1843.-The Barnsley Canal Company v. Twibell.

ster, or any other court. By the fortieth section it was declared, that the act was not to prejudice or affect the right of the lord of any manor, or any other owner, to the minerals under any of the land taken by the company; but that it should be lawful for them (subject to the restrictions thereinafter contained) to work and get the minerals, not thereby injuring, prejudicing, or obstructing the said canal.

The plaintiffs were to be at liberty to inspect the workings: and it was further enacted, that "if the owner or worker, owners or workers of any coal or other mine or mines should, in pursuing such mine or mines, work so near, in the opinion of the said company of proprietors, to the said intended canal, as to endauger or damage the same, or, in the opinion of the said owner or worker, owners or workers of the said mine or mines, to endanger or damage the further working thereof, then, it should be lawful for the said company of proprietors to treat and agree with the owner or worker, owners or workers, for all such coal or other minerals as might be near or under the said intended canal, as should be thought proper to be left for the security or preservation of the said intended canal, or other works, or mine or mines as aforesaid." And in case the company and the worker of any such mine could not agree as to the amount of compensation, it was to be settled by a jury, as before mentioned; [*21] and, upon payment of the money, the owner or worker of such mine was to be perpetually restrained from working such mine within those limits.

The canal had been long completed, and passed for 495 yards through the estate of Mr. Beaumont, in the township of Barugh. The land itself under which it passed was purchased by the plaintiffs many years ago; but by the canal act above referred to, the coal mines and the coals under the canal were reserved to the owners, their heirs and assigns, who were to be at liberty to work the mines so as not to injure the canal.

The plaintiffs did not point out what quantity of coal they required to be left for the safety of the canal, nor did they take any steps to ascertain the compensation payable in respect thereof.

In this state of things, in the year 1830, Mr. Beaumont, the then owner of the coal in this place, agreed to let to Frank Bur

1843.-The Barnsley Canal Company v. Twibell.

ton and the defendant all the coal on the north and south sides of the canal, on the one side up to the canal, and on the other side up to the canal and towing path, at a certain rent, and under an obligation, on the part of the lessees, to work a certain quantity annually. Burton and the defendant thereby acquired an interest in the coal comprised in the lease, and which interest afterwards became vested in the defendant alone.

In consequence of the state of the workings in 1839, Mr. Brakenridge, the solicitor of Mr. Beaumont, requested the plaintiffs to state what reservation of coal they desired to have made for the

safety of their canal. This request was often repeated by [22] Mr. Brakenridge, and in *February, 1840, the defendant

gave notice to the plaintiffs, that he was willing to enter into an agreement for such coal as they might require to be left for the security and preservation of the canal.

Mr. Beaumont was entitled to the coal under the canal and towing-path absolutely, but he was not so entitled to the coal under the land on each side of the canal and towing-path; for as to that, the defendant Mr. Twibell had, under his lease or agreement, a right to get it, upon paying Mr. Beaumont the due consideration.

The plaintiffs, on the 9th of March, 1840, informed Mr. Brakenridge that they were advised to purchase from Mr. Beaumont, coal to the extent of eight yards in breadth, ou each side of the canal and towing-path. At this time the plaintiffs seemed to have supposed that all the coal which they might require to be left for the safety of the canal had been reserved out of the defendant's lease; but this being explained, by a letter of Mr. Brakenridge, dated on the same 9th of March, 1840, the plaintiffs afterwards, on the 11th of March, 1840, served the defendant with a notice, not to work the coal within eight yards of either side of the canal and towing-path, and required him to state his claim, if he had any, to compensation.

The defendant, in August, 1840, stated the sum of 5517., as the amount of his claim to compensation, and the plaintiffs, with full knowledge of this claim of the defendant, treated separately with Mr. Beaumont for a settlement of his claim, and, after long delay, the interest of Mr. Beaumont in the coal under the canal

1843.-The Barnsley Canal Company v. Twibell.

and towing-path, and under the eight yards on each side of them, was purchased by and conveyed to the plaintiffs for the sum of 7561.

*It was in dispute, but, from the evidence, the court [*23] was of opinion, that the sum of 756l. did not include any compensation to which the defendant was entitled in respect of his claim; that it was not so intended by Mr. Beaumont, or Mr. Brakenridge who acted for him, and that there was nothing to show that it was so understood by the plaintiffs, or by Mr. Foljambe who acted for them. On the contrary, it appeared that the plaintiffs made their bargain with Mr. Beaumont, with full knowledge that the defendant's claim was outstanding and unaffected by their arrangement with Mr. Beaumont.

The plaintiffs, though fully aware of the defendant's claim, made frequent attempts to postpone and evade the consideration of it; but at length the defendant succeeded in bringing the matter before the commissioners under the act of parliament, with the view of procuring the proper steps to be taken to ascertain, in the manner directed by the act, the amount of the compensation which might be due to him.

This bill was filed on the 8th of May, 1843, praying a declaration that the defendant was not entitled to any compensation, and that he might be restrained from proceeding to take any steps for the purpose of ascertaining the amount of such compensation.

On the 11th of May, 1843, the case was brought forward on an application for an injunction; but the evidence being then imperfect, and one of the parties refusing to consent to an arrangement which would leave the matter in statu quo until the case could be brought before the court in a more perfect form

THE MASTER OF THE ROLLS granted the injunction, giving liberty to apply to dissolve it, and imposing on "the [24] plaintiffs the terms that the defendant should not be prejudiced, in case he should be ultimately allowed to proceed.

On the 17th of November, 1843, the defendant moved to dissolve the injunction. The effect of the argument on the motion

1843.-The Barnsley Canal Company v. Twibell.

for the injunction, and on the motion to dissolve, is stated together.

Mr. Pemberton Leigh and Mr. W. T. S. Daniel for the plaintiffs, in support of the motion for an injunction, and in opposition to the motion to dissolve it.

The whole of the coal has been purchased by the company from Beaumont, and fully paid for; the defendant, therefore, who is Beaumont's lessee, has no right to any compensation. After the passing of the act of parliament, whoever took from Beaumont, took subject to the rights conferred on the plaintiffs by that act; thenceforward, Beaumont could only demise subject to the rights of the company; and it was not competent for him to create new and additional interests which would prejudice or defeat the rights of the company. The defendant insists, that the company are bound to pay, not only the full value of the coal as lying in the seam, but also in addition, the value which he might make by working it; the act, however, directs compensation for the coal only, and not for any profits to be made from the sale of it, after it has been removed from the mine. If the defendant is not entitled to compensation, the commissioners have no right to sum

mon a jury. As to Martin v. Porter,(a) which will be [*25] relied *on, Parke, Justice, in a cause of Wood v. Morwood, lately tried at Derby, held, that the principle of that case only applied to cases, where the party taking the coal had no title at all.

Secondly, The construction and nature of the jurisdiction appointed by the act for determining the question of compensation, renders it quite incompetent to determine the difficult questions of law arising in this case. Here the commissioners, mere country gentlemen, are to preside and direct a jury in matters of law, to lay down to them the construction of this act of parliament, and the law of the case as regards the defendant's right to compensation, the effect of the absolute purchase from Beaumont, and of the defendant's laches in not prosecuting his claim until after payment to Beaumont. These are not matters which it was

(a) 5 Mee. & Wels. 351.

1843.-The Barnsley Canal Company v. Twibell.

ever intended that the commissioners and jury should decide; and where the remedy to be obtained from ano her jurisdiction is incomplete, this court will assume jurisdiction.(a) The damage which may be sustained by the plaintiffs will be irremediable, in case the trial proceeds; for whatever errors in law may be committed, the plaintiffs will be left without redress. On that ground, at all events, this court ought to interfere, and prevent the proceedings going on until it sees that complete justice can be done to the plaintiffs.

Mr. G. Turner and Mr. Glasse for the defendant.

The defendant is entitled to a valuable interest, under his lease from Mr. Beaumont. If, for the accommodation of the plaintiffs he is deprived of that interest, he is entitled to some compensation for his loss, and which *compensation is to be [*26] determined by a jury in the way pointed out by the act. The act of parliament passed so long back as the year 1793, and the plaintiffs have postponed and neglected availing themselves of the powers, given to them by that act, of purchasing the coal in question: they are therefore liable to pay compensation for every existing interest, though it may have arisen in the interval.

The payment was made to Mr. Beaumont after notice of the defendant's rights: no payment to him could prejudice the rights of the defendant; and the compensation was, in fact, made in respect of Beaumont's interest only: Twibell's interest was not included in the amount, and has never been paid for.

The plaintiffs have no right to complain of the imperfection of the special tribunal, appointed by their own act, for finally determining the questions between them and the owners, for they themselves have selected it. This is an attempt to evade the act, and to withdraw the consideration of the question from the only tribunal which has complete jurisdiction to decide. If there be no jurisdiction to determine the question, according to the mode pointed cut by the act, then the whole proceeding will be a nullity, and no injury will be done to the plaintiffs; for where a

(a) Redesdale, 112.