C. A. 1903 GAS LIGHT AND COKE COMPANY V. CANNON BREWERY COMPANY. mean "insist on payment by" the next tenant. The effect seems to be that the next tenant is in such a case to be placed in the same position as the outgoing tenant. The section goes on to provide that the gas company shall “notwithstanding any such arrears, in the absence of collusion between the outgoing and incoming tenant, supply gas to the incoming tenant as required by this Act, on being required by Mathew L.J. him go to do." The section, therefore, plainly recognises the right of the incoming tenant to have a supply of gas notwithstanding the existence of the arrears. Sect. 18 of the Gas Light and Coke Company's Act, 1872, contains, in addition to the exception mentioned in s. 39 of the Act of 1860, another exception-namely, the case in which the incoming tenant continues to carry on the business carried on by the outgoing tenant upon the premises, having paid a consideration for so doing. The provisions in that case are the same as in the case where the incoming tenant has agreed with the outgoing tenant to pay the arrears, and in that case also the section distinctly provides that the incoming tenant must pay the arrears, though notwithstanding the existence of the arrears, in the absence of collusion between him and the outgoing tenant, the former shall have a right to a supply of gas if he requires it. Independently of authority, the construction of the words of the section itself appears to me to be clear; but we have in addition the observations of Rigby L.J. in Paterson v. Gas Light and Coke Co. (1), and the statement of Lush J. in Gas Light and Coke Co. v. Mead (2) as to the construction which he would have placed upon the section, but for what he supposed to be the effect of the earlier legislation. Appeal allowed. Solicitors for plaintiffs: Bedford, Monier-Williams & Robinson. (1) [1896] 2 Ch. 476. (2) 45 L. J. (M.C.) 71. E. L. [IN THE COURT OF APPEAL.] C. A. 1903 In re AN ARBITRATION BETWEEN TODD, BIRLESTON Feb. 4, 5, 9. & CO. AND THE NORTH EASTERN RAILWAY Mines and Minerals-Clay-Compulsory Purchase-Railways Clauses Clay forming the surface or subsoil, and constituting the "land" compulsorily taken for the purposes of an undertaking, is not a mineral within the meaning of ss. 77, 78, or 79 of the Railways Clauses Consolidation Act, 1845. Lord Provost of Glasgow v. Farie, (1888) 13 App. Cas. 657, explained. Hext v. Gill, (1872) L. R. 7 Ch. 699, and Jersey (Earl) v. Neath Guardians, (1889) 22 Q. B. D. 555, commented on. Great Western Ry. Co. v. Blades, [1901] 2 Ch. 624, approved. APPEAL from the decision of Wright J. On May 2, 1900, the North Eastern Railway Company, under and by virtue of the powers conferred upon them by the North Eastern Railway Act, 1897, which incorporated the Railways Clauses Consolidation Act, 1845, served notice to treat upon Todd, Birleston & Co. for the purchase of their interest in certain lands and hereditaments, together with the mines and minerals under the same (except coal, ironstone, and fireclay), in the parish of Chester-le-Street in the county of Durham. The parties not having agreed as to the amount of compensation to be paid by the company to Todd, Birleston & Co., the determination of the compensation was referred to an arbitrator, who found the facts to be (inter alia) as follows: "(4.) All the land the subject of the arbitration contains immediately under the surface or vegetable soil an extensive bed of clay or common brick-earth. This extends to a considerable depth. It has been proved by borings to extend to a depth of one hundred feet. Clay of the same character exists immediately under the surface over a large area of land in the district. The clay is worked by open work, and not by mining." C. A. 1903 Todd, & Co. AND NORTH EASTERN RAILWAY, (6.) "The company require the land comprised in the notices to treat for the purpose of widening their railway.' The claimants, Todd, Birleston & Co., contended that the BIRLESTON clay lying under the land which the company were taking was a mineral within the meaning of s. 77 of the Railways Clauses Consolidation Act, 1845, and that the claimants were therefore entitled to dig and take the clay away up to the boundary of the land already belonging to the company; and they further claimed to be paid for all the clay lying under the land comprised in the notice to treat. In re. The company contended that the clay was not a mineral within the meaning of the Act, and that the company were entitled to have left by the claimants without payment or compensation so much of the clay under the land to be taken as was necessary for lateral support of the railway already constructed. The arbitrator stated his award in the form of a special case, the question for the opinion of the Court being whether the clay described in paragraph 4 of the case (set out above) was a mineral within the meaning of s. 77 of the Railways Clauses Consolidation Act, 1845. If that question was answered in the affirmative, the arbitrator awarded that the sum of 70187. was the amount to be paid by the company; but if in the negative, he awarded that the sum of 45187. should be paid by the company. Wright J. answered the question in the negative, and the claimants appealed. (1) Cyril Dodd, K.C., and Frank Dodd, for the appellants. This clay is a mineral under s. 77 of the Railways Clauses (1) By the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), it is provided, "And with respect to mines lying under or near the railway, be it enacted as follows: Sect. 77. The company shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them, except only such parts thereof as shall be necessary to be dug or carried away or used in the construction of the works, unless the same shall have been expressly purchased; and all such mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby." Consolidation Act. At any rate it is a mineral within s. 78, and the company will get no right to adjacent support from the clay adjoining the land purchased. No doubt in Lord Provost of Glasgow v. Farie (1) the House of Lords decided that clay forming the surface or subsoil of land was not a mineral within the meaning of a reservation in the Waterworks Clauses Act, which is in similar terms. That case is however distinguishable, for the clay there, being the soil of the place, was absolutely necessary for the construction of the reservoir, and further that was a Scottish case, and, as the Lord Chancellor there pointed out, the decision was confined to the particular Act, and had no bearing on any other statute, or on any grant not controlled by the statute in question, in which the words "mines or minerals" might occur. [EARL OF HALSBURY L.C. It is true that I did say that, but it was not said by any of the other noble Lords. The judgment is the judgment of the House of Lords, and what an individual member says is not to be taken as an authority. It seems to me that that case discussed all the authorities, and is a decision which is in point and by which we are bound.] In Midland Ry. Co. v. Robinson (2) Lord Herschell (who had dissented from the judgment in Lord Provost of Glasgow v. Farie (1)) and Lord Watson held that mines and minerals under ss. 77 and 78 of the Railways Clauses Act, 1845, included such as were usually worked by open or surface operations. Lord Macnaghten dissented, and adhered to the view he had expressed in the former case. [EARL OF HALSBURY L.C. Lord Herschell seems to have been of opinion that Midland Ry. Co. v. Robinson (2) qualified, if it did not overrule, the earlier case of Lord Provost of Glasgow v. Farie (1); but I cannot agree with that view.] In Great Western Ry. Co. v. Blades (3) Buckley J. says that the opinion expressed by Mellish L.J. in Hext v. Gill (4), that a reservation of minerals includes every substance that can be got from underneath the surface of the earth for the purpose of profit, has not been overruled. (1) 13 App. Cas. 657. (3) [1901] 2 Ch. 624. (4) L. R. 7 Ch. 699, at p. 712. C. A. 1903 TODD, BIBLESTON & Co. AND NORTH EASTERN RAILWAY, In re. C. A. 1903 TODD, BIRLESTON & Co. AND NORTH EASTERN RAILWAY, In re. [EARL OF HALSBURY L.C. I think that the House of Lords did not adopt that part of Mellish L.J.'s judgment. I think it is absolutely wrong to say that the question whether a thing can be worked at a profit or not is to determine whether it is a mineral or not.] Great Western Ry. Co. v. Blades (1) is contrary to the main current of authority dealing with clay under the Lands Clauses Act. The word "minerals" has a different meaning in ss. 78 and 79 to that in s. 77. A bed of clay has been held to be a mine in Midland Ry. Co. v. Haunchwood Brick and Tile Co. (2) That is not overruled by Lord Provost of Glasgow v. Farie. (3) The same was held by Fry J. in Loosemore v. Tiverton and North Devon Ry. Co. (4), and his view was not dissented from either in the Court of Appeal or the House of Lords (5), where the case went on appeal on another point. There were several other cases before Lord Provost of Glasgow v. Farie (3) in which clay of a character similar to that in this case was held to be a mineral within the meaning of s. 77 of the Railways Clauses Act, 1845. Since Lord Provost of Glasgow v. Farie (3) the decision in Jersey (Earl) v. Neath Guardians (6), following Hext v. Gill (7), was that mines and minerals included brickearth and clay: Ruabon Brick and Terra Cotta Co. v. Great Western Ry. Co. (8); Johnstone v. Crompton (9); Scott v. Midland Ry. Co. (10) Neville, K.C., and A. T. Lawrence, K.C. (J. E. Bankes, K.C., and A. R. Butterworth with them), for the respondents. The respondents are willing that the Court should say whether this clay is a mineral within the meaning of ss. 78 and 79 as well as that of s. 77 of the Railways Clauses Act, 1845. The word "minerals" in the three sections has the same significance. If the meaning of the word "minerals" is more extended in s. 78 than in s. 77, that would give the vendor a right under s. 78 to work minerals which had not been reserved to him under s. 77, (1) [1901] 2 Ch. 624. (6) 22 Q. B. D. 555. (9) [1899] 2 Ch. 190. |