The Company of Proprietors of the Lancaster Canal Company against Parnaby and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 400
IN THE COURT OF QUEEN'S BENCH.
S. C. 3 P. & D. 162; 1 Railw. Cas. 696; 9 L. J. Ex. 338. Referred to, Johnson v. Midland Railway, 1849, 6 Railw. Cas. 63. Approved, Mersey Docks Trustees v. Gibbs, 1864-66, L. R. 1 H. L. 93; 11 H. L. C. 686. Followed, Winch v. Thames Conservators, 1874, L. R. 9 C. P. 382. Distinguished, Gallin v. London and North Western Railway, 1875, L. R. 10 Q. B. 215; Forbes v. Lee Conservancy Board, 1879, 4 Ex. D. 122. Applied, Fleming v. Manchester Corporation, 1881, 44 L. T. 519; R. v. Williams, 1884, 9 App. Cas. 418; Lowther v. Curwen, 1887, 58 L. T. 172. Distinguished, R. v. Great Western Railway, 1893, 62 L. J. Q. B. 575. Referred to, The Bearn, [1906j P. 63; Bede S. S. Company v. Wear Commissioners, [1907] 1 KB. 320.
't'J; ' 22:J?r'~-~ [223] in the exchequer chamber. /afff'- A/r/a-'oyi0.~. fc J 'l- fl-f ^ :4 ,- . ' - - parnaby and others agaiiist the company of proprietors of the lancaster '."flSfyn.f3.3aj.CA.tiAL company. the company of proprietors of the lancaster canal '_i4a.i4l.3}(./3.-7.rtCoMPANY against parnaby and others. (Error from the Queen's Bench.) Hitfj. &, \f\. 1839. Declaration in case against a canal company stated that, by the Canal /Gpffj.jX-B.;7A-ct (stat. 32 G. 3, c. 101), the company was formed to make and maintain the 4raf-2K.6.J5canal, with power to take tolls, and all persons had free liberty to navigate the ^33-lK,& ,2/4. oana]. an(]j jf any boat should be sunk in the canal, and the owner or person having care of it should not without loss of time weigh it up, it was, by the statute, to be lawful for the company to weigh it up, and detain it till payment of expenses : that the company completed the canal, and took tolls on it; that a boat sunk in the canal, so that vessels passed with difficulty in the day, and at night were in danger of running foul of it; that, although the company could, and ought to, have requested the owner, &c. to weigh it up, and, if that was not done without loss of time, could, and ought to, have weighed it up, and, in the meantime, have caused a light or signal to be placed to enable boats to avoid it, yet the company did not cause the owner, &c. to weigh it up, nor themselves weigh it up, nor place a light or signal : whereby plaintiffs boat, navigating the canal, ran foul of the sunken boat and was damaged. Held, by the Court of Exchequer Chamber (affirming the judgment of the Court of Q. B.), that the declaration disclosed a sufficient duty and breach. By the Court of Exchequer Chamber: such duty was not created by the clause enabling the company to weigh the boat, but arose upon a common law principle that the owners of a canal, taking tolls for the navigation, were bound to use reasonable care in making the navigation secure, the want of which reasonable care might be collected from the declaration, although the complaint was ostensibly founded on the statute. [S. C. 3 P. & D. 162 ; 1 Eailw. Gas. 696; 9 L. J. Ex. 338. Referred to, Johnson v. Midland Bailway, 1849, 6 Eailw. Cas. 63. Approved, Mersey Docks Trustees v. Gfibbs, 1864-66, L. E. 1 H. L. 93; 11 H. L. C. 686. Followed, Winch v. Thames Conservators, 1874, L. R. 9 C. P. 382. Distinguished, Gallin v. London and North Western Railway, 1875, L. R. 10 Q. B. 215; Forbes v. Lee Conservancy Board, 1879, 4 Ex. D. 122. Applied, Fleming v. Manchester Corporation, 1881, 44 L. T. 519; B. v. Williams, 1884, 9 App. Cas. 418; Lowther v. Curwen, 1887, 58 L. T. 172. Distinguished, B. v. Great Western Railway, 1893, 62 L. J. Q. B. 575. Referred to, The Bean, [1906J P. 63; Bede S.8. Company v. Wear Commissioners, [1907] 1 KB. 320.] Case. The declaration stated that by an Act of Parliament (32 G. 3, c. 101), intituled, "An Act for Making and Maintaining a Navigable Canal from Kirkby Kendal, in the County of Westmoreland, to West Houghton, in the County Palatine of Lancaster, and also a Navigable Branch from the said Intended Canal, at," &c., " to," &c., " and also Another Navigable Branch from," &c. " to," fec., it was enacted (a) (a) Sect. 1. The provisoes, as set out in the declaration, contained some immaterial variations from the statute. 11AD&.E.224 PARNABY V. THE LANCASTER CANAL COMPANY 401 that the persons therein mentioned were, and should be, united into a company for the carrying on, completing, and maintaining the said navigable canal and branches pass-[224]-able for boats, barges, and other vessels, according to the rules, orders, and directions thereinafter expressed, and should, for that purpose, be one body politic and corporate, by the name of the Company of Proprietors of the Lancaster Canal Navigation as therein mentioned : and the said company, and their successors, were thereby authorised and empowered to make and complete a canal, to be called The Lancaster Canal, and to be navigable and passable for boats, barges, or other vessels, from, at, or near Kirkby Kendal aforesaid, to and through the several parishes therein mentioned, and also one branch, &c. ; and also one other branch, &c.; and to do all matters and things which they should think convenient and necessary for the making, effecting, extending, preserving, improving, completing, and easy using of the said intended canal and other works, as therein mentioned : and (sect. 84), that it should be lawful for the said company, and their successors, from time to time, and at all times thereafter, to ask, demand, take, and recover, to and for their own proper use atid behoof, the rates and duties in the said Act in that behalf mentioned : and (sect. 91), that all persons whosoever should have free liberty to navigate upon the said canal, sluices, trenches, or passages, with any boats or vessels not exceeding such lengths and breadths as the locks would commodiously permit, upon payment of such rates and duties as should be demanded by the said company and their successors, not exceeding the rates and duties thereinbefore mentioned : and (sect. 110), that, if any boat or vessel should be placed or lie abreast or athwart in any part of the said canal or branches, &c., not being [225] moored at both ends, or if any person or persons navigating any boat or vessel should wilfully obstruct the navigation of the said canal by means of such boat or vessel, and the person having the care of such respective boat or vessel should not immediately, upon request made, moor the same at both ends, or remove, stop, or effectually secure the same, as the case should require, every person so offending should, for every such offence, forfeit a sum not exceeding, &c., and also a like sum for every hour such neglect or obstruction should continue; and that it should be lawful for the agents or servants of the said company and their successors, or any of them, to cause any such boat or vessel to be unloaded, if necessary, and to be removed in such manner as should be proper for preventing such obstruction in the navigation, and to seize or detain such boat, &c., and the loading, &c., until the charges occasioned by such unloading and removal were paid ; and that, if any boat or vessel should be sunk in the said canal or branches, &c., and the owner or owners, or person or persons having the care of such boat or veasel, should not, without loss of time, weigh or draw up the same, it should be lawful for the agents or servants of the said company, or their successors, or any of them, to cause such boat or vessel to be weighed or drawn up, and to detain and keep the same till payment were made of all the expences thereby necessarily occasioned. The count then stated that, before and at the time of the committing of the grievances, &c., the canal and branches had been completed, and the company had been and were used and accustomed to take and receive rates and duties in respect of the passing of boats and vessels in and along the said canal and branches ; and [226] the plaintiffs then were the owners of a certain fly boat of great value, to wit, &c., and of such a length as the said locks would commodiously permit, wherewith they had been used and accustomed to pass and repass in and along the said canal and branches, with goods, &c., as common carriers, paying to the said company such rates and duties in that behalf as were required by the said company, not exceeding the amounts in that behalf by the said Act directed; and in and on board of which fly boat...
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