The Queen against George Hutchinson Fisher, Clerk, and Ralph Dickinson Gough, Esq, Justices of the County of Stafford
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1862 |
| Date | 17 November 1862 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 72
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. c. 32 L. J. M. C. 12; 7 L. T. 325; 9 Jur. N. S. 571; 11 W. R. 69. Referred to, Midland Railway v. Gribble, [1895] 2 Ch. 133, 827. Approved, Rhondda and Swansea Railway v. Talbot, [1897] 2 Ch. 137. Referred to, London and North Western Railway v. Runcorn Rural Council, [1898] 1 Ch. 42, 561; Great Western Railway v. Talbot, [1902] 2 Ch. 765.
[191] the queen against george hutchinson fisher, Clerk, and ealph dickinson gough, esq., Justices of the County of Stafford. Monday, November 17th, 1862.-Railways Clauses Consolidation Act, 1845, 8 & 9 Viet. o. 20, ss. 68, 69. Accommodation works. Mines.-By The Railways Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 20, s. 68, the Company shall make and maintain "for the accommodation of the owners and occupiers of lands adjoining the railway," among other works, " All necessary arches, tunnels, culverts, drains &c., either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway, or aa nearly so as may be; and such works shall be made from time to time as the railway works proceed." By sect. 69, " If any difference arise respecting the kind or number of any such accommodation works, or the dimensions or sufficiency thereof, or respecting the maintaining thereof, the same shall be determined by two justices &c." The owners of mines extending under a railway, which had been made by a railway Company under the powers of their Act, 3 W. 4, c. xxxiv., which con- JB. ft 8.192. THE QUEKN V. FISHER 73 tained similar provisions with the 8 & 9 Viet. c. 20, gave notice to the Company in 1858 of their intention to work the mine under the line of railway, and the Company declined or neglected to purchase. At this point the line of railway was in a deep cutting, and the Company had made drains upon the line for the purpose of carrying off the water which fell upon the railway, and ran from the sides of the cutting. The working of the mine had caused the land on which the railway was conatructed to sink, so that the Company were compelled to fill up such sinkings in order to preserve the level of the railway, and thereby the drains had become in some places choked up, and the water percolated through the broken strata and through the cinders used by the Company for filling up the sinkings, and so passed into the mines. Held, that these drains were not accommodation works within sects. 68 and 69 of 8 & 9 Viet. c. 20. [S. C. 32 L. J. M. C. 12 ; 7 L. T. 325; 9 Jur. N. S. 571 ; 11 W. R. 69. Referred to, Midland Railway v. Gribbk, [1895] 2 Ch. 133, 827. Approved, Rhondda and Swansea Hallway v. Talbot, [1897] 2 Ch. 137. Referred to, London and North Western Railway v. Runcorrt, Rural Council, [1898] 1 Ch. 42, 561 ; Great Western Railway v. Talbot, [1902] 2 Ch. 765.] In Michaelmas Term, 1861, H. S. Giffard obtained a rule calling upon G-eorge Hutchinson Fisher, Clerk, and Ralph Dickinson Gough, Esq., justices of the county of Stafford, to shew cause why a writ of cerliorari should not issue to remove a certain order under their hands and seals, bearing date 24th December, 1860, ordering and adjudging that The London and North Western Railway Company should maintain and keep in repair the drains or culverts in the order mentioned, so as to convey the water as clearly [192] from the colliery and lands of James Bagnall and William Bagnall as before the making of the railway, or as nearly so as might be. The order, a copy of which was annexed to one of the affidavits in support of the rule, was made at a Petty Session of the justices of the peace of the county of Stafford, acting for the Petty Sessional Division of Wolverhampton, holden at Willenhall, on the 24th December, 1860. After reciting, among other things, an information and complaint that The London and North Western Railway Company had neglected to maintain and repair the drains or culverts, running from the flat bridge crossing the river Tame near the Willenhall railway station, along their line towards The Crescent Colliery, there occupied by James Bagnall and William Bagnall, carrying on business under the firm of "Messrs John Bagnall & Sons," the colliery being lands lying near or affected by the railway, and the drains or culverts being in their then state insufficient to carry the water as clearly from the lands as before the making of the railway; and that a summons had issued thereon to The London and North Western Railway Company to appear to answer the complaint, it proceeded as follows: "We, the said justices, in pursuance of the powers conferred upon us by The Railways Clauses Consolidation Act, 1845, do find that a difference arose between the said James Bagnall and William Bagnall and The London and North Western Railway Company respecting the maintaining of the said drains or culverts mentioned in the said information and complaint, and that such drains or culverts are within the said Wolverhampton Petty Sessional Division, and that the said drains or culverts are not sufficient, at all times, to convey the water as clearly from the land lying near [193] or affected by the said railway as before the making of the same, or as nearly so aa may be, and for insuring the spaedy maintaining and repairing of the said drains and culverts we order and adjudge that the said London and North Western Railway Company do maintain and keep in repair the said drains or culverts, running from the flat bridge crossing the river Tame near the said Willenhall railway station, along the line of railway towards the said Crescent Colliery, there occupied by the said James Bagnall and William Bagnall (which said colliery are lands lying near or affected by tha said railway), so as to convey the water as clearly from the said colliery and lands as before the making of the said railway, or as nearly so as may be. And we appoint ten days from the date of this present order for the commencement of such work. And we also appoint a calendar month from the date of this present order for the erection and completion of the same works. And we do hereby further order and adjudge the said London and North Western Railway Company to pay to the K. B. u,-3* 74 THE QUEEN V. FISHER 3 B. & 8.181. said Jamea Bagnall and William Bagnall the sum of 21. 15s., forthwith, for their costs in this behalf. Given," &c. The affidavits in support of the rule stated that the only witness called in support of the information and complaint was the mining agent of Messrs. Bagnall, who described generally the nature of the drains and the manner in which the mines were affected by the same having become stopped up, namely, amongst other things, by the percolation of the water through the broken strata, caused by the working oil the mines beneath, and through the cinders used by the Company to fill up the sinking of the railway, also caused by the working of the mines; but no evidence was offered to shew that the drains were other [194] than passages for carrying off water from the railway itself, and made by the Company for that purpose: that it was admitted that, if the drains were reopened, some water would still pass into the mines, unless the drains were made water tight by some process not adopted before the drains became stopped up; and that the workings of the mines were commenced fifteen years after the construction of the railway : that at the conclusion of the complainant's case it was objected for the Company that the drains were not accommodation works within the meaning of stat. 8 & 9 Viet. c. 20, s. 68, but were works made by the Company for their own accommodation ; and further, that they were not accommodation works within the meaning of the Act, inasmuch as they were not required for fifteen years after the making of the railway ; that mines underneath the railway were not adjoining lands within the meaning of the Act; and that the question raised by the summons and information was not within the...
To continue reading
Request your trial