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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Howley park coal and cannel Co. v. London and north-western railway Co. [1913] UKHL 638 (01 November 1913)
URL: http://www.bailii.org/uk/cases/UKHL/1913/50SLR0638.html
Cite as: 50 ScotLR 638, [1913] UKHL 638
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SCOTTISH_SLR_House_of_Lords
Page: 638↓
House of Lords.
(On Appeal From the Court of Appeal for Ontario.)
Before the
v.
Subject_Railway — Minerals — Right of Support from Adjacent Land — Railways Clauses Consolidation Act 1845 ( 8 and 9 Vict. c. 20), secs. 77 to 85.
Facts:
The fact that a railway has acquired land under sections 77-85 of the Railways Clauses Consolidation Act 1845 does not exclude the common law right to lateral support from strata outside the forty yards or other prescribed limit mentioned in the Act.
This was an appeal from a judgment of the Court of Appeal ( Cozens-Hardy, M.R., Fletcher Moulton and Buckley, L.JJ.), reported 1911, 2 Ch. 97, reversing a judgment of EVE, J., in an action brought by the respondents.
Their
The London and North-Western Railway Company, who are the respondents to the appeal, are owners, as part of their Yorkshire Railway, of a tunnel near Morley. The appellants are the lessees of various seams of coal, and, amongst others, of a seam known as the “Top Beeston Bed Seam,” which lies near the Morley Tunnel, and the coal of it, at present in question, is situate beyond forty yards from the site of the tunnel.
The question which was raised in the action and comes before the House—the only question which remains to be determined—is whether the Railway Company were entitled to an injunction to restrain the appellants from so working their “Top Beeston Bed Seam” as to deprive the tunnel of its lateral support. Broadly put, the question is really whether as between a vendor of land to a railway company and the railway company, upon a purchase subject to clauses 77 to 85 of the Railways Clauses Consolidation Act 1845—a set of clauses which are commonly called the “Mining Code”—the railway company acquires of right a support from minerals belonging to the vendor lying under other lands outside the distance of forty yards from the railway.
Page: 639↓
The question turns upon the construction which is to be put upon the set of clauses in the Act of 1845 to which I have referred, known as the “Mining Code.” These clauses were introduced for the purpose of facilitating transactions between a railway company and a landowner from whom land was acquired. They were passed to render it unnecessary for the railway company to purchase out and out the minerals which were necessary for the support of the railway. It might be some time before the taking away of these minerals would affect the support, and therefore it was thought less burdensome to the railway company that the owner of the land should be left with considerable freedom, and accordingly it was provided by section 77 that the railway company should not get the minerals unless they were expressly conveyed to them. That was the starting point of the catena of propositions in the code. In the second place it was provided that the mineral owner should be free to work, provided always that he gave a thirty days' notice to the railway company, which the railway company could meet by giving a counter-notice enabling them to stop the working by paying compensation, which might or might not amount to the whole value of the minerals.
It was decided by this House in a case which turned upon the corresponding sections, in practically identical terms, of the Scottish Railways Clauses Act, the case of Dixon v. Caledonian Railway Company (1880, 7 R. (H.L.) 116, 17 S.L.R. 102, 5 App. Cas. 820), that railway companies were free to give that counter-notice at any time, so that the effect of sections 78 and 79 is this, that the railway company is protected and the position of the landowner is easier. He may be able to work a considerable part of his minerals, and when the railway company require to stop him they have had full notice and can then give their counter-notice dealing with him at a later stage than the stage of the initial purchase of the land. That being so it was natural that the Legislature should go on to enact other clauses. Those clauses amount to this, that if the working is prevented by the railway company having given that counter-notice, then the owners of the minerals might make such ways for air, water, access, and so on, as would enable them to get the minerals without letting down the surface. If, upon the other hand, no counter-notice had been given, and the mineral owner chose to work, then he was to be at liberty to work, even to the extent of letting down the surface, so long as he worked in accordance with the ordinary customary fashion. The railway company has of course, the protection that, according to the doctrine of Dixon v. Caledonian Railway Company,they could give their counter-notice at any time, subject to this, of course, that, so far as the minerals had already been worked out, the notice could not affect the state of things which had come into existence.
Now in that position of matters, with the law so ascertained, and with the statute, what is the position of a railway company which is situated as the London and North-Western Railway Company is situated in this case? It has acquired the site of the tunnel, and it has acquired the protection which the statute gives as regards what is called the prescribed limit on each side of the tunnel, that is to say, forty yards, in the absence of any variation in the Special Act. Within these limits it has protection for its support under the railway and on each side of the railway. It has not only vertical support, but it has also lateral support, and it can make this support available by putting in motion the machinery of the Mining Code. But the question in this case is as to how it stands as regards minerals outside the prescribed limits, because the minerals with which we have to deal are really outside these limits, and the question which is raised, as stated in argument, is this, whether the code is a new and exclusive code, which lays down the law for the two parties, so as to get rid altogether of any right at common law to lateral support, whether within the prescribed limits or without them. Now that depends upon the construction of the sections, and when I turn to the sections the first words which I find are the words on which reliance was placed by the counsel for the appellants. The title which introduces the succession of sections is, “And with respect to mines lying under or near the railway, be it enacted as follows.” But although the word used there is “near,” it is plain when you pass to section 78 that you find an interpretation of the word “near” by the prescribed distance. I do not say that it is the only meaning which could be attached to the word “near” in the title to the group of mining sections in this Act of Parliament. In Midland Railway Company v. Miles (1885, 30 Ch. Div. 634), Pearson, J., suggested that section 80, which enables ways to be made for the working of adjacent mines, related to mines outside the forty yards limit. If so, that would give a wider interpretation to the word “near.” It is not necessary in this case to express any opinion as to whether Pearson, J., was right or wrong in that case. It is sufficient to point out that what he is said to have decided is very remote from anything which can assist the appellants in this case. It only shows that if he was right in the particular instance with which his Lordship was dealing there, of a way made to obtain access to a mine lying at a short distance, the mine might be outside the forty yards limit. I express no opinion upon that, because it is not necessary for the decision of the only question which we have before us, and that is, whether sections 78, 79, and the subsequent sections, so far as concerned with vertical and lateral support, relate to anything but minerals either under the railway or within the forty yards limit. For the reasons which were admirably given in the judgment of the Master of the Rolls, I think that the code, at all
Page: 640↓
Then it is said that, the words being what they are, there has been a decision of this House in Great Western Railway Company v. Bennett (1867, L.R., 2 HL 27) which is in effect a decision that the sections apply to minerals which are outside the forty yards limit, because it has been discovered apparently since the hearing of that case, from an examination of the record, that part of the land in question—a small part I think, but still some part—was outside the limits. I can only say that I cannot regard that decision as an authority for the proposition that the sections apply to land outside the limit. The question whether the sections apply beyond the limit was not one which was present to the mind of the House, so far as one can discover from an examination of the terms of the judgment or of the arguments, and I do not think that a decision of this House on a point which was not presented to it, from mere implication of general words, can be relied upon as laying down a proposition which is binding by way of authority. To the other authorities quoted I make very little reference because they are purely negative. New Moss Colliery Company v. Corporation of Manchester ( 1908, A.C.117, 45 S.L.R. 981), a case which was also decided in this House, was not only decided on a different statute, but related to quite a different point, and I do not think that much reliance was placed on it in the argument, nor is it an authority for the proposition put forward. Then as to the other authorities which were mentioned, they are purely negative, and lend no support to the appellants' arguments.
When you look at the matter on principle, free as it is from authority, it stands thus: The right to lateral support is not an easement which arises out of a grant or by some implication of the intention of the predecessor in title in making the conveyance. It is a natural right of property. By the law of this country, and by the law of other countries, when a man has got land he is entitled to look to his neighbour whose land is laterally supporting the land which belongs to himself, not to use that neighbour's property in such a way as to do injury to him. There is an obligation on the neighbour, and in that sense there is a correlative right on the part of the owner of the first piece of land, but the right is what has been described as a natural right of property or incident of ownership. It is not necessary for me to enter upon the authorities for this proposition, which was one of the few, I think I may say, which were agreed upon by all, or nearly all, the learned Judges who decided the great case of Dalton v. Angus (1881, 6 App Cas 740). But if that be so, then in order to take away such a natural right of property you must look for something more than a conjectural intention on the part of any statute which may affect it; you would expect to find a plain indication of intention. Now from the beginning to the end of the group of sections with which we are dealing I can find no such intention. I find a clear intention to modify the rules of common law which would otherwise have regulated the right to subjacent and lateral support underneath the railway and within the prescribed limits. That was the very purpose for which the code was introduced, but with that dubious exception which was referred to by Pearson, J., in Midland Railway Company v. Miles ( ubi. sup.)I cannot find anything inside the group of sections which in any way relates to minerals outside the limit. The notice and counter-notice clauses and the compensation clause all relate to matters within the prescribed area, and I find no machinery provided which ousts the application of the common law as regards the natural right of lateral support from land lying beyond. It may be that the result of this case as bearing on modern methods of working may lead both mineral owners and railway companies to scrutinise anew their practice in making these bargains. What we have to do is to decide the question of law as submitted to us, and, speaking for myself, I cannot entertain a doubt that the judgment of the Court of Appeal was right, and that this appeal ought to be dismissed, and I move your Lordships accordingly.
Earl of Halsbury—I concur in the judgment which the Lord Chancellor has delivered.
Page: 641↓
There are provisions for the purchase of the immediately subjacent minerals. There are provisions for the prevention of the working of the immediately subjacent minerals. There are provisions for the prevention of the working of minerals within an area of forty yards on either side of the line unless there be a contract to the contrary; but then there is section 80, which appears to me to be of the utmost importance and to bear directly upon the point which is before the House, because that section provides as follows—“If the working of any such mines under the railway or works, or within the above mentioned distance therefrom”—that is to say, within the forty yards to which I have referred—“be prevented as aforesaid by reason of apprehended injury to the railway, it shall be lawful for the respective owners, lessees, and occupiers of such mines, whose mines shall extend so as to lie on both sides of the railway, 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 their said mines, but no such airway,”“shall be of” certain dimensions; and then follow these words, “nor shall the same be cut or made upon any part of the railway or works so as to injure the same or to impede the passage thereon.” There follows section 81.
Section 81 is a provision for the connection of the working of coal measures extending on both sides of the railway, and even on both sides of the forty yards limit, and that provision for inter-communication of the workings is by statute expressly provided to be under such restrictions as not to prejudice or injure the railway. Now in the present case what has been done, or what as the result of the argument being successful might be done, would be to conduct operations in such a way as to deprive the railway of that lateral support which under the natural rights to which I have referred, under the common law, as purchasers of the ground they would have. Where is there a parliamentary bargain to that effect? On the contrary, the parliamentary bargain seems manifestly to be to the very opposite effect for the protection of the railway which is the subject of the purchase. It may be said that there are serious consequences which would follow—probably there are. I agree that one of the serious consequences at least would be this, that if the argument maintained by the appellants be correct, there would then have been granted a privilege to the owners of land coterminous with the forty yards limit to excavate their lands to an extent to which they could not have done if the lands had not been lands under parliamentary railway
Page: 642↓
Judgment appealed from affirmed and appeal dismissed with costs.
Counsel for the Appellants— Sir A. Cripps,K.C.—P.O.Lawrence, K.C.—J.Dixon—Ashworth James. Agents— Rawle, Johnstone, & Co.,for Mason,Fernandes, & Greaves, Wakefield, Solicitors.
Counsel for the Respondents— Sir R. Finlay, K.C. —Ernest Page,K.C.—MacSwin—ney—Tweedale. Agent— C.de J. Andrewes, Solicitor.