V. THE LANCASTER

until the 9th of February, 1836, when they removed it and the THICKNESSE ground on which it stood, and let in the water from the canal. In making this extension they cut through the wall and piers. This extension is about 200 yards long, and terminates in a field occupied by Atherton under the plaintiff.

On the 29th of April, 1834, an agent of the Canal *Company pointed out to Mr. Wood the land which was afterwards taken from him by the Canal Company, for the extension of their canal. On or about the 2nd of July, 1834, all the lands which were required by the Company for such extension, were set out. These lands. were within the parliamentary line, and were necessary for the extension of the canal. On the 9th of September, 1834, the Canal Company received a notice from Mr. Wood not to trespass upon his lands, which intimated his dissent to the Company taking the same for the extension of their canal. On the 10th of September, Mr. Wood's land, which had been before set out, was staked out; and on the same day, a tender of a sum of money was made to him by the Company, for the value of the said land and damages, which was refused by Wood, who admitted the value to be sufficient, but stated that he had promised his coal tenant, Mr. Thicknesse, to oppose the extension of the canal. Mr. Wood's tenant of this land was then applied to on the same day on the part of the Company, but she refused to treat with them for the sale of her interest in the land. On the 19th of September, 1834, the Company received a notice from the solicitors of the plaintiff, stating that the plaintiff was the lessee of certain coal mines under certain lands, which were the same as those set out, through which the Lancaster Canal Company had manifested an intention of cutting a canal, and that he altogether disputed their right to cut such canal, and that, as the same would interfere prejudicially with his works and powers under his coal leases, he should resort to legal means for his protection. Besides the land belonging to Mr. Wood, and before mentioned, the land taken by the Company for the extension of their canal comprised certain land belonging to Sir R. H. Leigh, and certain other land belonging to Mr. Hodgson's devisees. These lands of Sir R. H. Leigh, and the devisees of Mr. Hodgson, were taken by the Company under agreements with them respectively, and with their respective consents; and these agreements were pursuant to the provisions of the statute 32 Geo. III. c. 101, and were duly enrolled; and were agreements for the value of the absolute interest in the lands.

CANAL CO.

[ *479 ]

[ *480 }

THICKNESSE v. THE

The land purchased of Sir R. H. Leigh, under agreement before referred to with him, was part of the land demised by him to the CANAL CO. plaintiff, and by the plaintiff demised to John Atherton, as before

LANCASTER

[ *481 ]

mentioned.

On the 27th of September, 1834, five commissioners, duly qualified and appointed, gave due notice, in pursuance of a requisition to them on behalf of the said Company, of a general meeting of the said commissioners, at Lancaster, on the 13th day of October, for the purpose of determining and adjusting what sum or sums of money should be paid by the said Company to the said James Wood and his tenant Catherine Bretherton, for the absolute. purchase of the lands before referred to, of which the said James Wood was owner, and Catherine Bretherton his tenant thereof, and also what other distinct sum should be paid to them or either of them in recompense for any damages which might be sustained by either by reason of severance of the lands; and that in case of their refusal to submit the said matters to the determination of the commissioners, they should issue their warrant to summon a jury, pursuant to the Act, to assess the value of the said lands, and the amount of the said recompense. The commissioners met pursuant to such notice at the time and place specified in the notice, and proof being made to them of a refusal on the part of Mr. Wood and Mrs. Bretherton to submit the matter to their decision, they on the same day signed a warrant to the sheriff of Lancaster to impannel a jury to appear before them at Yarrow Bridge, at a certain place there within one mile of the canal, on the 24th of October; and notice of this intended meeting on the 24th was given to Mr. Wood, by a letter addressed and sent by the post to his attorney, on the 14th of October. On the said 24th day of October, the said commissioners and the jury which had been summoned and returned, met at the time and place named in the said warrant. Mr. Wood appeared by his attorney, under a written protest, which, amongst many others, recapitulated his previous objections to the want of power in the Company under their Act to extend their canal, and insisted that the warrant ought to have made mention of Mr. Thicknesse, and have summoned the jury to assess damages for his interest in the lands.

The jury awarded by their verdict 80l. to Wood for the value of the land, and 51. to the tenant for her interest in the same, and 201. to Wood for the damage occasioned by severance, and an inquisition was regularly drawn up and signed, and judgment given

THE

LANCASTER

CANAL CO.

by the commissioners for the same. On the 4th of November, THICKNESSE these sums were tendered to Wood and Bretherton respectively, and refused by them, and on the 9th of December, were paid into the Bank of England, in the name and with the privity of the Accountant-General, to the credit of Wood and Bretherton respectively. On the 19th of December, in the same year, the Company entered on the said lands belonging to Wood. The action. was commenced on the 7th of July, 1836.

The plaintiff had no estate in the surface of the lands taken by the Company for the purpose of the said extension from Wood, or from the devisees of Hodgson.

The question for the opinion of the Court was, whether the plaintiff was entitled to recover on all, or any, or which of the counts of the declaration, and in that case it was agreed that the amount of the damages should be referred. If the Court should be of opinion that the plaintiff was not entitled to recover, or that his action was commenced too late, then a nonsuit to be entered, or a verdict for the defendant.

The first point stated in this case is the most important, the others being mere questions of form.

The first point is, as to the

duration of the powers of the Canal Company, and whether they are entitled at this distance of time to complete the line of their canal. I find nothing in the Act of Parliament to limit the time. in which they may do so. It has been argued that it would be attended with great inconvenience if the time were unlimited, for which reason the Legislature (at least one branch of it) has made a standing order that there should be introduced into all Acts of this sort an express limitation as to time. I do not see that that circumstance throws any light on the construction of this Act of Parliament; it only shows that that branch of the *Legislature which made the standing order, was of opinion that some such limitation was proper. It has been argued that the lapse of time very often affords a reason for the interference of a court of equity.

[ *491 ]

v.

CANAL CO.

THICKNESSE NOW a court of equity may interfere on grounds of this nature, that THE when a Canal Company has obtained an Act of Parliament for LANCASTER carrying into effect certain works without a limitation of time, and more especially where lands are to be taken under the Act, and the works are not completed at a certain date, say till thirty years afterwards, during which time the Company has seen the owners of the land make erections and improvements, and incur expenses on it, and, as in this case, place their fences on the termination of the canal at the point where it left off, under such circumstances a court of equity might say that a party so lying by and suffering another to be misled by his inaction, should be prevented from continuing his works at that late period, and destroying that which would never have been done but for his own negligence. I do not say that a court of equity might not interfere in such a case, but a court of law cannot. A court of law must construe this Act now as if it were the day after the Act passed. The powers of ordinary canal companies last for many years: they generally have a power not only to make a particular line of canal, but to make aqueducts to divert waters into it, to feed it at different points, and this they may do from time to time: nor can I say that these powers are limited, unless the Act point out the time within which they should be exercised. Then it is said, that this Act has found its limits, because the parties have not funds enough to carry it into effect, and that they are not authorized to violate the right of any individual unless they fulfil the condition imposed, of having a given sum of money for the purpose of the adventure; that perhaps might also be a good ground for a court of equity; but in this case the point does not arise. The case does not find that the Company had no money. *The recital of the Act, which passed in the year 1809, might at first glance seem to show such a fact, but the Company had a right to raise the original sum by means of tolls received since the Act of 1809, and the case does not find that that sum has not been raised in that manner. The point therefore does not arise in this case. That disposes of the question as to the duration of the powers of the Canal Company. Of the remaining points, the first is, that Mr. Thicknesse has a right to make a railroad for certain purposes, and this is treated as an interest in land. I cannot say that it is any more than an easement, a right of way, which was not the subject of purchase, but only of compensation. I do not think it necessary for the commissioners to give compensation for the possibility of injury that might be occasioned to a

[ *492 ]

2.

THE LANCASTER

CANAL CO.

rail-road, when perhaps it might not be done at all; or, if it is done, THICKNESSE the compensation must be awarded when the damage is sustained. If the Company should cut through this rail-road without making any bridge over it, or other means of communication, then the parties injured would have a right to apply to receive damages, and the right will accrue wherever that injury arises. The next point is, the claim in respect of the reversion. Now it appears to me that there is nothing to show the plaintiff had such a reversion. I will not enter on the question whether by possibility a man, who is a tenant from year to year, may not have a reversion; suppose he is tenant from year to year from Michaelmas to Michaelmas, and he underlets from March to March, that is a case where he may have a reversion; but the case before us does not state what this reversion is, but only says that the plaintiff underlet the land to Atherton as tenant from year to year, so that for aught that appears he may have underlet it for the same period of time as he had taken it from his landlord, in which case he would have no reversion, for he could not give to his tenant more than his own landlord gave to him. The Company may treat as well for a reversion as for a subsisting lease, the Act of Parliament making "any interest" whatever the subject of contract. Suppose the commissioners agree to take the land from the owner of the revertion, subject to the present interest of a tenant, and for a lease which has five or six years to run, and they agree not to disturb the tenant at all, and to postpone their right to enter on the land, then if they do disturb the tenant, he has a right to call for compensation; but if the tenant is allowed to retain possession till the Company really want to take the land, and is not disturbed before the determination of his interest, I do not see what damage he sustains. Suppose he had an interest in land, and the Company were to say, "we shall want the whole of the land, but we do not mean to purchase it for two years," why should he receive compensation for that? I apprehend that neither the commissioners nor the jury would give it. (His Lordship then stated his opinion that the proceedings taken under the Act were regular.) For these reasons the judgment will be for the defendants.

PARKE, B.:

I am of the same opinion, and concur entirely with the LORD CHIEF BARON. As to the first question in the case, which is the important one, it appears to me that as the Act of Parliament has

[*493]