Claim against a canal company to have water diverted. flowing water. It is accumulated under the authority of the legislature in what is in fact a tank or reservoir, which the respondents are bound to economise and use in particular manner for the convenience of the public. It never flows. It is let down artificially for the convenience of persons wishing to pass in boats. To such water none of the doctrines, either as to natural or artificial streams, is applicable; and the only way in which appellants could have obtained a right to insist on having a lock full of water discharged into their canal, must be by express grant or covenant by respondents. Of such grant there is no trace whatever, and it cannot be presumed. To have entered into any such engagement would have been a clear breach of duty in respondents" (m). In The Manchester Ship Canal Co. v. Rochdale Canal Co. (n) it was held by the House of Lords, affirming the Court of Appeal and Byrne, J., that the defendant company being a canal company and not a waterworks company, the true meaning of waste water" in the statutes was water not legitimately needed for navigation or other purposes authorised by such statutes," and that the defendants had no right to sell such waste water to the injury of the plaintiffs, the owners of the Bridgwater Canal. In the case of Mason v. Shrewsbury Rly. Co. (o), a canal company, under the powers of their Act, diverted before 1800 a great part of the waters of a brook flowing through the plaintiff's land to their canal, the rest of the water continuing to flow as before. In 1847 the defendants, under Act of Parliament, bought and discontinued the canal, and in 1864 restored by means of a cut the water which had been diverted. In 1865 they sold the part of the canal on which was the cut. The bed of the brook, owing to the diminished scour from 1800 to 1853, had become silted up, so as not to be sufficient to carry off the water in extraordinary floods. In 1866, such a flood having damaged the plaintiff's land, it was held by the Court, that there being no obligation imposed on the canal to continue the diversion of the water, plaintiff had no right of action. The opinion of Blackburn and Hannen, JJ., proceeded on the ground that, though the claim to have the water diverted was a claim to a watercourse under the Prescription Act (2 & 3 Will. 4. c. 71), yet the enjoyment was not of right, and, therefore, though of more than forty years, it conferred no right on the plaintiff. That of Cockburn, C.J., was based on the (m) See ante, p. 251. (n) (1899) 81 L. T. 472, C. A.; affirmed by H. L., 1900, 85 L. T. 585. (0) L. R. 6 Q. B. 578; 40 L. J. Q. B. 293; 25 L. T. 239; cf. Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287; Hodgson v. Mayor of York, 28 L. T. (N.S.) ground that the plaintiff, the owner of the servient tenement, could acquire by the mere existence of the easement, no right against the owner of the dominant tenement. The question appears to me to depend on principles of the law relating to easements, which would have been equally applicable if the Act in question (Prescription Act) had never been passed" (p). Where the statutory rights of companies are infringed, they Canal are entitled to the ordinary remedies at law (q). "Such a company," said Erle, J., in Rochdale Canal Co. v. King (r), “has all the rights and remedies which an individual owner of property has, unless the statute contains some provision to take them away." In that case the plaintiffs were empowered to purchase lands for making a canal, and manufacturers within a certain distance were authorised to lay pipes and to use water for the sole purpose of condensing steam; disputes with any person desirous of taking or using the same were to be referred to commissioners. The declaration stated that the company had made the canal and that the defendants had used the water for purposes other than that of condensing steam. It was objected in arrest of judgment that the declaration did not show any ownership of the canal or water, or any invasion of a private right, inasmuch as the act complained of, if wrongful, was clearly prohibited by statute, so that the repetition of the act could never be used as evidence of a right; that the remedy was by indictment, and that the complaint should have been referred to the commissioners who had exclusive jurisdiction. It was held, however, that the declaration was good, as it must be held that the company was in possession of the canal, and that without special damage the wrongful act was a damage to the company's right; and also that the jurisdiction of the commissioners was over disputes between persons in the use of or about to use the water for a rightful purpose, and not over wrongdoers (s). Erle, J., observed, "It is said the company could have no property in this water; perhaps not in the identical passing atoms, but they had in the flow, the flumen aquæ. In bringing actions, canal companies, like individuals, are liable to be deprived of their remedy by laches. Where a canal company made a demand in May, 1842, for penalties for obstructing their canal, such obstruction having been caused in November, 1840, and June, 1841, and brought no (p) See ante, Chap. IV., pp. 271 et seq. (q) Rochdale Canal v. King, 14 Q. B. 122, 136; 15 Jur. 896. (r) Ibid.; cf. Rochdale Canal v. Radcliffe, 18 Q. B. 287; see ante, p. 243. (s) See Cockburn v. Erewash Canal, 11 W. R. 34; and ante, p. 304; Shand v. Henderson, 2 Dow, H. L. C. 519; 14 R. R. 202; ante, p. 310. companies entitled to ordinary remedies at law. Duties with regard to navigation. action till July, 1842, it was held that they were too late, since by the Act of the railway companies who had caused the obstruction, no action was to be brought against them for injury done in pusuance of the Act after six months, which six months were held to begin to run from the ceasing of the obstruction, and not from the demand for non-payment of the penalty (t). The owners of a canal taking tolls for the navigation are bound, at common law, to use reasonable care in making the navigation secure (u). Parnaby v. Lancaster Canal (u) was an action which came before the Exchequer Chamber on error from the Court of Queen's Bench. The declaration in the case stated that by 32 Geo. 3. c. 101, the Lancaster Canal Company was formed to make and maintain the canal, with power to take tolls, and that all persons had free liberty to navigate the canal; but if any boat should be sunk in the canal, and the owner or person having care of it should not, without loss of time, weigh it up, the Act empowered the company to weigh it up and detain it till payment of expenses. That the company completed the canal, and took tolls on it; that a boat sank in the canal, so that vessels passed with difficulty in the day, and at night were in danger of running foul of it; that, although the company could and ought to have requested the owner to weigh it up, and, if that was not done without loss of time, could and ought to have weighed it up, and, in the meantime, have caused a light or signal to be placed to enable boats to avoid it; yet the company did not cause the owner, &c., to weigh it up, nor themselves weigh it up, nor place a light or signal, whereby the plaintiff's boat, navigating the canal, ran foul of the sunken boat and was damaged. On the trial, before Coleridge, J., at the Liverpool Summer Assizes, 1836, it was objected that, admitting the facts as laid in the declaration, no breach of duty was shown. Verdict being given in favour of the plaintiffs, leave was reserved to move for a nonsuit, but judgment was entered up for the plaintiffs. The defendants brought error in the Exchequer Chamber, when the judgment of the Court of Queen's Bench was affirmed. (t) Kennet and Avon Canal v. Great Western Rly. Co., 4 Rail. Cas. 90; cf. Rochdale Canal v. King, 2 Sim. (N.s.) 78; Lord Oakley v. Kensington Canal Co., 5 B. & A. 138; Fraser v. Swansea Canal, 1 A. & E. 354; S. C., 3 N. & M. 391; see Lord Brougham in Blakemore v. Glamorganshire Canal, 1 M. & K. 161; 36 R. R. 289; Shand v. Henderson, 2 Dow, H. L. C. 519; 14 R. R. 202; see also the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61). (u) Parnaby v. Lancaster Canal, 11 A. & E. 223; see Mersey v. Gibbs, L. R. 1 H. L. 93; 35 L. J. Ex. 225; 14 L. T. 677; Winch v. Conservators of Thames, L. R. 9 C. P. 738; L. R. 7 C. P. 456; Forbes v. Lee Conservancy, 4 Ex. D. 116; Lane v. Newdigate, 10 Ves. 192; 7 R. R. 381; and post, Chap. VII.; as to liability of canal commissioners for not giving notice to lessees to repair, see Priestley v. Foulds, 2 Scott, N. R. 265; 2 Man. & G. 1751. The facts Tindal, C.J., says at page 242 of the report (x): stated in the inducement shew that the company made the canal for their profit, and opened it to the public upon the payment of tolls to the company; and the common law, in such a case, imposes a duty upon the proprietors, not, perhaps, to repair the canal, or absolutely to free it from obstructions, but to take reasonable care, so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate without danger to their lives or property. We concur with the Court of Queen's Bench in thinking that a duty of this nature is imposed upon the company, and that they are responsible for the breach of it, upon a similar principle to that which makes a shopkeeper, who invites the public to his shop, liable for neglect on leaving a trap-door open without any protection, by which his customers suffer injury" (y). It follows from the principle above noticed, that canal proprietors will not be enabled to recover damages for injuries to their navigation unless they keep it in good order. A canal company, who were bound to repair the banks of their navigation, brought an action against an adjacent landowner for digging clay pits on his land, and so causing the plaintiff's banks to give way. There was some evidence that the banks were not in good repair; but the learned judge directed the jury to find for the plaintiffs if they thought the falling in of banks was caused by the digging the clay pits:-Held, that the plaintiffs were not entitled to recover unless the banks were in good repair (z). In Walker v. Goe (a), commissioners of a navigation were authorised to lease the canal, and, in case the lessees should permit the canal to be out of repair, the commissioners were authorised and required to give them notice, and to specify the repairs which ought to be done. In case the lessees neglected to do the repairs, the commissioners might seize the tolls. The canal having been leased, the lessees allowed the canal to get out of repair; but the commissioners gave no notice to them, and a harge going through a lock was damaged by the lock falling in. It was held that the barge owner, assuming a duty on the part of the commissioners to give notice, had no right of action against them, as the damage to the barge was not a damage naturally (r) 11 A. & E., p. 242. (y) Cf. Harris v. Baker, 4 M. & S. 27; 16 R. R. 370; The Bɛarn, [1906] P. 48, and The Moorcock (1889), 14 P. D. 64, and ante, p. 136. In Crossley & Sons v. Manchester Ship Canal (1905), 22 T. L. R. 192, C. A., it was held that under the Manchester Ship Canal Acts, 1885 and 1896, traders at Warrington were entitled to sue the company for breach of their statutory obligations to dredge. See further as to Navigation and the duties of persons navigating, post, Chap. VII., pp. 437 et seq. (z) Staffordshire Canal v. Hallen, 6 B. & C. 317; 30 R. R. 333. (a) 4 H. & N. 350. What are works necessary for maintaining navigation. Bridges. Navigation open to public on paying tolls. flowing from their neglect; it being pointed out by Wightman, J., that the primary duty to repair was on the lessee. In Llewellyn v. Swansea Canal (b), where the company had by their Act the usual powers for maintaining the navigation, the question as to what constitutes acts necessary for maintaining navigation, was raised. The defendants had agreed to pay the plaintiffs £10 a week for any water above a certain lock, when they should consider it necessary for maintaining the navigation. of the canal below that lock. It was held-when, boats having twice sunk in going through the lock, the plaintiffs each time emptied it, in order to get them up, and then filled from above the lock-that this was not using the water for the purposes of maintaining the navigation below the lock, and, therefore, that the £10 a week could not be recovered. But when, on another occasion, they did the same for the purpose of repairing the lock below, it was held that the £10 was recoverable, since the latter object did not constitute such a purpose. Where a canal company were authorised to make a canal, and do other acts necessary for the making, improving, and using it, it was held that they were empowered to deepen and widen it after it had been completed, and to charge for so doing (c). A company were authorised by a Navigation Act to maintain a navigation, and to alter dams, &c., from time to time; and it was provided that persons injured were to receive compensation from commissioners under the Act. The commissioners were named; and power was given to them to appoint successors, but they all died without doing so. The company afterwards raised a certain dam, to the injury of a mill-owner below, who pulled it down. It was held that the power to alter the dam still existed, although the mill-owner should have no longer any means of obtaining compensation, on which point the Court gave no opinion (d). Canal companies are usually empowered by the incorporating Act to construct and maintain bridges-a provision which is rendered necessary to remedy inconveniences arising from their powers to interrupt highways. Bridges thus constructed must be adequate to meet the wants of the public. The cases on this subject are discussed in Chapter VIII., pp. 532 et seq. The navigation of canals (e) is, of course, open to all the public on the payment of tolls, and it has been held that there is a public right of user of a canal with boats propelled by steam, (b) 2 H. & N. 509. (c) Rex v. Glamorganshire, 7 B. & C. 722. (d) Kennet and Avon Navigation v. Witherington, 18 Q. B. 530. |