portion of the said field, such portion, however, being no part of what is claimed by the plaintiffs." It is expressly found that these lands were never used for the purposes of the Act down to 1860, and from 1860 to 1869, for nine years, they were never required in any sense for the purposes of the company. Under these circumstances, and on that particular finding, I do not see how we, to whom the matter is rather referred as a matter of fact, can find they ever were required for the purposes of the line; but I wish particularly to guard myself in giving my judgment from saying how I should have decided if the fact had been found that although the company did not use them in 1860 for the purposes of the line, they contemplated extending their station, or it was likely there would be a great junction station, and they would finally require these lands for the purpose of extending their line. Then I think the case would have presented a different aspect; but, that not being found, on these facts, as left to us, I cannot see there is any evidence that they were at all required at the time this action was brought, and upon that ground I think the plaintiff is entitled to judgment.

Judgment for the plaintiff.

Attorneys Johnson & Weatherall, agents for Lamb & Brooks, Basingstoke, for plaintiff's; Young, Maples & Co., for defendants.

writing of such appeal" :-Held, that notwithstanding this provision, it is necessary to give the fourteen days' notice, required by the 12 & 13 Vict. c. 45. s. 1, which applies to such an appeal.

Held also, that where proceedings are instituted under s. 84 of 5 & 6 Will. 4. c. 50, at the desire of a person or persons other than the inhabitants in vestry, for stopping up or diverting a highway, it is not necessary that the certificate of the justices should state that the surveyor was authorised by an authority in writing of the chairman of the vestry meeting, to apply to the justices to view.

[For the report of the above case, see 41 Law J. Rep. (N.s.) M.C. 47.]

Turnpike Toll-General Turnpike Act (9 Geo. 4. c. 95), s. 30-" Taxed Cart," Meaning of.

By a local Act the trustees of a turnpike road were empowered to take a certain toll "for every horse or other beast drawing any car or chair or other such like carriage with double seats (except a dog-cart), or any phaeton, caravan, or taxed cart, or any fourwheeled light carriage, if drawn by one horse or other beast only":-Held, that the words "taxed cart" mean such a cart as comes within the designation of "taxed cart" in 43 Geo. 3. c. 161, and do not apply to any cart, simply because it is a cart in respect of which a tax is paid.

Purdy v. Smith (28 Law J. Rep. (N.S.) M.C. 150) dissented from.

[For the report of the above case, see Law J. Rep. (N.s.) M.C. p. 76.]

Canal-Mines held as a Separate Tenement-Right of Owner in working Mines under Canal-Liability of Canal Company.

An action was brought by the plaintiff's as owners of mines lying beneath a canal of the defendants for so negligently managing the canal as to allow water to escape from it and flood the mines. The canal was constructed by a company under the provisions of a local act, by which it was enacted that if any proprietor of mines under the canal or within twelve yards of either side of it should be desirous of working them, he should give three months' notice to the company, who, if they failed to inspect the mines within thirty days, should be considered as permitting them to be worked, and if, on inspection, they refused permission, they should be compelled to purchase the same, with a proviso that in working the mines 'no injury be done to the navigation anything therein contained to the contrary notwithstanding." By the compensation clauses of the Act, compensation is payable for damage which should be at any time or times whatsoever sustained by the owners of lands, &c., by reason of making, repairing, or maintaining the canal, or by the flowing, leaking, or oozing of the water over or through the banks of the canal (if complaint be made within six months of the injury).

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The plaintiffs gave notice of their intention to work the mines within the prescribed distance of the canal. The defendants did not inspect the mines, and refused to purchase them. The plaintiffs proceeded to work the mines, the canal being then in good order and water-tight. The plaintiffs worked the mines in the usual manner, without which they could not have got the full benefit of the coal, and the effect of such working was to let down and crack the bed of the canal, and to allow the water to flow into and cause damage to the mines. The defendants during the working of the mines took all proper precautions to keep the canal water-tight:

Held, by the majority of the Court (COCKBURN, C.J., MELLOR, J., and LUSH, J.), that the defendants were not responsible NEW SERIES, 41.-Q.B.

for the damage to the mines, as there was no proof of any negligence on their part, or of anything done in excess of their statutory power. By HANNEN, J., dissenting, that the defendants were liable, as it was the intention of the Legislature to prevent any interference with the ordinary working of the mines in case the defendants did not exercise their option of purchasing them.

Semble, by COCKBURN, C.J., that the inability to work the mines without danger of their being flooded by the canal, was a damage for which the plaintiffs were entitled to compensation under the local act.

This was an action by the plaintiffs as owners of certain mines, lying beneath a canal of the defendants, for negligence in the management of the canal, whereby water escaped from it and flooded the mines. A case having been stated for the opinion of the Court, it was argued (on Nov. 10, 1871) by—

Huddleston (J. O. Grifits with him), for the plaintiffs, and

H. Matthews (Macnamara with him), for the defendants.

The facts and arguments are sufficiently explained by the judgments of the Court. Cur, adv. vult.

The following judgments were delivered on Jan. 31, 1872—

MELLOR, J.-In this case the plaintiffs, who were owners of coal mines beneath the canal of the defendants, complained of injury resulting, as they alleged, from the careless and negligent management of the canal and the water therein, by the defendants, whereby the water of the canal escaped into and flooded the mines and colliery of the plaintiffs, and prevented the working thereof. The defendants, by their plea, alleged that the canal in question was made and maintained, and the water brought to and kept in it, under the powers and provisions of certain Acts of Parliament therein set forth, and that the working of the mines by the plaintiffs was not commenced until after the making and completing of the canal, and the water escaped into the coal mines and colliery without the act or default of the defendants, and without any negli gence on their part. The portion of the

R

canal in question was formerly part of a canal described in the case as the Netherton Canal, which was constructed under the provisions of an Act of Parliament passed, in the 33rd year of the reign of King George 3rd, and which incorporated the provisions of the Dudley Canal Act, 16 Geo. 3. c. lxvi.

The Netherton Canal, together with various other canals made under other Acts of Parliament, is now and was at the time of the arising of the complaint hereinafter referred to, by virtue of several Acts of Parliament, amalgamated into one undertaking, and vested in the defendants, but the provisions which regulate the rights and duties of the defendants with reference to the owners of adjoining and subjacent mines, at the part of the canal in question, are to be found in the Dudley Canal Act of the 16 Geo. 3. c. lxvi. By that Act, after reciting that the making of a canal for the navigation of boats as therein described, would render the "carriage of coal, ironstone, and limestone from several mines in that part of the country, and divers other goods and merchandise, much easier and cheaper than at present, which would be of great advantage to the trade and manufactures of the district, and of the towns and counties therein named, and that certain persons were willing to undertake the construction of the said canal, and to supply the same with water from certain streams and watercourses, and to make reservoirs, feeders and aqueducts, for supplying the said canal with water, and to make various other works which they might think requisite and convenient, for the purposes of the said navigation, and also from time to time to alter, repair, amend, widen, or enlarge the same, doing as little damage as might be in the execution of their powers;" and "making satisfaction in manner therein mentioned for all damages' to be sustained by the owners or proprietors of such lands, tenements, or hereditaments, waters, watercourses, brooks, or rivers respectively, as should be taken, used, removed, diverted, or 'prejudiced,' by the execution of the powers of the Act." It then proceeds to empower bodies politic, corporate and collegiate, and other persons under disabilities, to

contract for and sell to the company thereby incorporated any lands or grounds for the use of the said navigation. The Act then recites that differences might arise between the said company of proprietors and the owners or persons interested in the said lands, grounds, tenements, hereditaments, or waters, which might be "affected or prejudiced" by the execution of the powers of the Act, touching the purchase-money to be paid or recompense to be made to them respectively, and thereupon proceeds to institute and incorporate a large body of commissioners, for the settling, determining, and adjusting all questions, matters and differences which might arise between the said company and the proprietors and persons interested in any lands, grounds, tenements, hereditaments and waters which might be affected or prejudiced by the powers thereby granted. It then empowers the said commissioners, or any five of them, in manner and by the means therein mentioned, to determine and adjust "from time to time" what sum by way of annual rent, or in gross, should be paid to the several bodies politic, corporate and other proprietors and parties interested, for the purchase of lands or grounds which should be set out and ascertained for the purposes of the said canals, and also to determine and adjust what other distinct sum of money should be paid by the said company as a recompense for any damages which might or should be, at any time or times whatsoever, sustained by such bodies politic, corporate or collegiate, or other person or persons respectively, being owners of or interested in any lands, grounds, tenements, hereditaments and waters, for or by reason of the making, repairing, or maintaining the said canal or of any reservoir, &c., and supplying the same or any of them with water as aforesaid, or by the flowing, leaking, or oozing of the water over or through the banks of the said canal, reservoirs, trunks, or sluices, or by turning or diverting any streams or brooks into the same, or by reason means of the execution of any of the powers therein contained. In a subsequent clause, the Act provides that nothing therein contained shall extend "to defeat,

or

prejudice, or affect" the right of the lord of manors, commons, or waste grounds, or of any owner or owners of lands or grounds in, upon or through which the said canal, &c., or any of them should be made, to the mines, minerals, or quarries lying and being within or under the lands or grounds to be set out for the use of such canal, but all such mines, minerals, &c., were thereby reserved to such lords of manors and other owners, and that it should be lawful for such lords of manors and other owners respectively, subject to the conditions and restrictions therein contained, to work all such mines and to carry away all coal, &c., as should be gotten therefrom to his or their own use, provided that in the working such mines. and quarries, no injury should be done to the said navigation, anything therein contained to the contrary notwithstanding. The conditions and restrictions above referred to are contained in earlier provisions of the same Act, and are in substance as follows, viz., that no owner of mines or minerals should on any account whatever open such mine or carry on any work, for the getting of coal, &c., within the distance of twelve yards from the said intended canal, &c., nor should any coals, &c., be gotten under any part of the said canal, &c., or within or under any land lying within twelve yards of either side of the said canal except as thereinafter mentioned without the consent of the said company. It then enacts that when and so often as any owner of any coal mines, &c., lying under the said canal, &c., or within the distance therein before limited, should be desirous of working the same, then and in such case, such owner should give to the said company three calendar months' notice in writing before he should begin to work such mines, and that upon receipt of such notice, it should be lawful for the company to cause such mines to be inspected in order to determine what coal, &c., might be actually gotten, without prejudice or damage to the canal; and on failure by the company to cause the said mines to be inspected, after receipt of such notice, then and in that case, it should be lawful for such owner of mines to work the same; and if, upon such inspection, the company should refuse to

permit the owners of such coal mines, &c., to work the same, or in any other manner obstruct them from getting the same, then the said company, at the expiration of three calendar months after such refusal or obstruction, should pay to such owner, proprietor, or worker of such mines respectively, such price for the same, as the next adjoining mines of equal quality should have been really and bona fide sold for or be estimated or valued at; and in case of disagreement touching any or either of the matters aforesaid, then the same should be settled by the commissioners or any five of them, or by the verdict of a jury, if required, in manner therein before provided for ascertaining the value of land.

The above are all the material provisions of the Acts of Parliament affecting the question which is raised in this action.

On the 14th of January, 1868, the plaintiffs gave three calendar months' notice in writing to the defendants that they were desirous of working certain mines of coal lying under and within the distance of twelve yards on either side of a portion of the canal, which was in fact part of the canal called in the case the Netherton Canal, and offered inspection of the portion intended to be worked to the defendants, who did not in fact inspect the mines, and refused to purchase the same.

The plaintiffs thereupon proceeded, after the expiration of the notice, to work the mines under and within the distance of twelve yards from the sides thereof, and carried on their working in a manner neither negligent, unskilful, or improper, but without regard to the surface and without attempting to support it, and knowing that the effect would be to let down the surface, and probably dislocate the strata, and that there was danger of the water from the canal escaping into their mines. On the other hand, the defendants during the working of the mines by the plaintiffs did all in their power to keep the canal water-tight, and it was at the time when the working commenced in good order ard condition, and its bed at and beyond the place where the plaintiffs' coal was to be gotten was properly puddled and was water-tight, and would have so

remained if it had been undisturbed by the working of the plaintiffs' mines.

The result of the plaintiffs' working of the mines was, that the strata near to and above the void so created, and the surface of the canal and the bed thereof, sank, and were cracked, broken, and dislocated, and the water of the canal escaped into and flooded the plaintiffs' mines, and prevented the working thereof in parts, whereby the complete getting of the coal was prevented.

In this state of facts the plaintiffs seek to recover damages from the defendants for the loss of that portion of their coal which the flooding of the mines by the water-which escaped out of the canal-prevented their getting.

It is to be observed that no negligence in point of fact is imputed to the defendants; but, on the contrary, it is clear that the canal was kept and maintained in proper order and condition—that is, well puddled and water-tight. And this raises the question, whether, under the provisions of the Acts of Parliament, which regulate the relation of the parties to each other, the defendants can be made liable in an action, without negligence in fact, for loss accruing to the owners of the mine by reason of the flooding thereof, occasioned by their own act, without some act or default done or suffered by the defendants. I am of opinion that they cannot.

In the case of The Dudley Canal Company v. Grazebrook (1), the provisions of the 16 Geo. 3. c. lxvi., came under the consideration of this Court in an action the converse of the present, wherein the company sought to recover damages against an owner of coal mines for working his mine after notice and refusal by the company to purchase, whereby injury had occurred to the navigation.

In that case the mine-owner had been guilty of negligence in the working of his mine, and it was sought to make him liable under the words of the proviso, "that in working such mines and quarries no injury be done to the said navigation; anything herein contained to the contrary notwithstanding." The Court in that case put a limit on the gencrality of the (1) 1 B. & Ad. 59; s. c. 8 Law J. Rep. K.B. 361.

words in the proviso, and Bayley, J., in delivering the judgment, said "If this proviso is to be construed literally, it is inconsistent with the 62nd section; for if the owner in working mines is to be responsible at all events for any injury or damage only to the canal, would the company ever purchase the minerals from such owner? And accordingly the language of the proviso was interpreted to mean "either that the party working the mines is to do no unnecessary damage or injury to the navigation, or no extraordinary damage or injury by working them out of the ordinary and usual mode (2).” That construction of the proviso was afterwards affirmed in the case of The Stourbridge Canal Company v. The Earl of Dudley (3), in which a case arising under a Canal Act, containing similar provisions, came under the consideration of a Court of Error; and there is no doubt that it must now be considered as settled by those cases, that under circumstances such as exist in the present case, no action would lie by the defendants against the plaintiffs. Indeed, Martin, B., quoted during the argument in the latter case from the judgment delivered by Bayley, J., in the former case-"It is not necessary to give an opinion whether the defendants could have got their minerals in any manner that they pleased without being liable to an action. The point for our decision is, whether they are responsible for the damage done to the plaintiff's by working their own mines in the ordinary and usual mode." This construction was actually adopted in a subsequent Act of 5 Will. 4. c. xxxiv., and which is one of the Acts the powers of which are now vested in the defendants, and under which cer. tain canals now vested in the defendants were constructed.

No suggestion is to be found in those cases which can support the proposition now contended for, viz., that the mineowner might possibly maintain an action against the canal owner in case of damage resulting from water escaping from the canal into the mines, caused solely by the owner's own act.

(2) 1 B. & Ad. 74.

(3) 3 E. & E. 409; s. c. 30 Law J. Rep. (N.s.) Q.B. 108.