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The case of Fletcher v. The Great West. Company (7). If the circumstances of the ern Railway Company (4) was also cited present case bring it within the authority by the plaintiffs' counsel; but that case is of those cases, then, of course, we are peculiar in its circumstances, and is cer- concluded by authority, and our judgtainly no authority for the plaintiffs' con- ment must be for the plaintiffs. tention, and carries it no further than do In Bagnall v. The London and North the cases before cited. It was an action Western Railway Company (6) the defento recover compensation which had been dants had, under parliamentary powers, assessed under the Lands Clauses Con. constructed a railway, and carried it over solidation Act, in proceedings which had the plaintiffs' mines in a cutting. The been occasioned by a notice from the rail. original soil was clay, and was impervious way company to the mine-owners, and the to water ; but the removal of the clay in only way in which it bears on the present the making of the cutting exposed a case is, that the railway company having pervious stratum subject to cracks and purchased the surface of certain lands for fissures. In consequence of the cutting, the purpose of constructing their railway, water from a brook crossed by the rail. and having taken a conveyance in the way in flood time flowed along the form prescribed by that statute, were held cutting over the plaintiffs' mines, and the not entitled to support from the sub- side drains being insufficient to carry it jacent minerals so as to prevent the mine- off, the water flowed over the pervious owner from getting the same, as might surface, and so escaped into and flooded have been done under a voluntary con- the plaintiffs' mines. The rain-water veyance at common law; and Martin, B., descending upon the railway and the in his judgment, thus described the rela- sides of the cutting, was in like manner tion of the parties—“ The owner is to be carried along the railway, and over and into at liberty to go on working the mines in the mines. Under these circumstances a proper and careful manner, due and it was held that the defendants were proper care being taken to prevent injury liable in an action for the damage. In to the railway.” This case was followed delivering the judgment of the Court of by The Great Western Railway Company v. Exchequer (8), Bramwell, B., describes Bennett (5), which was virtually brought the injury as follows—“The railway comto reverse the judgment of the Court of pany cut and removed upwards of twenty Exchequer and the Court of Exchequer feet in thickness of the surface. This Chamber in the above-mentioned case of surface soil was dry and impervious to Fletcher v. The Great Western Railway water. By removing it a porous rock Company (4), but which conclusively es. was reached. The soil was in like mantablished the propriety of those decisions, ner cut away along the line to a district and the right of the mine-owner to re- of country through which a brook flowed. cover the compensation for his minerals, Here the railway was on or above the which had been assessed under the 78th natural level of the ground; it was section of the Railways Clauses Consolida- carried over the brook by a flat bridge. tion Act. The main reliance of the plain. The line of railway sloped down. tiffs in support of their right to maintain wards from the bridge to a part over this action was, however, placed upon the the plaintiffs' mines. The bridge was cases of Bagnall v. The London and North sufficient to let the ordinary water Western Railway Company (6) and Barber of the brook pass,


found v. The Nottingham and Grantham Railway an impediment to the passage of more in

large floods. The railway company was (4) 4 Hurl. & N. 242 ; s.c. 28 Law J. Rop. (N.s.) bound to make and maintain drains, the Ex. 147; in error 5 Hurl, & N. 689; s. c. 29 Law obligation being the same as in the Lands J. Rep. (N.s.) Exch. 253.

Clauses Act. A flood happened in 1860, (6) Law Rep. 2 H.L. 27. (6) 7 Hurl. & N. 423 ; s. c. 31 Law J. Rep.

(7) 15 Com. B. Rep. N.S. 726; s. c. 33 Law J.

Rep. (N.s.) C.P. 193. (x.s.) Ex. 121; in error 1 Hurl. & C. 544; s.c. 31 (8) 7 Hurl. & N. 418; s, c. 31 Law J. Rep. Law J. Rep. (N.s.) Exch. 180.

(p.s.) Exch. 129.


and the result of the combined acts of the and Willes, J., who delivered the judg. company was that water, which would ment of that Court, thus states the grounds have escaped but for the bridge, flowed


which the Court of Error prodown the railway, and the high ground be- ceeded : “In this case the conjoint effect tween the brook and the surface over the of the making of the defendants' cutting inine being removed, it reached that spot, and of their neglect to keep their drains and the high ground and the protection in proper order has been that large quanof the clay then being gone, and the drains tities of water, which but for the cutting being imperfect, it permeated into the would not have come into the plaintiffs' mine, as also did the water falling on the mine, and but for the defective state of spot itself, and the springs arising in the the drain would have passed away and cuttings." After referring to the work- been carried off without injury to the ing of the mines, he proceeds: “The mine, poured down into and damaged the plaintiffs worked on, and when their mine, for which damage the present workings came under the railway, from action is brought." It appears, therefore, no fault or negligence of theirs, but as a that the judgment in each Court was natural consequence of fair and lawful based upon supposed act, omission, or working, the railway sunk and continued default on the part of the company, to do so from time to time. The defend- amounting to negligence in fact. ants repaired this by throwing materials The case of Barber v. The Nottingham of a porous character on such parts; they and Grantham Railway Company (10) was did not, however, repair and puddle the also relied upon by the plaintiff's' counsel. drains, which from the sinking of the soil That was an action brought to recover from became inefficient, and even had they the defendants a sum of money assessed been efficient, would not have carried off the by a jury as compensation, to which the flood-water of 1860.” He concludes the plaintiff was entitled, for injury to his judgment as follows : “It is not, therefore, lands and mines by water escaping from a the works intrinsically which injuriously reservoir ; and one of the questions, and affect the plaintifft, but the defendants' the only one which is material to the prewrong conduct in relation to them, in not sent, arose on a demurrer to the fourth making and maintaining outlets for the plea, which stated “that the alleged flood-water, or damming it off the plain- damages were caused by the flowing, tiffs' land, or covering the surface thereof leaking, and oozing of the water of the with clay, and in not maintaining those reservoir through the banks thereof, and drains which were efficient to carry off the not in any other manner whatsoever, rain which fell, and the spring water except as aforesaid, by the making or which arose there."

maintaining of the said reservoir, or by I cite this judgment at such length to reason of the execution by the defendants shew the grounds

which it was

of the powers of their Act, and that it based, for whilst Bramwell, B., affirms, was caused by the acts of the plaintiffs in most distinctly, the right of the plain. sinking shafts and pits on their lands and tiffs to work the mines as they did, it coal mines, and causing large quantities is clear that the foundation of the judg- of water, which naturally lay and were ment is that acts or defaults were done or contained in the underground soil or committed, or that acts were neglected to strata in which the said shafts or pits be done by the company, and that they were sunk, and which were situate between had not fulfilled the obligations imposed the said shafts and pits and the said reupon them by their Local Act, and the servoir, and formed the banks and supclauses as to drains to be found in the ports thereof, to flow, leak and ooze withRailway Clauses Consolidation Act incor- out the defendants' default or knowledge, porated therewith.

through the banks and to percolate into When the case came before the Court

the said shafts, pits and mines." No doubt of Error (9) the judgment was affirmed,

(9) 1 Hurl. & C. 545; 8. c. 31 Law J. Rep. (10) 15 Com. B. Rep. N.S. 726 ; s. c. 33 Law J. (N.S.) Exch. 480.

Rep. (x.s.) C.P. 192.


can be entertained that if a company


into the shafts, the water flowed down authorised to construct a reservoir, they through them into the old workings, and must make it in such a way and of such thence into the plaintiffs' mine, and there materials as will prevent à leakage and

did the mischief. The rule of law applicoozing through the banks thereof to the able to such a state of facts is thus exdamage of adjoining owners. It is hardly pressed by Blackburn, J., in delivering

, necessary to say more than that the de- the judgment of the Court of Exchequer cision procoeded on grounds entirely dis- Chamber (11), and is quoted and aptinct from those of the present case, and proved by the Lord Chancellor (Lord that the plea really admitted facts which Cairns) when the case came before the amounted to actual negligence. But the House of Lords (12): “We think that case of Fletcher v. Rylands (11) in the

the true rule of law is that the person, Exchequer Chamber was principally re- who for his own purposes brings on his lied upon, and no doubt that case, affirmed land and collects and keeps there anyas it was in the House of Lords (12), is of thing likely to do mischief if it escapes, the highest authority, and concludes every must keep it at his peril, and if he case which comes within the principle of does not do so, is prima facie answerit. The parties there were not under the able for all the damage which is the naprovisions of any Act of Parliament, but tural consequence of its escape. He can were acting upon their rights, and were excuse himself by showing that the escape subject to the obligations imposed upon was owing to the plaintiff's default, or them by the common law. In that case, perhaps that the escape was the consethe defendants, for the purpose of a mill quence of vis major, or the act of God.” belonging to them, constructed a reser. He then proceeds to give several illustravoir upon their own ground, the coal tions of the rule, and amongst them, the under which had at some remote period case of a person whose mine is flooded been worked out, but this was unknown from his neighbour's reservoir, or whose at the time when the defendants gave habitation is made un healthy by the fumes directions to construct the reservoir; and and noisome vapours of his neighbour's the water in the reservoir would not have alkali works. escaped from the defendants' land, and no These were the cases mainly relied upon mischief would have been done to the on the part of the plaintiffs, and unless a plaintiff, but for this latent defect in the real distinction exists between the case of subsoil. The defendants' selected com- a private individual, who for his own purpetent engineers and contractors for the poses collects on his own land any liquid work, and were themselves in total or other matter which will be a source of ignorance of such latent defect, but danger if it escapes, and the case of a the persons so employed by the de- canal made under the powers of an Act fendants, in the course of the working, of Parliament, not for the benefit of indibecame aware of the existence of the viduals, but for objects of great public ancient shafts filled up with soil, though utility and convenience, it may be that the they did not know or suspect that they case of Fletcher v. Rylands (12) governs were shafts communicating with old the present case. workings. It was found in that case, that As it appears to me, however, cases the defendants personally were free from which depend entirely upon the applicaall blame, but that in fact proper care tion of common law maxims to the acts and skil were not used by the persons of parties in dealing with their own land, employed by them to provide for the suffi- or affecting their neighbours' land, cannot ciency of the reservoir with reference to

govern a case in which the rights and these shafts. The consequence was that obligations of all parties are to be found the reservoir when filled with water burst within the provisions of an Act of Parlia

ment. When the original undertakers to (11) 35 Law J. Rep. (N.s.) Exch. 154.

whose rights and duties the defendants (12) Nom. Rylands v. Fletcher, 37 Law J. Rep. have succeeded were empowered to make (n.s.) Exch. 161; s. c. Law Rep. 3 H.L. 336. the canal, and were invested with extra

their powers.

ordinary powers for that purpose, it was to use it as a navigation on payment of upon the notion that it would render the tolls, became vested in the company, and carriage of coal, &c., from the mines and is now vested in the defendants, and inasof other goods cheaper than before, to much as they have always hitherto kept the great advantage of the trade of the it, and maintained it as a navigation, and district. They were therefore authorized have managed and conducted it without to purchase and take lands compulsorily, any negligence or want of care, and have and to divert streams, &c., and do all themselves been guilty of no act or dethings necessary for the making and fault, can they be made liable to the conmaintaining of the canal, and supplying sequences of the plaintiffs working their it with water for the purposes of naviga- mines within the terms of the Act of tion, subject only to the conditions that Parliament, under which alone they could they should do

as little damage as be permitted to work them? might be,” in the execution of their If the restriction upon their ordinary powers, and should make satisfaction for rights of working their own mines did at all damages which might be sustained by the time “prejudice or affect their inteall owners whose lands, &c., might be rest," it was a matter for compensation affected or prejudiced by the execution of under the Act, the provisions of which

Under such conditions, are very different from those which formed they proceeded to construct and main- the subject of consideration in Bagnall v. tain the canal, doing all things which The London and North Western Railway were necessary to enable the canal to Company (6). realise the public advantage which was The difficulty of ascertaining the value anticipated ; and after the lapse of so many of a compensation under such circumyears since the canal was constructed, stances may be great, but if the defendants it must be assumed that they complied have done nothing more than they were with the conditions, and did make satis- entitled to do under the Act, a party prefaction to all owners whose lands were judicially affected by the execution of their purchased or taken, or whose interests

powers can only seek his remedy under the were “affected or prejudiced” by the provisions of the Act which conferred such execution of their powers. But this was powers, and if the damage recently alleged not all that the legislature conceded in to have been sustained is a consequence the interest and for the benefit of the of the execution by the company of the canal. It imposed certain restrictions powers of the Act, he may possibly obtain upon the owners of mines lying under or compensation now, inasmuch as the Comwithin twelve yards of either side of it, missioners appointed under the Act for who were absolutely prohibited from getting settling disputes as to compensation, were their minerals within that distance without incorporated with succession, and were the consent of the canal company, unless authorised from time to time to take the after certain notice given to such com- steps provided by the Act for ascertaining pany, and a neglect or refusal on the part the amount thereof. The probable of the company to purchase such mines, damage to the canal from the working of and even in that case, the mine owners the mines appears to have been the sole were only allowed to work their mines ground of the prohibition to work them, under and at the prohibited distance of and it was probably supposed that the the canal, upon the terms of doing no un- interests of the canal company would necessary damage to the navigation, or no prevent the possibility of such a state of extraordinary damage or injury by work. things occurring as appears to have haping them out of the ordinary and usual pened in the present case. However that mode--The Dudley Canal Company v. may be, the only power of working the Grazebrook (1).

mines is to be found in the statute, and I The canal having been constructed have come to the conclusion that if comunder the provisions of the Act, and satis- pensation for the damage which is said to faction having been duly made, the canal have resulted to the plaintiffs was not itself, subject to the rights of the public obtained on the making of the canal, as


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in respect of land which was “prejudiced the conditions imposed upon them ; but or affected thereby,” the plaintiffs can inasmuch as they have declined to pur. only obtain it, if at all

, under the provi- chase the mines, they have not acquired sions of the Act of Parliament in the under the statute the right to the support character of damage resulting from the of subjacent mines, which had they pur. execution of the powers thereof, and not chased the surface by a common law by action at law. No action at law will conveyance they would have had, and lie unless there be a legal injury and result- therefore if damage be sustained by the ing damage. Now what is the “injuriacanal being injured by the plaintiffs' prohere? Is it the declining to purchase the per and usual mode of working their mines after notice? The defendants were mines, they must suffer the consequences under no other obligation to do so than so far as they are concerned, and cannot such as might result from a sense of their complain of the water being thereby ab. own interest. Is there any obligation or stracted from the canal; but on the other duty to be implied which they have not hand the plaintiffs are simply authorised fulfilled? The only obligation upon them by the statute to work their mines under must be found directly, or by necessary

the canal in an ordinary and proper implication, in the language of the statute, manner, and if, as a consequence of their and, as it appears to me, they have ful. own lawful acts of working, the water is filled every obligation imposed upon them let out of the canal into the mines, and to

Injurious results frequently arise some extent impedes the complete working to individuals from the execution of thereof it is a damnum sine injuria, and works of public utility, which are au- they cannot maintain an action against thorised by Acts of Parliament, such as a what I may call an innocent party, who railway, which may be lawfully worked bas done no more than he was anthorised in an ordinary and reasonable manner, by the Legislature to do. I have shewn although it occasion a damnum to indi- by quotations from the judgments in viduals. The reason is that being au- Bagnall v. The London and North Western thorised by the legislature, the reasonable Railway Company (6) that they proceeded working can be no injuria. The cases upon the assumption of actual negligence, upon this point are numerous, and the either in the mode in which the railway law is thoroughly settled. In the in- was constructed, or upon some supposed stance suggested by Blackburn, J., in neglect or default as to drainage, from Fletcher v. Rylands (11), of the house which they were not protected by the injured by the fumes of alkali works, if statute then under consideration. The the alkali works had been authorised to cases in which it was decided that an be erected on the spot by Act of Parlia

action would lie either for the compensament, no action could be maintained if tion assessed by the jury or by an award unthe works were carried on in a proper and

der the Lands Clauses Act or the Railways usnal manner.

Clauses Act, as it appears to me, afford The fact is that legislation of the de- no authority for saying that an action will scription under consideration has always lie under circumstances like the present. proceeded upon the principle that all I am therefore of opinion that this action damage occasioned by the execution of will not lie, and that our judgment must the powers conferred on companies should be for the defendants. be provided for by apt compensation clauses, the very object being to prevent COCKBURN, C.J.—This a case of conactions being brought for any injury siderable importance, as affecting the reoccasioned by the due and proper exe- lative rights and liabilities of canal and cution of such works.

other companies, being owners of the sur. In the present case the true position of face of land, and of the owners of minerals the parties appears to me to be that the lying below the surface. defendants have acted strictly within the

The defendants are a canal company, powers conferred

upon them by Act proprietors of a canal called the Netherton of Parliament, and have performed all Canal. The plaintiffs are the proprietors New SERIES, 41.-Q.B.


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