The Conservators of the River Tone, in the County of Somerset, against Ash and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 479
IN THE COURT OF KING'S BENCH.
S. C. 8 L. J. K. B. O. S. 226. Referred to, In re St. Alphage, London Wall, 1888, 59 L. T. 617. Considered and distinguished, Salford Corporation v. Lancashire County Council, 1890, 25 Q. B. D. 389.
[349] the conservators of the kiver tone, in the county of somerset, against ash and others. 1829. By an Act for making and keeping the river Tone navigable, it was enacted, .that the thirty persons therein named and their successors should be conservators of the river, and should have power to cleanse, scour, open, and keep navigable the said river; and also to cut and make a new channel, if occasion should be, through the ground of other persons, making recompense to the owners. By another clause the conservators were to contract with the owners of land for the loss or damage which any of them should sustain by making the river navigable; and if the owners and the conservators could not agree touching the value thereof, or if the title were in an infant, feme covert, or any other person unable to contract, then the sheriff was to summon a jury to ascertain the value, and the determination of the jury was to bind all parties; and in ease the parties interested in the land should not appear, then the jury, in their absence, were to proceed to determine what satisfaction should be made to them respectively, which determination was to be good, valid, and conclusive, and to vest an estate in fee-simple in the conservators and their successors, or other right, title, or interest in the lands. By another clause it was enacted, that 480 THE CONSERVATORS OF THE RIVER TONE V. ASH WB. &C.S50. there should always be conservators of the said river, and that the thirty persons therein named should continue conservators during their lives, unless any of them should be removed for misbehaviour, which the major part of the conservators were thereby empowered to do, and when the number of the conservators at any time by death or removal should be reduced to twenty, then the survivors were to choose other persons to be joined to themselves to be conservators of the river, so as to make up the number thirty; and the conservators were enabled by the name of the Conservators of the River Tone, in the county of Somerset, to take and receive any gift, legacy, or grant of goods, chattels, money, or lands in fee, or for any other estate or term for the uses aforesaid; and it was made lawful for any persons to convey any estate to the conservators and their successors without licence to alien in mortmain. And the conservators, or the major part of them, or any five of them appointed by the major part of them to be a committee, were authorized in writing under their hands and seals to make any contract, which contract should bind the whole body of the conservators, and the conservators might sue and be sued by the said name of the Conservators of the River Tone, in the county of Somerset. By a subsequent Act the conservators were authorized tc make orders in writing for the government of the boatmen, bargemen, or others, in navigating boats or barges, or floating timber on the said river : Held, that as it manifestly appeared from the different clauses of these Acts of Parliament that the conservators should take land by succession and not by inheritance, although they were not created a corporation by express words, they were so by implication ; and that being so, they were entitled to sue in their corporate name for an injury done to their real property. An Act of the 51 G. 3, ' for making the Bridgwater and Taunton Canal, after reciting, that the making of that canal would be very prejudicial to the tolls authorized to be levied and collected from the Tone Navigation, authorized and required the company of proprietors of the canal within three calendar months to contract and agree with the Conservators of the River Tone Navigation and other persons, proprietors of shares or parts of shares, or otherwise interested therein, for the absolute purchase of their several and respective estates, rights, and interests in and to the same; and also to contract and agree with the overseers of the poor for the time being of the town of Taunton, and the several parishes of Taunton St. Mary Magdalen and Taunton St. James, for the absolute purchase of the respective estates, rights, and interests of the said town and parishes, under and by virtue of the said therein recited Acts. The 51 G. 3 was repealed by the 5 G. 4. Held, by Bayley and Littledale Justices, that the words, within three calendar months, applied to both branches of the clause, and that the canal company therefore were bound to have contracted within that period with the overseers of the poor of the parishes of Taunton; and not having done so, they could not afterwards compel them to sell their interest; and by Parke J., that whether the right to purchase that interest was limited to three months or not; at all events, it was gone when the 51 G. 3 was repealed. [S. C. 8 L. J. K. B. 0. S. 226. Referred to, In re St. Alphage, London Wall, 1888, 59 L. T. 617. Considered and distinguished, Salford Corporation v. Lancashire County Council, 1890, 25 Q. B. D. 389.] Trespass for entering the plaintiffs' wharfs, pens, pounds, bridges, locks, wears, and closes covered with water, in the parish of North Cuny, and fixing and [350] fastening to and upon the gates and posts of the plaintiffs there divers locks, staples, hinges, and bolts, and thereby damaging the same, and thereby and therewith shutting, locking, and fastening the said gates, and keeping them so shut for long spaces of time, and at other times unlocking and opening them, and ejecting the plaintiffs from their said premises, and keeping them so ejected for a long space of time, and during that time receiving tolls and duties belonging to them amounting to 30001., and during all that time preventing the plaintiffs from using them as they would otherwise have done. Plea, first, not guilty. Secondly, that at the time of exhibiting the said bill, there was not any such body politic or body corporate as the Conservators of the River Tone as by the said declaration was supposed. Thirdly, that at the time of exhibiting the said bill, the said persons so suing as the Conservators of the River Tone were not 10 B. &C.331. THE CONSERVATORS OF THE RIVER TONE V, ASH 431 a body politic or corporate as by the said declaration was above,supposed. Fourthly, that the persons so suing as the conservators at the time of exhibiting the said bill against the defendants were not enabled or empowered to sue, or capable of suing, as the Conservators of the River Tone, upon the supposed causes of action in the said bill and declaration above mentioned, or any-of them, or any part thereof. Fifthly, that the messuages, wharfs, pens, pounds, bridges, and closes, were the messuages, wharfs, pens, pounds, bridges, and closes, soil and freehold of the Company of Proprietors of the Bridgwater and Taunton Canal Navigation, and justifying as their servants. Sixthly, as to the taking and receiving the said tolls and duties in the declaration mentioned, that [351] the said tolls and duties at the said several times, when, &e. were certain tolls and duties for the tonnage of certain goods, wares, merchandize, and commodities which had been theretofore carried and conveyed from such part of the said canal and cut mentioned in the Act of the 51 G. 3 as was not at the time of passing that Act intended to extend, and never did extend,, from the parish of Clevedon, in the county of Somerset, to the west side of the river Parrett in the same county, and which tolls and duties were vested in the Company of Proprietors of the Bridgwater and Taunton Canal Navigation under and by virtue of the said last-mentioned Act, and of a certain other Act made and passed in the 5th year of G. 4, and so justifying as servants of the company. Seventhly, as to the taking and receiving of the said tolls and duties, -that before and at the said several times, when, &e'. the said Company of Proprietors of the Bridgewater and Taunton Canal Navigation were seised in fee of and in the said tolls and duties, and justifying as their servants. Eighthly, as to the taking and receiving the said tolls and duties that before and at the said several times, when, &c. the said company were lawfully possessed of and entitled to the said tolls and duties, and justifying as their servants. Upon all these pleas issue was taken and joined. At the trial before Gaselee J. at the Spring Assizes 1828, for the county of Somerset, a verdict was found for the plaintiffs for the damages in the declaration, subject to the opinion of this Court upon the following case :- By an Act of Parliament passed in the tenth and eleventh years of William III. for making and keeping the river Tone navigable from Bridgwater to Taunton in the county of Somerset, reciting, that John Mallett, Esq., in pursuance of a commission under the Great Seal of England granted in the thirteenth year of Charles I., had at [352] his very great expence made the said river in some sort navigable from the said town of Bridgwater to certain mills called Ham Mills in the said county : in consideration whereof His late Majesty King Charles II. by his letters patent under the Great Seal of England, in the thirty-sixth year of his reign, had granted to the heirs of the said J. Mallett the sole navigation of the said river from Bridgwater to Ham Mills aforesaid ; and that all the interest of J. Mallett and his heirs in the said river and navigation on the same, and the said commission and letters patent, was, by good and sufficient conveyance in the law, conveyed and assigned to, and vested in, J. Frind, Gentleman, and twenty-nine other persons therein named, inhabitants of the parish of Taunton St. Mary...
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