaintiff purchased the iron works aforementioned, and brought a series of actions against the defendants for making certain alterations in, and widening

(q) Rex v. Stainforth, 1 M. & S. 32; 14 R. R. 389; cf. Shand v. Henderson, 2 Dow, H. L. C. 519; 14 R. R. 202.

(r) Rogers v. Oxford Rly. Co., 25 Beav. 322.

(s) Shand v. Henderson, 2 Dow, H. L. C. 519; 14 R. R. 202.

(t) See the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61).

(u) 1 M. & K. 154; 36 R. R. 289; 1 C. & F. 262; 2 C. M. & R. 133;

3 Y. & Jerv. 60.

(x) 30 Geo. 3. c. 82; 36 Geo. 3. c. 69.

and deepening the canal for the purpose of increasing the traffic, whereby the flow of water to his works was diminished.

At the first trial of this case the jury found that there had been a wilful waste of water in the management of the canal, with damages for the plaintiff, upon which judgment was entered up in the Court of Exchequer (y). Judgment afterwards came by writ of error before the Court of Exchequer Chamber, and ultimately before the House of Lords, and on both occasions was affirmed.

At the second trial (z), it was held, that the company, having after the two years erected an engine to force up more water into the canal, whereby they were enabled to pass more barges down it, the plaintiffs were entitled to consequential damages on account of the surplus water having been diminished.

On the hearing before the House of Lords (a), Lord Lyndhurst, inter alia, held, that the making of the canal fixed the rights of the parties, and the canal owners had no right afterwards to enlarge the canal, and draw much larger quantities of water, so as to affect injuriously the plaintiff's works; and that the clauses in the second Act (36 Geo. 3. c. 69) directing that the canal should be completed in two years, and that the money to be raised should not be applied to the expense of any other work not made within the time, not only limited the application of the money to the works completed within the time, but that no works should be carried on adversely to the interests of individuals after the two years.

The plaintiff, Mr. Blakemore, subsequently obtained a series of injunctions to restrain the works of the company, in all of which he succeeded, the Court holding the canal company to be bound by the terms of their Acts (b).

44

"If my opinion upon the effects of the Acts of Parliament be right," said Lord Eldon (c), “ then, although the owners of these works must take the surplus water, subject to the diminution which an increase of trade upon the present canal shall occasion, let it increase ever so much, or ever so little, I can never agree to the proposition as laid down in some parts of the answer, that the proprietors of the navigation are at liberty to improve the canal for the purpose of bringing upon it an increase of trade, and by such improvements, with a view to a contemplated increase of traffic, to affect the surplus water, which was, I apprehend, to be preserved for the benefit of the plaintiff's works."

(y) 3 Y. & Jerv. 60.

(a) 1 C. & F. 262.

(c) 1 M. & K. 168; 36 R. R. 289.

(z) 2 C. M. & R. 133.

(b) 1 M. & K. 162; 36 R. R. 289.

Staffordshire and Worcestershire Canal v.

The case of The Staffordshire and Worcestershire Canal v. Birmingham Canal (d) raised a somewhat similar point, and turned on the right to the use of the surplus water of one canal Birmingham by the other.

Canal.

66

The S. and W. Canal was formed under an Act of Parliament. Two years later another Act passed, authorising the formation of the B. Canal, and requiring the latter company to make a communication" between the B. and the S. and W. Canals at A., giving the latter company power to make this communication if the B. Company should not make it within a given time. The communication was made by the S. and W. Company under an agreement between the two companies, and some years afterwards improved by the B. Company, who saved much water by substituting two locks for one at one particular spot, the original communication being effected by means of twenty locks.

A consolidating Act was passed (e) which contained in the 15th section provisions enabling the B. Company, the proprietors of several canals, to raise the water of the canals from one level to another by reservoirs and machinery, &c. The 83rd section, with a view to preserve the communication at A., forbade the B. Company to use water from or out of the W. level (which was the highest level of the B. Company-the communication at A. being 132 feet below it) for any purpose whatever when the depth of the water in the lowest lock of the B. communication should stand at less than three feet perpendicular, to be reckoned from the sill of an upper gate in the S. and W. Canal adjoining thereto, and in case of breach of this prohibition, and consequent injury to the S. and W. Company, directed that any damages sustained should be assessed by a jury. The 258th section prohibited the B. Company from doing anything to obstruct the navigation of the S. and W. Canal, or in any wise to shorten or vary all or any of the company's canals, so as thereby to impede the navigation of the S. and W. Canal " without the consent of the S. and W. Company. By the interpretation clause the word" canals" was to include communications." The B. Company proposed to construct machinery which should pump back some of the water coming from the W. level, and so would affect the supply to the S. and W. Canal, but would not prevent the existence and free use of the communication at A. The S. and W. Company filed a bill to prevent the construction of this machinery, alleging that it was contrary to the intention of the legislature, as shown in the various Acts, and to the deed of arrangement, and also contrary to the right which must now be taken as vested in the S. and W. Company by user and prescription.

(d) L. R. 1 H. L. 254; 35 L. J. Ch. 757.

(e) 5 Will. 4. c. 34.

The appellants relied on Tapling v. Jones (f), and Ellwell v. Birmingham Canal (g); for the respondents, Rochdale Canal v. Radcliffe (h), Magor v. Chadwick (i), and Arkwright v. Gell (k), were, inter alia, cited.

It was held, affirming the decision of the Lords Justices, that the bill must be dismissed, and that the powers granted by the Acts were granted for specific purposes, which were those of making and maintaining a free communication between different places by navigable canals; and that the ordinary doctrines as to the permissive use of water did not apply in such a case, and that no grant could be made by the B. Company of the use of any water which might injuriously affect these purposes. That consequently no right by prescription could in this case have any foundation in grant. Nor could any prescriptive right by user be founded on the fact that the B. Company had for many years allowed the water to pass out of the B. Canal in a particular manner, so as to prevent the B. Company from afterwards improving its machinery and economising the water, for the water so passing into the S. and W. Canal did not constitute a stream or watercourse within the meaning of the Prescription Act (2 & 3 Will. 4. c. 71). The object of the communication being fully secured, the proposed works, it was held were not an impeding or obstructing of the S. and W. Canal, such as was prohibited by the Act.

The 2nd section of that Act" (The Prescription Act (2 & 3 Will. 4. c. 71)), said Lord Chelmsford, L.C., " applies to a claim. to the use of water which may be lawfully made at common law by custom, prescription or grant (1). Custom and prescription are here out of the question, and if the respondent could not have granted the use of the water to the appellants, the Act is wholly inapplicable; but to impose such a servitude upon the water in their canal, as that contended for by the appellants, would have been ultra vires of the respondents, and consequently length of user could never confer an indefeasible claim upon the appellants under the Prescription Act, as no grant of the use of the water could have been lawfully made by the respondents."

Lord Cranworth observed, "The water flowing from the Wolverhampton level to the Atherley junction is not a natural nor even an artificial stream. The water in the canal is not

(f) 11 H. L. Cas. 290.

(g) 3 H. L. Cas. 812.

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

(1) 11 A. & E. 571; 9 L. J. Q. B. 159.

(k) 5 M. & W. 203; 8 L. J. Ex. 201.

(I) As to a claim by prescription to take more water for the use of a canal than the company were entitled to by their Act, see Att.-Gen. v. Grand Junction Canal, ante, p. 223.