1840.

REGINA

บ.

THE NORTH

MIDLAND RAILWAY Co.

had been cured? if so, you would have been bound to meet it in your affidavits.] No: and the claimants state positively, that, in October, 1838, they were prevented working the mine. (Here they were stopped by the Court.)

Lord DENMAN, C. J.-We do not adjudge that there is damage done; that is a question for the jury: it is enough to induce us to issue a mandamus that the claimants say, by the raising of the level of the brook, that being part of the word "diverting," they have suffered.

LITTLEDALE, J.-They cannot recover by action for the lawful acts, they must have a mandamus for that If part of the injury has been done under the powers of a statute, they cannot have their remedy for it by action at law.

COLERIDGE, J., concurred.

Rule absolute.

A mandamus was issued accordingly, to which a return was made; and Whitehurst in the following term moved for a rule to shew cause why it should not be quashed, as to part, relying upon the authority of Rex v. The Mayor and Aldermen of London (a), where Lord Tenterden, C J., says, "On the true construction of this statute (9 Anne, c. 20, s. 2), the party if he intend to traverse any fact, must do so before he sets the return down for argument, and takes the opinion of the Court as to its sufficiency."

Lord DENMAN, C. J.-There is no difficulty in your being allowed to traverse such facts as may be material, after the sufficiency of the return has been decided on concilium: you may set it down for argument, and traverse afterwards.

(a) 3 B. & Ad. 279.

de

1840.

January 21st.

Parliament cer

were author

navigable

H., and to

maintain such

navigation; and

for those pur

REPLEVIN. The declaration stated that the defend- By an act of ants on the 25th of June, 1836, in the parish of Bitton, in tain persons the county of Gloucester, in a certain part of a river called ized to make the river Avon, near to and adjoining Sydenham Mead, the river Avon in the said county, took a certain barge of the plaintiffs, from B. to of the value of £100, and unjustly detained the same &c. Avowry by defendants, that the seizing, taking, and taining the said barge were done by the defendants, by poses (amongst authority of an act of Parliament (43 Eliz. c. 2), for relief of the poor, and according to the purport, tenor, and effect of the said act. Plea, de injuria; whereupon ing, and to issue was joined. At the trial before Parke, B., at the and waterGloucestershire Spring Assizes, 1837, a verdict was taken set out and apby consent for the defendants, subject to the opinion of this Court, on the following case:-

other things) the to make new cuts through lands adjoin

At the time of the making of the rate and levying the distress hereinafter mentioned, the defendants were the

build bridges

locks, and to

point towing

paths for men, first giving satisfaction to the

owners of lands;

and commis

sioners were appointed to

settle by inquisition what satisfaction every person should have for such proportion of his lands as should be made use of for such purposes, and what share of such satisfaction every person having a particular estate or interest therein, should receive for his respective interest. The undertakers, in consideration of the expenses, were authorized to take for their own use certain tolls. By a subsequent act, which recited that they had proceeded to purchase certain lands under the former act, they were empowered to make a horse towingpath, with similar provisions as to the purchase of lands. They made the river navigable, and made a certain cut lock and horse towing-path, for the purpose of the navigation, in and upon lands taken by virtue of inquisitions under both acts, which assessed as damages thirty years' purchase to some, and an annual payment to others. No actual conveyances were ever made. Held, that the Company werel iable to be rated to the poor for such cut lock and towingpath, and that no conveyance was necessary for lands taken under such powers.

1840.

THE BATH

RIVER NAVI
GATION CO.

v.

WILLIS &
Others.

chapel-wardens and overseers of the poor of the hamlet of Hanham, in the parish of Bitton, which hamlet maintains its own poor. The plaintiffs are the proprietors of the navigation of the river Avon, from the city of Bath to or near Hanham Mills, under the provisions of the statutes 10th Anne, c. viii, and 47th Geo. 3, c. cxxix, (local and personal), both which said acts are to be taken as part of this case. By the 1st section of the 10 Anne, c. viii, the mayor, aldermen, and common council of the city of Bath, their successors and assigns, or such persons as they should nominate, as therein directed, were empowered to make the said river navigable from the said city to or near Hanham Mills; and also to make any new cuts through the lands adjoining or near to the said river, and to make bridges and water-locks; and also to set out and appoint towing-paths and ways for men for hauling or drawing boats and other vessels passing along the said river and cuts, first giving satisfaction to the owners of such lands as should be dug or otherwise made use of for pathways or carrying on the said navigation. By section 2, certain persons therein named were appointed commissioners for settling all differences between the undertakers and the proprietors of the said lands, and were also empowered to settle what satisfaction every owner and occupier of such lands adjoining or near the said river, as should be intended to be made use of for effecting the said undertaking, should have for such proportion of his lands as should be made use of as aforesaid; and what share of such purchase-money or satisfaction every tenant or other person should receive: and in certain cases they were authorized to summon a jury, to assess such damages and recompense to the said owners and occupiers for their respective estates and interests therein, by reason of the cutting, digging, removing, or using any land for the purposes aforesaid, or for the loss or damage they should or might sustain thereby. And upon payment of

1840.

THE BATH

GATION CO.

บ.

WILLIS &

Others.

the sums, assessed or agreed upon, the said undertakers were authorized to have, use, and enjoy the said lands to and for their own proper use and benefit. By section 4, they RIVER NAVIwere authorized to take certain tolls therein particularly specified. And by section 8, the said river Avon was made an open, common, navigable river, and all persons were permitted to navigate the same, without any obstruction whatsoever, on the payment of the rates and dues limited by the said act. By the said act of the 47th Geo. 3, it is recited, that the mayor, aldermen, and common council of the said city had nominated the Duke of Beaufort and others therein mentioned to make the said river navigable as aforesaid, and to have all the powers and authorities for the doing thereof, in the said first act mentioned. And that the said nominees had proceeded to purchase lands and hereditaments, and to make the said navigation and works; but the said act (10 Anne), not containing any powers to make a horse towing-path, which had occasioned great expense and delay, the said act of 47 Geo. 3, empowered them to set out and make from time to time, and to repair and keep in repair along the banks of the said navigation, a convenient towing-path, for drawing with horses or other beasts any boats or other vessels using the said navigation; and to erect any bridge or culvert across any river, brook, ditch, or other place, for the better setting and making of the said towing-path; and provided that the lands taken for such towing-path should not exceed certain dimensions; and that maps or plans, describing the line of the said towing-path and the lands through which the same was to be carried, were deposited with the clerks of the peace of the said counties, to remain in their custody, to the end that all persons might have liberty to inspect and make copies of the same, upon the terms therein mentioned. And the proprietors and their successors were enabled to purchase to them and their successors, for the purposes of the same act, any nds necessary for the same, and contained in the said

1840.

THE BATH

maps and plans, or to treat with the owners and proprietors of the said lands for the damage to be done thereto, reRIVER NAVI- Spectively, in the execution of the purposes of the act, and to appropriate the same for the purposes aforesaid.

GATION CO.

v.

WILLIS &
Others.

By virtue of the said act of 10 Anne, the predecessors of the plaintiffs made the said river navigable, and the plaintiffs have so continued the same up to the present time, and have made divers new cuts where necessary, in and through the lands adjoining or near to the said river, for the better and more convenient navigation thereof, the length of such several new cuts together amounting to about seven furlongs, that of the whole navigation being twelve miles; and also have set out and appointed towing paths for men for hauling boats and other vessels passing in, through, and upon the said river and new cuts; and have also made a new cut, parcel of the aforesaid new cuts, and a lock, and set out a like towing-path for men by the side of the said new cut and locks in certain lands at Hanham; and have from the time of the making thereof continually hitherto maintained, and still do maintain the same, being the cut or canal and the locks described in the rate hereinafter mentioned.

After the passing of 47 Geo. 3, the said plaintiffs did, by virtue of the same act, set out, and make, and complete on the side of the said river and cuts, and have continually hitherto repaired and maintained through the lands upon the sides of the said river and cuts, a convenient towing-path, for drawing with horses or other beasts any boats or other vessels passing along the said river or cuts; and built, put up, and made, for the convenience of the landowners adjoining to the said river, and also for the common convenience of the persons using the river with their boats and barges, divers gates and wickets, and divers bridges and culverts over the rivers, brooks, and ditches, in and upon the same lands; a part of the said towing-path running partly by the said river, and partly by the side of the said cut and locks, containing about two miles in length, is situate in