North-Eastern Railway Company v Elliott
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1860 |
| Date | 24 November 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 685
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 1 J. & H. 145; 32 L. J. Ch. 402; 9 Jur. (N. S.), 555; 2 N. R, 87; 8 L. T. 337; 11 W. R. 604; 10 H. L. C. 333; 11 E. R. 1055. See Great Western Railway Company v. Bennett, 1867, L. R. 2 H. L. 38; Midland Railway Company v. Checkley, 1867, L. R. 4 Eq. 26; Richards v. Jenkins, 1868, 18 L. T. 444. Adopted, Popplewell v. Hodkinson, 1869, L. R. 4 Ex. 253. See Midland Railway Company v. Haunchwood Brick and Tile Company, 1882, 20 Ch. D. 558.
[423] north-eastern railway company v. elliott. Before the Lord Chancellor Lord Campbell. Nov. 15, 16, 24, 1860. [S. C. 1 J. & H. 145 ; 32 L. J. Ch. 402 ; 9 Jur. (N. S.), 555 ; 2 N. R, 87 ; 8 L. T. 337 ; 11 W. R. 604; 10 H. L. C. 333 ; 11 E. R. 1055. See Great Western Railway Company v. Bennett, 1867, L. R. 2 H. L. 38 ; Midland PMihvay Company v. Checkle.y, 1867, L. R. 4 Eq. 26 ; ttidiards v. Jenkins, 1868, 18 L. T. 444. Adopted, Popplewell v. HoJkinson, 1869, L. R. 4 Ex. 253. See Midland Railway Company v. Huunchwood Brick and Tile Company, 1882, 20 Ch. D. 558.] A railway company was empowered by its Special Act to take lands, but the minerals were to be reserved to the vendor, who was to be at liberty to work them, causing no damage or obstruction to the railway ; and by another clause of the Act it was provided that, on working up to within twenty yards of any masonry or building of the company, the owner of the minerals might require the company to purchase the- minerals within that range, or, on their neglect to do so, might work them in the usual and ordinary way, doing no avoidable damage. The company in 1837 purchased land from the Defendant under their compulsory powers, for the purpose of erecting a bridge, which was accordingly built and completed in 1838. On the lessee of the minerals from the vendor notifying to the company bis intention of renewing the working of the minerals, which had been abandoned since 1791 : Held, a proper case for granting an injunction-as to land within the twenty yards, against working so as to cause damage until the conditions of the Act had been satisfied ; and as to other workings beneath or adjoining the company's land, against working so as to affect the stability of the bridge, or the railway or other works of the company. This was an appeal from an order for an injunction granted by Vice-Chancellor Wood. The facts of the case are fully stated in the report of the hearing below in Messrs. Johnson & Hemming's Reports (vol. 1, p, 145). The following short summary of them is sufficient for the purposes of the present report. The Plaintiffs were a company in which, by various Acts of Parliament, all the rights and privileges of the Durham Junction Railway Company had become vested. The Durham Junction Railway Company was incorporated by the Durham Railway Junction Act, 1834, 4 Will. 4, c. Ivii, which, amongst other enactments, contains the following:- Sect. 12. " And whereas the said railway is intended to be carried over the river Wear, at or near to a place [424] called Bicldick, in the county of Durham, by means of a bridge or viaduct; and whereas it is expedient to provide against the injury that may be occasioned thereby to the free navigation of the said river, be it therefore enacted that the said railway company shall, and they are hereby required, at their own expense to build in a proper manner a good, firm and substantial bridge or viaduct of brick, stone, wood or iron, or of all or any of these materials, over the said river; and that thfi piers of the said bridge or viaduct shall be placed in such situations and be constructed in such manner as shall be required by Sir John Rennie, or other the person appointed by the Lords Commissioners of the Admiralty, under and by virtue of an Act passed in the eleventh year of the reign of King George the Fourth, intituled ' An Act for the Improvement and Preservation of the River Wear, and Port and Harbour of Sunderland, in the County Palatine of Durham ;' and that the spring 686 NORTH-EASTERN RAILWAY COMPANY V. ELLIOTT 2DE O. F. * J. 425. of the arch of the bridge or viaduct, in case an arch shall be used, shall commence at a point not being less than thirty-five feet above the surface of the water according to the low-water level thereof." Sect. 27. " Provided always, and be it further enacted, that nothing in this Act contained shall extend or give to the said company any coal, stone, slate or other mineral under any lands, tenements or hereditaments purchased by the...
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- George Elliot, - Appellant; The Directors, etc, of the North Eastern Railway Company, - Respondents