C. A. 1904 MILLARD V. BALBY-WITH URBAN COUNCIL. notice. If that be the meaning, Millard remains liable, for he was the owner of the premises when the notice to do the works was given and he failed to comply with it, and he was also owner when the works were completed. Therefore it appears to me that on the words of the Act his liability is HEXTHORPE clearly made out. I have the less difficulty in coming to this conclusion, because it is that which really commended itself Stirling L.J. to the members of the Divisional Court, though they felt themselves constrained to give effect to the view expressed by Cockburn C.J. in Reg. v. Swindon Local Board. (1) The question which arose in that case, and was actually decided, was different from that which arises in the present case. There the person sought to be charged was the owner of the premises when the notice to do the works was given, but had ceased to be the owner of them when the works were completed; and therefore he did not come within the words of s. 257. That being so, the decision is not a precedent applicable to the question in the present case. It is argued that the ground of the decision, according to the report in the Law Reports, was that, in order to be liable under s. 257, a person must have been the owner when the notice was originally served, and also when the works were completed and when the expenses were demanded. In this case no doubt Millard was not the owner of the premises when the expenses were demanded from him. But, as I have pointed out, no question arose in the case of Reg. v. Swindon Local Board (1) whether it was necessary that the person to be made liable should continue to be owner of the premises at the time when the expenses are demanded. There are no words in s. 257 involving such a necessity, and, speaking for myself, I cannot see how such a limitation can be imported into the words of the section. We are really asked not to apply the decision in the case of Reg. v. Swindon Local Board (1), but to extend it to a case in which it is not in point. If we were satisfied with the reasoning in that case, it might be right to do so; but, not being so satisfied, I do not think we ought to give effect to it as governing the present case. (1) 4 Q. B. D. 305. C. A. 1904 MILLARD v. BALBY-WITH- MATHEW L.J. I am of the same opinion for the same reasons as have been expressed by the Master of the Rolls and my brother Stirling. Appeal allowed. Solicitors for appellant: Halse, Trustram & Co., for A. Muir Wilson, Sheffield. Solicitors for respondents: Speechly, Mumford & Craig, for Frank Allen, Doncaster. E. L. C. A. 1904 Nov. 4. [IN THE COURT OF APPEAL.] IN THE MATTER OF AN ARBITRATION BETWEEN RICHARD Railway Company - Mines near Railway · Notice to prevent working— Where an owner, lessee, or occupier of mines or minerals lying under or near a railway gives notice to the railway company, under s. 78 of the Railways Clauses Act, 1845, of his intention to work the same, and the company give notice of their willingness to make compensation, and the amount of compensation is determined by arbitration under the Lands Clauses Act, 1845, the arbitrator has no power to award interest, in respect of the time between the giving of notice by the company and the making of the award, upon the sum awarded as compensation. APPEAL from the judgment of Channell J. upon a point of law raised by the award of an arbitrator under the Railways Clauses Act, 1845, and the Lands Clauses Act, 1845. The claimant was the lessee of certain seams of coal under or within forty yards of the railway of the Great Western Railway Company, and gave to the company notice, under s. 78 of the Railways Clauses Act, 1845, of his intention to work the same. It appeared to the company that the working of the seams of coal would be likely to damage their works, and they gave notice that they were willing to make compensation in respect of the non-working of the seams. No agreement was arrived at as to the amount of compensation, and the matter was referred to an arbitrator appointed under the Lands Clauses Consolidation Act, 1845. The arbitrator made an award upon which several questions arose, which were argued in the Court below, and in the Court of Appeal upon this appeal and a cross-appeal, but the only point dealt with in this report is the question whether the arbitrator could award the payment of interest upon the sum arrived at by him as the compensation to be paid by the company, the arbitrator having awarded a certain sum of money as compensation, and directed the payment of a further sum of money as interest, calculated from the date of the notice given by the railway company to the time of the making of the award. The learned judge was of opinion that the claimant was entitled to the interest awarded, and gave judgment accordingly. The company appealed. Cripps, K.C., and Moon, K.C. (with them Howard Wright), for the company. The decision of the House of Lords in Bullfa and Merthyr Dare Steam Collieries v. Pontypridd Waterworks (1), which was a decision on clauses in the Waterworks Clauses Act, 1847, similar to those of the Railways Clauses Act, 1845, shews that there was no purchase or transfer of the property in the coal. Great Northern Railway v. Inland Revenue Commissioners (2) is an authority to the same effect. It follows that the doctrine that a vendor is entitled to interest upon unpaid purchase-money is not applicable to this case. The case of Fletcher v. Lancashire and Yorkshire Railway (3) was decided upon an Act under which property passed, and has no bearing upon the present case. There was, from the time that the claimant was prevented from working his coal, a claim to be compensated, but until the award the amount could not be ascertained. It cannot be said, therefore, that there was any contract to pay interest or that the principal money had been wrongfully withheld, and the opinion of Lord Westbury in Caledonian Railway v. (2) [1901] 1 K. B. 416. (1) [1903] A. C. 426. (3) [1902] 1 Ch. 901. C. A. 1904 RICHARD AND GREAT WESTERN RAILWAY, In re. C. A. 1904 RICHARD WESTERN Carmichael (1), that except in those cases interest cannot be demanded, applies to this case. S. T. Evans, K.C. (with him Abel Thomas, K.C., and George Cave, K.C.), for the claimant. The award of interest was right, as it is in accordance with the equitable doctrine laid down in Birch v. Joy (2), which is applicable where under statutory powers a land owner is prevented from using his land. From the time when the notice was given by the company the claimant has been deprived of his right to work the coal, and the company have had the advantage of that deprivation of right and have retained the money which was its equivalent. The claimant's position was, therefore, similar to that of a vendor in respect of unpaid purchase-money. This view is supported by the decision of Buckley J. in Fletcher v. Lancashire and Yorkshire Railway. (3) Moon, K.C., in reply. COLLINS M.R. The point in the appeal of the railway company is whether the arbitrator was entitled to allow a sum for interest, in addition to the sum for compensation assessed by him under s. 78 and the following sections of the Railways Clauses Consolidation Act, 1845. I think the case is susceptible of short treatment, as this point is, in my opinion, concluded by decisions in the House of Lords. The point arises in this way: The lessee of mines who had works near a railway gave notice to the company indicating that he was about to work those mines. That let in the right of the company to give what has been called a counter-notice, which would have the effect of staying the working of the mines on the company expressing their willingness to pay compensation for the barring of the further working of the minerals. That is a matter of compensation, and, as I have said, it seems to me to have been clearly decided that the arbitrator in such a case is not entitled to give a sum for interest in addition to a sum for compensation. The case is not one of sale and purchase, and the compensation awarded (1) (1870) L. R. 2 H. L., Sc. 56. (2) (1852) 3 H. L. C. 565. (3) [1902] 1 Ch. 901. by the arbitrator under the machinery provided measures the whole rights of the parties. C. A. 1904 RICHARD AND GREAT WESTERN RAILWAY,. In re. The first case to which I will refer is Caledonian Railway v. Carmichael (1), of which the head-note is this: "Where a pecuniary claim has been left by the creditor for years unascertained and unexamined, the debtor having always been ready and willing to meet the demand, it was held by the House, Collins M.R. reversing the decision below, that the right to interest on the principal sum did not commence until after the debt had been established, and the precise amount settled"; and the head-note continues: "Per Lord Westbury: Interest can be demanded only in virtue of a contract, or where the principal money has been wrongfully withheld." Then comes another case, decided in 1903, also by the House of Lords-Bullfa and Merthyr Dare Steam Collieries v. Pontypridd Waterworks Co. (2) The head-note of that case is this: "Owners of coal mines under and near waterworks gave the undertakers notice under s. 22 of the Waterworks Clauses Act, 1847, that they intended to work the coal. The undertakers replied by a counter-notice requiring the mine owners not to work and stating their willingness to make compensation. In an arbitration under the Act and the Lands Clauses Acts to assess the compensation the mine owners gave evidence to prove that coal rose in value after the date of the counter-notice :-Held, that there was no purchase of the coal or transfer of the property in the coal; that the inquiry was not what was the value of the coal at the date of the counter-notice, but what would the coal owners, if they had not been prohibited, have made out of the coal during the time it would have taken them to get it; and that the evidence was admissible." Taking those two decisions together, it appears that the matter to be determined is not what is the price to be paid as upon a sale, but what is the sum to be assessed by way of compensation, and at the time when the company gave their counter-notice the stage at which there could be a contract, express or implied, to pay interest was not reached. Nor is there the alternative-that of a breach of duty sounding in (1) L. R. 2 H. L., Sc. 56. (2) [1903] A. C. 426. |