Bennet against Griffiths and Another
| Jurisdiction | England & Wales |
| Judgment Date | 12 January 1861 |
| Date | 12 January 1861 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 517
IN THE QUEEN'S BENCH.
S. C. 30 L. J. Q. B. 98; 3 L. T. 739; 7 Jur. N. S. 284; 9 W. R. 332.
[4671 bennett against griffiths and another. Saturday, January 12th, 1861. The Common Law Procedure Act, 1854, 17 & 18 Viet. c. 125, s. 58, enacts that "either party " to an action "shall be at liberty to apply to the Court or a Judge for a rule or order for the inspection by the jury, or by himself, or by; his witnesses, of any real or personal property the inspection of which may be material to the proper determination of the question in dispute; and it shall be lawful for the Court, or a Judge, if they or he think fit, to make such rule or order, upon such terms as to costs and otherwise as such Court or Judge may direct."-Held, that this section gives, as ancillary to the power to order inspec-tion,'the same power to order the removal of obstructions, with a view to inspection, which is exercised by the Courts of equity as ancillary to their power of ordering inspection.-Plaintiff and defendants were.adjacent mine owners. Plaintiff having reason to believe that defendants had encroached upon his mine, obtained permission from them to make an inspection of their mine, when he found a recently (d) Borill subsequently, on Saturday, January 26th, asked leave to mention this case, on the ground that the judgment had possibly proceeded on a misapprehension of the facts; and he called attention to the clauses in the agreement by which it appeared that the London and North-Western Company were to have exclusive occupation of part of the station, and to the statement in the case that the occupation had in fact been under and in conformity with tfae agreement. But Cockburn C.J. said that there had been no misapprehension, and that the judgment was based on the statement in the case that, for the purposes of the case, the appellants were to be deemed to be the persons rateable in respect of the whole occupation. 518 BENNETT V. GRIFFITHS 8 EL. ft EL 468. erected wall at the boundary between the two mines, which prevented him from ascertaining whether defendants had encroached upon his mine or not. Application by him to defendants for permission to take down a portion of this wall in order to complete the inspection having been refused, plaintiff applied to a Judge at Chambers, under the above section, for an order for inspection. The Judge, upon being satisfied that a portion of defendants' wall could be safely removed, and an inspection behind it made without danger to life, and with no further detriment to defendants than a temporary suspension of their works, made an order that plaintiff should inspect defendants' mine at and behind the wall, and should be at liberty, so far as was necessary for the purpose of the inspection, to make a driftway through the wall; before making the inspection giving security to the satisfaction of the master to the extent of 5001., or depositing that sum with the master, to abide any order the Court might make as to indemnifying defendants from any loss or damage they might sustain in consequence of the inspection.-Held, refusing a motion on behalf of defendants for a rule calling on plaintiff to shew cause why this order should not be set aside, that the order was good, and not in excess of the Judge's jurisdiction under the statute. [S. C. 30 L. J. Q. B. 98 ; 3 L. T. 735; 7 Jur. N. S. 284; 9 W. E. 332.J Gray, in last Michaelmas Term, moved for a rule calling on the plaintiff to shew cause why an order of Blackburn J., for the inspection of a mine of the defendants should not be set aside. It appeared from the affidavits that the plaintiff was the owner of certain coal mines situate at Titford, near Oldbury, in the county of Worcester, containing an area of forty acres or thereabouts. The defendants were the lessees and occupiers of other mines adjoining to the said mines of the plaintiff, and which the defendants were engaged in working at the time the said order was made. The plaintiff having cause to believe that the [468] defendants had encroached upon his mine, applied to them, on 2nd October, for permission to make an inspection of their mine. On 26th October a mine agent, employed for the purpose by the plaintiff, was allowed to go down into the mine, when he found that the defendants were working and...
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