The Durham and Sunderland Railway Company, Thomas Emerson Forster, and Joseph Forster, against Walker

JurisdictionEngland & Wales
Judgment Date07 February 1842
Date07 February 1842
CourtExchequer

English Reports Citation: 114 E.R. 364

IN THE EXCHEQUER CHAMBER.

The Durham and Sunderland Railway Company, Thomas Emerson Forster, and Joseph Forster, against Walker

S. C. 2 G. & D. 326; 11 L. J. Ex. 442. Distinguished, Hamilton v. Graham, 1871, L. R. 2 H. L. Sc. 172; Bidder v. North Staffordshire Railway, 1878, 4 Q. B. D. 412.

[940] in the exchequer chamber. (error from the queen's bench.) the durham and sunderland railway company, thomas emerson forsteh, and joseph forster, against walker. Monday, February 7th, 1842. The following facts appeared on bill of exceptions. The dean and chapter of Durham, being seised in fee of lands in that county, demised them, in 1832, to W., by indenture between them and him, containing this clause: "Except and always reserved out of this present lease, indenture or grant, the woods, underwoods and trees now growing, or hereafter to grow, upon the said demised premises, and the mines, quarries and seams of clay within and under the same, with full and free authority and power to cut down, take and carry away the said wood and trees, and to dig, win, work, get and carry away the said mines, quarries and seams of clay, with free ingress, egress and regress, wayleave and passage, to and from the same, or to or from any other mines, quarries, seams of clay, lands and grounds, on foot and on horseback, and with carts and all manner of carriages, and also all necessary and convenient ways, passages, conveniences, privileges and powers whatsoever for the purposes aforesaid, and particularly of laying, making, and granting waggonvvay or waggonways in and over the said premises or any part thereof, paying reasonable damages for spoil of ground to be thereby done, upon the adjudication of two indifferent persons to be chosen by the parties, always excepted and reserved to the said dean and chapter, their successors, grantees or assigns." Afterwards, the lessors granted to a railway company, for a term, liberty to enter the demised lands, and to make and maintain a double main road or way over them, in a specified line, and to use, and grant the use of, such way for the conveyance of passengers, coals and goods. The company then made a railway over the lands, which W., before the last mentioned grant, had demised to a tenant. W. sued the company for damage to his reversion. The company pleaded the reservation in the first mentioned indenture, which they alleged to have been made between the dean and chapter of the one part, and plaintiff of the other, and sealed with the chapter seal, and averred that they, as the servants, and by command, of the dean and chapter, entered for the purpose of making, and made, over the demised lands, a road or way, being such a road or way as was within the intent and meaning, and could and might be made by virtue, of the reservation. Replication, admitting the seisin of the dean and chapter, and plaintiff's holding under the first mentioned demise, de injuria absque residuo causa). Issue thereon. It was proved on the trial that the railway was adapted, and of proper width, for carrying on a traffic in coals with certain parts of the county; that a railway fitted for such traffic would also carry passengers, which, however, would make no difference to the land, but only increase the wear and tear of the rails: that the railway was not yet formed over plaintiff's land, but had reached a point within 300 yards of it, and that, from that point, passengers were carried on the railway. The Judge, in summing up, directed the jury that, if the railway was made over plaintiff's land for other purposes as well as for carrying coals or other minerals, it was not within the reservation, and they must find for the plaintiff; which they did. On such bill of exceptions, and writ of error : the Court of Exchequer Chamber awarded a venire de novo, and Held : 1. That the right reserved to the dean and phapter was only that of making and using ways and granting wayleaves for the purpose of getting the excepted wood and minerals; not for general purposes; nor for (a) See p. 938, note (c), ante. 2 a B. 941. RAILWAY COMPANY V. WALKER 365 carrying coals and minerals, from whatever mines gotten ; nor for carrying coals and minerals of their own, gotten elsewhere than on the demised lands. 2. But that, if the road, when made, was such as the reservation authorized, the intention to use it for a purpose not authorized was no ground for an action by the reveraioner, though, if the intent were carried into effect, the tenant might be entitled to bring trespass. 3. That the proper questions for the jury were, whether, when the road was formed, it had become necessary or expedient for the railway company to make a road for the purpose of getting the excepted minerals; and, if so, whether the road made wag a proper road for that purpose, assuming- that it would be used for no other: and that, if either question were answered, in the negative, plaintiff might recover damages for any injury caused by the railway, of sufficient permanence to affect the reversion. Held, also, that the fight retained by the dean and chapter under the first mentioned indenture was not properly a subject of exception or reservation, but an easement newly created by way of grant from the lessee. [S. C. 2G. & D. 326; 11 L. J. Ex. 442. Distinguished, Hamilton v. Graham, 1871, L. E. 2 H. L. So. 172; Bidder v. North Staffordshire Railviay, 1878, 4 Q. B. D. 412.] Case, by reversioner (plaintiff below), for entering his lands in the possession of certain tenants of him the plaintiff, and making excavations and laying bricks, &c. [941] Pleas. 1. Not guilty. 2. That the lands were not, at the time of the committing, &c., in the possession of certain tenants thereof to plaintiff, nor did the reversion;thereof belong to plaintiff in manner and form, &c. 3. That by means of the premises in the declaration mentioned plaintiff was not injured in his reversionary estate, &q., in manner and form, &c. Issues to the country were tendered and joined on these pleas, 4. Leave and license: verification. Replication, de injuria. Issue thereon. Plea 5. That, before the supposed reversion belonged to plaintiff, and before and at the time of making the indenture after mentioned, the Lord Bishop of St. David's, dean, and the chapter, of Durham, were, and from thence hitherto have been, and still are, seised of the lands in the declaration mentioned in their demesne as of fee: and, being so seised, heretofore, and before the reversion belonged to plaintiff, and before any of the times when, &c., to wit on 28th September, 1832, by indenture, then made, between the dean and chapter of the one part, and plaintiff of the other part, sealed with the chapter seal of the said dean and chapter, the said dean and chapter, for them and their successors, did demise, grant and to farm let [942] unto the said William Walker (the plaintiff below), his executors, administrators, and assigns, amongst other things, the said lands in the said declaration mentioned, excepting (a) and reserving the woods, underwoods and treea then growing or thereafter to grow upon the said demised premises, and the mines, quarries and seams of clay within and under the same, with full and free authority and power to cut down, take and carry away the said wood and trees, and to dig, win, work, get and carry away the said mines, quarries and seams of clay, with free ingress, egress and regress, wayleava and passage, to arid from the same, or to or from any other mines, quarries, seams of clay, lands and grounds, on foot and on horseback, and with carta and all manner of carriages, and also all necessary and convenient ways, passages, conveniences, privileges and powers whatsoever for the purposes aforesaid, and particularly of laying, making and granting waggonway or waggonways in and over the last mentioned premises or any part thereof, paying reasonable damages for spoil of ground to be thereby done, upon the adjudication of two indifferent persons to be chosen by the parties, always excepted and reserved to the said dean and chapter, their successors, grantees or assigns : habendum (except as in the indenture was excepted) to the said W. Walker, his executors, &e., from 2d September then instant for twenty one years: yielding and paying, &c.: that plaintiff entered by virtue of the demise, and was possessed, &c.; and that he, from the commencement of the term hitherto, and during all the time that the said supposed reversion belonged to him, was entitled to [943] the said lands in the declaration mentioned under and by virtue of the said indenture, and had no other right or title to, or estate or interest in, the same : and that, after the making (a) The clause is stated verbatim in the judgment, p. 961, post. 366 THE DURHAM AND SUNDERLAND 2'Q. B. 944. of the indenture, and during the term, &c., to wit on the days in the declaration mentioned when, &c., "defendants, as the servants, and by the command, of the said dean and chapter, entered into and upon the 'said lands in the said declaration mentioned and in which, &c., for the purpose of forming and making, and then formed and made in, upon and over the same lands, a certain road or way, being, and which was, such a road or way as was within the intent and meaning, and could and might be made by virtue and in pursuance, of the said exceptions and reservations in that behalf contained in the said indenture." The plea then averred that from the time of the making of the road the dean and chapter were ready, and that after the making of the road, and the committing, &c., and before action brought, they tendered and offered to plaintiff, to pay him reasonable damages for spoil of the ground on adjudication of two indifferent persons according to the indenture, which persons they requested plaintiff, together with the dean and chapter, to appoint, but that plaintiff wholly refused, &c. And that, for the...

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3 cases
  • Western Australia v Ward; Attorney-General (Nt) v Ward;Ningarmara v Northern Territory;Ward v Crosswalk Pty Ltd
    • Australia
    • High Court
    • 8 August 2002
    ...possession: see reasons of Gleeson CJ, Gaudron, Gummow and Hayne JJ at [368]–[369], [372]. 835Durham and Sunderland Railway Co v Walker (1842) 2 QB 940 [ 114 ER 836 [1977] VR 393. 837 [1977] VR 393 at 401. 838 (1978) 53 ALJR 220 at 223; 22 ALR 465 at 470. 839 (1973) 128 CLR 199. 840 The rel......
  • Romain et Al v Homesites Ltd
    • Trinidad & Tobago
    • High Court (Trinidad and Tobago)
    • 29 March 2001
    ...an easement. This is because, technically, a person cannot grant something to himself. See Durham and Sunderland Railway v. Walker [1842] 2 Q.B. 940 at 947. Nor does this conveyance attempt to circumvent the difficulty by having the purchaser i.e. the grantee, execute the conveyance so as t......
  • The King. v. Kilbourn,
    • Canada
    • Federal Court (Canada)
    • 26 May 1919
    ...168, [ 1914] A.C. 569. ' 9 (1864), 3 H. & C. 300, 159 E.R. 545. to (1849), 3 Ex. 748, 154 E.R. 1047. 11 (1841), 2 Q.B. 940, 114 E.R. 364. 12 (1884), 10 Can. S.C.R. 425, 481. • 13 (1826), 5 B. & C. 842, 108 E.R. 313. ' 14 [1902] 2 CII. 523 at 537, 538. t, 10 ......

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