C. P.]

CONSERVATORS OF RIVER THAMES V. VICTORIA STATION, &C., RAILWAY COMPANY.

say to the defendants is, "You may build the bridge, provided you get the consent and approbation of the conservators." The plaintiffs might have said, "We will give you our consent, but you must pay for it." [SMITH, J.-Then did the Legislature mean that the conservators were to assess their own damages?] This was an unprofitable hereditament to the plaintiffs. The Act gives no property in the soil of the river to the defendants. The defendants' Act amounts to this, that if the conservators gave their consent to the bridge there should be an end of it; if the conservators had refused their consent it would have been another question. Again, the plaintiffs ought not to have proceeded under the Lands Clauses Consolidation Act 1845, for that Act provides for cases where lands are taken otherwise than by agreement, and here there was an agreement. The letter of the plaintiffs' secretary would be sufficient to support a plea of licence. It appears on the record that the land was taken by the defendants under the Lands Clauses Consolidation Act 1845; the plaintiffs' case then turns on the question, Were the lands so taken? The plaintiffs' Act contemplates, first, licence; secondly, permission. By the 55th section of the Act a licence under seal carries the right to the soil. A permission need not be under seal. All the defendants have is a permission to plant their piles, &c., in the bed of the river. The conservators ought to have got the value of their permission before they gave it. The consent required by the defendants' Act was the same as the consent or permission contemplated in the plaintiffs' Act.

KEATING, J.-This rule must be discharged. The plaintiffs bring an action to recover compensation under the Lands Clauses Consolidation Act 1845, in respect of lands taken or injuriously affected by the defendants within the meaning of the Act. The plaintiffs are the conservators of the Thames, and by their Act, the soil, bed, and foreshore of the river Thames are vested in them. Moreover, by the same Act, certain powers are given to the plaintiffs to preserve the navigation, &c., on the river, and they are authorised to grant licences to erect jetties, piers, &c., and to receive sums of money in respect of the same, to be fixed by a certain officer. For money thus received, they have to account. This was the state of the case when the defendants' Act passed. By this Act the defendants were authorised to make a railway, and to do that, which the plaintiffs had no power to authorise them to do, viz., build a bridge over the Thames. This bridge was built by the defendants, not in pursuance of any leave given by the plaintiffs, but by virtue of the authority given to the defendants by their Act. But this Act contains a clause, such as is usually inserted in such Acts, for the protection of a navigable river. The company was not to commence any works on the shore or bed of the river Thames without the consent, in writing, of the conservators, to be signed by their secretary. That is to say, before they commence their works, the mode of executing them must be approved by the conservators. Accordingly the defendants submitted their plans to the plaintiffs, and the plaintiffs' secretary assented to them in the words of the section. But it is contended for the defendants, that this consent amounts to a licence to take the land, and that thus the plaintiffs cannot be entitled to compensation. But the consent cannot have this effect. I take the same view of this consent as was taken, under similar circumstances, by M. Smith, J., in The Metropolitan Board of Works v. The Metropolitan Railway Company. In that case the same argument was used. The Metropolitan Board claimed damages. The defendants' answer was, "You are not entitled to damages, because no right of yours has been

[C. P. injured, and, if it has been, you gave us your licence and consent." Now, the section of the defendants' Act in that case was very similar to the corresponding section in the present case. It necessitated the consent of the plaintiffs to the execution of the railway. That consent was obtained. The majority of the court in that case held that the plaintiffs had proved no right, and consequently were entitled to no compensation. My brother Smith, holding that the plaintiffs had a right, which had been infringed, was obliged to dispose of the question, whether the consent which had been given by the plaintiffs disposed of the right, supposing that right to have existed. "The approval," he said, "is not a voluntary licence by the board, but a condition imposed upon the railway company. It would be the duty of the board not to refuse their approval of the plans, if at the time they appeared to afford sufficient security for their own works; but such approval, so given in compliance with the Act, does not, as it seems to me, carry with it the consequence of a voluntary licence." So in the present case, it was the duty of the plaintiffs to give their consent to the works proposed by the defendants, if they were satisfied that the works were such as might be properly executed. The fact that they gave their consent under such circumstances cannot interfere with their right to compensation. By the plaintiffs' Act the plaintiffs are made the owners of the soil and freehold of the bed of the river, and are to require a consideration if they give up any part of the lands thus vested in them. There is nothing in their position to prevent them claiming compensation. But it is said that they have not parted with their land, and that the award sued on is bad, unless it be shown that the plaintiffs land was both taken and injuriously affected. Here, however, the plaintiffs' land has been taken and injuriously affected. The consent given by them had nothing to do with the land, and was only an approval of the nature of the works. Why, then, should not the plaintiffs have proceeded under the Lands Clauses Consolidation Act 1845? It is incorporated with the defendants' Act. The plaintiffs were entitled to compensation, and took the proper mode of obtaining it. As to the demurrer, it raises precisely the same question, and the plaintiffs are entitled to judgment.

M. SMITH, J.-I am of the same opinion. The defendants built their bridge on land which is the undoubted property of the plaintiffs. They have taken land for piers, and this bridge was built no more for public purposes than any other. Persons whose property is taken or injuriously affected by such a railway must be compensated. The conservators, as owners of the bed, foreshore, and soil of the river Thames, seek such compensation. The company should show something in their Act which deprives the plaintiffs of compensation. They have failed to do so. The Lands Clauses Consolidation Act 1845 is incorporated with the defendants' Act. Taking these two Acts together, the conservators have the same right to compensation as any other persons whose lands are taken for or injuriously affected by the railway, unless they are specially excepted by the defendants' Act. Mr. Brown assumed that the land was valueless; but there was no foundation for such an assumption. The Act under which the conservators are entitled shows that the land was thought to be of value. Power is given by the Act to the conservators to grant licences for the erection of piers, &c., on the bed and foreshore of the river; but this power is restricted thus far, that the conservators can only grant licences on receiving compensation. How can it be contended that the railway company need not pay for land, which, if it had been taken by others,

C. P.]

METROPOLITAN BOARD OF WORKS v. METROPOLITAN RAILWAY COMPANY.

would have had to be paid for? But then it was said that the land was taken by agreement, and was granted gratuitously by the plaintiffs to the defendants. This depends on the construction of the 31st and 32nd sections of the defendants' Act. These clauses do not profess to affect the liability of the defendants to make compensation, but are inserted simply for the protection of the public.

Similar clauses are inserted in all Acts in which railway companies are authorised to cross a navigable river. The conservators have a double character; they are conservators of the river and owner of its bed and foreshore. In the latter character they are entitled to compensation; in the former they were by the Act required to look after the river. Then, again, it is contended that the plaintiffs ought to have enforced their claim to compensation at the time they gave their consent to the defendants' plans. But this consent had nothing to do with taking the land or paying for it; and if it was contemplated by the Legislature that any compensation should be made to the plaintiffs, it seems much more likely that the Legislature should have left it to be settled in the ordinary way and not in the discretion of the plaintiffs. The defendants have failed to satisfy me, and this rule must be discharged.

BRETT, J.-It is contended in this case that no compensation is due to the plaintiffs, and that the Lands Clauses Consolidation Act 1845 does not apply, because the land in question was taken by agreement. The whole error of the defendants arises from their not distinguishing between the twofold character of the plaintiffs, and between their consent or approval of the plans as conservators, and a licence to take the land. The conservators are the owners of the soil, bed, and foreshore of the river Thames, under an Act of Parliament; but they have not all the powers ordinarily possessed by landowners, for they can only give licences and consents to others to use the land vested in them by the Act. But in this case there is no question about either a licence or a consent, so that the Conservators Act has nothing to do with the present case. Under the defendants' Act the railway company is authorised to take lands for the purposes of its railway, and also to build a bridge over the river Thames. Among the lands which the defendants were authorised to take was a

[Ex. Cп.

EXCHEQUER CHAMBER. Reported by M. W. MCKELLAR, Esq., Barrister-at-Law.

Thursday, Feb. 4, 1869.

(Before KELLY, C. B., CHANNELL, B., MELLOR, J. PIGOTT, B., HANNEN, J., and CLEASBY, B.) METROPOLITAN BOARD OF WORKS v. METROPOLITAN

RAILWAY COMPANY.

Statutory right to lateral support-Metropolitan Railway Act 1854 (17 & 18 Vict. c. cexxi.)—Metropolis Local Management Act 1855 (18 & 19 Vict. c. 120). Part of the Fleet sewer was constructed in 1855, and vested by the Metropolis Local Management Act of that year in the plaintiffs. At a distance of fifteen feet from the brickwork of this part of the sewer the defendants subsequently constructed their railway, under powers provided by the Metropolitan Railway Act 1854, the plans of the railway having been duly approved of by the plaintiffs. Notwithstanding that both the sewer and railway were made with all possible care and sound materials, the sewage leaked into the railway cutting, and the sewer burst. In an action upon an award of the amount of damages done to the

sewer:

Held by the Exchequer Chamber (affirming the decision of the majority of the Court of Common Pleas) that the plaintiffs had not, by the several statutes relating to the construction of the sewer and railway, acquired any right to the lateral support of the land of adjacent owners, and that the plaintiff's were not injuriously affected by the works of the defendants.

This was a special case argued in the Court of Common Pleas last Trinity Term. Bovill, C. J., and Byles, J., after taking time to consider, concurred in their decision for the defendants, but M. Smith, J., the only other member of the court, dissented from the opinion of the majority, and delivered his judgment in favour of the plaintiffs.

The special case and the judgments of the court below are fully reported in 19 L. T. Rep. N. S. 10, and L. Rep. 3 C. P. 612.

Sir J. B. Karslake, Q. C. (with him Raymond), now argued for the appellants, the plaintiffs, against the judgment of the majority, in the court below. The Solicitor-General (Sir J. D. Coleridge, Q. C.) the Railway Company.

part of the soil of the river Thames, which by the (with him Horace Lloyd, Q. C.), for the respondents,

previous Act was vested in the plaintiffs. In their character as landowners, the conservators stood to the company in the same relation as any other landowners; and as the defendants entered upon, took, and injuriously affected lands belonging to the plaintiffs, I can see nothing to prevent the plaintiffs taking the same steps that any other landowner would take, to oblige them to pay compensation. But the plaintiffs have another character as conservators of the river Thames, and regard is had to this character in the 31st and 32nd sections of the defendants' Act. The letter written and signed by the plaintiffs' secretary was nothing more than an approval by the plaintiffs (as conservators of the river, not as owners of its bed) of the proposed works of the defendants; it was never intended, and I cannot regard it as a consent on the part of the plaintiffs, to the taking of the land by the defendants. If the conservators had unreasonably refused their consent to the plans of the defendants, they would have acted improperly. The lands in question were not taken by consent; they were then taken under the Act, and the plaintiffs have therefore taken the proper steps to obtain compensation.

Rule discharged.

Attorneys: W. C. Hall; Fladgate, Clarke, and Finch.

The

KELLY, C. B.-We are of opinion that the judgment of the court below should be affirmed. claim of the plaintiffs is large, amounting to 18,000l., and costs, for the damage to their sewer by reason of the Metropolitan Railway Company having excavated and dug into land in the neighbourhood, and thereby having caused the sewer to burst and fall to pieces. The question is whether the defendants have done a wrongful act so as to give the plaintiffs a claim against them. The defendants were seized in fee simple of the land, in and upon which they constructed their railway. The case finds that the level of the bottom of this railway cutting was about sixteen feet below the invert or bottom of the sewer, and that the distance of the brickwork of the sewer to the back of the railway wall built in the tunnel or cutting was about fifteen feet. As the earth or soil was excavated from the cutting, every precaution was taken by the defendants, and the whole of the work was done efficiently and properly. The works, however, were not sufficient to support the weight of the sewer, and some subsidence took place, followed by the bursting of the sewer. And first it is not denied that the railway company were entitled to make this excavation in exercise of the ordinary right of persons entitled

Ex. CH.]

METROPOLITAN BOARD OF WORKS v. METROPOLITAN RAILWAY COMPANY.

[Ex. CH.

and formation of such offices and other buildings, yards, stations, cr places of deposit; and also to contract for the purchase, removal, or abatement of any mill-dams, pond, river, bank, wall, loch, or other obstruction to the flow of water, whereby sewerage or drainage is interrupted or impeded, and for the purchase of any land, or any right or easement in or over any land, which it may be necessary or expedient to purchase, to prevent the obstruction of sewage or drainage within the limits of the commission." The plaintiffs, therefore, might acquire land necessary for the formation or protection of their works, but how were they to acquire it? The plaintiffs contended that as by the 38th section the landowners are entitled to compensation for the making of the sewers, so by the 66th section a similar compensation is conferred for the easement which it is necessary or expedient for the plaintiffs to enjoy, notwithstanding that with regard to such an easement there are no compulsory powers, but the board is only at liberty to purchase by agreement; the contention is, therefore, that if this easement is necessary, the plaintiffs might take it without agreement or the payment of a price, and that power is conferred by the inherent effect of the Act. But in order to support this, the plaintiffs must say that the Act contains some such words as these: The board shall acquire an easement or a right to lateral support on either side of the sewer thus constructed, and the right arises on the completion of the sewer." How can we interpellate such words as these? When the easement is necessary its purchase is specially provided for, and we cannot be called upon to provide another mode of acquiring it.

to the soil, and if the plaintiffs have any claim for the amount of damage done, it is on the ground that they are entitled to lateral support for their sewer. The plaintiffs are a public board, having no interest themselves in the public property vested in them, but they are empowered by several Acts of Parliament for a great and important purpose; under the 11 & 12 Vict. c. 112, they constructed this sewer, and the question is whether under that Act they have acquired a legal right to the support of the adjoining or neighbouring lands. The right claimed would be an easement, and it might be obtained by an Act of Parliament, or by purchase or conveyance. It is contended by the plaintiffs that this right was impliedly conferred by the statute. They say that the sewer having been well and properly constructed under the provisions of the Act, the right to support immediately arose and became vested in the Commissioners of Sewers. Let us see if there is anything in the Act to show this. Now this would devolve upon the neighbouring landowners an important duty, and we should expect an express provision to that effect, if the Legislature intended to create it. There is, however, no such express provision, and it is only argued for the plaintiffs that such provision must be implied. We find, however, that there is a special provision for the purchase of such an easement as this by the Board, by which they might have paid a price and obtained a conveyance. What are the provisions relating to this matter in the Act? The main sections are the 38th and the 65th. By the former, the Commissioners shall repair the sewers vested in them, "and shall cause to be made such sewers and works, or such diversions or alterations of sewers and works as may be necessary for effectually draining the area within the limits of the commission, and shall cause any banks or defences abutting on any river, stream, canal or watercourse, to be raised, strengthened, or altered, where it may be necessary so to do, for effectually draining or protecting from floods or inundation such area; and it shall be lawful for the commissioners to carry any such sewers through, across, or under any turnpike-road, or any street or place laid out as or intended for a street, or through or under any cellar or vault which may be under the pavement or carriage-way of any street, and (if upon the report of the surveyor it should appear to be necessary) into, through, or under any lands whatsoever, making compensation for any damage done thereby, as hereinafter provided; and it shall be lawful for the commissioners from time to time to enlarge, contract, raise, lower, arch over, or otherwise improve or alter all or any of the sewers, watercourses, and works which shall be from time to time vested in them, or subject to their order and control, and to discontinue, close up, or destroy such of them as they may deem to have become unnecessary." No power is given by that section to take lands, tonly to make and alter sewers, paying compentic This was an ancient river, called the Fleet-perly, should lose the right by implication only? witch, and probably no compensation was required in turning it into a sewer. This section contemplates only the damage done directly by the construction of a sewer, it does not relate to matters in which the owners of adjacent or neighbouring lands are concerned. Sect. 66 has a more extensive application, and clearly contemplates that lands may be acquired by the commissioners, "It shall be lawful for the commissioners to purchase by agreement, or to take on lease for such term as they may think fit, any land which may be necessary for the formation or protection of any works which the commissioners are authorised to execute under this Act; also any offices and other buildings, yards, stations, or places for deposit of refuse, materials, and things, or any land for the erection

The 18 & 19 Vict. c. 120 was passed when it was contemplated that the Metropolitan Board of Works, to whom that Act transferred the property and duties of the Commissioners of Sewers, would carry out underground works of greater magnitude, and in the 105th section express power is given to purchase or take on lease any land, right, or easement which the Board may deem necessary. There is, however no right to lateral support created by this Act, and it is impossible to doubt that the Legislature considered the powers sufficient without such right. It was said that damage to an adjacent owner would have given him a claim for compensation, and that this was only a similar claim for compensation against the owner. It may be true that if the right to lateral support had been purchased by and conveyed to the Board, it would have been of very little consequence or value to the owner of the adjacent land, if it did not interfere with the land itself; if, however, it did interfere, the right might be of considerable value, and we should hardly expect that right would be created without purchase, except in positive terms. Again, can it be possible that a railway which has an express right to construct works, and carry on business, and which has exercised that right pro

Certainly not. Under these circumstances, we are of opinion that the plaintiffs had no right to this lateral support by the Act of Parlia ment, and in order to have obtained such a right it must have been purchased by agreement under the 150th section of the Act of 1855. Two cases have been cited and relied on by the plaintiffs: the first is Pettiward v. The Metropolitan Board of Works, 19 C. B., N. S., 489, in which it was held that the making of compensation was an obligation, and not a condition precedent. But the nature of the damage there was different from this; the damage alleged was that the plaintiff was prevented from constructing his house. That was a direct damage for which he was entitled to be com pensated. The other case was The North London

REG. v. JOHN FIRTH.