No general rules applicable to.

At common law tolls only become due at the end of a voyage, since the contract is not completed till the port of delivery is reached, and though this may be altered by legislative enactments so as to make tolls payable at intermediate distances, they must be demanded according to the rules of law respecting the carriage of goods from one place to another (1). It is in accordance with these facts that, as a general rule, the principle seems to be that Acts imposing a toll should be construed as strictly as possible (m), since, as has been said by a learned judge, “though such construction may be perhaps inconvenient, the Court cannot make a new toll" (n).

"No general rules or principle," says Gunning (o), " can be laid down applicable to canals in general"; and this is evident when it is remembered that in the case of canals, as in that of docks and harbours, each is dependent upon a particular Act,

Vict. c. 31), as amended by that Act, is extended to any person whose consent
is required to any variation of any rates, tolls, or dues charged for the use of
any canal, or by any canal company, in like manner as if such person were
a canal company, and the expressions canal company' and railway and
canal company
in the said Acts and this Act shall be construed accordingly
to include such person (section 37, sub-sections 1, 2). The provisions of
these Acts respecting rates apply to the tolls and dues of every description
chargeable for the use of any canal, and the commissioners may enforce any
order for a through rate or toll which may in their opinion be required in the
interest of the public. Any company allowing traffic to pass from a canal on
to any other canal or any railway, or from a railway on to a canal, shall be
deemed to be a forwarding company, and the allowing of traffic so to pass shall
be deemed to be the forwarding of traffic within the meaning of the above-
mentioned Acts; and their provisions, and those of the Act of 1888, with
respect to through rates, are extended to any canals which, in connection with
any river or other waterway, form part of a continuous line of water communi-
cation, notwithstanding that tolls may not be leviable by authority of
Parliament upon such river or other waterway (section 37, sub-sections 3, 4,
5) Where a railway company has the control over, or the right to interfere
with respect to the traffic conveyed or the tolls levied on a canal, and the tolls,
rates, or charges levied are proved to be calculated to divert traffic to the
railway to the detriment of the canal or of persons sending traffic over it or
other canals adjacent to it, the commissioners, on the application of any
person interested, may make an order requiring them to be altered in such a
manner as to be reasonable in comparison with those charged for the convey-
ance of merchandise on the railway. If the alteration is not made within the
time prescribed by the order, the commissioners themselves are empowered to
make such alteration as they shall think just and reasonable by order, and the
tolls, rates and charges so altered and adjusted are binding on the company or
persons owning or controlling the traffic or the tolls levied thereon. No
application may be made under this section until the Minister of Transport
has certified the fitness of the applicant, and that the application is a proper
one for submission to the commissioners; and the commissioners may make no
order unless the company and persons have been previously served with notice
of the application in such manner as the Minister of Transport may direct.
On the application of any company or person affected thereby, and after
notice to and hearing such companies or persons as they may by any general
rules or special order prescribe, the commissioners may at any time rescind or
vary any order made under this section (section 38).

(1) Buller, J., in R. v. Page, 4 T. R. 549; 2 R. R. 454; cf. R. v. Aire and Calder Navigation, 2 T. R. 660; 1 R. R. 579.

(m) Woolrych, p. 306.

(n) Ibid.; Bayley, J., in Britain v. Cromford Canal, 3 B. & A. 140.
(0) Page 102; cf. Woolrych, p. 306.

and therefore, as is pointed out by Woolrych (p), "since the cases which have arisen were decided upon the construction of the several statutes relating to each particular subject, the general principle is rather to be gathered from the effect which the Courts have given to the enactments themselves, than from the decisions."

We shall, therefore, consider such cases as seem to be most important.

In the case of The Stourbridge Canal v. Wheely (q), the plaintiffs made a canal on two levels, which were connected by locks. On the upper level there was no lock. By their Act all persons were to be at liberty to navigate the canal on payment of certain rates, and the company were authorised to take certain tolls for certain goods which might pass through one or more of the locks, while owners of adjoining lands might use pleasure boats not carrying goods, so long as they did not pass through any locks, without paying dues:-Held, that the Act gave no right to demand tolls for boats navigating the level of the canal where there were no locks.

36 Geo. 3. c. 67, empowered certain persons to make the Tamar navigable for boats, barges, and other vessels, with proper cuts and deviations from the sides thereof, from M. Quay to Boat Pool; and thence to make a canal, and to make and maintain a collateral cut or canal navigable for boats, &c., from the said canal to R. mill, and authorised them, in consideration of expenses, to take from time to time tolls at so much per ton per mile for goods, &c., "carried upon the said navigation, canal, cut, or any of them." They had expended considerable sums in clearing and deepening the river for the purpose of making it navigable to a point about one-quarter mile from Boat Pool, but had not made the canal or collateral cut:-Held, that they were entitled to recover tolls for carriage of goods over the part of the river made navigable (r).

Where a canal company were authorised by their Acts to make a canal and do other things necessary for the making, improving and using it; but were forbidden to make more than 8 per cent. profit, and were to lay their accounts annually before justices:It was held that they were authorised by their Act to deepen and widen the canal after it had been completed (that being beneficial to the public); and that the widening and deepening being done

(p) Woolrych, p. 306. A canal Act is not necessarily a public Act: 1 Moo. & Malk. 421; Brett v. Beales, 10 B. & C. 508; 34 R. R. 499. (q) 2 B. & A. 793; 36 R. C. 746.

(r) Tamar Navigation v. Wagstaffe, 4 B. & S. 288; cf. Reg. v. Simpson, [1901] 2 Ch. 671 (C. A.); ante, pp. 568, 569.

at the request of those using the canal, the charge for so doing was a charge attending the using of the canal (8).

In another case (t) under the same Acts, it was shown that the company were empowered to "make all such other works as they shall think necessary or proper for effecting, completing, maintaining, improving, and using the said canal and other works," and that they were required to lay before sessions an annual account of the tolls collected, and of the charge of sup porting the navigation. The sessions were authorised under certain circumstances to reduce the canal rates. After the completion of the canal, and after the first account of the capital expended in the undertaking had been delivered upon which the dividends were to be calculated, the company deemed it necessary to erect a reservoir and steam engines. When applying to have an annual account allowed, the company included the expenses of these new works, but certain freighters of the canal having objected to the items, the justices disallowed the sums in question, although it appeared in evidence before them that the works had been erected for the support and improvement of the original line of road, and for the better supplying it with water in dry seasons. This order being brought before the Court of King's Bench by certiorari, was quashed, it being held that, though the works were new in specie, yet, being for the maintenance of the old canal and works, they were justifiably made. Had they been colourably executed for the benefit of individuals, the charges might and would have been repudiated; but this was not so, and the sessions having proceeded on a wrong principle, their order could not stand.

It has been held that no toll was imposed on empty boats by the provision in a canal Act, that no boats navigating thereon of less burthen than twenty tons, or which should not have a loading of twenty tons on board, should pass through any of the locks unless on payment of a tonnage equal to a boat of twenty tons (u).

A canal company was empowered to take tolls on all goods excepting manures, and it was also provided that no boat or vessel should pass through any lock unless such vessel should pay duty equal to what would be paid by a vessel loaded with thirty tons-Held, that this only applied to toll-paying goods, and therefore that a vessel laden with manure was entitled to

(s) R. v. Glamorganshire, 7 B. & C. 722.

(t) R. v. Glamorganshire, 12 East, 156; see Woolrych, p. 310.

(u) Leeds and Liverpool Canal v. Hustler, 1 B. & C. 424; 2 D. & R. 556: 36 R. R. 746, 748. Since this decision, 59 Geo. 3. c. 10, has imposed a simple lockage duty of 5s. upon empty boats; note (a), 1 B. & C. 424.

navigate the canal, and pass through the locks at any time without payment of any toll whatever (x).

An Act of Parliament provided that the Monmouthshire Canal Company were not to take any higher toll for the time being than the Brecknock Canal. The latter by general resolution lowered their tolls-Held, that the company could not question collaterally the validity of such resolution, but were bound by it, Abbott, C.J., saying: If, indeed, without any colour of authority, the rates of the Brecknock Canal had been lowered the case would have been different" (y).

Where a canal Act imposed a toll on "coal, lime, timber, bricks, stone, and all other goods, wares, or merchandise whatsoever," gravel and materials for turnpike roads were held liable to toll (z).

Lees v. Manchester and Ashton Canal Co. (a), has been already referred to with regard to the alteration of tolls (b). There the defendants, being authorised by their Act to take such tolls as were fixed at a general assembly (at the rate of not more than 1d. per ton per mile), and also to reduce rates at a general assembly, though not without the consent of the major part of the proprietors, made a contract with the plaintiffs (but not at a general meeting), whereby, in consideration of their making a cut from their collieries to carry water to the canal, and conveying the same to the company, the latter were to permit them to convey coals at a less rate. It was held that this contract was illegal and void, since it was a speculation by which the company might gain more or less than the legislature intended, and which would extend the company's power to purchase land beyond the limits in the Act, and enable them to raise more capital. Also that it was void because the tolls could only be reduced at a general meeting.

Lord Ellenborough, who delivered judgment, said, inter alia, the public have an interest that the canal should be kept up, and whatever has a tendency to bring it into hazard is an encroachment upon their right in it. They have also an interest that the tolls should be equal upon all; for if any are favoured the inducement to the company to reduce the tolls generally below the statute rate is diminished. But as it is sufficient in this case to say that this bargain is not binding upon the company of proprietors, inasmuch as it abridges their rights in a way the statutes do not

(x) Grantham Canal Co. v. Hall, 14 M. & W. 880; cf. Hall v. Grantham Canal Co., 13 M. & W. 114; 13 L. J., Exch. 203.

(y) Monmouthshire Canal v. Kendal, 4 B. & Ald. 453.

(z) Coulton v. Ambler, 3 Rail. Cas. 724.

(a) 11 East, 645; 11 R. R. 297.

(b) See ante, p. 571.

L. W.

39

warrant, it is unnecessary to give an opinion whether it so interferes with the rights of the public as to be on that ground also void."

Cockburn, C.J., commenting on these remarks in Hungerford Market Co. v. City Steamboat Co. (c), said: "The observations of Lord Ellenborough go no further than to show that on grounds of public policy it may be desirable that such an obligation (i.e., not to lower the tolls), should attach to the power of a public company to take toll; yet authority would certainly seem to be required to establish a proposition directly at variance with the well-known axiom, that every one is at liberty to renounce a right established in his favour.”

By section 103 of 3 Geo. 4. c. 126, the proprietors or trustees of any canal, railway, or tramroad, on which any materials for the repair of turnpike roads may be conveyed, may reduce the tolls imposed by any Act of Parliament on the carriage of such materials, and appoint lower tolls, and reduced tolls may be collected and recovered in the same manner as the original tolls (d) Also, although an Act should authorise the reduction of tolls, and provide for the appropriation of any surplus of rates, commissioners may again raise the rates if it should become necessary (e).

The case of The Medway Navigation v. Brook (f) turned upon the construction of a private Act relating to the navigation of the Medway; by section 23 of which the plaintiffs were empowered to take from persons conveying goods upon the said river between Maidstone and Forest Row, or any part thereof (which all person or persons should and might lawfully do), certain rates and duties for lockage and riverage, which were not to exceed a given limit, and which, by section 28, the plaintiffs were from time to time publicly to fix up. By section 31, nothing in the Act is to be construed to extend the plaintiffs' authority to the execution of any works below Mr. Edmond's wharf in Maidstone; and by section 38, any action, suit, or information for anything done in pursuance of this Act, or in relation to the premises, shall be commenced within three months after the facts committed. Maidstone extends along the river upwards, about three furlongs from Mr. Edmond's wharf to the College Lock constructed by the plaintiffs, Maidstone Bridge being between the two. Plaintiffs, besides other works on the river, had scoured a shoal between the said bridge and Mr. Edmond's wharf, and on their annual

(c) 30 L. J. Q. B. 25; 3 El. & Bl. 365; 3 L. T. (N.S.) 732.

(d) See Woolrych, p. 312.

(e) Ibid.; Goody v. Penny, 9 Mees. & W. 687. See also 8 & 9 Vict. c. 28, ante, pp. 320 et seq.

(f) 33 L. T. (N.s.) 843.