The King against The Commissioners of the Navigation of the Rivers Thames and Isis
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1836 |
| Date | 23 November 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1370
IN THE COURT OF KING'S BENCH.
[804] the king against the commissioners of the navigation of the rivers thames and Isis. Wednesday, November 23d, 1836. By Acts relating to a river navigation, commissioners were authorised to make such cuts as they should deem necessary for the navigation, provided that no cut should divert or stop up the present channel of the river, or alter the course of the stream; and to make such horse towing-paths as they should think convenient for the navigation. If any person should think himself aggrieved, damaged, or injured, by any work made by the commissioners, or by the operation or effect of any such work, and should make complaint to the commissioners, they were to hear, and report to a subsequent general meeting, at which the commissioners were to make such order, determination, and judgment thereon as to them should seem just, and give such satisfaction as they should think reasonable. And, if the party complaining should be dissatisfied with such order, &c., he might appeal to the Quarter Sessions, who should make adjudication thereon, and award such costs to either party as they should think reasonable, which order and determination should be final and conclusive to all intents and purposes whatever. A mandamus recited that B. was seised in fee of an ancient towing-path, on a part of the river, and to the exclusive right of towing barges at that part, taking reasonable tolls for such towing by his horses; that the commissioners made a cut, by which the barges were enabled to avoid that part of the river, dispense with the use of the horses, and withhold the tolls; that the commissioners had, by the cut, injured the old channel of the river, and made the navigation of the part aforesaid less easy and convenient, and diverted the navigation of the river (g) See Vicars v. Haydon, Lessee of Carrol, 2 Cowp. 841; Doe v. Bendell, 1 Chitt. Rep. 535, and the cases there cited. (a) Coleridge J. was in the Bail Court. S AD. a E. 808. OF THE THAMES AND ISIS NAVIGATION 1371 from B.'s towing-path, and rendered the towing-path, and his exclusive right, wholly unprofitable; that so B. was aggrieved, &c.; that he had complained to the commissioners and demanded compensation adequate to the injury which he had sustained; that the commissioners, at a subsequent general meeting, made an order, determination, and judgment that they could not accede to B.'s application ; that B., being dissatisfied with such order, appealed to the Quarter Sessions, who ordered the commissioners to pay B. 10001. in full compensation for the injury sustained by him, and 2001. costs, which they refused to pay ; and the writ commanded them to pay. .Return, that the commissioners, believing B. had no claim to compensation, did not hear evidence on the complaint, or the amount of the alleged loss, and notified to B. that they refused to accede to his application ; that B., treating this refusal as an order, &c., appealed ; that, on the appeal, the commissioners objected that the refusal was not an order, but the Quarter Sessions over-ruled the objection ; that the cut enabled navigators to avoid a dangerous bend of the river; that B. was no further entitled to the path than as owner of the land; that they had not obstructed his towing-path, nor placed any obstacle to the navigation against the towing-path ; that parties might, and sometimes did, still navigate by the old channel. Held, 1. That the refusal of the commissioners was an order, determination, and judgment, from which an appeal lay to the sessions. 2. That the sessions had jurisdiction to award compensation to B., both for the damage suffered by his towing-path being less used, arid for the obstruction of the old navigation. 3. That the order of sessions was final and conclusive, and must be held to have been made on both complaints, inasmuch as the return (assuming it to negative the obstruction of the navigation) did not deny that the sessions had found such obstruction. 4. A peremptory mandamus was awarded to the commissioners to pay the money. 5. But the Court would not give the prosecutor costs of the mandamus, under stat. 1 W. 4, c. 21, s. 6, considering the question to have been very doubtful. [S. C. L. J. K. B. 17.] Mandamus. The inducement suggested that, by an Act, fec. (stat. 52 G. 3, c. xlvii., local and personal, public), after reciting Acts passed in 11 G. 3 [805] (c. 45), 15 G. 3 (c. 11), 28 G. 3 (c. 51), and 35 G. 3 (c. 106), it was enacted (a) that all and every the powers, authorities, provisoes, restrictions, clauses, penalties, forfeitures, matters, and things contained in the recited Acts should continue in force for executing the works by the said former Acts, and by that Act, authorised and directed to be done (except such parts thereof as should be altered, &c., by that Act); and the commissioners appointed under the said Acts, or either of them, should have power and authority to execute so much of the said Acts as should remain in force, and also that Act: and that, in and by the said stat. 35 G. 3 (c. 106), it was enacted (b) that, if any person should think himself aggrieved, damaged, or injured by any work made by the commissioners, or by the operation or effect of any such work, and should make complaint thereof in writing to the said commissioners at any district or general meeting, &c., the said commissioners should hear and report on such complaint to the next or some other subsequent general meeting, and should, at such next or subsequent general meeting, make such order, determination, and judgment thereon as to them should seem just, and give such satisfaction to the party complaining as they should think...
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