United Kingdom House of Lords Decisions

The question turns upon the construction which is to be put upon the set of clauses in the Act of 1845 to which I have referred, known as the “Mining Code.” These clauses were introduced for the purpose of facilitating transactions between a railway company and a landowner from whom land was acquired. They were passed to render it unnecessary for the railway company to purchase out and out the minerals which were necessary for the support of the railway. It might be some time before the taking away of these minerals would affect the support, and therefore it was thought less burdensome to the railway company that the owner of the land should be left with considerable freedom, and accordingly it was provided by section 77 that the railway company should not get the minerals unless they were expressly conveyed to them. That was the starting point of the catena of propositions in the code. In the second place it was provided that the mineral owner should be free to work, provided always that he gave a thirty days' notice to the railway company, which the railway company could meet by giving a counter-notice enabling them to stop the working by paying compensation, which might or might not amount to the whole value of the minerals.

It was decided by this House in a case which turned upon the corresponding sections, in practically identical terms, of the Scottish Railways Clauses Act, the case of Dixon v. Caledonian Railway Company (1880, 7 R. (H.L.) 116, 17 S.L.R. 102, 5 App. Cas. 820), that railway companies were free to give that counter-notice at any time, so that the effect of sections 78 and 79 is this, that the railway company is protected and the position of the landowner is easier. He may be able to work a considerable part of his minerals, and when the railway company require to stop him they have had full notice and can then give their counter-notice dealing with him at a later stage than the stage of the initial purchase of the land. That being so it was natural that the Legislature should go on to enact other clauses. Those clauses amount to this, that if the working is prevented by the railway company having given that counter-notice, then the owners of the minerals might make such ways for air, water, access, and so on, as would enable them to get the minerals without letting down the surface. If, upon the other hand, no counter-notice had been given, and the mineral owner chose to work, then he was to be at liberty to work, even to the extent of letting down the surface, so long as he worked in accordance with the ordinary customary fashion. The railway company has of course, the protection that, according to the doctrine of Dixon v. Caledonian Railway Company,they could give their counter-notice at any time, subject to this, of course, that, so far as the minerals had already been worked out, the notice could not affect the state of things which had come into existence.

Now in that position of matters, with the law so ascertained, and with the statute, what is the position of a railway company which is situated as the London and North-Western Railway Company is situated in this case? It has acquired the site of the tunnel, and it has acquired the protection which the statute gives as regards what is called the prescribed limit on each side of the tunnel, that is to say, forty yards, in the absence of any variation in the Special Act. Within these limits it has protection for its support under the railway and on each side of the railway. It has not only vertical support, but it has also lateral support, and it can make this support available by putting in motion the machinery of the Mining Code. But the question in this case is as to how it stands as regards minerals outside the prescribed limits, because the minerals with which we have to deal are really outside these limits, and the question which is raised, as stated in argument, is this, whether the code is a new and exclusive code, which lays down the law for the two parties, so as to get rid altogether of any right at common law to lateral support, whether within the prescribed limits or without them. Now that depends upon the construction of the sections, and when I turn to the sections the first words which I find are the words on which reliance was placed by the counsel for the appellants. The title which introduces the succession of sections is, “And with respect to mines lying under or near the railway, be it enacted as follows.” But although the word used there is “near,” it is plain when you pass to section 78 that you find an interpretation of the word “near” by the prescribed distance. I do not say that it is the only meaning which could be attached to the word “near” in the title to the group of mining sections in this Act of Parliament. In Midland Railway Company v. Miles (1885, 30 Ch. Div. 634), Pearson, J., suggested that section 80, which enables ways to be made for the working of adjacent mines, related to mines outside the forty yards limit. If so, that would give a wider interpretation to the word “near.” It is not necessary in this case to express any opinion as to whether Pearson, J., was right or wrong in that case. It is sufficient to point out that what he is said to have decided is very remote from anything which can assist the appellants in this case. It only shows that if he was right in the particular instance with which his Lordship was dealing there, of a way made to obtain access to a mine lying at a short distance, the mine might be outside the forty yards limit. I express no opinion upon that, because it is not necessary for the decision of the only question which we have before us, and that is, whether sections 78, 79, and the subsequent sections, so far as concerned with vertical and lateral support, relate to anything but minerals either under the railway or within the forty yards limit. For the reasons which were admirably given in the judgment of the Master of the Rolls, I think that the code, at all

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