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A party who sus-
tains damage by
reason of being
prevented from
working mines
adjacent to a
canal, must, in
order to obtain
pursue the remedy
provided by the
statute. He
cannot, there-
fore, maintain an

action on the case,

where the statute directs a feigned ssue (n).

own convenience. And, under the circumstances, I am of opinion, that the defendant lawfully acquired an interest in the coal which the plaintiffs desire to be left for the safety of the canal. Injunction dissolved.

Fenton v. The Trent and Mersey Navigation Company, (9 Mee. &W. 203; S.C.,2 Railway Cases, 837).]—The plaintiff brought an action on the case against the defendants, for damages sustained by him. The declaration, after referring to 1 W. 4, c. lv, an act relating to the navi gation from the Trent to the Mersey, stated, that the plaintiff was the owner of certain mines and minerals within the distance of 40 yards from the tunnels belonging to the defendants, under Harecastle hill, and which mines had become and were workable in the regular course of working; whereupon the plaintiff had given notice to the defendants, and required them to make satisfaction to the plaintiff for his interest in all such parts of the said mines as shall be required by the defendants to be left ungotten or unworked for the preservation of their tenants and works, &c. Averment, that the defendants had required that the said mines should be left unworked, and that the same were, in pursuance of the said notice, left unworked accordingly; nevertheless, the defendants had neglected to pay the plaintiff the value of the said mines and minerals. Plea, that the plaintiff had not delivered to the defendants a declaration in any action upon a feigned issue, in respect of the said mines and minerals. Demurrer and joinder. The plaintiff's title to compensation was not disputed; but the question raised by the demurrer was, whether the plaintiff was entitled to maintain an action on the case. The case turned upon the construction of several sections of the statute, which are fully stated in the judgment of the court.

Rolfe, B.-This act is certainly obscure, but we have come to the conclusion that the only remedy is that of a feigned issue. The company is empowered, in the ordinary way, to take lands, and, by the 118th and subsequent sections, provision is made for ascertaining, by a jury, the sum to be paid, as well for the land taken as for any damage occasioned by the company. But this is not all. The navigation, it seems, traverses a mining district, and passes through two tunnels under Harecastle hill; and, by section 170, it is provided, that no mine

(n) See Lyster v. Lobley, 7 Ad. & E. 124, post, 238; R. v. North Mid

land Railway Co., 2 Railway Cases, 1, ante, 195.

owner shall work any mine within forty yards of the tunnels without leave of the company. Section 171 enacts, that, if the company, instead of insisting on their full right of having forty yards left unworked, should require less than thirty yards to be so left, then the mine-owner may insist on the necessity of leaving, for his security, any greater quantity unworked, not exceeding thirty yards; and the question so in dispute, as to the quantity necessary to be left for the security of the mine-owner, is to be tried, settled, and determined by an issue at law. The 172nd section provides, that whenever any mine becomes workable within forty yards of the tunnels, the mine-owner shall give notice to the company, and thereupon the company shall pay to the mine-owner for so much of the mine within the forty yards as they shall require to be left unworked, or for so much of the mines as, under the provisions of section 171, it may be ascertained to be necessary to leave unworked for security of the mines; provided that no mines shall in any case be worked under the tunnels; but whenever any such last-mentioned mines shall become workable, satisfaction shall be made by the company for the same, "such satisfaction to be ascertained, fixed, and determined by an issue at law." There is no doubt but that, by the express terms of the 172nd section, the plaintiff is entitled to be paid for the value of the forty yards of mine left unworked for the security of the navigation, and the only question is, by what proceeding he is to enforce his right. It may be conceded, that the more obvious construction of this section would refer the words "such satisfaction" &c. only to the satisfaction immediately preceding, namely, the satisfaction to be paid, at all events, for the mines left unworked under the tunnels. There is, however, nothing grammatically incorrect in referring the words "such satisfaction" to every species of satisfaction mentioned in the clause; namely, to the payment to be made for mine within the forty yards, for mine within the thirty yards, and for mine actually under the tunnels; and, in furtherance of what we cannot but suppose must have been intended by the Legislature, and to avoid the strange incongruity of having one mode of deciding questions as to the value of mine within forty yards of the tunnels, and another as to the value of mines along the rest of the line of the canal, and under the tunnels themselves, we feel bound to adopt the latter construction of the words "such satisfaction," and to hold them applicable to every case for which satisfaction is made payable under the 172nd section. The defendant is therefore entitled to the judgment of the court.




Where a statute

gave compensation to any tenant from year to year who

jury in respect

of any interest

whatsoever, for goodwill, improvements, tenants' fixtures, or otherwise."

Held, that a tenant from year to year,

whose tenancy had been put an to by a legal notice to quit, was entitled to compensation, it appearing that she had been many years in possession under an assurance from her landlord that she should hold

the premises as long as she paid her rent.

3. Compensation Cases, on Claims made by Lessees of Lands.

Ex parte Farlow, (2 B. & Ad. 341).]—This was a rule for a mandamus to the Hungerford Market Company, requiring them to assess might sustain in compensation to one Ann Farlow. The company were incorporated by 11 G. 4, c. lxx. Section 17 enacts, that every lessee or tenant for years or at will, and other every should deliver up possession person, of their premises to the company at three months' notice, the company making such compensation to the tenant or lessee, in case he should be required to quit before the expiration of his term, as they should think reasonable. Section 19 provides, "that any person, tenant for years, from year to year, or at will, or occupier of any part of the market, and other hereditaments, who may sustain or be put unto any loss, damage, or injury, in respect of any interest whatsoever, for goodwill, improvements, tenants' fixtures, or otherwise, which they now enjoy, by reason of the passing of this act," shall receive compensation from the company in the manner therein prescribed. Ann Farlow was the widow of a person who had carried on the business of a carman on the premises in question. It did not appear that John Farlow had any lease; but he and his father had been tenants of the property for sixty years. The widow occupied them from the time of her husband's death, as tenant from year to year, and continued the business. At Midsummer, 1830, after the passing of the act, she received notice to quit; and she in consequence required the company to give her compensation. In support of the rule, it was sworn, that the loss to this party would be very great; that her husband had laid out large sums of money on the premises, being assured by the then proprietor that he should not be disturbed in his possession as long as the rent was duly paid. On the expiration of the time specified in the notice to quit, an ejectment was brought on behalf of the company, and while this rule was depending they recovered possession.

But where a tenancy was for one year, determinable at three months' notice, at any

time, with a stipulation against un

derletting, except leave-Held, that

no compensation was recoverable.

Lord Tenterden, C.J.-In this case a mandamus ought to go. It appears that a contract had been made by a new company to purchase a very considerable estate, used as a market. [His lordship referred to sect. 17 of the act.] Then comes the 19th section; and this appears to me to have been intended to provide for that feeble and imperfect interest which many occupiers had in the premises to be contracted

for by this company. It was likely to be foreseen by the legislature, that, when the company was established, and the proceedings taken, which this act had in view, many occupiers of premises in the old market would be dispossessed; and if it was considered that this might be done in the ordinary way, by ejectment, and that the parties should then have no right or claim against the company, I do not see why the 19th section should have been framed. That section is certainly obscure, and incorrectly worded. It is said, "the interest which they now enjoy," must be taken to mean a legal interest, and that all legal interest was determined by the notice to quit. But I think this is not the fair meaning of the words, and that they must be understood as signifying that sort of right which an occupier ordinarily has, of parting with his tenancy to another person for such sum as he may be induced to give for good-will, fixtures, and improvements, and which is often very considerable, though the tenancy be only from year to year, where there is a confidence that it will not be put an end to. This interest, feeble as it may be, (since it is always determinable at a short notice), may justly be considered as matter of value to the owner, and to any other party who becomes the purchaser. The other judges concurred.-Rule absolute.

Other writs of mandamus were applied for on behalf of other persons who also claimed compensation under the above act; but these rules were discharged, upon the ground that the agreements under which the applicants held their premises enabled the landlord, after the expiration of the first year of their tenancies, to give the tenants three months' notice to quit, and also contained a stipulation that the tenants should not underlet or give up the possession of the premises without the lessor's permission in writing.

Rex v. The Hungerford Market Company, (4 B. & Ad. 592). Mandamus, requiring the defendants to assess compensation to one John Still, under the stat. 11 Geo. 4, c. lxx (o). It appeared that the party took the premises at Christmas, 1828, as tenant from year to year, and paid the outgoing tenant £412 for goodwill and fixtures, and expended large sums of money in improvements; that since the passing of the act the company had given him notice to quit, and had brought an action of ejectment against him, which was still depending; and had also, by pulling down the neighbouring houses, ren

(0) See ante, 224.

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And, under the same statute, the

assignee of a lessee for years was also held to be entitled

to compensation for the loss of his chance of a re

newal of the lease;

but not for losses

incurred in respect

of fixtures improvements.

dered his house so unsafe that it was condemned by the annoyance jury, and the parish authorities were taking it down. On behalf of the company it was sworn, that the applicant's house was upon an estate purchased by them; that by their agreement with the vendor, (the superior landlord), they were to be entitled to the rents of the estate from the 24th of June, 1830, on which day the then existing lease of the premises expired; that the company, on applying to Still, were informed that one Mr. Tritton was his landlord, and thereupon they requested him to see Tritton, and refer him to the company; that shortly after the 24th of June it was communicated to them that Tritton wished to hold the premises till the company wanted them ; and it was agreed between him and the company, that, when possession was required, the company should leave notice for Tritton on the premises, and he would then deliver them up. On the 29th of September, 1831, the company left notice accordingly for the representatives of Tritton (he being dead) to quit on the following Lady-day. Per Curiam.-There is no material distinction between this case and Ex parte Farlow (p). There was a chance of the tenancy being continued.-Rule absolute.

Rex v. The Hungerford Market Company, (4 B. & Ad. 596).—Mandamus to the defendants, on the application of one Gosling, requiring them to assess compensation to him. It appeared that one Wise had demised the premises in question to Day, for fourteen years from the 25th of March, 1818. Gosling purchased of Day the lease, goodwill, and fixtures, in February, 1823; Day informing him that he might rely on a renewal of the lease if he conducted himself well. Gosling made considerable improvements on the premises, where he carried on the business of a confectioner; and it was stated, that, while these were going on, Wise's agent told him that Wise never turned away a good tenant. The lease expired at Lady-day, 1832, and the company brought ejectment against Gosling and turned him out. It was sworn, that the custom on the estate had been, not to dismiss tenants who conducted themselves well. In answer it was sworn, that the premises were part of the estate purchased by the company of Wise, pursuant to agreement entered into before the passing of the act, subject to certain outstanding leases, (mentioned in the act), of which the lease in question was one. That the tenant, by that lease,

(p) See ante, 224.

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