Bagnall and Another v The London and North-Western Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1862 |
| Date | 25 June 1862 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 1000
IN THE EXCHEQUER CHAMBER. ERROR FROM THE COURT OF EXCHEQUER.
S. C. 31 L J. Ex. 480, 9 Jur. (N S) 254, 10 W. R 232, 802, 9 L T. 419. Applied, Reg. v. Fisher, 1862, 3 B. & S. 200; Midland Railway v. Checkley, 1867, L. R. 4 Eq. 28. Distinguished, Cracknell v. Thetford Corporation, 1869, L R. 4 C. P. 636. Discussed Dunn v. Birmingham Canal Company, 1872, L R 7 Q B 267: affirmed L. R. 8 Q. B. 42. See also Geakwar of Baroda v Candhi Kachabhai Kasturchand, 1903, L. R. Ind. App. 60
[544] in the exchequer chamber. (Error fiom the Court of Exchequer.) bagnall and another i- the london and north-western railway company. June 25, 1862-The plamtifts were owners and occupiers of a coal mine whiuh, as well as the surface land, formerly belonged to the same ownei. A railway Company to whose lights and obligations the defendants succeeded, put chased, under the powers of then act of parliament, the surface land for the purpose of their railway, and constructed it thereon The Company cut and removed upwards of twenty feet rn thickness of the surface soil over the plaintiffs' mine to get the level at which they laid their rails This soil was clay impervious to water, by removing it a poious rock was reached. The soil was in like manner cut away by the Company along the length of their line to a lower district of country, through which a brook flowed. The railway was carried over the brook by a flat bridge The line of railway sloped downwards from the bridge to the part over the plaintiffs' mine The bridge was sufficient to let the ordinary water of the brook pass, but was an impediment to the passage of water in large floods. The Company weie required by then act of parliament to make and maintain sufficient drains. At the time the railway was made the plaintiffs' mine was not worked within forty yards of it, and drains wete made at the side of the railway sufficient to carry oft" the water. Subsequently the plaintiffs gave the defendants notice of their intention to woik the mine under the railway. The defendants having declined to purchase the mine the plaintiffs worked under it, when, from no fault or negligence of theirs, but as the natural consequence of fair and lawful working, the railway sank and continued to do so from time to time. The defendants threw materials of a porous character1 on the sunken parts, but did not repair or puddle the drains In the year I860, a flood happened, and the watei, part of which would have escaped but for the bridge, flowed down the railway, and in consequence of the high ground between the brook and the surface over the mine being removed it reached that spot, and, together with the water falling there and the springs arising in the cutting, penetrated into the mine for want of efficient drains. Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequei), that the defendants were liable in an action for the damage sustained by the plaintiff's, and that the claim was not one which could have been enforced under the compensation clauses of the Kail way Clauses Consolidation Act, 1845. [S. C. 31 L J. Ex. 480, 9 Jur. (N S) 254, 10 W. R 232, 802, 9 L T. 419. Applied, Reg. v F^ker, 1862, 3 B. & 8. 200; Midland Railway v Chtdhy, 1867, L. R. 4 Eq. 28. Distinguished, Ciacknell v. Thdjord Coijjomtwn, 1869, L R. 1H. &C.545. BAGNALL V. LONDON AND NORTH-WESTERN KLY. CO. 100 L 4 C. P. 636. Discussed Dunn v. Birmingham, Canal Company, 1ST 2, L K 7 Q, B 367: affirmed L. R, 8 Q. K 42. See also GaeLwar of Baroda v Caudhi Kachabhui Kcu,turchand, 1903, L. K. Itid. App. 60 ] This was a proceeding in en or on the judgment of the Court of Exchequer for the plaintiffs, on a special case stated for the opinion of that Court The pleadings and facts sufficiently appear in the report of the case in the Court below (7 H. & N. 42.3). Phipson argued for the plaintiffs in error (a) (the defendants below) in last Easter Vacation (May 20), and Gray argued for the defendants in error (the plaintiffs below). The arguments were in substance the same as those in the Court below. The following additional autho-[545]-nties weie cited:-Regina v. The Ea^t&in Counties Railway Company (10 A. & E. 531); Glover v The Nottk titaffoidi hiie Railuay Company (16 Q B 912), Caled&ttian Railway Company v Lockltart (J Macq. 808), In ie Penny and ttie tiouth Eastern Railway Company (7 E & B 660), In ik l^aie and the Reyenk'i* Canal Company (9 Exch. 395), B'liiie v. The Crieat JVeittin Railway Company (2 B. & 8. 402), Smith v. Kennch (7 C. B. 515), rhjc v. The Coinmu,i iuiteit of Sewtn for Pa ikam (8 B. & C 355). Cur. adv. vult The judgment of the Court was now delivered by WiLLES, J. In this case the conjoint effect of the making of the defendants' catting, and of their neglect to keep their drains in proper order has been, that largo quantities of water, which, but for the cutting, would nut have come neat the plarntrtts' mine, and but for the defective state of the drains would have passed away and been carried off without injury to the mine, poured down into and damaged the mine, for which damage the present action is brought. The Company had, upon receiving the statutory notice, declined to purchase The jury found (and upon this rinding the question arises) the principal cause of the mischief to be that the drains had not been kept in proper order. It was hardly denied, and could not successfully have been disputed, that the Company was liable to make compensation, and the main stress of the argument bore upon the question whether such compensation can be recovered a^ damages in thus action, or whether the plaintiti ought to have proceeded under the compensation clauses of the Railway Act. Now the obvious intention of the Legislature in giving [546] the Company the option of purchasing the mine was that, in case they should decline to buy, the mine-owner should possess his propeity intact If it were otherwise, the railway Company would have it in then powei to do indirectly what they aie not permitted to do directly, namely, to take away the benefit of the mine, either in the whole or in part, vrithout paying for, and after they had elected not to buy, it And there are practical obstacles of an insuperable character against haying that there arises upon the making of the railway an immediate right to compensation in respect of possible future injury to unopened mines At that time it does not appear that the mine will ever be worked, nor that the drains will not always be kept in proper order, so that the Company might contend that peradventute no damage would ever arise, and an assess merit of damages in advance would be sheer speculation This consideration distinguishes the piesent case from that of The Caledonian Radway Company v. Lo^ihait (3 Macqueen, 808), where the embankment could not have been made without exposrng the land to damage by periodical Hoods, which were certain to occur, and the deterioration in value by disability to woik might at once be calculated with reasonable ceitainty, and bungs it within the authonty of that clabs of cases in which rt is held that damage caused by a negligent and improper exercise of the powers of the Act forms the proper subject of an action A fortiori, this is so where the negligence is in the care and management of the line, not in the construction of the works That was the course of reasoning by which the Court of Exchequer arrived at the conclusion that the defendants were liable in an action, and upon consideration we aie satisfied that their judgment was correct. It must therefore be affirmed. Judgment affirmed. (a) Before Erie, C. J., Crompton, J., Willes, J, Keating, J , and Mellor, .J. Ex. Div xiv.- J2*
English Reports Citation: 158 E.R. 538
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 31 L. J. Ex. 121, 8 Jur. (N. S.) 16, 5 L. T. 621 affirmed 1862, 1 H. C 544
[423] bagnall and another v. the london and north western railway company. Nov. 25, 1861.-The plaintiffs were owners and occupiers of a coal mine which, as well as the surface land, formerly belonged to the same owner A railway Company, to whose rights and obligations the defendants succeeded, purchased, under the powers of their act of parliament, the surface land for the purpose of their railway, and constructed it thereon The Company cut and removed upwards of twenty feet in thickness of the suiface soil over the plaintiffs' mines to get the level at which they laid their rails This soil was clay impervious to water; by removing it a porous rock was reached. The soil was in like manner cut; away by the Company along the length of their line to a lower district of country, through which a brook flowed. The railway was earned over the brook by a flat bridge. The line of tailway sloped downwards from the budge to the part over the plaintiffs' mine The bridge was sufficient to let the ordinary water of the brook pass, but was an impediment to the passage of water in large floods. The Company were required by their act of parliament to make and maintain sufficient drains. At the time the railway was made the plamtihV mine was not worked within forty yards of it, and drains were made at the side of the railway sufficient to carry off the water Subsequently the plaintiffs gave the defendants notice of their intention to work the mine under the railway. The defendants having declined to purchase the mine the plaintiffs worked under it, when, from no fttult or negligence of theirs, but as the natural consequence of fair and lawful working, the railway sank and continued to do so from time to time. The defendants threw materials of a porous character on the sunken parts, but did not repair or puddle the drains. In the year 1860 a flood happened, and the water, part of which would have escaped but for the bridge...
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