1840.

DAND

ย.

KINGSCOTE.

the reserved enjoyment of a way-leave, namely, the right to cross from the pits to the nearest highway.

Cur. adv. vult.

PARKE, B., now delivered the judgment of the Court.In this case, which was argued a few days ago, the Court were satisfied that the plaintiff was entitled to recover; but delayed giving their judgment, in order to look more attentively into the pleadings, and to ascertain exactly for what trespasses the plaintiff was entitled to compensation.

We entertained no doubt but that, under the exception of the deed of 1630 of the mines of coal in Amble, with the reservation of sufficient way-leave and stay-leave to and from the said mines, with liberty of sinking and digging pit and pits, no easements were reserved except for the purpose of getting the coals under the lands conveyed, or, at all events, the coals within the territories of Amble. Whether the easement extended to the latter it is not necessary to decide.

In like manner the easement reserved by the deed of the same date, in respect of the coals in Hauxley, could be only exercised in respect of those coals only. It is impossible that the Court can give to these deeds an effect greater than the words are calculated to convey, in consequence of the contiguity of the two townships, and the circumstance that the coals in each were part of the same mineral field. It therefore follows that every trespass committed in Amble for the purpose of conveying coals got in Hauxley was unjustifiable, and the plaintiff is entitled to recover for them; he is therefore entitled to a compensation for every part of the railroad in Amble, and for the trespasses in carrying the Hauxley coals along it. The third plea, which justifies these trespasses under the deed of 1630, on which issue was taken, must be found for

the plaintiff, as the allegation in that plea, that it was convenient and necessary to make a road or way in the closes in Amble at the time when it was made, to convey coals got in Amble, was not proved. The second plea, founded on a supposed manorial custom, as also the special plea to the first new assignment, were also unsupported by the evidence.

It remains, therefore, to consider for what trespasses in Hauxley the plaintiff is entitled to recover. Those complained of are-First, the making of a steam-engine and pond for supplying it, and an engine-house and buildings. Secondly, the making of a framed rail-road of iron on stone pillars or sleepers, from the pit in Hauxley direct to the boundary of Amble, to communicate thence with the river Coquet, with ditches and wooden rails on each side embracing a width of thirty-five feet, and the construction of embankments and cutting the soil, in order to make a level railroad. Thirdly, the making of embankments and cuttings in two other fields for a railroad, which was abandoned.

It will be proper to take these several heads of damage in their order.

First, as the coals in all the seams are excepted, and a right to dig pits for the purpose of getting those coals reserved, all things that are depending on that right and necessary for the obtaining it are reserved also, according to the rule in Sheppard's Touchstone, (p. 100). Consequently, the coal owner had, as incident to the liberty to dig pits, the right to fix such machinery as would be necessary to drain the mines and draw the coals from the pits. The case finds that the steam-engine which was erected was necessary for the winning and working the lower seams, whic hare the principal seams in that coal field; and therefore the defendant had a right to erect it.

The pond for the supply of the engine, and the enginehouse, seem to have been necessary accessaries to such

1840.

DAND

v.

KINGSCOTE.

1840.

DAND

v.

KINGSCOTE.

an engine, and were therefore lawfully made: but whether the sheds were is not stated; and if there be a question as to them, the arbitrator may determine it. It may not be improper to observe, that a compensation seems to us to be due for the injury to the soil by making these adjuncts to the pit, the steam-engine, and its accessaries ; as well as for digging the pits themselves, under the provision in the deed of 1630. Whether there is any due for the railroad is doubtful.

The second head of damage is the construction of the railway to the boundary of Amble, the inclosing of it, and the cutting of the soil.

Upon referring to the fourth plea, and the new assignment upon it (for it is not traversed), it appears to us, that it is not open to the plaintiff to contend, in this action, that some species of railroad made with stone, iron, and wood, was not convenient, proper, and necessary, under the terms of the reservation; not that it was not necessary to cut the soil, for the purpose of making it level, and to make a mound or embankment. These facts are all averred in the plea, and are not traversed; and the effect of the new assignment is, not strictly to admit the truth of these facts, but to withdraw them entirely from consideration as the subject of the action, and to preclude the plaintiff from complaining of them (a); and the true grounds of complaint are to be sought in the explanation of the declaration contained in the new assignment. These are for trespasses on other occasions, of which the special case supplies no proof; and for trespassing to a greater extent than was necessary for exercising the reserved rights, and in parts of the close where there was no right of way-leave.

This renders it necessary to look at the facts found in the case, to ascertain whether the railroad was constructed

(a) Norman v. Westcombe, 2 M & W. 360.

in a direction or in a manner unauthorized by the reser

vation.

This reservation is to be construed, according to the rule laid down in Sheppard's Touchstone, p. 100, in the same way as a grant by the owner of the soil of the like liberties; for what will pass by words in a grant will be excepted by like words in an exception. How the reservation is of the right to dig pit or pits, (which pits are mentioned in the compensation clause to be such as may thereinafter happen to be sunk), and of sufficient way-leave and stay-leave connected with those pits. There is no doubt that the object of the reservation is to get the coals beneficially to the owner of them; and therefore it should seem, that there passes by it a right to such a description of way-leave and in such a direction, as will be reasonably sufficient to enable the coal-owner to get from time to time all the seams of coal to a reasonable profit; and therefore, the owner is not confined to such description of way as is in use at the time of the grant, and in such a direction as is then convenient. Adopting this rule of construction, the only question is, whether the direction or mode of construction of the railroad were reasonably sufficient, for the purpose of getting the third seam of coal in a manner beneficial to the coalowner.

Upon the facts found in the case, we have some little difficulty in determining these questions satisfactorily. It is found that "without a railway for the shipment, the lower seams could not be worked without loss, as before stated," and the statement before made is, that "£30,000 was expended on the steam-engine, &c., and that for that expenditure there could be no adequate return unless by the profit of an export trade." If it is meant (as probably it was) that this sum was necessarily expended in order to work the lower seams in a reasonably beneficial manner; and therefore, that a railway for shipment was necessary for the fair working of those seams, we cannot say that

1840.

DAND

v.

KINGSCOTE.

1840.

DAND

v.

KINGSCOTE.

there has been anything improper in the direction or mode of construction of the railway. The direction was proper, in constructing a railway for shipment, though it led to a place where the defendant was a trespasser, inasmuch as it was convenient for the purposes of the coal mine, which was the meaning of the reservation, and which is the only thing to be looked to in construing it; and whether the defendant would be liable to make amends for wrongful acts in constructing the railroad in another part of the same line, does not appear to be material, so long as the railroad remains unobstructed and capable of being used in that place. The true question is, whether the entire railroad is convenient. When it is obstructed (as it may be by the owner of the soil in Amble) and ceases to be passable, it will be no longer convenient for the purposes of the mine, and the part in Hauxley will not be lawfully used. The direction, therefore, was proper. Nor, upon the supposition that a railway for shipping was necessary, can we say that there was any excess in the mode of construction; for the case finds that the railroad has been judiciously designed and constructed, and that no unnecessary ground has been taken or injury done in making it. The fences and ditches to the railway do not appear to have been found by the arbitrator to be necessary; and therefore in respect of these the plaintiff is entitled to recover. These observations will enable the arbitrator to assess the compensation.

The only remaining head, is the damage by the partial construction of the abandoned railway. The defendant has by his conduct shewn that a railway in that direction was unnecessary; and the plaintiff is entitled to recover for the damage occasioned by it.

Judgment for the plaintiff accordingly.