of a mine lying below a part of the bed of the canal. The action, upon which this case has been stated, is brought to recover damages for alleged negligence in the management of the canal by the defendants, by reason of which the water of the canal escaped into the plaintiffs' mine, flooded it, and prevented its working, and caused considerable damage to the works.

The defendants, besides a plea of not guilty, pleaded, except as to the charge of negligence and improper conduct, that the water was brought into the said canal in pursuance of certain Acts of Parliament authorizing the construction and maintenance of the canal; that the mines were not worked till after the completion of the same, and that the alleged injury to the plaintiffs' mines happened without any negligence or default on their, the defendants, part.

The company was formed, and the canal in question constructed, under an Act of the 33 Geo. 3, in which the provisions of a prior Act, the 16 Geo. 3. c. lxvi., called the Dudley Canal Act, were incorporated.

By the latter Act, the canal company were authorized to enter upon, set out, and take the land necessary for making the canal, and to construct the latter, doing as little damage as might be" in the execution of the powers granted to them. In the event of the owners of the land so set out and the company not being able to agree as to the purchase money to be paid for the land, the amount was to be settled by commissioners appointed by the Act, or, if required by either of the parties, was to be assessed by a jury.

By the Act (14) the company are authorized to do all matters and things which they shall think necessary and convenient for making, preserving, completing, and using the navigation, they and their successors making satisfaction, in manner thereinafter mentioned, for all damages to be sustained by the owners or proprietors of such lands, &c., as shall be taken, used, or prejudiced in or by the execution of all or any of the powers of the Act, and the Act is to be a sufficient indemnity for

(14) See page 1592 of the Act.

what they shall do by virtue of the powers thereby granted.

Provision is made for securing compensation for damage caused to adjoining owners, by the execution of the works which the company are authorized to construct and carry on.

The Commissioners (15) are not only to determine what shall be paid for the purchase of the lands required for making the canal, but also "to determine and adjust what other distinct sum or sums of money shall be paid as a recompense for any damage which may or shall be, at any time or times whatsoever, sustained by the owners of any lands, &c., for or by reason of making, repairing, or maintaining the said canal, or by the flowing, leaking, or oozing of the water over or through the banks of the canal; but (16) they are not to be obliged to take notice of any complaint for injury or damage sustained, unless application has been made to the company or their agents, &c., within six months next after the time when such injury or damage shall have been sustained, or the doing or committing thereof shall have ceased."

All that was required by the company' for the formation of the canal being the surface of the land, the right to the minerals below it was expressly reserved to the owners of the land, subject to certain conditions and restrictions, in respect of the working of it, presently to be-referred to, and to a proviso that in working mines or quarries no injury should be done to the navigation." These conditions and restrictions, imposed evidently for the protection of the company, or the exercise of the right to the subjacent mineral thus reserved to the landowner, are, in effect, such as to give an option to the company to prevent the working of the mineral altogether on making compensation to the owner.

The substance of the provisions thus regulating the respective rights of the parties in regard to the mineral is as followes. In the first place, it is provided that no mine owner shall dig or carry on any work for mining under or within

(15) See page 1603 of the Act. (16) See page 1608 of the Act.

twenty yards of any tunnel, without the consent of the company. No mine owner is to dig or carry on any work for getting coal or other mineral within twelve yards of the canal, or of any reservoir of the company, nor is any coal or other mineral to be got under any part of the canal, or the towing paths, or reservoirs, or under any ground lying within twelve yards of either side of any of them, without the consent of the company, given under their common seal.

While, however, protection was thus given to the company against the working of mines which might be dangerous to the safety of the canal, it was not intended that the owners of the mineral should be left at the company's mercy. In order, therefore, to enable a mine owner, when desirous of working the mineral, to obtain the consent required, or compensation for the loss of the mineral, it is provided that if a mine owner is desirous of working a mine lying under the canal, &c., or within the prescribed distance, he shall give three months' notice to the company; thereupon the latter are to be at liberty to inspect the mine, "in order to determine what coal or other minerals may be come at and actually gotten without prejudice or damage to the said canal," &c. If, upon such inspection, the company refuse to permit the mine owner to work the part so lying below the canal, &c., or within the prescribed distance, or in any other manner obstruct or prevent him from getting the same, then the company are, within three calendar months afterwards, to pay to the mine owner "such price as the next adjoining mines of equal quality shall have been really and bona fide sold for, or be estimated or valued at, and in the event of any dispute arising touching any of these matters, the same is to be settled by the Commissioners, subject, if required, to the verdict of a jury.'

In the possible case, still remaining, of the company omitting to inspect the mine, and thereupon to give their consent to the working of the mineral, or, by their refusal, to place the mine owner in a position to obtain compensation, such a state of things is provided for by the enactment that, if the company fail or neg

lect to inspect within thirty days from the notice of the mine owner, it shall be lawful for him to work such part of the mine and get the mineral.

The purport and intent of the foregoing legislation is plain. It was intended, in the first place, to relieve the company from the necessity of including in the amount to be paid for the land in the first instance, the value of the mineral not situated in the upper portion of the soil required for their works; and such mineral was reserved to the landowner.

Further, it was intended to protect the company against mining operations which might prove fatal or injurious to their works above, by enabling them to step in and prevent such operations, on making compensation to the owner; but inasmuch as such mineral might never be gotten by the owner, to whom it was thus reserved, or, at all events, not till a future period, and as in point of justice it would be quite time enough to pay him for it when the period came at which he really desired to get it, and would have proceeded to get it but for the powers of the company, it was intended to relieve the company from the necessity of making such compensation till that period arrived, if it should then be found expedient by the company to prevent the exercise of the right to the mineral. On the other hand, it is equally clear that it was intended to preserve to the mine owner the right either to get the mineral or to be paid an indemnity for the loss of it, at the option of the company.

This being so, it was held in the case of The Dudley Canal Company v. Grazebrook (1), which was a case arising upon this same Act of Parliament, that where the canal company refused to inspect a mine, and thereupon to elect to give or refuse their consent to the working of it, the right to work it in such case being expressly reserved to the mine owner, if damage to the works of the company should result from the operations below, no action could be maintained by the company, provided those operations had been carried on with proper care and in the ordinary course of mining.

to

But it is obviously a very different thing say that where the mine owner has,

by his own operations, injured the bed of the canal, and so let the water into his mine, he can in an action of law recover damages against the proprietors of the canal. This is the question which we have now to decide.

In the present case, the plaintiffs, the mine owners, gave due notice to the defendants of their desire to work the part of their mine lying within twelve yards of either side of a part of the canal, and invited the company to make inspection of the mine. The company did not inspect the mine, and refused to purchase the mineral; thereupon, the plaintiffs, after the expiration of the thirty days, proceeded to work the mine. In consequence of such working, and from no other cause, cracks and fissures were produced in the bed of the canal, through which the water found its way into the mine below, and flooded it, whereby the plaintiffs were unable to get their coal and sustained other damage.

It is expressly stated in the case that, shortly prior to the commencement of the plaintiffs' operations, the defendants had repaired the bed of the canal lying above the plaintiffs' mine; and that the bed was, at and beyond the place where the plaintiffs' coal was to be worked, properly puddled and water tight, and would have so remained if it had not been disturbed

by the working of the mines below by the plaintiffs.

It is further found that, while the plaintiffs' workings were proceeding, the defendants, for the protection of the canal, as well as to keep its bed watertight, if possible, had everything ready to repair it, and to raise its banks, and to fill up its bed, when these should sink; and that when they did sink, they did in fact repair and raise the banks, and fill up the bed of the canal, so as to restore it to its former depth (the raising of the banks after the sinking having made the canal deeper); and that this was done in a proper and careful manner, and with proper material, calculated to fill up cracks if any should occur, but that where the bed of a canal has been or is in the course of being broken by mining, there are no certain means of keeping the canal watertight.

It must, therefore, be taken as an admitted fact, that there was no negligence on the part of the defendants contributing to the damage occasioned to the mine, unless, indeed, the omission to empty the water out of the canal above the plaintiffs' mine, while the mine was being worked, can be so considered. But I cannot think that it was at all incumbent on the company to interrupt the navigation, which it was their business to keep open for the accommodation of the public, in order to afford the plaintiffs the opportunity of getting their coal.

To the facts before stated must be added the (to my mind all important) statement contained in the case, that the plaintiffs worked their mines without regard to the surface, and without attempting to support it, and with knowledge that the effect would be to let down the surface, and probably to dislocate the strata, and that there was danger of the water from the canal escaping into their mines; "although," it is added, "if they were right in thus acting, they did not work their mines in any negligent or unskilful or improper manner, but got the coal in the manner in which the coal there is ordinarily got." It must be taken also that without doing this they could not have obtained the full benefit of their coal.

Upon this state of facts, it seems to me that this action, which is founded on the alleged negligence of the defendants in the management of the canal, cannot, at all events in its present form-all negligence in such management being expressly negatived-be maintained. But as the declaration might possibly be amended, so as to be adapted to the actual facts of the case, I proceed to consider how far an action at law, in whatever form the declaration may be framed, can, under the circumstances stated, be held to lie against the defendants for the damage occasioned to the mine-this being, as I apprehend, the question submitted for our decision. It appears to me that, not only is there no authority for saying that such an action will lie, but also that in principle we ought to hold that it will not.

The case of Fletcher v. Rylands (11), in the Exchequer Chamber, and in which

the judgment of that Court was afterwards affirmed in the House of Lords (12), was indeed relied on by the plaintiffs' counsel in argument as a conclusive authority in their favour, And if the decision in that case were applicable to the facts of the present, I should of course bow to its authority. But it appears to me to be plainly distinguishable in two most important particulars. The Court of Exchequer Chamber held that if a person accumulate on his land, by artificial means, a quantity of water, which, if allowed to escape on to his neighbour's land, will be productive of injury, he is bound to keep it in at his peril. In that case the plaintiff, the owner of a mine, was working it in the ordinary course. The defendant constructed on his own land a reservoir, for the purpose of working a mill, and accumulated a large quantity of water therein. Unfortunately, under the ground on which the reservoir was made, a mine had formerly been worked, and the effect of the old workings having been to weaken the soil above, when a certain quantity of water had been collected in the reservoir, the ground below gave way, and let the water down into the old workings, and as the latter communicated under ground with the plaintiff's works-a fact unknown both to plaintiff and defendant-the water flowed into the works and flooded them. It is true that, in that case, there was the additional circumstance that the persons employed by the defendant to make the reservoir had been guilty of negligence in not taking measures, when they discovered the indicia of the old workings, to ascertain whether the ground would bear the weight of the water about to be placed upon it, or whether the old workings might communicate with the plaintiff's mine. But the decision did not proceed on this ground. In the judgment of the Exchequer Chamber, as delivered by Blackburn, J. (11), and which was fully affirmed and adopted by the House of Lords (12), the ground of the decision was the broad position, that he who brings on to his own land something which was not on it before and which if it gets on to his neighbour's land may be productive of mischief, must at his peril keep it from getting to his neighbour's

land; and though he may use the utmost care and diligence to do so, will still be liable for injury done if he fails. I cannot, therefore, think that, if Fletcher v. Rylands (11) were otherwise applicable to the present case, the defendants could avail themselves of the admitted fact of the absence of all negligence on their part in the management of the canal.

But there is more than one obvious and striking distinction between the case of Fletcher v. Rylands (11) and the present. In the former case the mine owner was working his mine before the defendant began to construct his reservoir. He neither knew, nor had reason to suppose, that the reservoir was being placed over old workings, or that these old workings communicated under ground with his mine. There was no negligence or wilful incurring of danger on his part. In the present case, present case, the plaintiffs saw the danger, and may be said to have courted it. They had good reason to believe that, if they proceeded to work their mine under the canal, they would bring down the water upon their works. In all probability they set to work on the calculation that, if that result should follow, as it probably would, they should get the value of the coal by bringing an action against the company. In this most important particular this case appears to me to differ essentially from that of Fletcher v. Rylands (11), and not to be within the principle involved in the judgment in that case.

There is also this further most material distinction between the case of Fletcher v. Rylands (11) and the present. In the former the defendant, in making his reservoir, was subject to the common law limitation of the right of property, namely, that a man in using his own must take care not to injure another. In the present case the company were acting under statutory powers, which expressly authorised them to make and maintain the canal and navigation, subject only to making compensation if damage should at any time arise from the exercise of their powers.

These distinguishing features of the present case, while they exclude the application of the decision in Fletcher v. Rylands (11), also make it impossible, on

principle, that such an action as the present can be maintained.

In the first place, I cannot think that, where an injury results to a man, not from the danger alone to which the act of another has exposed him, but from his own wilful and intentional exposure to such danger, as its proximate and immediate cause, he, who has thus brought the injury on himself, can maintain an action in respect of it. If A does an act which exposes B to danger, and, without any concurrence on the part of B, injury arises to the latter therefrom, he has of course a right of action against A. But if B, knowing the danger, wilfully exposes himself to it, he has himself brought, or at all events contributed to bring the injury on himself, and cannot visit A with the consequences of what, but for his own act, might never have resulted in injury at all. If A illegally creates an obstruction in a public highway, and B, not knowing of its existence, drives against it, and damage ensues, B has a right of action. But if B, knowing it to be there, were intentionally to drive against it for the purpose of knocking it down, and by doing so occasioned damage to himself, he would be without remedy; more especially, if at the time he did so he calculated on bringing an action for damages in the event of his sustaining injury. Analogous examples might be multiplied, but one is sufficient to illustrate the principle for which I am contending, namely, that no action at law can be maintained for an injury which has been brought about by the wilful and intentional act of the party complaining, as its proximate and immediate cause, such act having been done by him with his eyes open, in other words, with a knowledge that the injury would be the probable consequence of the act so done by him.

Again, the act on the part of the defendants on which the plaintiffs rely as having caused the damage of which they complain (assuming even that they have a right to ascribe that damage to the conduct of the company instead of their own acts), being that of keeping water in the canal, and this having been made lawful in the company by the statute, it is impssible to say that what is thus expressly

legalised can be made the ground of an action of tort.

The argument that the present action will lie appears to me to be founded on an imperfect appreciation of the real ground in respect of which the plaintiffs can have any well-founded cause of complaint. The wrong, if any, done to the plaintiffs was not that the canal company caused damage to the mine by negligence in managing the canal, for such negligence is expressly negatived; nor was it that they kept the water in the canal while the plaintiffs were carrying on their works below, for in keeping the water in the canal for the purpose of the navagation, the defendants were only acting in conformity with their statutory powers and their duty to the public. The only wrong that can be said to have been really done to the plaintiffs was, that while it was impossible for them to get their coal without bringing on themselves the disaster which has in fact ensued, the defendants omitted to inspect the mine, and so to ascertain the true state of things, and thereupon to fulfil the obligation which the Act of Parliament evidently contemplated their taking upon themselves, though it might be only for their own protection, namely, that of paying the value of the mineral, and thus compensating the plaintiffs for the loss of it.

But though, morally speaking, the defendants may have acted unjustly in not purchasing the coal of the plaintiffs, under the circumstances in which the latter were placed, I cannot think that they were under any legal obligation to do so. The Act does not make it obligatory on them to inspect the mine proposed to be worked, or to exercise their power of preventing the owner from working it. Their powers in these respects are conferred for their own protection, and may be exercised or not at their option. If they do not think proper to exercise them, they may, if they please, leave the mine owner to exercise his right of property over the mineral, and to work his mine or not, as he may be advised.

What then is the position of the mine owner under such circumstances, if the mine cannot be worked without imminent danger to the canal above and to the