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portion of the said field, such portion, writing of such appeal” :-Held, that nothowever, being no part of what is claimed withstanding this provision, it is necessary by the plaintiff's." It is expressly found to give the fourteen days' notice, required by that these lands were never used for the the 12 & 13 Vict. c. 45. 8. 1, which appurposes of the Act down to 1860, and plies to such an appeal. from 1860 to 1869, for nine years, they Held also, that where proceedings are were never required in any sense for the instituted under s. 84 of 5 8 6 Will. 4. C. purposes of the company. Under these 50, at the desire of a person or persons circumstances, and on that particular other than the inhabitants in vestry, for finding, I do not see how we, to whom stopping up or diverting a highway, it is the matter is rather referred as a matter not necessury that the certificate of the of fact, can find they ever were required justices should state that the surveyor was for the purposes of the line; but I wish authorised by an authority in writing of particularly to guard myself in giving my the chairman of the vestry meeting, to apply judgment from saying how I should have to the justices to view. decided if the fact had been found that although the company did not use them [For the report of the above case, see in 1860 for the purposes of the line, 41 Law J. Rep. (p.s.) M.C. 47.] 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 bave presented a different aspect; but, that not being found,

(In the Second Division of the Court.) on these facts, as left to us, I cannot see there is any evidence that they were at all

1872. 1 WILLIAMS (appellant) v. LEAR required at the time this action was

Jan. 24.

(respondent). brought, and upon that ground I think the plaintiff is entitled to judgment.

Turnpike Toll-General Turnpike Act Judgment for the plaintiff.

(9 Geo. 4. c. 95), s. 30—“ Taxed Cart,Meaning of.

By a local Act the trustees of a turnpike Attorneys — Johnson & Weatherall, agents for road were empowered to take a certain toll Lamb & Brooks, Basingstoke, for plaintiffs ;

for every horse or other beast drawing any Young, Maples & Co., for defendants.

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 1871,

the words taxed cartmean such a cart THE QUEEN V. MAULE. Feb, 1.

as comes within the designation of taxed

cartin 43 Geo. 3. c. 161, and do not Highway-Stopping up or. Diverting apply to any cart

, simply because it is a Appeal to Quarter SessionsTime for giving

cart in respect of which a tax is paid. Notice5 8 6 Will. 4. c. 50. 8. 88—12 8

Purdy v. Smith (28 Law J. Rep. (N.s.) 13 Vict. c. 45. 8. 1-Certificate.

M.C. 150) dissented from. Section 88 of 5 6 Will. 4. c. 50, provides that it shall be lawful for any person

[For the report of the above case, see who may think that he would be injured or

Law J. Rep. (N.s.) M.C. p. 76.] aggrieved if any highway should be ordered to be diverted and turned or stopped up, to make his complaint thereof by appeal to the justices of the peace at the Quarter Sessions, upon giving to the surveyor ten days' notice in

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BIRMINGHAM CANAL COMPANY.

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1871.

for the damage to the mines, as there Nov. 10. DUNN AND ANOTHER V. THE was no proof of any negligence on their part, 1872.

or of anything done in excess of their staJan. 31.

tutory power. By HANNEN, J., dissenting, Canal-Mines held as a Separate Tene

that the defendants were liable, as it was ment-Right of Owner in working Mines

the intention of the Legislature to prevent under Canal-Liability of Canal Company of the mines in case the defendants did not

any interference with the ordinary working An action was brought by the plaintiff's exercise their option of purchasing them. as owners of mines lying beneath a canal of Semble, by COCKBURN, C.J., th it the inathe defendants for so negligently managing bility to work the mines without danger of the canul as to allow water to escape from their being flooded by the canal, was it and flood the mines. The canal was con- damage for which the plaintiffs were entitled structed by a company under the provisions to compensation under the local act. of a local act, by which it was enacted that if any proprietor of mines under the canal or This was an action by the plaintiffs as within trelve yards of either side of it owners of certain mines, lying beneath a should be desirous of working them, he canal of the defendants, for negligence in should give three months' notice to the com- the management of the canal, whereby pany, who, if they failed to inspect the mines water escaped from it and flooded the within thirty days, should be considered as mines. A case having been stated for permitting them to be worked, and it, on the opinion of the Court, it was argued inspection, they refused permission, they (on Nov. 10, 1871) byshirudd be compelled to purchase the same, Huddleston (J. O. Griffits with him), for with a proviso that in working the mines the plaintiffs, and "no injury be done to the navigation H. Mattheres (Macnamara with him), anything therein contained to the contrary for the defendants. notwithstanding." By the compensation The facts and arguments are sufficiently clauses of the Act, compensation is payable explained by the judgments of the Court. for damage which should be at

any
time or

Cwr. adv. vult. times whatsoever sustained by the owners of lands, &c., by reason of making, repairing, The following judgments were delivered or maintaining the canal, or by the flowing, on Jan. 31, 1872leaking, or oozing of the water over or MELLOR, J.-In this case the plaintiffs, through the banks of the canal (if complaint who were owners of coal mines beneath be male within six months of the injury). the canal of the defendants, complained of

The plaintiffs gave notice of their intention injury resulting, as they alleged, from the to work the mines within the prescribed dis- careless and negligent management of the tance of the canal. The defendants did not canal and the water therein, by the defeninspect the mines, and refused to purchase dants, whereby the water of the canal them. The plaintiff's proceeded to work the escaped into and flooded the mines and mines, the conal being then in good order colliery of the plaintiffs, and prevented and water-tight. The plaintiff's worked the the working thereof. The defendants, mines in the usual manner, without which by their plea, alleged that the canal in they could not have got the full benefit of question was made and maintained, and the coal, and the effect of such working was the water brought to and kept in it, under to let down and crack the bed of the canal, the powers and provisions of certain und to allow the water to floro into and Acts of Parliament therein set forth, and cause damage to the mines. The defen- that the working of the mines by the dants during the working of the mines took plaintiffs was not commenced until after all proper precautions to keep the canal the making and completing of the canal, water-tight

and the water escaped into the coal mines Held, by the majority of the Court and colliery without the act or default of (COCKBURN, C.J., MELLOR, J., and LUSH, the defendants, and without any negliJ.), that the defendants were not responsible gence on their part. The portion of the NEW SERIES, 11.-Q.B.

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canal in question was formerly part of a contract for and sell to the company canal described in the case as the Nether- thereby incorporated any lands or grounds ton Canal, which was constructed under for the use of the said navigation. The the provisions of an Act of Parliament Act then recites that differences might passed, in the 33rd year of the reign of arise between the said company

of

proKing George 3rd, and which incorporated prietors and the owners or persons interthe provisions of the Dudley Canal Act, ested in the said lands, grounds, tenements, 16 Geo. 3. c. lxvi.

hereditaments, or waters, which might be The Netherton Canal, together with "affected or prejudiced” by the execution various other canals made under other of the powers of the Act, touching the Acts of Parliament, is now and was at the purchase-money to be paid or recompense time of the arising of the complaint here- to be made to them respectively, and inafter referred to, by virtue of several thereupon proceeds to institute and inActs of Parliament, amalgamated into one corporate a large body of commissioners, undertaking, and vested in the defendants, for the settling, determining, and adjustbut the provisions which regulate thé ing all questions, matters and differences rights and duties of the defendants with which might arise between the said comreference to the owners of adjoining and pany and the proprietors and persons subjacent mines, at the part of the canal interested in any lands, grounds, tenein question, are to be found in the Dudley ments, hereditaments and waters which Canal Act of the 16 Geo. 3. c. lxvi. By might be affected or prejudiced by the that Act, after reciting that the making powers thereby granted. It then emof a canal for the navigation of boats as powers the said commissioners, or any five therein described, would render the “ of them, in manner and by the means riage of coal, ironstone, and limestone therein mentioned, to determine and ad. from several mines in that part of the just “from time to time' what sum by country, and divers other goods and mer- way of annual rent, or in gross, should be chandise, much easier and cheaper than at paid to the several bodies politic, corpopresent, which would be of great advan. rate and other proprietors and parties tage to the trade and manufactures of the interested, for the purchase of lands or district, and of the towns and counties grounds which should be set out and therein named, and that certain persons ascertained for the purposes of the said were willing to undertake the construction canals, and also to determine and adjust of the said canal, and to supply the same what other distinct sum of money should with water from certain streams and be paid by the said company as a recomwatercourses, and to make reservoirs, pense for any damages which might or feeders and aqueducts, for supplying the should be, at any time or times whatsosaid canal with water, and to make various ever, sustained by such bodies politic, other works which they might think re- corporate or collegiate, or other person or quisite and convenient, for the purposes persons respectively, being owners of or of the said navigation, and also from time interested in any lands, grounds, teneto time to alter, repair, amend, widen, or ments, hereditaments and waters, for or enlarge the same, doing as little damage by reason of the making, repairing, or as might be in the execution of their maintaining the said canal or of any reserpowers ;” and “making satisfaction in voir, &c., and supplying the same or any manner therein mentioned for all da. of them with water as aforesaid, or by the mages' to be sustained by the owners flowing, leaking, or oozing of the water or proprietors of such lands, tenements, over or through the banks of the said or hereditaments, waters, watercourses, canal, reservoirs, trunks, or sluices, or by brooks, or rivers respectively, as should turning or diverting any streams be taken, used, removed, diverted, or 'pre- brooks into the same, or by reason or judiced,' by the execution of the powers means of the execution of any of the of the Act." It then proceeds to empower

powers therein contained. In a subsebodies politic, corporate and collegiate, quent clause, the Act provides that nothing and other persons under disabilities, to therein contained shall extend " to defeat,

or

prejudice, or affect” the right of the lord permit the owners of such coal mines, &c., of manors, commons, or waste grounds, to work the same, or in any other manner or of any owner or owners of lands or obstruct them from getting the same, grounds in, upon or through which the then the said company, at the expiration said canal, &c., or any of them should be of three calendar months after such remade, to the mines, minerals, or quarries fasal or obstruction, shonld pay to such lying and being within or under the lands owner, proprietor, or worker of such or grounds to be set out for the use of such mines respectively, such price for the canal, but all such mines, minerals, &c., same, as the next adjoining mines of were thereby reserved to such lords of equal quality should have been really and manors and other owners, and that it bona fide sold for or be estimated or should be lawful for such lords of manors valued at; and in case of disagreement and other owners respectively, subject to touching any or either of the matters the comitions and restrictions therein aforesaid, then the same should be settled contained, to work all such mines and to by the commissioners or any five of them, carry away all coal, &c., as should be or by the verdict of a jury, if required, in gotten therefrom to his or their own use, manner thereinbefore provided for ascerprovided that in the working such mines taining the value of land. and quarries, no injury should be done to The above are all the material provisions the said navigation, anything therein con- of the Acts of Parliament affecting the tuined to the contrary notwithstanding. question which is raised in this action. The conditions and restrictions above On the 14th of January, 1868, the referred to are contained in earlier pro

plaintiffs gave

three calendar months' novisions of the same Act, and are in sub- tice in writing to the defendants that they stance as follows, viz., that no owner of were desirous of working certain mines mines or minerals should on any account of coal lying under and within the diswhatever open such mine or carry on any tance of twelve yards on either side of a work, for the getting of coal, &c., within portion of the canal, which was in fact the distance of twelve yards from the part of the canal called in the case the said intended canal, &c., nor should any

Netherton Canal, and offered inspection coals, &c., be gotten under any part of of the portion intended to be worked to the said canal, &c., or within or under any the defendants, who did not in fact inland lying within twelve yards of either spect the mines, and refused to purchase side of the said canal except as thereinafter the same. mentioned without the consent of the said The plaintiffs thereupon proceeded, after company. It then enacts that when and the expiration of the notice, to work the so often as any owner of any coal mines, mines under and within the distance of &c., lying under the said canal, &c., or twelve yards from the sides thereof, and within the distance thereinbefore limited, carried on their working in a manner should be desirous of working the same, neither negligent, unskilful, or improper, then and in such case, such owner should but without regard to the surface and give to the said company three calendar without attempting to support it, and months' notice in writing before he should knowing that the effect would be to let begin to work such mines, and that upon down the surface, and probably dislocate receipt of such notice, it should be lawful the strata, and that there was danger of for the company to cause such mines to the water from the canal escaping into be inspected in order to determine what their mines. On the other hand, the decoal, &c., might be actually gotten, with- fendants during the working of the mines out prejudice or damage to the canal ; and by the plaintiffs did all in their power to on failure by the company to cause the keep the canal water-tight, and it was at said mines to be inspected, after receipt the time when the working commenced in of such notice, then and in that case, it good order ard condition, and its bed at should be lawful for such owner of mines and beyond the place where the plaintiffs' to work the same; and if, upon such in- coal was to be gotten was properly puddled spection, the company should refuse to and was water-tight, and would have so

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remained if it had been undisturbed by words in the proviso, and Bayley, J., in the working of the plaintiffs' mines. delivering the judgment, said-If this

The result of the plaintiffs' working of proviso is to be construed literally, it is the mines was, that the strata near to and inconsistent with the 62nd section; for if above the void so created, and the surface the owner in working mines is to be of the canal and the bed thereof, sank, responsible at all events for any injury and were cracked, broken, and dislocated, or damage only to the canal, would the and the water of the canal escaped into company ever purchase the minerals from and flooded the plaintiffs' mines, and pre- such owner ?" And accordingly the lanvented the working thereof in parts, guage of the proviso was interpreted to whereby the complete getting of the coal “either that the party working the was prevented.

mines is to do no unnecessary damage or In this state of facts the plaintiffs injury to the navigation, or no extraorseek to recover damages from the de- dinary damage or injury by working them fendants for the loss of that portion out of the ordinary and usual mode (2).” of their coal which the flooding of That construction of the proviso was afterthe mines by the water—which escaped wards affirmed in the case of The Storrout of the canal-prevented their getting. bridge Canal Company v. The Earl of Duul.

It is to be observed that no negligence ley (3), in which a case arising under a in point of fact is imputed to the defen- Canal Act, containing similar provisions, dants; but, on the contrary, it is clear came under the consideration of a Court that the canal was kept and maintained of Error; and there is no doubt that it in proper order and condition—that is, must now be considered as settled by well puddled and water-tight. And this those cases, that under circumstances raises the question, whether, under the such as exist in the present case, no action provisions of the Acts of Parliament, would lie by the defendants against the which regulate the relation of the parties plaintiffs. Indeed, Martin, B., quoted to each other, the defendants can be made during theargument in the latter case from liable in an action, without negligence in the judgment delivered by Bayley, J., in fact, for loss accruing to the owners of the former case_“It is not necessary to the mine by reason of the flooding thereof, give an opinion whether the defendants occasioned by their own act, without some could have got their minerals in any act or default done or suffered by the defen- manner that they pleased without being dants. I am of opinion that they cannot. liable to an action. The point for our

In the case of The Dudley Canal Com- decision is, whether they are responsible pany v. Grazebrook (1), the provisions of for the damage done to the plaintiffs by the 16 Geo. 3. c. lxvi., came under the con- working their own mines in the ordinary sideration of this Court in an action the and usual mode.” This construction was converse of the present, wherein the com- actually adopted in a subsequent Act of 5 pany sought to recover damages against Will. 4. c. xxxiv., and which is one of the an owner of coal mines for working his Acts the powers of which are now vested mine after notice and refusal by the com- in the defendants, and under which cer. pany to purchase, whereby injury had tain canals now vested in the defendants occurred to the navigation.

were constructed. In that case the mine-owner had been No suggestion is to be found in those guilty of negligence in the working of his cases which can support the proposition mine, and it was sought to make him now contended for, viz., that the mineliable under the words of the proviso, owner might possibly maintain an action " that in working such mines and quarries against the canal owner in no injury be done to the said navigation; damage resulting from water escaping anything herein contained to the contrary from the canal into the mines, caused notwithstanding." The Court in that solely by the owner's own act. case put a limit on the generality of the

(2) 1 B. & Ad. 74. (1) i B. & Ad. 59; s. c. 8 Law J. Rp. K.B. (3) 3 E. & E. 409; s.c. 30 Law J. Rrp. (N.s.) 361.

Q.B. 108.

case of

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