Ownership of

in proprietors, but only for the purposes of their Act.

"cited; and it was also acted upon in the case of The "Leeds and Liverpool Canal Co. v. Hustler."

We will now proceed to consider the various decisions on particular enactments incorporating canal companies in the following order:—

1. Such as relate to the ownership of the soil;

2. Such as turn on the rights and duties of canal companies to other proprietors;

3. Such as refer to their duties towards the public in respect of the navigation.

The soil of canals is, as a rule, vested in the proprietors the soil vested absolutely by the terms of their Act, though only for the purposes for which they are incorporated.2 Thus 16 Geo. III. c. 28, an Act for making and maintaining the Stourbridge Canal, empowers the company "to purchase land for the "use of the navigation, and vests the lands acquired by "voluntary or compulsory sale in the proprietors for "the use of the navigation, and for no other use or 66 purpose whatsoever."3

They may, however, under certain circumstances, have a mere possession of land without being the owners thereof; as where the proprietor of the soil gives permission to a company to make erections, such as a dam or mound, upon it, and such possession has been held to entitle them to maintain trespass.1

The powers of companies vary considerably in this respect; and in each case, as was said by Lord Tenterden in Stourbridge Canal v. Wheely, "the canal having been "made under the authority of an Act of Parliament, the "rights of the company are derived entirely from that "Act." As has been stated, however, whatever the extent

11 B. & C. 424; cf. Lord Brougham in Stockton and Darlington Railway v. Barrett, 11 C. & F. 590; 8 Scott, N. R. 641.

2 Bostock v. North Staffordshire

Rail. Co., 4 E. & B. 798; National Manure Co. v. Donald, 4 H. & N. 8. 3 2 B. & Ad. 792.

4 Dyson and another v. Collick, 5 B. & A. 600; S. C., 1 D. & R. 225.

of the ownership may be, it is permitted solely for the purposes of the Act.

Thus a canal company, incorporated by Act of Parliament and having powers to take water for supplying their canal, cannot by user acquire an easement to take water for any other purpose, and the easement to take water to fill a canal, ceases when the canal ceases to exist.1

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So too, where an Act incorporating a canal company, empowered them to acquire lands compulsorily, which were to vest by the Act in the company in fee simple, "for the use of the said navigation, and to or for no other purpose "or use whatsoever," but reserved to proprietors of purchased lands the minerals and fishery over their lands, and the right to use pleasure-boats over the whole canal and reservoir; it was held that the North Staffordshire Railway Company, in whom such rights and property were vested by a subsequent Act, could not lawfully use the lake or reservoir for any other purpose than supplying the navigation with water, and an injunction was subsequently granted to restrain them from holding a regatta thereon, and also from letting out boats for hire.2

In Regina v. Archbishop of York,3 B. was empowered to Reg. v. Archmake a canal, to supply it from brooks, &c., and to in- bishop of York. close and appropriate lands proper for wharfs, quays, &c. Nothing was to authorize his using the lands for anything else than navigation. The works and things made in forming certain parts of the canal were to be B.'s property. A stream had been dammed up to feed the canal, forming a pool. This pool had been lowered and reduced in size. On part of the ground so recovered, B.'s successors had built limekilns, &c.-Held, that no right to the soil of the lands adjoining the canal, and applied to the purposes of the canal other than those works and things used in

1 National Manure Co. v. Donald, 4 H. & N. 8; see Staffordshire and Worcester Canal v. Birmingham, L. R., 11 H. L. 54.

2 Bostock v. North Staffordshire Rail. Co., 4 E. & B. 798. See also Hill v. Tupper, 9 Jur., N. S. 725; and ante, Chap. IV.

3 14 Q. B. 81.

Rochdale Canal v. Radcliffe.

forming the canal, passed to B. where there had been no actual purchase.-Held, also, that the Crown had no power to convey the lands in question. "If the statute gave them no more than such use of the soil as was necessary for the purposes of the canal, and they have "not acquired the freehold in any other way, the right "will be in her Majesty, and the verdict for her tenant is right, and we are of this opinion. . . . . So long as the "ground was covered with water penned back for purposes "of the canal, it was difficult to say that the canal pro"prietors were doing anything but what their act justified, so long as they exercised powers and used the lands in a way which the Crown could not interfere with, and which was consistent with the Crown's retaining the freehold "of the soil."-Lord Denman, C. J.

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In The Rochdale Canal v. Radcliffe, an Act for establishing a canal company, provided that it should be lawful for owners of lands within twenty yards of the canal to draw off water for the sole purpose of condensing steam; such water to be returned to the canal, so that no damage should be done to the navigation. Defendant being tenant of a certain mill, drew off more water than was used for condensing. He set up a claim, as of right, to do so by twenty years' user. It was proved that defendant had an old mill which had existed for twenty years, and that he had added a new mill within twenty years, communicating with the old one. The water was used for both. The existence of a cistern claimed in plea was not proved :— Held, first, the justification in respect of a certain mill was supported by proof of defendant having used the water of the old mill for twenty years. Held, also, the failure of proof as to the cistern did not entitle plaintiffs to an entire verdict.

The plaintiffs moved for judgment non obstante veredicto-Held, that the company could not, consistently

1 18 Q. B. 287.

with their Act of Parliament, have granted water for uses not sanctioned by these Acts; that an actual grant, if proved for the purposes stated in the plea, would have been illegal, and that, therefore, a grant implied from twenty years' user, was no legal defence.1

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"This is a claim," said Erle, J., "to acquire a servitude "on the canal by virtue of twenty years' user. The party seeking to establish such a claim must show a grant by "a person capable of making the grant relied on. Now "the grant here is by a person having no distinct ownership of the water, but entitled only to the flow of it for purposes of the navigation, and having no right to the surplus (which was given by the Act to the Duke of Bridgwater). If it appeared by direct evidence that the company had made a grant to the purport now supposed, setting out this title, that grant would have appeared to be against the right of the public, and void on the face of it. The twenty years' user, therefore, "could establish no right."

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A verdict having been obtained for nominal damages only, in the above case, it was held that the plaintiffs would have been entitled to an injunction, having sufficiently established their right at law, had it not been for their negligence.2

Reservations of fishery, mines, and such like rights, to Reservations the proprietors of lands on canals, are not uncommon in of rights to proprietors of most of the Acts, which, it may be noted, ordinarily lands adjoining. contain clauses empowering proprietors to sell, as well as those authorizing companies to buy, lands.3

Thus, where a canal Act empowered the lord of any manor, and the owner of any lands through which the canal should be made, to erect and use any wharfs, quays, &c. in or upon their respective lands, and to land goods,

1 18 Q. B. 287; cf. Rochdale Canal Co. v. King, 14 Q. B. 122, 136; see

post, p. 290 et seq.

2 Rochdale Canal v. King, 2 Sim.,

N. S. 78.

3 See post, Chap. VII.; Robins v. Warwick Canal, 2 Bing. N. C. 483.

Fishery.

Reservations as to mines.

&c., provided they did not prejudice or obstruct the navigation or towing paths, it was held that an adjoining owner had a right to erect a wharf on his own soil, and to land goods on the towing path, and convey them across to his wharf.1

Where the right of fishery in a canal is not reserved, as it sometimes is, it is of the kind termed territorial, being identical with the ownership of the soil, though the proprietors are of course at liberty to let it.3

An Act of Parliament incorporating a canal company, provided that the lord of the manor through which the canal, reservoirs, &c. should be made, should have the right of fishery in so much of the canal, reservoirs, &c. "as "shall be in the waste lands of his manor," and that the owner of any other lands through which the canal and a collateral cut should be made, should have the right of fishing "in the said canal or collateral cut :”—Held, that

commons or waste lands" meant commonable lands, the ownership of the soil of which was in the lord, and not open fields over which certain persons had rights in severalty. Held, also, that the right of an owner of land through which the canal passed, was limited to fishing in the canal and collateral cut, excluding the reservoir.4

Reservations with regard to the right to work mines are usually made for the benefit of proprietors of purchased lands, the principle followed usually being to permit the working by the owner, at the same time making provisions in favour of the company, which empower them to inspect and purchase the mines where the operations carried on appear likely to endanger the canal.

1 Monmouth Canal v. Hill, 4 H. & N. 421.

2 Bostock v. North Staffordshire Rail. Co., 4 E. & B. 798; Snape and Wife v. Dobbs, 1 Bing. 202; S. C., 8 Moore, 23.

3 Woolrych, Law of Waters, p. 65.

4 Grand Union Canal v. Ashby, 6

5

H. & N. 394.

5 Cromford Canal v. Cutts, 5 Rail. Cas. 442; Barnsley Canal v. Twibill, 3 Rail. Cas. 451; Dudley Canal v. Grazebrook, 1 B. & Ad. 59; Birmingham Canal v. Dudley, 7 H. & N. 969; Wightly Canal v. Badley, 7 East, 366; Birmingham Canal v. Hawkesford, 7 East, 371,note; Stour