mine itself below? It does not lie in the mouth of the canal company to say that he should proceed to get his coal, when by the hypothesis, he may do serious damage to the navigation, which by the express terms of the Act he is prohibited from doing. He cannot be reasonably expected, as a prudent man, to incur the danger of destroying his own works, when, if the view I take of this case is right, if he did so, he would be precluded from bringing an action against the company, as having by his own act occasioned the damage. Is he then reduced to the alternative of foregoing the advantage of getting his mineral without remedy against the canal company, whose works have placed him in this position? I think certainly not. It appears to me clear that a mine owner thus circumstanced would be entitled to compensation under the clause providing for compensation for damage occasioned by the execution of the company's works. That clause is general in its terms. It is not confined to damage caused by the company's works at the time of their execution, but extends to damage whensoever it arises, as the necessary result of such works. If, on the one hand, the company obtain the advantage, as they do, of having the compensation for mining interests interfered with postponed till mines are actually worked, they cannot be heard to say that the damage to the mine owner from inability to work a mine by reason of their works, is one which should have been claimed for and assessed at the time the land was taken. When the mine owner, who would otherwise work his mine, finds himself prevented from doing so by reason of the defendants' works above him, except at a risk which no prudent man could reasonably be expected to incur a state of things which practically amounts to an absolute inability to work his mine-he, in my opinion, sustains damage for which he is entitled to compensation. I think, therefore, that when the plaintiffs found themselves unable, owing to the immediate proximity of the canal, and the danger arising from it, to work their mine, except at the risk of its almost certain destruction, this inability constituted damage for

which they were entitled to compensation under the statute, and for which they might have sought and obtained compensation, in the manner prescribed, through the commissioners, who are, or may be, perpetuated under the Act. Whether the plaintiffs, by adopting the course of attempting to work their coal, instead of asking for compensation for the loss of it, whereby they occasioned the flooding of the mine, or by reason of the lapse of time have precluded themselves from still having recourse to the statutory remedy, it is unnecessary now to determine. I am, indeed, disposed to think that they would still be entitled to compensation for the loss of the coal, which, owing to the making of the canal, they never could have got; while as regards any mischief to their works beyond the loss of the coal, occasioned by the flooding of the mine, and in respect of which damages could only be recovered in an action of tort, they would be unable to recover, such damage having been the consequence of their own acts. It is, however, unnecessary to come to any decision on these matters, or to determine whether the plaintiffs have, or might have had, any or what remedy under the statute; and I have only thought it desirable to work out this part of the question in order to shew that the inability to get the coal, as arising from the existence of the canal, was damage under the Act for which compensation might have been obtained under it, and cannot therefore form a ground for an action of tort against the defendants.

The special case before us being stated in an action of tort, all we have to consider is whether, in whatsoever form, an action of tort will lie against the defendants on the facts stated. But there having been nothing in the conduct of the defendants, either as to anything done or anything left undone, which was of a wrongful character, or otherwise than arising in the due execution of their statutory powers, I am of opinion that no such action can be maintained against them, and that, consequently, our judgment should be in their favour.

My brother Lush concurs in this judgment.

HANNEN, J.-I regret that I cannot concur in the judgments which have been delivered by my Lord and my brother Mellor.

This is an action brought by the plaintiffs, owners of certain mines lying beneath a canal of the defendants, for alleged carelessness in the management of the canal and the water therein, whereby the water escaped and flooded the mines.

The defendants, in substance, plead, that the canal was made and maintained, and the water brought and kept in it, in pursuance of certain Acts of Parliament; that the mines were worked after the making of the canal, and that the water escaped therefrom into the mines without any negligence on the part of the defendants.

The defendants' canal was made under an Act of incorporation, the provisions of the Dudley Canal Act (16 Geo. 3. c. lxvi.) By that Act the company was required to make compensation for the purchase of the land taken for the canal; but the mines and minerals lying under the canal were reserved to the owners thereof. With regard to the working of the mines under and near to the canal, it was enacted (p. 1642), that, "If any proprietor of mines under, or within 12 yards of either side of, the canal should be desirous of working, he should give three months' notice of his intention 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."

The reservation of the mines was subject to the proviso, that in working such mines, no injury be done to the navigation, anything therein contained to the contrary notwithstanding."

This statute has more than once been the subject of judicial interpretation; and the purpose and effect of its provisions cannot be better expressed than in the language of Bayley, J., in The Dudley Canal Company v. Grazebrook (1): “It is clear that the company do not, in the first instance, pay to the landowner more than the value of the surface in the shape of purchase money, or for the injury to the

surface, if compensation only is made for damage; the minerals remain the property of the owner of the soil; but when he is desirous of getting them, the company have the option of purchasing at a fair price, to be settled in case of dispute in the usual way. These provisions are for the benefit of the company, who are relieved from the great expense of buying the minerals along the whole line of the intended canal, in the first instance, before it is constructed; and are enabled to postpone the purchase of them until the time when, from the state of the market in the neighbourhood, the owners really want to get them. When this happens, the company have an option, either to buy, in which case the landowner cannot get the minerals, but is fully compensated for the loss of the right; or not to buy, in which case he receives no compensation at all, and his right to get them ought to remain as complete as if no canal had been made. In the latter case, the canal company have not paid for, and ought not, therefore, to obtain under the Act the right to prevent the landowner from enjoying his own property; and if he does exercise his right of enjoyment the company ought to run the risk of the consequences."

It was further held that the construction thus put upon the Act was not affected by the proviso that, "in working the mines no injury be done to the navigation;" as this must be construed with some qualification, viz., "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 usual mode"-(2).

This interpretation was, in effect, subsequently adopted by the legislature in the Birmingham Canal Consolidation Act (5 Will. 4. c. xxxiv.), where, in a similar series of enactments, the proprietor is authorised (s. 93), in the event of the company refusing to purchase the mines, to work them, "without being liable to the company for any damage, unless such damage be wilfully done, or be caused by the working of such mine in an improper manner."

The decision in The Dudley Canal Com

pany v. Grazebrook (8) is approved in the recent case in the House of Lords The Great Western Railway Company v. Bennett (10).

It appears from the facts stated in the present case, that 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 they refused to purchase. The plaintiffs thereupon proceeded to work the mines; and at that time the canal was in good order and condition, and properly puddled and water-tight, and would have remained so if it had been undisturbed by the working of the mines by the plaintiffs. The defendants, during the working, did all in their power to keep the canal water-tight; but it is found that, "when 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 water-tight;" and it is also found, "that the defendants were guilty of no actual carelessness in the management of their canal, unless it were carelessness to allow the water to be in it while the mines were worked." The plaintiffs, on the other hand, "did not work their mines in any negligent or unskilful or improper manner, unless the working of the mines with the knowledge that there was danger that the water would thereby escape into them was in itself improper, but got the coal in the manner in which it is ordinarily got, and without doing so could not have got the full benefit of their coal." The effect of the working of the mines was to let down and crack the bed of the canal, and to allow the water to pass through the fissures into the workings below, whereby damage was done to the mines to the amount of 4001.

The result of these findings is that the plaintiffs have in fact been to a large extent deprived of the benefit of their mines by an exercise of their rights as owners, lawful as against the defendants— The Dudley Canal Company v. Grazebrook (8)—and not negligent or out of the ordinary course of mining, and without

(10) 36 Law J. Rep. (N.s.) Q.B. 133; s. c. Law Rep. 2 H. L. 27.

NEW SERIES, 41.-Q.B.

which they could not have enjoyed their property; that this damage would not have arisen if the defendants' canal had not been made over the plaintiffs' mines; and that the plaintiffs have never been compensated for this diminished enjoyment of their property. I think it follows from these propositions, that the defendants are responsible for the mischief which has resulted to the plaintiffs, in some form, either by way of compensation or by action. I reserve for the present the consideration of the question, which of these two modes of proceeding is the proper one.

I think it clear that it was the intention of the legislature that the mine owner should lose no part of the value of his minerals by reason of the making or maintaining of the canal; but if upon the refusal of the canal company to purchase he was bound either to abstain from getting the subjacent coal, or himself to bear the consequences resulting from his getting it, he would be deprived pro tanto of the benefit of his property without any compensation. That this injustice was not intended by the legislature may be illustrated by a case put by Bramwell, B., in delivering judgment in Bagnall v. The London and North Western Railway Company (11). Suppose that the canal company had thought it necessary for the safety of their canal to refuse permission to the plaintiffs to work their mines, and so had become bound to purchase the minerals, would the company have been entitled to contend that only a nominal price should be paid, on the ground that if the plaintiffs had worked the mines they would have been drowned and so worthless? The language of the Act (p. 1643), as well as the reason of the thing, shews that it was intended to give the mine owner a real and not an illusory remedy for the deprivation of the right to work his mines.

It follows that if the company elect not to prevent the working of the mines, the owner is left in possession of a real and not merely of an illusory right to get the minerals, that is, he has a right to get

(11) 7 Hurl. & N. 450; s. c. 31 Law J. Rep. (N.S.) Exch. 130.

T

them in the usual manner, doing no unnecessary damage to the canal, the responsibility resting with the company of determining whether the water can be kept out of the mines during such working.

This argument, as it seems to me, can only be met by establishing that, when the canal company originally purchased the surface of the land on which the canal was made, they also made compensation for the risk which might afterwards arise to the mine owner from his having to mine his coal under a body of water liable to flood his workings.

An argument in support of this contention may be derived from the fact that the original compensation money does indeed include the price of something more than the mere surface, viz., the deprivation of the right of the mine owner, being also the surface owner, to work the coal in an unusual manner, and without regard to the surface. But the answer to this argument seems to me to be, that the right of a mine owner to work his mines in an unusual, and therefore presumably an unprofitable manner, was considered to be of so small, if of any conceivable value, that it would not materially affect the price to be assessed for the surface; or at any rate, that the elements for estimating its value would all be capable of being ascertained at the time of taking the surface. But very different considerations are applicable to the prospective assessment of the compensation to be paid for the risk of working unopened mines, at some wholly uncertain time, under a canal, after it shall have been in existence perhaps for a hundred years (12).

It would be perfectly impossible to make such an assessment with any approach to accuracy. It would be a mere guess, with almost a certainty of doing injustice, either by not giving the mine owner a sufficient compensation for a danger, distant, indeed, but not the less serious when it arises, or by making the canal company substantially pay at once the value of the road which the owner may never lose, a result which would deprive the company of the benefit it was intended

(12) The governing Act in this case is of the year 1775.

to confer on them of having the payment for unopened mines postponed until they should be required, and their value better ascertainable.

These observations on the Canal Acts are supported by the authority of the Exchequer Chamber, when dealing with the analogous provisions of the Railway Acts. Willes, J., in delivering the judgment of the Court in Bagnall v. The London and North Western Railway Company (11), says, "There are practical obstacles of an insuperable character against saying that there arises, upon the making of the company, an immediate right to compensation in respect of possible future injury to unopened mines. At that time it does. not appear that the mine will ever be worked, nor that the drains will not always be kept in proper order, so that the company might contend that peradventure no damage would ever arise, and an assessment of damages in advance would be mere speculation."

This reasoning leads me to the conclusion that the legislature intended that the plaintiffs' predecessors in title should not be, and that in fact they were not, when the surface was taken in order to make the canal, compensated for diminution in the value of their property caused by the impossibility now found to exist of getting the coal under the canal without letting in the water.

I think, therefore, that the plaintiffs are now entitled to some redress for this diminution in value.

This brings me to the consideration of the question whether that redress should be sought under the compensation clauses of the Act or by action.

I regret that it should be necessary to express an opinion on this point. It was not contended by counsel for the defendants that the remedy by action was improper, if the plaintiffs were entitled to any remedy, nor is this one of the points stated for argument. I thought that the question which the defendants as well as the plaintiffs were desirous of having determined was, whether the defendants were liable in any form, and not whether this was the proper form of remedy. But as the point was not formally abandoned, it becomes necessary to dispose of it.

The compensation clause of 16 Geo. 3. c. 66 (p. 1603), is very comprehensive in its terms; it extends to recompense for any damage which may or shall be at any time or times whatsoever sustained by owners of lands for or by reason of the making, repairing or maintaining the said canal, or by supplying the same with water, or by the flowing, leaking or oozing of the water over or through the banks, or by reason of the execution of any of the powers contained in the Act. The effect of this compensation clause is to give a recompense to any one injured by the execution of the powers of the statute, by the direct operation or necessary consequence of any act authorised by the statute, and which, but for its enactments, would have been the subject of an action. On the other hand, damage, not being the direct result or necessary consequence of an act authorised by the statute, is excluded from the compensation clause, and remains the subject of an action. It is obvious that there must be many kinds of damage as to which it is difficult to determine whether to place them on the one side or the other of the border line, dividing things which are the necessary consequence of the execution of the powers of the Act from those which are not. The present case forms an illustration of that difficulty, but if I am right in the conclusion that the plaintiffs are entitled to recompense for the damage they have sustained, I think we ought not to be astute to discover that they have selected the wrong remedy. Upon the facts stated in the special case, I think it appears that the drowning of the plaintiffs' mines was not the necessary consequence of the execution of the powers of the Act, but might have been prevented by the defendants. This mischief might have been prevented in one of two ways, either by purchasing the mines, or by drawing off the water. It is true the defendants were not under a legal obligation to purchase the mines, but when the time came for them to determine whether they would purchase or not, they were bound, in my judgment, to consider all the means available to them of preventing the escape of the water from the canal, and amongst these was the power to

purchase the subjacent coal. The defendants either disregarded this consideration. or erred in their judgment, and the result shews that they could not keep their canal water-tight without purchasing the coal. It was therefore a wrongful act on their part to keep the water in the canal without having taken the means in their power, by the expenditure of a certain sum of money, to prevent the mischief which has happened. The defendants knew or ought to have known that the probable result of working the mines would be to let the water through. They had not originally purchased the right to prevent the plaintiff's doing that which would probably crack the bottom of the canal; they were bound, therefore, to take all necessary measures to prevent the water which they had brought over the plaintiffs' mines from penetrating into them, and, if no other means were attainable, they ought to have bought the plaintiffs' coal.

I cannot bring my mind to the conclusion that the legislature intended that the defendants, having paid only for the right to bring water on to the surface, and not having paid for the coal below, should make use of their occupation of the surface as a means of coercing the plaintiffs into abandoning their coal for nothing; and if this was not intended the defendants were bound to exercise their option of purchasing the subjacent coal, not merely with reference to the safety of their canal, but with reference to their duty towards the plaintiffs of keeping the canal water-tight; and they must be responsible for their error in judgment in supposing that they could retain the water in its channel without purchasing the coal below. It is possible, though it does not appear from the case, that the price which the defendants would have had to pay for the coal, would have so much exceeded the damage likely to accrue to the mine, and to the canal from getting the coal, that the defendants preferred to run the risk of having to pay for the damage to the mines rather than purchase them; but, though this may have been prudent on the defendants' part, it does not relieve them from the duty to make compensation by way of