May 8, 1914.

THE COLLIERY GUARDIAN.

1023

erected up to the present. The total area occupied
by the works and the workmen’s colony is about 600
acres.

Capital.

The A. G. Friedrich Heinrich was founded in
1906, with a share capital of 14 million marks, sub-
sequently increased to 22 million marks; in addi-
tion to.which there is a debenture issue of about
nine million marks. Up to the present about 35
million marks have been expended on the plant.

LAW INTELLIGENCE.

HOUSE OF LORDS.—April 22.

Before the Lord Chancellor, Lords Kinnear, Atkinson,
Shaw, and Parker.

Canal Support.

Marquis of Linlithgow and Young’s Paraffin Oil Co. v. The
North British Railway Co.—This was an appeal against an
interlocutor of Lord Sherrington, and partly a judgment of
the First Division. The pursuers sought to establish their
right to statutory compensation in respect of their being
compelled to leave unworked a seam of oil shale lying under
and adjacent to the Union Canal. The Lord Ordinary laid
it down that the pursuers must prove that the shale was a
mineral within the meaning of a private Act passed in 1817,
and of the conveyance granted in 1862, and that it was
impossible for the pursuers to work it without injuring the
canal. Also that the Broxburn main seam did not fall
within the term “ mines and minerals ” as used in the
Canal Act, 1817, and that they were not entitled to recover
compensation under Section 120 of the Canal Act. By two
to one the First Division upheld the decision of the Lord
Ordinary. There was a cross-appeal, which related to the
following question : “ Whether, assuming that the Brox-
burn main seam does fall within mines and minerals, the
provisions of Section 113 as to making satisfaction are appli-
cable in the present circumstances.” This question was
decided adversely to the North British Bailway Co. both by
the Lord Ordinary and unanimously by the First Division.
The North British Co. claimed that the shale belonged to
them so far as in their lands. They did not admit that it
could not be worked further in the direction of the canal
without endangering its safety, and they disputed that they
had stopped the working of the shale in the direction of the
canal, the pursuers stopping the working in consequence of
anticipated danger to their own mines. The Lord Ordinary
and the First Division repelled both these contentions; hence
the cross appeal. On the third point, that the shale in ques-
tion is not a mineral within the meaning of the Canal Act,
1817, and was not reserved to the seller of the lands, the Lord
Ordinary and the First Division sustained the contentions
of the Bailway Co., and it was against that decision the
Marquis and his tenants lodged the original appeal.

The Lord Chancellor, giving judgment, said if the appel-
lants were not entitled to claim under Section 113, he did
not think that they could claim under Section 120. That
section appeared to have relation neither to anything covered
by Section 112 nor to a case such as that before them,
where a remedy was given in special form by Section 113.
The only question, therefore, which it seemed to be neces-
sary to decide was whether the respondents had brought
themselves within the terms of Section 113, by finding it
necessary for the safety of their canal to stop the working
of mines and minerals under or near the canal. He had
come to the conclusion that Section 112 gave to the respon-
dents a right which stood by itself, and was independent of
a further right conferred by Section 113. What the respon-
dents had done was carefully to confine themselves to their
right under Section 112.

Lord Shaw said he was of opinion that the proprietors of
the canal were duly vested therein as a heritable subject,
that their right was not merely confined to a right-of-way or
aqueduct, but that they were the heritable owners thereof,
and that as such their property had a common law right
to support. The right was not by w’ay of easement, but
was a natural right flowing of necessity from the grant of
lands. It was a right which could be vindicated both for
subjacent and adjacent support, but it was a right under
which no ownership of minerals was created in the grantees.
On the contrary, these minerals were expressly reserved by
and to the appellant Lord Linlithgow’s author and his
successors in title, and it was expressly declared by Section
112 that it was lawful to work and remove these minerals,
“ not thereby injuring, prejudicing, or obstructing ” the
canal. On a survey of clauses 61, 112, and 113, he was of
opinion that at the time when the Act passed, nearly a
century ago, it was fairly certain that it was within the
contemplation both of the Legislature and of the parties that
the proprietary right on the one hand to the canal, and on
the other to the minerals reserved, could be exercised with-
out any necessary interference with each other, the first
being used and the second being wrought concurrently. An
additional safeguard was, however, provided against preju-
dice, injury, or obstruction to the Canal. In that state of
matters there were two options conferred upon the owners
of the canal, and each of these—that is to say, the whole of
Section 113 was conceived in the interest and for the pro-
tection of the Canal Co. Under the first option, if on any
lands through or near which the canal passed a mine had
been opened, and minerals were being worked, the Canal
Co. had the power of entering the mine, discovering the dis-
tances, and, in the case where they could establish that there
was wilful danger or damage to the canal, the right was
conferred upon them to do all works necessary for making
the canal safe and for charging the mine owner with the
expense. The second option, however, was of a different
and, in one view, a more comprehensive character. . The
Canal Co. was the owner of an undertaking 24 miles in
length, and the working out of the underlying minerals at
any particular point might produce a damage far in excess
both in dimensions and in result of all the considerations
applicable to the particular locality or local operation. It
might have become clearly the interest of the Canal. Co. to
preserve, so to speak, at all hazards, their undertaking; to
take if they pleased the timid view on that subject, and to
exercise an option in their own favour. The condition of the
exercise of this option is the payment to the mine owner of
the value of such minerals. Whether is was so necessary
might be the subject of great difference of opinion. On the
one hand the mine owner might be advised that such pre-
cautions of support might be taken as to avoid completely
all injury either to the superincumbent strata or to the
canal itself. On the other hand, the risk might be con-

sidered by the Canal Co., either with or without skilled
advice, as a very serious one for its undertaking. It was in
this situation. that the Canal Co. was given the option to
stop the workings, agreeing to pay compensation. If, how-
ever, it did not so stop them by exercising its option, and
if the owner went on excavating the minerals, and does
endanger or injure the canal, he would necessarily be liable
to answer both to an interdict and to an action of damages,
because the condition that he shall not prejudice or endanger
the canal attaches primarily to the reservation to himself
of the minerals with the power to remove them. It was
however, not legitimate to convert the Canal Co.’s option
into an obligation resting upon it apart from option. It
would be an obligation to pay for minerals which it had not
demanded should remain in situ, and had not found it
necessary to stop the landlord from working. In his Lord-
ship’s view, such an obligation did not rest upon the respon-
dents. Viewed from another standpoint, it was not legiti-
mate to extinguish the Canal Co.’s option and to create in
its stead a right in the mineral owner to, it might be, large
compensation upon the footing that an option which had
not, in fact, been exercised ought to have been exercised.
The owner of the minerals had no such right as was thus
attempted to be created, and the Statute did not confer upon
him a power of demanding compensation for minerals, not-
withstanding that his working thereof was not arrested. His
obligations remained entirely where the Statute put them—
namely, not to injure or prejudice the canal by his work-
ings ; and, secondly, to bear the responsibility for interdict or
damages if he does so, with the added responsibility that if
the injury or damage is wilful the repair may be under-
taken by the Canal Co. at his cost. As to the contention
that the respondents did in fact stop the appellant from
working the mineral under or near to the canal, he was of
opinion that the correspondence did not do so. The result
so reached dispensed with any determination of the interest-
ing point as to whether shale was within the category of
minerals in the Statute of 1817, or at the subsequent dates
which were put forward as those of the actual contract of
parties. Incidentally it also disposed of what occurred in
the case on the matter of the relevancy of the action. The
Lord Ordinary repelled the plea against relevancy, and the
cross-appeal is on that subject. All this was now simply a
step in the course of the litigation; and as to the cross-appeal
no order need be made. He moved that the judgment
appealed from should be affirmed, and that the respondents
should be found entitled to the costs of the appeal and of
the cross-appeal both here and in the Courts below.

Lords Kinnear, Atkinson, and Parker concurred.

Mr. Clyde, K.C., said he was in some doubt as to the
effect of the decision. If the judgment of the Court below
was affirmed, that affirmed the proposition that shale was
not a mineral under the Canal Act of 1817.

Lord Atkinson said that was exactly what they did not
want to do. In the circumstances, he would move that the
judgment appealed from be affirmed, save as regards those
particulars to be mentioned in the formal order to be
drawn up, and that the respondents have the cost of the
appeal, both here and below, and the costs of the cross-
appeal.

The appeal was dismissed, and the judgment of the Court
of Session affirmed in the manner suggested by Lord
Atkinson.

April 28.

Before Lord Dunedin, Lord Kinnear, Lord Atkinson, Lord
Shaw of Dunfermline, and Lord Parmoor.

Workmen’s Compensation: Accident to Unauthorised
Shot-Firer.

Smith v. Fife Coal Co. Limited.—This appeal was brought
from a decision of the Second Division of the Court of Session
in Scotland on a case stated by the Sheriff-Substitute of Fife
and Kinross under the Workmen’s Compensation Act. On
June 28, 1912, the appellant, in discharge of his duty as a
miner in the Benarty pit of the respondents, prepared a hole
at his working place there for blasting, by placing the charge
and detonator therein, and then packing the charge. Follow-
ing the practice in the mine, although the practice w’as
unknown to the management, the appellant, acting upon the
instructions of Howard, the shot-firer, connected the deto-
nator wire to the cable. The appellant, after connecting the
cable to the charge, was proceeding to a place of safety in
reliance upon the shot firer’s ascertaining that the appellant
had taken shelter before he fired the shot. The Sheriff-
Substitute found that the appellant received personal injury
by accident arising out of and in the course of his employ-
ment, and awarded him compensation. The Second Divi-
sion held that there was no evidence to support the finding
of the arbitrator, and recalled his award.

Lord Dunedin, in the course of his judgment, recalled the
judgment in the case of Plumb. Taking the phrase as a
test, and not as a definition, it might be conceded that if the
accident was due to the man’s arrogating to himself duties
which he was not called on to perform, and which he had no
right to perform, then he was acting out of the sphere of
his employment, and the injury by accident did not arise out
of his employment. The sole question is, Was this so in
this case? In the case of Kerr v. Baird the miner arranged
a shot and fired it entirely by himself. It was held rightly
that the accident was due to the action of the man, and that
such action consisted in taking upon himself duties which he
had no right to perform. Here, on the contrary, the miner
did not arrange and fire the shot. One part of the compo-
site action was his duty to insert and stem the detonator,
and that he did. The next step—the connecting of the deto-
nator wire to the cable—he had no business to do, and in
doing it he did something which was not in the sphere of his
employment. But two more stages were necessary before
they arrived at the explosion which caused the injury and
formed the accident—namely, the connecting of the cable to
the battery and the putting the battery into efficient action
by the turning of the handle, and both these stages were
done by the shot-firer. In the circumstances his Lordship
said he could not bring himself to see that the efficient cause
of the accident was connected with the arrogation of
unauthorised duty by the miner. The question of fact
which had to be answered was this : Did the injury to the
appellant arise out of the illicit and unauthorised action of
the appellant? The answer to that, so far as the action of
the appellant consisted in coupling the wire, was “ No.”
The injury arose from the premature explosion, and that
premature explosion was caused by the action of the shot-
firer. His Lordship was therefore of opinion that the view
of the facts taken by the arbitrator was correct, and that his
finding should be restored.

Lord Kinnear, Lord Atkinson, and Lord Shaw of Dun-
fermline concurred; Lord Farmoor gave judgment to the
same effect.

Workmen’s Compensation : Chill Caught in a Mine.

Coyle or Brown v. John Watson Limited.—This was an
appeal from a decision of the Second Division of the Court
of Session in Scotland under the Workmen’s Compensation
Act on a case stated by the Sheriff-Substitute of Lanark-
shire. On June 26, 1911, John Brown was at work in the
respondents’ Gilbertfield Colliery, Cambuslang. In conse-
quence of a wreck in shaft No. 2, which was the upcast shaft
for ventilation, and which was the workmen’s usual exit
from the place where Brown worked, he was told by an
official of the pit to leave the pit by the communication road
to the shaft of No. 1 pit, which was the downcast shaft.
This led him to a mid-landing of the shaft of No. 1 pit,
where he had to wait an hour and a half. On the follow-
ing day he was unable to start work on account of illness
due to a chill incurred on the previous day. Pneumonia
supervened, and he died on July 3, 1911. He left a widow
and several children. The Sheriff-Substitute found that
Brown died from the effects of injuries by accident received
by him in the course of his employment, and awarded com-
pensation to his widow and children. The Second Division
held that there was no evidence to support this finding, and
recalled the award.

In delivering judgment Lord Dunedin said, on the assump-
tion that the case of Drylie was well decided, he was of
opinion that this case was ruled by that. Here, as there,
they had an accident interfering with the normal working
of the mine, a consequential exposure of the w’orkman to
rigorous climatic conditions for a prolonged period, which
exposure would not have been his fate but for the accident,
and a finding of fact that the supervening illness was due
to this prolonged exposure. There was no intervening cir-
cumstance, depending on some cause other than the accident,
which occurred to break that chain of causation. In the case
of McLuckie v. Watson the wetting which brought on the
chill was not a necessary cause of the accident, but was due
to the workman’s determination not to wait his turn for the
cage, but to stand in water in order to get in front of his
fellows. He therefore thought that the present appeal
should be allowed, and the award of the arbitrator restored.

Lord Kinnear concurred.

Lord Atkinson, Lord Shaw of Dunfermline, and Lord
Parmoor gave judgment to the same effect, their Lordships
being of opinion that the case was indistinguishable from the
case of the Alloa Coal Company v. Drylie.

SUPREME COURT OF JUDICATURE.

COURT OF APPEAL.—April 21.

Before the Lord Chief Justice, Lord Justice Phillimore,
and Mr. Justice Lush.

Readiness to Load.

London Traders’ Shipping Company Limited v. The
General Mercantile Shipping Company Limited. — The
defendants in this case appealed from the decision of Mr.
Justice Scrutton. The plaintiffs were owners of the steamer
“ Transport.” In April, 1912, the ship was on a voyage to
Bahia with a cargo of coal, and on April 10 was chartered
by the defendants. It was a condition of the charterparty
that it should be liable to be cancelled at the defendants’
option if the ship was not ready to load by June 30, 1912.
Because of bad weather there were delays in discharging the
cargo of coal at Bahia, and to save the charter the ship-
owners bought from the consignees what was left undis-
charged of the cargo of coal, and steamed to San Lorenzo,
the port named for loading. Some 100 tons of coal were
thrown overboard as there was no time to discharge it, and
the rest was transferred from the holds to the bunkers and
decks. The holds were cleared by 6 p.m. on June 30, 1912,
and a survey was held and certificates given that the vessel
was ready to receive cargo. It was contended on behalf of
the appellants that on June 30 some of the coal was still
cargo and not bunker coal, though afterwards it was
used as bunker coal; and the charterparty required the
outward cargo to be discharged before the vessel could be
ready to load. They therefore claimed the right to cancel
the charterparty.

The Court dismissed the appeal.

The Lord Chief Justice said that the shipowner clearly
made up his mind to do everything in his power to prevent
the charterer from having the right to exercise his option to
cancel the charter. Bather than lose the value of his
charter, the master threw overboard between 60 and 100 tons
of coal, that being the quantity in excess of that which he
thought could reasonably be required to take the vessel
home. That excess might have had to be treated as cargo.
He was satisfied that the vessel was ready to load at the
proper time.

Lord Justice Fhillimore, in concurring, said that the
decision of the Court must not be deemed to whittle down
the general duty of the shipowner to have all outward
cargo discharged when he presented his vessel to receive
the homeward cargo, unless in special circumstances, or
when dealing with a particular cargo the loading and unload-
ing could continue simultaneously. They held that none of
the coal was cargo on June 30.

Mr. Justice Lush concurred.

April 23.

Before the Master of the Bolls, Lords Justices Swinfen
Eady, and Pickford.

Alleged Coaldust Nuisances.

Woodman v. The Pwllbach Colliery Company Limited.—

This was an appeal by the plaintiff against an order of
Mr. Justice Horridge and a special jury at Cardiff. Plaintiff
was a. butcher, carrying on business at Ystalyfera, and
brought his action against the colliery proprietors for an
injunction to restrain them from causing a nuisance to his
shop, slaughterhouse, stables, and a row of houses, through
deposits of coaldust which plaintiff said came from the defen-
dants’ workings in the screening and washing of coal. He
also asked for damages against the company. The jury
found that the defendants did cause a nuisance which
affected plaintiff’s slaughterhouses, etc., but not the row of
small houses or cottages which belonged to him. These
findings were considered bv Mr. Justice Horridge on points
of law in London, and his Lordship decided in favour of the
defendants with general costs, but held that on the issue of
nuisance plaintiff was entitled to his costs.

Their Lordships, in giving judgment, decided there was
nothing in the language of the deeds on which the defen-
dants relied in the working of their colliery which entitled
them to emit coaldust so as to cause a nuisance oyer adjoin-
ing businesses and lands. There would be an injunction to
restrain the defendants from carrying on the operations of
screening and washing coal so as to cause a nuisance to the