vested in the appellant, obtained a lease of the coalmines under the estate of Mr. Boulcott;-such lease was granted by persons deriving their title through or under Mr. Boulcott.

In February, 1859, the appellant and the late David Jonassohn, for the purpose of working the coal comprised in the said lease, commenced sinking or deepening a shaft called the Haugh-shaft, which is not nearer to the strip of land purchased by the company than 200 yards, and they thereupon, though not required to do so, either by the Special Act or by the Railway Clauses Consolidation Act, 1845, gave notice to the company of their intention to work the said collieries, On receiving the said notice, the respondents warned the said Jonassohn and the appellant that they could not take away either the coal or the water from underneath the said strip of land, or the immediately adjoining land, without endangering the bridge. The appellant and Jonassohn for a time discontinued working, but afterwards gave notice of their intention to resume the works, whereupon the respondents filed their bill, praying that the appellant and his partner might be restrained, by injunction, from taking away any of the water or coal underneath the piece of land purchased from Mr. Boulcott, and from taking away any of the water or coal underneath the land adjoining thereto, which was necessary for the stability or security of Victoria Bridge.

The substantial part of the decree of the ViceChancellor, confirmed by the Lord Chancellor, was directed to the working at a greater distance than twenty yards from any masonry or buildings belonging to the company, and it restrained the appellant from working any of the minerals under, or in the land adjoining to the land purchased from Mr. Boulcott, not being within twenty yards of any masonry or buildings belonging to the company, in such a manner as to affect the stability of the bridge, or the railway, or other works. But the order was without prejudice to the appellant's right to pump out or otherwise remove the water in the shaft called the Haughshaft, the Court being of opinion that the appellant was entitled so to drain the above shaft.

Rolt, Q.C., and Dickinson (Hannen with them) for the appellant.

The respondents have no right on which to found this injunction. The 27th and 28th sects. of the Act must be read together; within twenty yards the appellant can be stopped from working, on being paid compensation; it is absurd that a greater right should exist outside the twenty yards, a right to stop the appellant without paying compensation,

Dudley Canal Co. v. Grazebrook, 1 B. & Ad. 59;
London and North-Western Railway Company v.
Ackroyd, 8 Jur. (N. s.) 911, 913.

The Railway Acts must be examined for the purpose of discovering the rights and liabilities of the parties. This is a case of compulsory sale, where the rights of

the vendor must be taken away by clear words, if at
all. The head-note in

Caledonian Railway Company v. Sprot, 2 Macq.
H. of L. Cas. 449,

There is no evidence of anticipated damage, except that arising from the withdrawal of water.

is not warranted by that case.

It is not clear that the water will be withdrawn from the spaces; if it happens it will be through percolation, and loss of water through percolation confers no right,

Chasemore v. Richards, 7 H. of L. Ca. 349.
The injunction is too extensive, the respondents
should define the limits of their rights.

Cother v. Midland Railway Company, 2 Ph. 469;
Haines v. Taylor, 2 Ph. 209; s. c. 10 Beav. 75.

Sir H. Cairns, Q.C., and Hobhouse, Q.C. (George Williamson with them), for the respondents, Distinguished the cases involving the Railway Clauses Consolidation Act from those like the present independent of that Act.

Here the special Act contains special provisions for subjacent support, and the contention of the other side amounts to this, that the land might be taken away from the railway on each side, leaving a thin wedge to support itself.

There is no distinction between the rights acquired by a railway under purchase by agreement and by compulsion; the head-note in Sprot's Case is correct, and that case has been followed in

Caledonian Railway Company v. Lord Belhaven,

3 Macq. H. of L. Cas. 56.

They cited and commented on cases not involving the Railway Clauses Consolidation Act,

Dudley Canal Company v. Grazebrook, ubi supra; Birmingham Canal Company v. Dudley, 9 Jur. (N. S.) 24;

Stourbridge Navigation v. Ward, 7 Jur. (N. s.)
24;

Humphreys v. Brogden, 12 Q. B. 739;
Roberts v. Haines, 6 E. & B. 643.
Cases involving the Railway Clauses Act,
Fletcher v. Great Western Railway Company,
H. & N. 242; s. c. in error (5 H. & N. 689);
London and North-Western Railway Company v.

Ackroyd, ubi supra.

The Common Law right extends to the retention of the water, which is necessary to the support of the soil.

The issue of danger was fairly raised by the respondent himself. They referred to his affidavits in support of this.

The general injunction is the proper and only way of defending several kinds of property, e. g., patents; or of restraining a nuisance,

Imperial Gas Light Company v. Broadbent, 7 H. of L. Ca. 600;

Lord Ripon v. Hobart, 3 Myl. & K. 169;

1

LORD CHELMSFORD.-During the opening of this case on the part of the appellant I felt considerable doubt whether the injunction could be maintained to the full extent to which it had been granted, but having carefully considered the able arguments addressed to your Lordships by the counsel on both sides, I am now satisfied that the decree appealed from may, with some modification, be generally affirmed. The appellant is the lessee of the mines in question for the term of forty-two years, under a lease of the 21st of December, 1856, granted by Mr. Boulcott, who was the proprietor of the mines in 1834, when the Act for making what is now the respondents' railway was passed. Under this Act the company was empowered to carry the railway over the river Wear, at or near to a place called Biddick, by means of a bridge or viaduct. For the purpose of constructing this bridge and a portion of the railway the company required some of the land of Mr. Boulcott, under which there were seams of coal; and he agreed to sell them the requisite quantity of land for the sum of 6501. It seems to me to be not very important to consider whether this transaction is to be regarded in the light of a voluntary or a compulsory sale. As the company could have compelled Mr. Boulcott to part with his land for the purposes of the Act, the latter would probably be the more correct view. The conveyance to the company' was made in the form prescribed by the Act, and must be read as if the sections applicable to the subject matter of the grant and its incidents were inserted in it. These sections, the 27th and 28th, contain provisions for the case of mines lying under lands purchased by the company under the authority of the Act. These mines, whether of coal, stone, slate, or other mineral, by the 27th sect., are to be deemed to be excepted out of the purchase of such lands, and may be worked by the respective owners under the lands, or under the railway or other works of the comany, as if the Act had not been passed, "so that no damage or obstruction be done or thereby occur to or in such railway or other works." The 28th sect. relates to masonry and buildings belonging to the company, and enacts, that whenever in working any such coal, &c., (which refers to coal previously

mentioned as being under the land purchased,) the working shall approach within twenty yards of any masonry or building, notice shall be given by the owner or lessee of the mines, and the company may deliver a declaration that they require the coal to be reserved for the protection of such masonry or buildthe coal so reserved, and in case the company shall ing, and in that case they shall purchase and pay for not deliver such declaration, the owners, &c., may

work or get the coal under the masonry or buildand ordinary manner of working mines, and that ings, provided the same be worked in the usual no avoidable damage be done to the said masonry or buildings.

The appellant contends that the 27th sect. must be interpreted by the 28th, and that the meaning of the two sections taken together is that the company is entitled by the 28th section to purchase a limited amount of support, and can claim nothing more; and that beyond this limit, the appellant is only bound to work his mines in such a manner as to leave sufficient support for the ordinary purposes of the railway, but not for any extraordinary works. The two sections, however, appear to me to be independent of each other. By the 27th sect. the owners of mines under lands purchased by the company are required to work them "so that no damage be done or thereby occur to the railway or other works." This is not an unreasonable restriction. Throughout the line in general it is probable that no great additional weight will be laid upon the surface, and therefore that in the course of working the coal in the ordinary manner no difficulty will be found in preventing damage to the railway. But if it turn out that the coal cannot be worked in the usual and ordinary manner without occasioning damage, then to permit it to be even so worked would be to defeat the object for which alone the surface land was taken from the owner, and would make the very Act which authorised the construction of the railway the sanction for its destruction.

As

The Legislature having thus, in the 27th sect., provided generally against all damage by working mines under the purchased lands, proceeds, in the 28th sect., to deal with the special case of masonry and buildings belonging to the company, with a view to the protec tion both of the company and of the mine-owner. a great additional weight must be laid upon the surface by works of this description, necessarily requiring a greater amount of support than would be afforded in the ordinary mode of working mines, it seems but fair that the company should pay for this extraordinary support, which can only be obtained by depriving the owner of a quantity of his coal which he would otherwise have been able to work. The 28th sect. therefore enables the company to purchase the requisite protection to their masonry and buildings; and if they decline to do so, permits the mine-owner to remove all the coal which he would be able to get in the usual and ordinary manner of working, and if in so working

damage is unavoidable, the company must bear the considered to grant or warrant is such a measure of consequences. support, subjacent and adjacent, as is necessary for the land in its condition at the time of the grant, or in the state for the purpose of putting it into which the grant was made." Now Mr. Boulcott must have known where it was proposed to carry the bridge over the River Wear, and that some of his land would be used as a support to the abutments of the bridge. He must be taken, therefore, to have impliedly granted all the adjacent support necessary to maintain these abutments. It is incorrect to speak of the bridge as an extraordinary work in connection with the railway. It is a necessary part of the line of railway, without which it could not have been made; and it comes rather within the meaning of the words "ordinary purposes of the railway," for which it is conceded that support within the limits of the purchased lands must be provided.

The Act thus provides for the rights of the mine-owner, and of the company, as far as the purchased lands extend. But the injunction which has been granted, restrains the appellant from working, not only under the purchased lands, but also "under or in the land adjoining to the land so purchased, in such a manner as to affect the stability of the Victoria Bridge, or the railway, or other works;" and the appellant contends, that the company having secured by their Act a certain amount of support to their masonry and buildings, and also, within the limits of the purchased lands, what may be necessary for the ordinary purposes of the railway, their rights are defined by the Act, and the rule of Common Law with regard to lateral support from adjacent land is altogether excluded. But this argument appears to me to be answered by the decision of this House, in the case of the Caledonian Railway Company v. Sprot. There the Act contained a clause making it competent to the proprietor whose lands were authorised to be taken to reserve from the bargain and sale to the company the whole minerals in the lands for his own proper use and behoof; but restraining him from working the minerals till he had given security for injury which might thence in any way result to the undertaking. The conveyance of Mr. Sprot to the company contained a reservation of the minerals under the land conveyed, and may be considered as equivalent to the exception of the minerals by the Act itself; and Lord Cranworth, then Lord Chancellor, in advising the House, said, "independently of any parliamentary enactment the effect of the conveyance was to convey the land to be covered by the railway to the company, together with a right to all reasonable subjacent and adjacent support; a right to such support being a right necessarily connected with the subject matter of the grant." It was said by the appellant's counsel that this case has generally been considered to have proceeded upon the ground of the conveyance being voluntary. I have already observed that in these cases of private arrangement, where the owner may be compelled to part with his property, the sale can hardly be regarded as a voluntary one. But whether voluntary or compulsory, every grant must carry with it all that is necessary to the enjoy-requiring so much support as the Victoria Bridge." So ment of the subject-matter of it; and, therefore, if a certain amount of lateral support is essential to the safety of the railway, the right to it must pass as a necessary incident to the grant. But the learned counsel for the appellant insisted that even if he were bound to leave this lateral support for the ordinary purposes of the railway, he was not called upon to provide support for extraordinary purposes, such as bridges, &c. But this objection seems to be met by my noble and learned friend, Lord Cranworth. In the case to which I have just referred, he remarks, "It must further be observed, that all which a grantor can reasonably be

These, then, were the respective rights and obligations of the parties when the appellant's notice of his intention to work the mines was given. This notice, with the plan accompanying it, informed the company that the appellant's mining operations would extend in every direction, not only near to, but even under the railway itself. The company, therefore, filed their bill praying for an injunction, and the defendant's answer shows the extent to which he claimed the right to work the mines. He says, "the company are not entitled to have any further or other support left to the ground or surface of the strip or portion of land so purchased as in the plaintiff's bill mentioned, than such as would be left according to the fair, regular, and orderly, and best and most improved course, method, and manner of working collieries on the rivers Tyne and Wear." And what consequences he anticipated might possibly occur from his mode of working may be collected from another passage in his answer, in which, after stating his inability to say whether the water as well as the coal underneath and adjoining the piece of land purchased, is or is not necessary to the stability of the Victoria Bridge, or whether great damage will or will not ensue to the plaintiffs if he is allowed to resume his works, he submits "that such damage would not be irreparable, as it would simply consist of pecuniary loss or expense, as the railway might be carried across the river Wear by a bridge not

that he contemplates nothing less than the possibility of the entire destruction of the bridge as the consequence of his operations.

The appellant complains that the injunction was granted without any proof being offered that damage would result from the removal of the coal, the evidence being almost wholly directed to show that the support of the water was necessary to the stability of the bridge. To this, I think, a satis factory answer was given by the counsel for the respondents. The only question really in dispute between the parties was the right to the support