owners give

notice to

their inten

tions.

of notice

undertakers

reservoirs or buildings belonging to the undertakers, or under

undertakers of any of their pipes or works which shall be under ground, and shall be described in the map or plan which shall be so kept and deposited as hereinbefore mentioned, or within the prescribed distance, if any, and if no distance be prescribed, within forty yards therefrom, be desirous of working the same, such owner, lessee, or occupier shall give the undertakers notice in writing of his intention so to do thirty days Upon receipt before the commencement of working; and upon the receipt of such notice it shall be lawful for the undertakers to cause such mines to be inspected by any person appointed by them compensation for the purpose, and if it appear to the undertakers that the working of such mines or minerals is likely to damage the said works, and if they be willing to make compensation for such mines to such owner, lessee, or occupier thereof, then he shall not work the same; and if the undertakers and such owner do not agree as to the amount of such compensation, the same shall be settled as in other cases of disputed compensation.

may take the mines, making

to the owners.

If company unwilling to

treat for payment of compensation,

owner may work the mines.

Owners to make good damage occasioned by working the mines in an unusual manner.

This section is similar to the 78th of the Railways Clauses Act, 1845. See Wyrley Canal Co. v. Bradley, 7 East, 368, and notes to sect. 18, p. 223.

XXIII. If before the expiration of such thirty days the undertakers do not state their willingness to treat with such owner, lessee, or occupier for the payment of such compensation, it shall be lawful for him to work the said mines, and to drain the same, by means of engines or otherwise, as if this act and the special act had not been passed, so that no wilful damage be done to the said works, and so that the said mines be not worked in an unusual manner: and if any damage or obstruction be occasioned to the works of the undertakers by the working of such mines in an unusual manner, the same shall be forthwith repaired or removed (as the case may require), and such damage made good, by the owner, lessee, or occupier of such mines or minerals and at his own expense; and if such repair or removal be not forthwith done, or, if the undertakers shall so think fit, without waiting for the same to be done by such owner, lessee, or occupier, it shall be lawful for the undertakers to execute the same, and recover from such owner, lessee, or occupier the expense occasioned thereby by action in any of the superior courts.

See notes to sect. 18, p. 223.

munications.

XXIV. If the working of any such mines under the said Mining comworks of the undertakers or within the above-mentioned distance therefrom be prevented as aforesaid by reason of apprehended injury to such works, it shall be lawful for the respective owners, lessees, and occupiers of such mines to cut and make such and so many airways, headways, gateways, or water levels through the mines, measures, or strata, the working whereof shall be so prevented, as may be requisite to enable them to ventilate, drain and work any mines or minerals on each or either side thereof, but no such airway, headway, gateway, or water level shall be of greater dimensions or sections than the prescribed dimensions or sections, and where no dimensions are prescribed eight feet wide and eight feet high, nor shall the same be cut or made upon any part of the said works so as to injure the same.

make compen

owner, lessee,

or occupier of mines for expenses incurred by reason of mines being

worked.

XXV. Except where otherwise provided for by agreement, Company to the undertakers shall from time to time pay to the owner, sation to lessee, or occupier of any mines of coal, ironstone, and other minerals, extending so as to lie on both sides of any reservoirs, buildings, pipes, conduits, or other works, all such additional expenses and losses as shall be incurred by such owner, lessee, or occupier by reason of the severance of the lands over such mines or minerals by such reservoirs or other works, or of the continuous working of such mines or minerals being interrupted as aforesaid, or by reason of the same being worked under the restrictions contained in this or the special act, and for any mines or minerals not purchased by the undertakers which cannot be obtained by reason of making and maintaining the said works, or by reason of such apprehended injury from the working thereof as aforesaid; and if any dispute or question shall arise between the undertakers and such owner, lessee, or occupier as aforesaid, touching the price of such minerals, the same shall be settled by arbitration in such manner as is provided by the Lands Clauses Consolidation Act if the undertaking shall be situate in England or Ireland, and by the Lands Clauses Consolidation (Scotland) Act if the undertaking shall be situate in Scotland.

The provisions of the Lands Clauses Consolidation Act, 1845, will be found in extenso, post.

The Railways Clauses Consolidation Act, 1845, contains a similar enactment (sect. 81). Under it, it has been held, that in estimating compensation, an arbitrator is entitled to take into account not only the

Disputes to be settled by arbitration.

Power to company to enter

losses or expenses incurred by a mine owner by reason of his land being severed, and the working of his mines being interrupted, but also additional losses or expenses not then actually sustained or incurred, but which would necessarily be sustained or incurred in working the mines, and which were capable of being immediately estimated with reasonable certainty. Whitehouse v. Wolverhampton and Walsall Railway Co., L. R., 5 Exch. 6; 39 L. J., Exch. 1. See also Dand v. Kingscote, 6 M. & W. 174; 2 Rail. Cas. 27. As to the rights of a company, after having paid compensation under sect. 81, see Great Western Railway Co. v. Smith, L. R., 2 Ch. Div. 235; 45 L. J., Ch. Div. 235; 34 L. T. 367: reversing Hall, V.-C., L. R., 2 Ch. Div. 238.

A railway company has been held to be responsible for injuries sustained by reason of water escaping from a stream in flood-time or collected from rain falling on the railway, and flowing along a cutting of the railway, and percolating through the substratum into mines beneath, although such mines had not been worked at the time of the formation of the railway. Bagnall v. London and North Western Railway Co., 31 L. J., Exch. 121, 480; 7 H. & N. 423.

A railway company was empowered by statute to enter upon and use lands for the railway, and to purchase and hold lands; they were also bound to make such alterations as were necessary for the enjoyment of the railways then in use for a coal mine belonging to J., over the works of which the railway was to pass; the act was not to give them the mines under any land purchased by them, but the mine owners might work them, doing no damage to the works of the company or making good the same: the company was to compensate any party interested for any damage or inconvenience sustained by the execution of any of the works authorized by the act; such compensation to be assessed, if necessary, by a jury which the company were required from time to time to summon, and which should assess compensation for damages already sustained, and for future temporary, perpetual or recurring damages. J. being owner of land over the said coal mine, and which land was leased to B., sold the land to the company, the coal mine not being taken into account. Afterwards B., in working the coal mine, damaged the railway, and was unable to work so profitably as he otherwise could, lest he should do further damage; it was held that B. was not entitled to compensation, either for the sum which it cost him to repair the damage done, or for the interruption to the working of his mine. The King v. Leeds and Selby Railway Co., 3 Ad. & Ell. 683; 5 Nev. & M. 246; and see Lawrence v. Great Northern Railway Co., 16 Q. B. 643; 20 L. J., Q. B. 293.

Under a canal act, the land over which the canal passed was purchased by the company, but the coal mines and coal were reserved to the owners, their heirs and assigns, who were to be at liberty to work the mines so as not to injure the canal. A., the owner of land over which the canal passed, sold it to the company, and afterwards leased the coal up to the side of the canal on one side, and up to the towing-path on the other, to B. A. subsequently contracted with the company for the sale to them of the coal under the canal and towing-path, and eight yards on each side which they required for the safety of their canal. It was held that B. was entitled to compensation in respect of the interest in the coal which he had acquired under the lease, viz., the profit to be derived from the coal when gotten, after deducting the expenses of getting it. Barnsley Canal Navigation Co. v. Twibill, 7 Beav. 19; 3 Rail. Cas. 471; 13 L. J., Ch. 434. See also Ex parte Neath and Brecon Railway Co., L. R., 2 Ch. Div. 201; 45 L. J., Ch. 196.

XXVI. For better ascertaining whether any such mines are being worked or have been worked so as to damage the the working of said works, it shall be lawful for the undertakers, after

and inspect

giving twenty-four hours' notice in writing, to enter upon any lands through or near which the said works are situate, and wherein any such mines are being worked or are supposed so to be, and to enter into and return from any such mines or the works connected therewith, and for that purpose it shall be lawful for them to make use of any apparatus or machinery belonging to the owner, lessee, or occupier of such mines, and to use all necessary means for discovering the distance from the said works to the parts of such mines which are being worked or about to be worked.

mines, after giving notice of the same.

undertakers

liable to

XXVII. Nothing in this or the special act shall prevent the Nothing to undertakers from being liable to any action or other legal prevent proceeding to which they would have been liable for any from being damage or injury done or occasioned to any mines by means actions for or in consequence of the waterworks, in case the same had not been constructed or maintained by virtue of this act or the special act.

And with respect to the breaking up of streets for the purpose of laying pipes, be it enacted as follows:

XXVIII. The undertakers, under such superintendence as is hereinafter specified, may open and break up the soil and pavement of the several streets and bridges within the limits of the special act, and may open and break up any sewers, drains, or tunnels within or under such streets and bridges, and lay down and place within the same limits, pipes, conduits, service pipes, and other works and engines, and from time to time repair, alter, or remove the same; and for the purposes aforesaid, remove and use all earth and materials in and under such streets and bridges, and do all other acts which the undertakers shall from time to time deem necessary for supplying water to the inhabitants of the district included within the said limits, doing as little damage as can be in the execution of the powers hereby or by the special act granted, and making compensation for any damage which may be done in the execution of such powers.

Sections 28 and 29 are similar to sections 6 and 7 of the Gasworks Clauses Act, 1847. See notes on those sections, p. 15 et seq.

In regard to liability for injuries directly or indirectly consequent upon the exercise of the powers above given, see cases cited ante, p. 219. Apart from statutory powers enabling them in that behalf, no company or person is entitled to break up streets, roads, &c., for the purpose of laying pipes. In one of the more recent cases on this subject it appeared that an owner of some houses in R., being dissatisfied with

injury done to

mines.

Power to break up streets, &c. intendence, drains.

under super

and to open

Ownership of solum of roads, &c.

the waterworks company, proceeded to construct works for supplying water to his houses, and obtained the permission of the Highway Board to lay down pipes along the highway. He laid the pipes in the soil of a road adjoining the land of the plaintiff, who applied for an injunction to restrain the continuance of the pipes. This injunction was granted, it being held (affirmfng the decision of Jessel, M. R.), that the plaintiff was not left to his remedy at law, and was not required to establish his right at law; and that the facts that the soil under the highway was of no value to the owner, and that his motive for applying to the court was not connected with the enjoyment of his land, were held not to be reasons against the granting of the injunction. Goodson v. Richardson, L. R., 9 Ch. App. 221; 43 L. J., Ch. 790; 30 L. T., N. S. 142; 22 W. R. 337.

A waterworks company under their act laid down one of their mains along and under a turnpike road, made under an act which declared the soil to be in the owners of the adjoining land, subject only to the right to use and maintain the road. K. was owner of land on both sides, at a spot where the road was carried across a valley on an embankment, and being desirous of connecting his land on either side, K. employed the plaintiff, at an agreed sum, to make a tunnel under the road. In doing the work it was discovered that there was a leak in the defendant's main higher up the road; and on the plaintiff digging out the earth, the water from the leak flowed down upon the work and delayed it, so as to cause pecuniary damage to the plaintiff, for which he brought an action against the defendants. It was held, that, assuming K. could have maintained an action against the defendants for injury to his property (as to which the court gave no opinion), the damage sustained by the plaintiff by reason of his contract with K. having become less profitable, or a losing contract, in consequence of the injury to K.'s property, gave the plaintiff no right of action against the defendants. Cattle v. Stockton Waterworks Co., L. R., 10 Q. B. 453; 44 L. J., Q. B. 139; 33 L. T., N. S. 475.

With reference to the ownership of the solum of public roads and streets, it is to be kept in mind that the right of the owner of land abutting on a highway to the soil of the highway ad medium filum viæ is founded on a presumption of law which exists only in the absence of evidence of ownership. It was questioned in the case of Beckett v. Corporation of Leeds (L. R., 7 Ch. App. 421; 20 W. R. 454; 26 L. T., N. S. 375) whether such a presumption had any application to a street in a town. In that case, which was a suit between the lords of the manor and the corporation of Leeds, it was held (reversing the decision of Lord Romilly, M. R.), that the soil of the Briggate, an ancient street in the borough of Leeds, belonged to the lords of the manor, there being sufficient evidence to rebut the presumption of ownership in the owners of the adjoining houses.

As to what is a "street," and as to the nature of the interest in it which is given by the power to lay pipes, sewers, &c. therein, see Taylor v. Corporation of Oldham, L. R., 4 Ch. Div. 396; 46 L. J., Ch. 105; 35 L. T., N. S. 696.

In the case of Ellis v. The Sheffield Gas Co., 2 Ell. & Bl. 767, it appeared that the defendants, who had no power to break up streets, contracted with a contractor to lay their gas pipes and fill up again the streets where opened; the contractor carelessly left a heap of stones and earth upon the footway, and the plaintiff in passing fell over them and broke her arm. The company were held liable, upon the principle that though a person employing a contractor to do a lawful act is not responsible for the negligence or misconduct of the contractor or his servants in executing that act, yet if the act itself is wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons who sustain damage from the doing of that

wrong.