bigh Court of Justice.

CHANCERY DIVISION.

JARY U. BARNSLEY CORPORATION.

Sewers - Sewage disposal works - Right of support-Subjacent minerals - Adjacent land-Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883 (46 & 47 Vict. c. 37), ss. 1, 2, 3, 4, and 5.

The com

In 1875 the Corporation of B. were empowered by Provisional Order of the Local Government Board, confirmed by Act of Parliament, to acquire compulsorily for sewerage purposes certain lands including lands the property of W. They thereupon gave notice to treat with W. for part of his lands, excepting minerals. pensation was determined by arbitration and duly paid, and in 1878 the lands were conveyed to the Corporation, excepting the minerals and reserving to the owner full power to work these by underground workings only. On these lands the Corporation then constructed their main sewage works. In 1878 the Corporation also constructed an outfall sewer and connections through part of W's land, under the powers of the Public Health Act, 1875. The compensation was determined by arbitration under that Act in the form of a perpetual annual ground rent which had continued duly to be paid. There was no evidence whether the right of the Corporation to support for the sewer had been taken into consideration by the arbitrator. In 1904 W's successors in title desired to work mines under and near the sewage works and sewer; and the Corporation declining to treat for the payment of compensation they brought an action against the Corporation claiming declarations that the Corporation were not, on the true construction of the Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883, and the other Acts, Provisional Order, awards, and conveyances entitled to have the sewer and connections and sewage works supported by the minerals, and would not be entitled to compensation if the plaintiffs worked the minerals and in so doing caused damage to those works.

Held, that as regarded the sewage works the Corporation had acquired by the conveyance a right to support of the land conveyed, and any buildings or works reasonably in the contemplation of the parties to the conveyance, by the subjacent minerals and the adjacent lands of W.; that, as regarded the sewer and connections the Corporation had acquired, on the principle of In re Dudley Corporation (1881) 8 Q. B. D. 86; 51 L. J. Q. B. 121, a right to support by the land in which they were laid and probably also by the adjacent lands of W., which right must be considered to be covered by the award relating to the sewer; and that these rights were not altered or varied in any way by the Act of 1883, since they were rights acquired before the passing of the Act, and in respect of which rights no compensation was, at the passing of the Act, recoverable, and on the

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July 8, 9, 10.

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Jary v. Barnsley
Corporation.

true construction of section 5 of the Act the earlier sections had, therefore, no application to the sewage works and sewer.

By a Provisional Order of the Local Government Board confirmed by the Local Government Board's Provisional Orders Confirmation (Abingdon, Barnsley, &c.) Act, 1875, the Corporation of Barnsley were empowered to put in force the compulsory powers of the Lands Clauses Consolidation Act, 1845, as extended by the Sanitary Laws Amendment Act, 1874, with respect to certain land specified in the Order, which the Corporation were desirous of acquiring for the purpose of sewage disposal works.

On October 27, 1875, the Corporation gave notice to treat for part of the lands referred to in the Order, excepting the minerals, to Col. Adolphus Ulick Wombwell, who was then tenant for life in possession of the lands under his marriage settlement, with a general power of appointment by deed or will. On October 29, 1875, he gave notice to the Corporation that he claimed £30,000 as the purchase price of the lands, excepting the minerals, and as compensation money for damage to be caused by the execution of the proposed works. The Corporation declined to agree to this sum, and the matter was referred to arbitration, it being agreed that the arbitration should also determine the proper sum due as compensation in respect of certain additional and adjoining lands, about two acres in extent, which were required for the same purposes as the lands included in the notice to treat. The arbitrators differed, and on August 9, 1876, the award was made by the umpire. The award, after reciting the notice to treat and Col. Wombwell's claim for compensation, the reference to arbitration and the agreement that the arbitration should extend to the additional lands, awarded a total sum of £20,033 17s. as purchase and compensation money, excepting minerals, £19,585 3s., being awarded in respect of the lands included in the notice to treat, and £448 14s. in respect of the additional lands.

On April 11, 1876, the Corporation had given notice to Col. Wombwell that they proposed to construct an outfall sewer and connections for the conveyance and disposal of the sewage of the borough through a portion of the lands to which the Provisional Order related, under the powers of the Public Health Act, 1875.

The amount of compensation due in respect of this was also referred to arbitration, under the Public Health Act, 1875. The arbitrators differed, and the umpire made his award on February 19, 1878. This award, after reciting the Corporation's notice respecting the intended construction of the sewer and the reference to arbitration and the appointment of the arbitrators and umpire, proceeded as follows:

"Whereas Adolphus Ulick Wombwell and the said Corporation agreed

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by their agents or solicitors at the hearing of the said reference that the Jary v. Barnsley width of the land to be taken for the said sewer should be 16 feet, and Corporation. that the said A. U. Wombwell or other the owner or owners of the said land to be taken, his or their heirs and assigns should have rights of herbage and passage at all points over the same (save and except the manholes and ventilators hereinafter mentioned) and also that the said A. U. Wombwell or such owner or owners as aforesaid his or their heirs and assigns should have liberty to build on the said land 16 feet wide or on any part thereof subject to the supervision of the surveyor of the said borough from time to time, so that no walls or other supports should interfere with the said manholes or ventilators, or be placed upon the said sewer or elsewhere within the said 16 feet so near to the said sewer as to endanger or damage it, and that the said Corporation should have access to the said sewer at all proper times for inspection and repair thereof, and that the manholes and ventilators which had already been made in the said land 16 feet wide should remain and be the absolute property of the said Corporation free from any interference by the said A. U. Wombwell or such owner or owners as aforesaid." The award then gave a perpetual annual ground rent of 4d. per lineal yard of the total length of that portion of the sewer which passed through the lands in question, the total rent amounting to £18 10s. It did not appear from the evidence whether in making the award the umpire took into consideration the question whether the Corporation were entitled to support for the sewer by the subjacent minerals or adjacent lands.

On May 9, 1878, the lands, to which the award of August 9, 1876, related, were conveyed to the Corporation by Col. Wombwell and parties entitled to charges under the settlement, excepting the mines. and minerals lying within or under the lands and reserving to the owner of the minerals for the time being full power to work get and carry them away by underground workings only. By the conveyance Col. Wombwell entered into a covenant for further assurance. The sewage works were shortly afterwards constructed, the compensation being duly paid. On April 5, 1883, Col. Wombwell and the same parties conveyed to the Corporation other lands for the purpose of the sewage works, which formed the main sewage works of the Corporation. The conveyance of April 5, 1883, contained the same exception and reservation as to minerals. The outfall sewer was completed, with its connections, shortly after the award relating to it, and the rent of £18 10s. had since been paid, except that owing to purchases by the Corporation of portions of the land, in respect of which it had been awarded, its amount had become reduced.

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Col. Wombwell died in 1886, having, by his will, exercised the Jary v. Barnsley power of appointment reserved by the settlement. The lands comCorporation. prised in the settlement and appointment contained valuable seams of

coal, lying under and near the main sewage works and the outfall sewer and its connections. Some of these mines, including the Ardsley seam, were in 1901 demised by the trustees of the will to the Barnsley Main Colliery Company. On July 14, 1904, the Colliery Company gave notice to the Corporation of their intention, after the expiration of thirty days from that date, to commence to work the Ardsley seam. This lay under or within 40 yards of the main sewage works and the outfall sewer and connections. The Corporation gave notice, in reply to the Company, that they declined to treat with the Company for the payment of compensation, and would demand compensation if the Company proceeded to work the mines, and in so doing caused damage to the sanitary works of the Corporation. The Corporation further informed the Company that they claimed to have acquired, before the passing of the Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883, a right of support in respect of those sanitary works.

The present trustees of Col. Wombwell's will and the Colliery Company commenced this action against the Corporation on October 31, 1905. The plaintiffs claimed a declaration that upon the true construction of the Act of 1883 and the other Acts, Provisional Order, awards and conveyances relating to the case, the Corporation were not entitled to have any of the outfall sewer and connections or the main sewage works supported by the Ardsley seam, and a declaration that the Corporation would not be entitled to compensation if the plaintiff Company proceeded to work and in so doing caused damage to those sanitary works.

The Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883 (46 & 47 Vict. c. 37), contains the following provisions :

Section I. This Act . . . shall be construed as one with the Public Health Act, 1875 (in this Act called the principal Act) as amended by the Acts for the time being in force amending the same.

Section 2. In this Act

The expression "sanitary work means any existing or future building or work constructed by or vested in or under the control of a local authority under the powers or for the purposes of so much of the principal Act or of any general or local Act or provisional order as relates to the construction or maintenance of any works of sewerage, drainage, sewage disposal, lighting, or water supply, and includes any fixtures, pipes, fittings, or apparatus connected with any such work, and belonging to or used by the local authority.

The expression "support" includes vertical and lateral support.

The expression "Sanitary Act" means the Act or Provisional Order under the authority of which a sanitary work has been or is constructed or is maintained,

whether such Act or Order was passed and confirmed before or after the commence

ment of this Act . . .

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Jary v. Barnsley

Section 3. The provisions of the Waterworks Clauses Act, 1847, sections eighteen Corporation. to twenty-seven (both inclusive), with respect to mines, shall, in relation to any sanitary work of a local authority, be deemed to be incorporated with this Act and with the Sanitary Act under the authority of which such sanitary work has been or is constructed or is maintained, with the following modifications (that is to say) :

(1) For the purposes of such incorporation the said provisions of the Waterworks Clauses Act, 1847, shall be construed as if the expression "the undertakers" referred to the local authority, and as if the expression "the Special Act" referred to such Sanitary Act and this Act, and as if expressions relating to pipes, conduits, or other works referred to the sanitary work :

(3) As regards sanitary works existing at the passing of this Act the local authority shall cause the survey and map referred to in section nineteen of the Waterworks Clauses Act, 1847, to be made within twelve months after the passing of this Act:

*

The provisions of this Act shall apply to every sanitary work as defined in this Act, whether the land on, in, over, or under which such work is situate is or is not vested in or occupied by the local authority, and is or is not wholly or partially dedicated to the public as a street, highway, or public place.

Section 4. Except as in this Act provided, a local authority shall not by reason only of anything contained in the Sanitary Act under the authority of which a sanitary work has been or is constructed or maintained be deemed to have acquired or to be entitled to or to be bound to acquire or make compensation for any right of support for such sanitary work as against any person owning or working or being lessee or occupier of or entitled to work or otherwise interested in any mine; and nothing in such Sanitary Act shall be deemed to have subjected or to subject any such person to any liability to the local authority in respect of damage to a sanitary work caused in or consequent upon the working of any mines in a reasonable and proper

manner.

Section 5. Nothing in this Act shall be construed to repeal, invalidate, or affect any express enactment in a Sanitary or other Act with respect to rights of support for sanitary works, or any agreement made before the passing of this Act with respect to such rights, or to affect any action, arbitration, or other legal proceeding concluded before or pending at the passing of this Act.

Where any right of support has been acquired before the passing of this Act by a local authority in respect of any sanitary work, and no compensation is at the passing of this Act recoverable in respect of such right, nothing in this Act shall be construed to apply to the work in respect of which such right has been acquired, or operate to deprive the local authority of such right or to entitle any person to any compensation in respect thereof, to which such person would not have been entitled if this Act had not been passed.

The Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17), contains the following provisions:

Section 22. Except where otherwise provided for by agreement between the undertakers and other parties, if the owner, lessee, or occupier of any mines or minerals lying under the reservoirs or buildings belonging to the undertakers, or under any of their pipes or works which shall be under ground, and shall be described in the map or plan. . . or within the prescribed distance, if any, and if no distance be