Wolstanton Ltd and Attorney General of Duchy of Lancaster v Newcastle-under-Lyme Corporation
| Jurisdiction | England & Wales |
| Judge | Viscount Maugham,Lord Atkin,Lord Wright,Lord Romer,Lord Porter |
| Judgment Date | 30 May 1940 |
| Judgment citation (vLex) | [1940] UKHL J0530-4 |
| Court | House of Lords |
[1940] UKHL J0530-4
Viscount Maugham
Lord Atkin
Lord Wright
Lord Romer
Lord Porter
House of Lords
After hearing Counsel for the Appellants, as well on Tuesday the 16th, as on Wednesday the 17th and Thursday the 18th, days of April last, upon the Petition and Appeal of Wolstanton, Limited, whose registered office is situated at Wolstanton Colliery, Wolstanton, in the County of Stafford, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 4th of July 1939, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Mayor, Aldermen and Burgesses of the Borough of Newcastle-under-Lyme, lodged in answer to the said Appeal; and due consideration being had this day of what was offered for the said Appellants:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 4th day of July 1939, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
In the year 1841 one Hilton, who owned some houses which were alleged to be copyhold of the Manor of Newcastle-under-Lyme, which belonged to the Crown in right of the Duchy of Lancaster, started proceedings in Chancery to restrain the Earl of Granville, lessee from the Crown, from working his mines of coal and iron-stone so as to injure the Plaintiff's premises and houses by subsidence. The recent workings it was stated had created great alarm and anxiety amongst the copyholder proprietors within the townships of Hanley and Shelton, the greater part of which were within the Manor. The motion for an injunction came on for hearing before Lord Cottenham L.C. ( Hilton v. Granville 1 Cr. and Phillips 283). The Defendant set up a custom and also a prescriptive right to work the mines under the copyholds of the Manor making a reasonable compensation to the tenants for the use of the surface and damage to the surface by the working, but without making compensation in respect of the surface on any other account, and without making compensation for any damage occasioned to any buildings on the surface. Lord Cottenham was unwilling to grant an injunction which might have had the effect of stopping the mining operations; but he directed the motion to stand over, the Plaintiff undertaking to bring an action at law for the purpose of trying the right claimed by the Defendant.
Litigation in those days was conducted with dignified leisure, and it was not till the year 1844 that the legal question came on for hearing before the Queen's Bench in the case of ( Hilton v. Earl of Granville 1844, 5 Q.B. 701). The Judges were Lord Denman C.J. and Patteson, Coleridge and Wightman J.J. The custom was set up in the pleading of the Defendant and a claim on a prescription was also pleaded. There were two demurrers. The arguments on both sides are elaborately reported. It is worth noting that counsel for the Plaintiff was not allowed to argue that the Lord could not prescribe against his copyhold tenant because it did not appear on the pleas that the premises were in fact copyhold; and the case was ultimately decided on the footing that the action was one on the case for injuring two ancient houses in the Manor, one occupied by the Plaintiff and one by his tenant. The judgment of the Court was delivered by Denman C.J. and was based on the ground that whether the pleas demurred to related to a prescription or a custom they could not be sustained at law because unreasonable. The question whether the houses were freehold or copyhold was stated as not affecting the case.
Your Lordships are now asked to hold that Hilton v. Earl of Granville was wrongly decided in a case where the same custom is set up by a tenant of the Crown in relation to the same Manor of Newcastle-under-Lyme. It is therefore necessary to examine Hilton's case with care, and to see how it has been dealt with when it has been cited in subsequent cases. Such a decision as to the local law of the lands within a manor ought not to be disturbed after over 90 years, without very good reason.
My Lords, the Court of Queen's Bench in deciding that the custom was unreasonable approved and relied on the authority of a case decided nearly a century before which, as will be seen, has been accepted as good law in this House. The case relied on was that of ( Broadbent v. Wilks 1742, Willes, 360; S.C. (in error) 1 Wils. 63; S.C. 2 Str. 1224). If Hilton's case comes within the principle of Broadbent v. Wilks the former cannot be impeached. I will therefore mention the material facts in Broadbent v. Wilks. The custom there alleged was a custom for the Lord of the Manor and his tenants to cast the slate and other rubbish coming from the working of coal mines upon the lands near to the pits belonging to customary tenants of the Manor. It was held by the Courts that this custom was bad as being unreasonable and also as being uncertain. We are not concerned with the question of uncertainty which was mainly based on the word "near"; but the point as to unreasonableness was decided by Lee C.J. on this ground, that the custom might deprive the tenant of the whole profits of his land. The case was removed by writ of error into the Court of King's Bench, and there it was argued several times; but the judgment in the end (in 1745) was unanimously affirmed. Lee C.J. held that the custom was not reasonable inasmuch as it laid a great burden on the land of the Plaintiff without any consideration appearing either public or private, and also because it savoured of an arbitrary power and might totally deprive the tenant of the benefit of the land.
Returning to Hilton's case it is to be observed that Denman C.J. in delivering the judgment cited Broadbent v. Wilks at some length; and he went on to observe that the custom pleaded in the case before the Court was far more oppressive than that which was thus deliberately condemned by both Courts in Broadbent v. Wilks. He referred to one or two other cases and concluded by saying that "a claim destructive of the subject matter of the grant cannot be set up by any usage."
The subsequent history of the litigation between Hilton and Lord Granville is shortly stated in a note at the end of the report in 5 Queen's Bench. It is sufficient for my purpose to say that the decision was never brought before a Court of Error, and, subject to a qualification which must now be stated, the case is still a binding authority in inferior Courts. It is, however, true that Denman C.J. went on to say that if the grant of the ancient houses could be produced reserving a right in the Lord to deprive his grantee of the enjoyment of the thing granted, such a clause must be rejected as repugnant and void, and he said that the custom pleaded had that destructive effect. This view was not so absurd as it sounds at the present time, for, as Lord Blackburn states in ( Dixon v. White 1883, 8 A.C. 833, at p. 843), "the contrary has now been established, though not in England finally till ( Rowbotham v. Wilson 8 H.L.C. 348) in 1860, and not perhaps in Scotland till ( Buchanan v. Andrew L.R. 2 H.L., Sc. 286) in 1874." In my opinion this erroneous view of the effect of a reservation by a grantor of a right which might involve the destruction of the surface granted does not seriously impair the authority on the point of unreasonableness of the decision of Hilton v. Granville.
A somewhat similar matter came before the Court of Queen's Bench on demurrer in ( Blackett v. Bradley 1862, 1 B. & S. 940). The custom there alleged was to work under the waste lands of the Manor without paying compensation for subsidence. The Court consisted of Cockburn C.J., Blackburn J. and Wightman J., and strangely enough those eminent Judges accepted without comment an express admission by the Defendant's counsel that the case was indistinguishable from Hilton's case. This was a mistake, since an alleged custom to mine under the copyhold and other tenements of the Manor might be bad and such a custom confined to the waste of the Manor might be good (see Gill v. Dickinson, 5 Q.B.D. 159). However, the Court was left to decide whether or not Hilton's case was good law or at least binding on the Court. Cockburn C.J. delivered the judgment and after stating that the authority of the case was to some extent impaired by the mistaken view as to the effect of a hypothetical grant reserving a right to let down the surface and observing that the decision itself had not met with the universal approval of the profession, he went on to say, "At the same time it is equally clear that, though the reasoning of this Court in Hilton v. Granville has been impugned the decision in "that case has not been overruled," and that they considered themselves bound by it. Incidentally it should be noted that during the argument Blackburn J. observed, in relation to the argument that the Lord of the Manor might have made a grant to the copyholders reserving the right claimed, that the answer to that might be that, though the parties might legally have made such a...
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