The case of Fletcher v. The Great Western Railway Company (4) was also cited by the plaintiffs' counsel; but that case is peculiar in its circumstances, and is certainly no authority for the plaintiffs' contention, and carries it no further than do the cases before cited. It was an action to recover compensation which had been assessed under the Lands Clauses Consolidation Act, in proceedings which had been occasioned by a notice from the railway company to the mine-owners, and the only way in which it bears on the present case is, that the railway company having purchased the surface of certain lands for the purpose of constructing their railway, and having taken a conveyance in the form prescribed by that statute, were held not entitled to support from the subjacent minerals so as to prevent the mineowner from getting the same, as might have been done under a voluntary conveyance at common law; and Martin, B., in his judgment, thus described the relation of the parties-" The owner is to be at liberty to go on working the mines in a proper and careful manner, due and proper care being taken to prevent injury to the railway." This case was followed by The Great Western Railway Company v. Bennett (5), which was virtually brought to reverse the judgment of the Court of Exchequer and the Court of Exchequer Chamber in the above-mentioned case of Fletcher v. The Great Western Railway Company (4), but which conclusively established the propriety of those decisions, and the right of the mine-owner to recover the compensation for his minerals, which had been assessed under the 78th section of the Railways Clauses Consolidation Act. The main reliance of the plain. tiffs in support of their right to maintain this action was, however, placed upon the cases of Bagnall v. The London and North Western Railway Company (6) and Barber v. The Nottingham and Grantham Railway

(4) 4 Hurl. & N. 242; s. c. 28 Law J. Rep. (N.S.) Ex. 147; in error 5 Hurl, & N. 689; s. c. 29 Law J. Rep. (N.s.) Exch. 253.

(5) Law Rep. 2 H.L. 27.

(6) 7 Hurl. & N. 423; s. c. 31 Law J. Rep. (N.S.) Ex. 121; in error 1 Hurl. & C. 544 ; s. c. 31 Law J. Rep. (N.s.) Exch. 480.

Company (7). If the circumstances of the present case bring it within the authority of those cases, then, of course, we are concluded by authority, and our judg ment must be for the plaintiffs.

In Bagnall v. The London and North Western Railway Company (6) the defendants had, under parliamentary powers, constructed a railway, and carried it over the plaintiffs' mines in a cutting. The original soil was clay, and was impervious to water; but the removal of the clay in the making of the cutting exposed a pervious stratum subject to cracks and fissures. In consequence of the cutting, water from a brook crossed by the railway in flood time flowed along the cutting over the plaintiffs' mines, and the side drains being insufficient to carry it off, the water flowed over the pervious surface, and so escaped into and flooded the plaintiffs' mines. The rain-water descending upon the railway and the sides of the cutting, was in like manner carried along the railway, and over and into the mines. Under these circumstances it was held that the defendants were liable in an action for the damage. In delivering the judgment of the Court of Exchequer (8), Bramwell, B., describes the injury as follows-"The railway company cut and removed upwards of twenty feet in thickness of the surface. This surface soil was dry and impervious to water. By removing it a porous rock was reached. The soil was in like manner cut away along the line to a district of country through which a brook flowed. Here the railway was on or above the natural level of the ground; it was carried over the brook by a flat bridge. The line of railway sloped downwards from the bridge to a part over the plaintiffs' mines. The bridge was sufficient to let the ordinary water of the brook pass, but was found an impediment to the passage of more in large floods. The railway company was bound to make and maintain drains, the obligation being the same as in the Lands Clauses Act. A flood happened in 1860,

(7) 15 Com. B. Rep. N.S. 726; s. c. 33 Law J. Rep. (N.s.) C.P. 193.

(8) 7 Hurl. & N. 448; s. c. 31 Law J. Rep. (N.S.) Exch. 129.

and the result of the combined acts of the company was that water, which would have escaped but for the bridge, flowed down the railway, and the high ground between the brook and the surface over the mine being removed, it reached that spot, and the high ground and the protection of the clay then being gone, and the drains being imperfect, it permeated into the mine, as also did the water falling on the spot itself, and the springs arising in the cuttings." After referring to the working of the mines, he proceeds: "The "The plaintiff's worked on, and when their workings came under the railway, from no fault or negligence of theirs, but as a natural consequence of fair and lawful working, the railway sunk and continued to do so from time to time. The defendants repaired this by throwing materials of a porous character on such parts; they did not, however, repair and puddle the drains, which from the sinking of the soil became inefficient, and even had they been efficient, would not have carried off the flood-water of 1860." He concludes the judgment as follows: "It is not, therefore, the works intrinsically which injuriously affect the plaintiffs, but the defendants' wrong conduct in relation to them, in not making and maintaining outlets for the flood-water, or damming it off the plaintiffs' land, or covering the surface thereof with clay, and in not maintaining those drains which were efficient to carry off the rain which fell, and the spring water which arose there."

I cite this judgment at such length to shew the grounds on which it was based, for whilst Bramwell, B., affirms, most distinctly, the right of the plain. tiff's to work the mines as they did, it is clear that the foundation of the judgment is that acts or defaults were done or committed, or that acts were neglected to be done by the company, and that they had not fulfilled the obligations imposed upon them by their Local Act, and the clauses as to drains to be found in the Railway Clauses Consolidation Act incorporated therewith.

When the case came before the Court of Error (9) the judgment was affirmed,

(9) 1 Hurl. & C. 545; s. c. 31 Law J. Rep. (N.S.) Exch. 480.

and Willes, J., who delivered the judg ment of that Court, thus states the grounds upon which the Court of Error proceeded: "In this case the conjoint effect of the making of the defendants' cutting and of their neglect to keep their drains in proper order has been that large quantities of water, which but for the cutting would not have come into the plaintiffs' mine, and but for the defective state of the drain would have passed away and been carried off without injury to the mine, poured down into and damaged the mine, for which damage the present action is brought." It appears, therefore, that the judgment in each Court was based upon supposed act, omission, or default on the part of the company, amounting to negligence in fact.

The case of Barber v. The Nottingham and Grantham Railway Company (10) was also relied upon by the plaintiffs' counsel. That was an action brought to recover from the defendants a sum of money assessed by a jury as compensation, to which the plaintiff was entitled, for injury to his lands and mines by water escaping from a reservoir; and one of the questions, and the only one which is material to the present, arose on a demurrer to the fourth plea, which stated "that the alleged damages were caused by the flowing, leaking, and oozing of the water of the reservoir through the banks thereof, and not in any other manner whatsoever, except as aforesaid, by the making or maintaining of the said reservoir, or by reason of the execution by the defendants of the powers of their Act, and that it was caused by the acts of the plaintiffs in sinking shafts and pits on their lands and coal mines, and causing large quantities of water, which naturally lay and were contained in the underground soil or strata in which the said shafts or pits were sunk, and which were situate between the said shafts and pits and the said reservoir, and formed the banks and supports thereof, to flow, leak and ooze without the defendants' default or knowledge, through the banks and to percolate into the said shafts, pits and mines." No doubt

(10) 15 Com. B. Rep. N.S. 726; s. c. 33 Law J. Rep. (N.s.) C.P. 192.

can be entertained that if a company be authorised to construct a reservoir, they must make it in such a way and of such materials as will prevent a leakage and oozing through the banks thereof to the damage of adjoining owners. It is hardly necessary to say more than that the decision proceeded on grounds entirely distinct from those of the present case, and that the plea really admitted facts which amounted to actual negligence. But the case of Fletcher v. Rylands (11) in the Exchequer Chamber was principally relied

upon, and no doubt that case, affirmed as it was in the House of Lords (12), is of the highest authority, and concludes every case which comes within the principle of it. The parties there were not under the provisions of any Act of Parliament, but were acting upon their rights, and were subject to the obligations imposed upon them by the common law. In that case, the defendants, for the purpose of a mill belonging to them, constructed a reservoir upon their own ground, the coal under which had at some remote period been worked out, but this was unknown at the time when the defendants gave directions to construct the reservoir; and the water in the reservoir would not have escaped from the defendants' land, and no mischief would have been done to the plaintiff, but for this latent defect in the subsoil. The defendants selected competent engineers and contractors for the work, and were themselves in total ignorance of such latent defect, but the persons so employed by the defendants, in the course of the working, became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings. It was found in that case, that the defendants personally were free from all blame, but that in fact proper care and skill were not used by the persons employed by them to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir when filled with water burst

(11) 35 Law J. Rep. (N.s.) Exch. 154. (12) Nom. Rylands v. Fletcher, 37 Law J. Rep. (N.S.) Exch. 161; s. c. Law Rep. 3 H.L. 336.

into the shafts, the water flowed down through them into the old workings, and thence into the plaintiffs' mine, and there did the mischief. The rule of law applicable to such a state of facts is thus expressed by Blackburn, J., in delivering the judgment of the Court of Exchequer Chamber (11), and is quoted and approved by the Lord Chancellor (Lord Cairns) when the case came before the House of Lords (12): "We think that the true rule of law is that the person, who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or perhaps that the escape was the consequence of vis major, or the act of God." He then proceeds to give several illustrations of the rule, and amongst them, the case of a person whose mine is flooded from his neighbour's reservoir, or whose habitation is made un healthy by the fumes and noisome vapours of his neighbour's alkali works.

These were the cases mainly relied upon on the part of the plaintiffs, and unless a real distinction exists between the case of a private individual, who for his own purposes collects on his own land any liquid or other matter which will be a source of danger if it escapes, and the case of a canal made under the powers of an Act of Parliament, not for the benefit of individuals, but for objects of great public utility and convenience, it may be that the case of Fletcher v. Rylands (12) governs the present case.

As it appears to me, however, cases which depend entirely upon the application of common law maxims to the acts of parties in dealing with their own land, or affecting their neighbours' land, cannot govern a case in which the rights and obligations of all parties are to be found within the provisions of an Act of Parliament. When the original undertakers to whose rights and duties the defendants have succeeded were empowered to make the canal, and were invested with extra

ordinary powers for that purpose, it was upon the notion that it would render the carriage of coal, &c., from the mines and of other goods cheaper than before, to the great advantage of the trade of the district. They were therefore authorized to purchase and take lands compulsorily, and to divert streams, &c., and do all things necessary for the making and maintaining of the canal, and supplying it with water for the purposes of navigation, subject only to the conditions that they should do "as little damage as might be," in the execution of their powers, and should make satisfaction for all damages which might be sustained by all owners whose lands, &c., might be affected or prejudiced by the execution of their powers.

Under such conditions,

they proceeded to construct and maintain the canal, doing all things which were necessary to enable the canal to realise the public advantage which was anticipated; and after the lapse of so many years since the canal was constructed, it must be assumed that they complied with the conditions, and did make satisfaction to all owners whose lands were purchased or taken, or whose interests were "affected or prejudiced" by the execution of their powers. But this was not all that the legislature conceded in the interest and for the benefit of the canal. It imposed certain restrictions upon the owners of mines lying under or within twelve yards of either side of it, who were absolutely prohibited from getting their minerals within that distance without the consent of the canal company, unless after certain notice given to such company, and a neglect or refusal on the part of the company to purchase such mines, and even in that case, the mine owners were only allowed to work their mines under and at the prohibited distance of the canal, upon the terms of doing no unnecessary damage to the navigation, or no extraordinary damage or injury by working them out of the ordinary and usual mode-The Dudley Canal Company v. Grazebrook (1).

The canal having been constructed under the provisions of the Act, and satisfaction having been duly made, the canal itself, subject to the rights of the public

to use it as a navigation on payment of tolls, became vested in the company, and is now vested in the defendants, and inasmuch as they have always hitherto kept it, and maintained it as a navigation, and have managed and conducted it without any negligence or want of care, and have themselves been guilty of no act or default, can they be made liable to the consequences of the plaintiffs working their mines within the terms of the Act of Parliament, under which alone they could be permitted to work them?

If the restriction upon their ordinary rights of working their own mines did at the time "prejudice or affect their interest," it was a matter for compensation under the Act, the provisions of which are very different from those which formed the subject of consideration in Bagnall v. The London and North Western Railway Company (6).

The difficulty of ascertaining the value of a compensation under such circumstances may be great, but if the defendants have done nothing more than they were entitled to do under the Act, a party prejudicially affected by the execution of their powers can only seek his remedy under the provisions of the Act which conferred such powers, and if the damage recently alleged to have been sustained is a consequence of the execution by the company of the powers of the Act, he may possibly obtain compensation now, inasmuch as the Commissioners appointed under the Act for settling disputes as to compensation, were incorporated with succession, and were authorised from time to time to take the steps provided by the Act for ascertaining the amount thereof. The probable damage to the canal from the working of the mines appears to have been the sole ground of the prohibition to work them, and it was probably supposed that the interests of the canal company would prevent the possibility of such a state of things occurring as appears to have happened in the present case. However that may be, the only power of working the mines is to be found in the statute, and I have come to the conclusion that if compensation for the damage which is said to have resulted to the plaintiffs was not obtained on the making of the canal, as

in respect of land which was "prejudiced or affected thereby," the plaintiffs can only obtain it, if at all, under the provisions of the Act of Parliament in the character of damage resulting from the execution of the powers thereof, and not by action at law. No action at law will lie unless there be a legal injury and resulting damage. Now what is the "injuria here? Is it the declining to purchase the mines after notice? The defendants were under no other obligation to do so than such as might result from a sense of their own interest. Is there any obligation or duty to be implied which they have not fulfilled? The only obligation upon them must be found directly, or by necessary implication, in the language of the statute, and, as it appears to me, they have fulfilled every obligation imposed upon them by it. Injurious results frequently arise to individuals from the execution of works of public utility, which are authorised by Acts of Parliament, such as a railway, which may be lawfully worked in an ordinary and reasonable manner, although it occasion a damnum to individuals. The reason is that being authorised by the legislature, the reasonable working can be no injuria. The cases upon this point are numerous, and the law is thoroughly settled. In the instance suggested by Blackburn, J., in Fletcher v. Rylands (11), of the house injured by the fumes of alkali works, if the alkali works had been authorised to be erected on the spot by Act of Parliament, no action could be maintained if the works were carried on in a proper and usual manner.

The fact is that legislation of the description under consideration has always proceeded upon the principle that all damage occasioned by the execution of the powers conferred on companies should be provided for by apt compensation clauses, the very object being to prevent actions being brought for any injury occasioned by the due and proper execution of such works.

In the present case the true position of the parties appears to me to be that the defendants have acted strictly within the powers conferred upon them by Act of Parliament, and have performed all NEW SERIES, 41.—Q.B.

the conditions imposed upon them; but inasmuch as they have declined to purchase the mines, they have not acquired under the statute the right to the support of subjacent mines, which had they purchased the surface by a common law conveyance they would have had, and therefore if damage be sustained by the canal being injured by the plaintiffs' proper and usual mode of working their mines, they must suffer the consequences so far as they are concerned, and cannot complain of the water being thereby abstracted from the canal; but on the other hand the plaintiffs are simply authorised by the statute to work their mines under the canal in an ordinary and proper manner, and if, as a consequence of their own lawful acts of working, the water is let out of the canal into the mines, and to some extent impedes the complete working thereof it is a damnum sine injuria, and they cannot maintain an action against what I may call an innocent party, who has done no more than he was authorised by the Legislature to do. I have shewn by quotations from the judgments in Bagnall v. The London and North Western Railway Company (6) that they proceeded upon the assumption of actual negligence, either in the mode in which the railway was constructed, or upon some supposed neglect or default as to drainage, from which they were not protected by the statute then under consideration. The cases in which it was decided that an action would lie either for the compensation assessed by the jury or by an award under the Lands Clauses Act or the Railways Clauses Act, as it appears to me, afford no authority for saying that an action will lie under circumstances like the present.

I am therefore of opinion that this action will not lie, and that our judgment must be for the defendants.

COCKBURN, C.J.-This is a case of considerable importance, as affecting the relative rights and liabilities of canal and other companies, being owners of the surface of land, and of the owners of minerals lying below the surface.

The defendants are a canal company, proprietors of a canal called the Netherton Canal. The plaintiffs are the proprietors

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