Bennitt v Whitehouse
| Jurisdiction | England & Wales |
| Judgment Date | 09 February 1860 |
| Date | 09 February 1860 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 311
ROLLS COURT
S. C. 29 L. J. Ch. 326; 2 L. T. 45; 6 Jur. (N. S.) 528; 8 W. R. 251.
[119] bennett v. whitehouke. Feb. 9, 1860. [S. C. 29 L. J. Ch. 326; 2 L. T. 45; 6 Jur. (N. S.) 528; 8 W. R. 251.] The owner of a mine sought relief against the owner of an adjoining mine for an alleged trespass in working into the Plaintiffs mine. Held, that the Plaintiff, upon making out a primd fade case, was entitled to an interlocutory order for the inspection of the Defendant's mine:-That the denial by the Defendant of the trespass was not a sufficient ground for refusing the order, and that it did not depend upon the balance of testimony. The Plaintiff and Defendant were lessees of adjoining coal mines. The Plaintiff, having some reason to suspect that the Defendant was working from his own mine into the Plaintiff's mine, and taking coal therefrom, applied to the Defendant to permit him to go down the pits into the Defendant's colliery to inspect the working. The Defendant denied altogether that he was working into the Plaintiff's collier}-, and refused the permission. The Plaintiff instituted this suit against the Defendant, praying an account of the coal raised by the Defendant out of the Plaintiff's colliery : for payment of the value : for an injunction to restrain further trespass, and for an inspection of the workings of the Defendant's colliery. A motion was now made for an inspection, and the state of the evidence was as follows :- The Plaintiff swore to his belief and conviction that the Defendant was working into his colliery, and said that he was unable to ascertain the fact, unless permitted to inspect the mine. This was supported by Skidmore, formerly a workman at the Defendant's colliery but who had been discharged, as he said, because he was supposed to have given information to the Plaintiff as to the Defendant's workings; he was now working for the Plaintiff. He stated that the prevalent impression amongst the [120] colliers employed in the Defendant's pit was, that they were working the coal in the Plaintiffs colliery; and that he believed that the Defendant's workings were, to a considerable extent, under the Plaintiffs land. The Defendant, by his answer, altogether denied that he had worked into the Plaintiff's mine, and his witnesses stated that it was impossible for a man at a distance of ten yards from the bottom of a shaft to say in what direction he was working or going. Mr...
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